Karnataka High Court
Sri Mohan Kumar vs State Of Karnataka on 13 June, 2023
Bench: K.Somashekar, Rajesh Rai K
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CRL.A No. 1532 of 2018
C/W CRL.A No. 1550 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1532 OF 2018
C/W
CRIMINAL APPEAL NO. 1550 OF 2017
IN CRL.A.1532/2018:
BETWEEN:
MANJUNATHA
Digitally S/O NAGARAJU
signed by D
K BHASKAR AGED ABOUT 31 YEARS
Location: OCC: CAR DRIVER
High Court R/AT NO.24, 2ND CROSS
of Karnataka KRISHNA LAYOUT
DEVARACHIKKANAHALLI VILLAGE
BANNERUGHATTA ROAD
BENGALURU-560076.
...APPELLANT
(BY SRI. G M SRINIVASAREDDY - ADVOCATE)
AND:
STATE OF KARNATAKA
R/BY BANNERUGHATTA P.S
THOURGH STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE - ADDL. SPP)
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CRL.A No. 1532 of 2018
C/W CRL.A No. 1550 of 2017
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 28/29.08.2017
PASSED BY THE LEARNED III-ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BANGALORE RURAL DISTRICT, SIT AT
ANEKAL IN S.C.NO.5021/2014 AND ACQUIT THE APPELLANT /
ACCUSED FOR THE CHARGED OFFENCES.
IN CRL.A.1550/2017:
BETWEEN:
SRI. MOHAN KUMAR
AGED ABOUT 31 YEARS
S/O LATE VENKATAPPA
R/O KARIAPPANAHALLI VILLAGE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE RURAL DISTRICT.
...APPELLANT
(BY SRI. C V NAGESH - SR. COUNSEL FOR
SRI. RAGHAVENRA K - ADVOCATE)
AND:
STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
BANNERGHATTA POLICE STATION
ANEKAL TALUK
BANGALORE RURAL DISTRTICT.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE - ADDL. SPP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 28/29.08.2017
PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, SIT AT ANEKAL IN
S.C.NO.5021/2014 - HOLDING THE APPELLANT GUILTY OF THE
OFFENCE P/U/S 114, 120(B), 302 AND 201 OF IPC AND
SENTENCE HIM TO UNDERGO LIFE IMPRISONMENT FOR A
PERIOD OF SEVEN YEARS AND TO PAY A FINE OF RS.10,000/-
AND IN DEFAULT OF PAYMENT OF FINE, TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF SIX MONTHS FOR EACH
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ONE OF THE OFFENCES WHICH ARE MADE PENAL UNDER
SECTIONS 114 AND 120-B OF IPC AND TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF TEN YEARS AND
TO PAY A FINE OF RS.15,000/- AND IN DEFAULT OF PAYMENT
OF FINE, TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF NINE MONTHS FOR THE OFFENE PUNISHABLE UNDER
SECTION 201 OF THE IPC AND TO UNDERGO IMPRISONMENT
FOR LIFE AND TO PAY A FINE OF RS.20,000/- AND IN DEFAULT
OF PAYMENT OFF FINE, TO UNDERGO SIMPLE IMPRISONMENT
FOR A PERIOD OF ONE YEAR FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC , WHILE ORDERING THE
SENTENCES OF IMPRISONMENT IMPOSED UPON THE
APPELLANT CONCURRENTLY AND FURTHER BE PLEASED TO
ORDER HIS ACQUITTAL IN RELATION TO THE CHARGES THAT
ARE LEVELLED AGAINST HIM IN THE CASE.
THESE CRIMINAL APPEALS, COMING ON FOR HEARING,
THIS DAY, K. SOMASHEKAR .J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals are directed against the judgment of
conviction and order of sentence rendered by the Court of the
III Addl. District & Sessions Judge, Bengaluru Rural District
sitting at Anekal in S.C.No.5021/2014 dated 28.08.2017.
2. By the said judgment, the Trial Court had convicted
the appellant in Crl.A.No.1532/2018 / Manjunatha, S/o.
Nagaraju who is arraigned as Accused No.3 in
S.C.No.5021/2014 for offences punishable under Sections
120B, 302 and 201 of the Indian Penal Code, 1860 (hereinafter
referred to as 'the IPC', for brevity); he was sentenced to
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undergo imprisonment for life and to pay a fine of Rs.20,000/-
for the offence punishable under Section 302 IPC, along with
default clause; further, he was sentenced to undergo rigorous
imprisonment for a period of 10 years and to pay a fine of
Rs.15,000/- for the offence punishable under Section 201 IPC
along with default clause; and he was further sentenced to
undergo rigorous imprisonment for a period of 7 years and to
pay a fine of Rs.10,000/- for the offence punishable under
Section 120B of the IPC along with default clause. All the
sentences were ordered to run concurrently.
3. The Trial Court had convicted the appellant in
Crl.A.No.1550/2017 / Mohan Kumar, S/o. late Venkatappa who
is arraigned as Accused No.1 in S.C.No.5021/2014 for offences
punishable under Sections 114, 120B, 302 and 201 of the IPC;
he was sentenced to undergo imprisonment for life and to pay
a fine of Rs.20,000/- for the offence punishable under Section
302 IPC, along with default clause; further, he was sentenced
to undergo rigorous imprisonment for a period of 10 years and
to pay a fine of Rs.15,000/- for the offence punishable under
Section 201 IPC along with default clause; further he was
sentenced to undergo rigorous imprisonment for 7 years and to
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pay a fine of Rs.10,000/- for the offence punishable under
Section 114 IPC along with default clause; and he was further
sentenced to undergo rigorous imprisonment for a period of 7
years and to pay a fine of Rs.10,000/- for the offence
punishable under Section 120B of the IPC along with default
clause. All the sentences were ordered to run concurrently.
4. The appellant in Crl.A.No.1532/2018 / Accused No.3
and the appellant in Crl.A.No.1550/2017 / Accused No.1 have
preferred these appeals seeking to set aside the common
judgment of conviction rendered by the Trial Court and
consequently to acquit them for the alleged offences and to set
them at liberty. However, Accused No.2 / Harisha @ Kunta has
not chosen to prefer an appeal challenging the said common
order in S.C.No.5021/2014 dated 28.08.2017.
5. Since both these appeals arise out of a common
judgment rendered by the Trial Court, they are taken up for
hearing together and are disposed of by this common
judgment.
6. Heard the learned Senior Counsel Shri C.V. Nagesh for
Accused No.1 / appellant in Crl.A.No.1550/2017 and so also the
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learned counsel Shri G.M. Srinivasareddy for Accused No.3 /
appellant in Crl.A.No.1532/2018 inclusive of the learned Addl.
SPP for the State. Perused the impugned judgment of
conviction and order of sentence rendered by the Trial Court in
the aforesaid case in S.C.No.5021/2014.
7. Factual matrix of these appeals are as under:
It transpires from the case of the prosecution that Smt.
Rajamma being the mother of the deceased Ravishankar, had
lodged a missing complaint in terms of a report as on
04.09.2013 about her son, an auto-rickshaw driver who was
not to be heard of since 02.09.2013 after he had left home by
driving his autorickshaw. After a lapse of 7 days, a written
complaint was lodged by her with the respondent /
Bannerghatta P.S. The first accused is Mohan Kumar, who is
none other than Rajamma's son and step-brother of deceased
Ravishankar, who being a suspect, he was apprehended by the
Investigating Agency. On interrogation, he had made a
disclosure about the participation of Accused Nos.2 and 3 along
with himself in killing the deceased. Hence, accused Nos.2 and
3 were arrested and were remanded for three days by the
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police for the purpose of investigation. Accused Nos.1 and 3
were investigated by the Investigating Agency and on their
disclosure relating to the incident about Ravishankar, his dead
body was recovered after digging the mud near a Eucalyptus
plantation. The said recovery was held in the presence of the
Taluk Executive Magistrate / Tahsildar of Anekal. Based upon
the direction in terms of the order issued by the Sub-Divisional
Magistrate in the rank of Assistant Commissioner, the Executive
Magistrate had exhumed the dead body of Ravishankar and
thereafter inquest was held over the dead body in the presence
of panch witnesses. After exhuming the dead body of
Ravishankar, the mother of the deceased namely Rajamma and
the wife of the deceased namely Sudha, had identified his dead
body. The dead body of Ravishankar was thereafter sent to the
mortuary for conducting autopsy over the dead body. After
investigation, the Investigating Officer laid the charge-sheet
against the accused persons before the Committal Court
relating to the offences punishable under Sections 302, 201,
120-B and 114 of the IPC. The Committal Court issued
summons to the first accused, who appeared before Court and
obtained regular bail.
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8. On securing the accused in order to face trial relating
to the aforesaid offences, heard the learned Public Prosecutor
and so also the learned Defence counsel for the accused and on
a perusal of the material secured by the I.O. and on finding
prima facie material, charges were framed against the accused
for the aforesaid offences. However, the accused had declined
the charges levelled against him and pleaded not guilty and
claimed to be tried. Subsequently, the case was let in for trial
and accordingly, the prosecution subjected to examination in all
27 witnesses as PW-1 to PW-27 and got marked several
documents at Exhibits P1 to P30 and so also got marked
material objects namely MOs 1 and 2. After completion of the
evidence on the part of the prosecution and so also on the part
of the defence, incriminating statements as hit under Section
313 Cr.P.C. were recorded, wherein the accused denied the
evidence facilitated by the prosecution. Subsequent to
recording incriminating statement under Section 313 Cr.P.C.,
the accused were called upon to adduce any defence evidence
as contemplated under Section 233 Cr.P.C., but the accused did
not come forward to adduce any oral evidence or subjected to
examination any defence witness. During the course of cross-
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examination of certain witnesses, the contradictory statements
have been got marked at Exhibits D1 to D5.
9. Subsequent to closure of the evidence of the
prosecution and so also the defence counsel, the Trial Court
heard the arguments advanced by the prosecution in order to
prove the guilt against the accused persons and mainly the
Trial Court had banked upon the evidence and also the contents
of the panchanama at Exhibit P1 wherein the signature of PW-1
and signature of PW-2 inclusive of PW-25 were obtained.
Seizure panchanama at Exhibit P2 was held in the presence of
PWs 1, 2 and 3. Exhibit P3 is another panchanama which was
held in the presence of PWs 4 and 5 and PW-25 and bears their
signatures. Several panchanamas have been held by the
Investigating Officer during the course of investigation. The
Inquest report is at Exhibit P6 which was held in the presence
of PW-8 and PW-26, who have subscribed their signatures.
PWs 10, 11, 12, 13 and 14 have been subjected to examination
on the part of the prosecution but they did not support the case
of the prosecution to any extent in their statement.
Consequently, the contradictory statements have been got
marked at Exhibits P7 to P11. These are all the evidence which
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have been let in by the prosecution. But the Trial Court had
banked upon the aforesaid evidence and arrived at a conclusion
that the prosecution has proved the guilt against the accused.
Exhibit P14 is the sketch report which has been prepared by the
competent authority, which bears the signature of PW-16.
10. The post mortem report at Exhibit P17 was issued by
PW-20 being a Doctor. PW-27 has also subscribed his
signature. The FSL report at Exhibit P18 has been got marked
on the part of the prosecution, which bears the signature of
PW-20. Accused No.2 has not preferred any appeal and there
is no information as such relating to challenging the judgment
of conviction rendered against the aforesaid accused, but he
had given a confession statement which is marked as Exhibit
P23. Similarly, Accused No.3 has also given confession
statement which is got marked as Exhibit P24. Accused No.1 /
Mohan Kumar who had also given confession statement is
marked at Exhibit P26. These are the statements which have
been recorded during the course of investigation, which is
termed as disclosure statement. But Section 27 of the Indian
Evidence Act, 1872 states that when any fact is deposed to as
discovered in consequence of information received from the
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accused who is in the custody of the police, the said
information whether it amounts to confession or not, as relates
distinctly to the fact thereby discovered, may be proved, which
appreciation is vested with the Trial Court. Section 3 of the
Indian Evidence Act relates to 'proved', 'dis-proved' and 'not-
proved' relating to the facts which find place in the charge-
sheeted material. These are the disclosure statement or
confession statement given by Accused Nos.1, 2 and 3. But
accused Nos.2 and 3 who are the co-accused, on the
provocation of Accused No.1 / Mohan Kumar had committed
the alleged incident, according to the material which have been
secured by the I.O. during the course of investigation.
11. But, after a lapse of a period of 20 days, the dead
body was exhumed and criminal prosecution was launched on
receipt of a complaint as per Exhibit P1 which was made by
PW-1 / Rajamma who is the mother of the deceased
Ravishankar and similarly, she was also the mother of Accused
No.1 / Mohan Kumar. It has come in evidence that the
complainant Rajamma had first married one Venkatappa and
through Venkatappa, she gave birth to Accused No.1 / Mohan
Kumar. But subsequent to that, she left the company of
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Venkatappa and started to lead her life with one Motappa and
through Motappa, gave birth to Ravishankar / deceased.
Hence, both Accused No.1 / Mohan Kumar and deceased /
Ravishankar were the sons of Rajamma and were related to
each other as step-brothers. Rajamma had filed a complaint
against Mohan Kumar suspecting him since there were disputes
between step-brothers in respect of which property suit was
filed by the plaintiff against the defendant before the Court of
the Civil Judge (Jr.Dn), Anekal, which is marked at Exhibit P28,
and P29. The case in O.S.No.562/2007 was instituted by the
plaintiff against the defendant for partition of the properties
depicted therein. Hence, it is revealed that there was an ill-will
and animosity which had developed by Mohan Kumar with his
step-brother Ravishankar. The deceased Ravishankar by
avocation was a driver and he was driving the auto-rickshaw on
the fateful day. With the assistance of Accused Nos.2 and 3
and by hatching a criminal conspiracy among themselves,
Accused Nos.1, 2 and 3 had taken the deceased Ravishankar to
an isolated place, where they had strangulated his neck with
means of a nylon rope and committed his murder. But the
rope was not detected and hence was not secured by the I.O.
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during the course of investigation and the same was not got
marked on the part of the prosecution. But MO-1 / Iron Hare
and MO-2 / Guddali alleged to be used by the accused in the
burial place from where the dead body of Ravishankar was
exhumed after 28 days, were recovered. But PW-18 / M.
Narayana S/o. Muniyappa is said to have accompanied
Rajamma initially to lodge a complaint regarding missing of
Ravishankar. PW-18 is said to be the brother of the
complainant Rajamma. But PW-18 being a witness cited in the
charge-sheeted material, was subjected to examination on the
part of the prosecution relating to the concept of 'last seen
theory' in respect of Accused Nos.1, 2 and 3 having been with
deceased Ravishankar. But this witness even though has been
subjected to examination, he did not withstand his own
statement. A cursory glance of the entire evidence inclusive of
the cross-examination done by the defence counsel, reveals
that his evidence is contradictory and inconsistent. Hence, his
evidence does not repose any confidence as regards the last
seen theory and does not support the case of the prosecution.
Despite of the said fact, the Trial Court had come to the
conclusion by referring to several decisions and has rendered a
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conviction for the offences stated supra which is reflected in the
operative portion of the order.
12. PW-4 and PW-25 have been subjected to examination
on the part of the prosecution relating to recovery of the dead
body of Ravishankar and Exhibit P3 / panchanama and Exhibit
P6 / Inquest report, were held in the presence of panch
witnesses namely PW-4 and PW-25 who have been secured by
the I.O. Merely because that mahazar has been conducted by
the I.O., unless the contents in the mahazar are established by
the prosecution without any room for doubt, it cannot be
accepted as a whole as gospel truth as regards the contents in
Exhibit P3 and P6. These are the contentions made by the
learned Senior Counsel Shri C.V. Nagesh for the appellant in
Crl.A.No.1550/2017 relating to Accused No.1 / Mohan Kumar.
However, the learned Senior counsel mainly concentrates on
the evidence of PW-18 / M. Narayana, who is a relative of the
complainant / Rajamma and also related to the deceased
Ravishankar as well as Accused No.1 / Mohan Kumar.
However, an examination of his evidence reveals that it is
completely camouflaged and somersault on the part of the
prosecution. This contention is made by the learned Senior
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counsel. On this count alone, the learned Senior counsel seeks
for intervention of the judgment of conviction and order of
sentence rendered by the Trial Court. If not intervened,
certainly it would result in a miscarriage of justice.
13. Similar contention has been made by the learned
counsel Shri G.M. Srinivasareddy in respect of Accused No.3
wherein this accused also had faced trial for offences
punishable under Section 302 in respect of the murder of
Ravishankar by strangulating his neck with means of a nylon
rope. But the rope having not been recovered nor got marked
on the part of the prosecution, whether that nylon rope was
used by Accused Nos.2 and 3 with the help of Accused No.1, is
itself doubtful. When doubt arises in the mind of the Court,
naturally that benefit of doubt should be accrued on the part of
the accused alone and not on the part of the theory set up by
the prosecution. Several witnesses have been subjected to
examination on the part of the prosecution to prove the guilt of
the accused. But PW-10 to 14 who have been subjected to
examination on the part of the prosecution, did not withstand
their statements relating to the contents in the First
Information Report given by the complainant. Based upon her
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complaint, criminal law was set into motion by recording the
FIR under Section 154 of the Cr.P.C. and thereafter statement
under Section 161 and 162 of the Cr.P.C. was recorded. But
the aforesaid witnesses have declined the statements made
before the I.O. during the course of investigation. That itself is
contradictory to the contents in the panchanama at Exhibit P1
and Seizure panchanama at Exhibit P2 and one more
panchanama at Exhibit P3 which have been held by the
Investigating Agency during the course of investigation. While
exhuming the dead body also, mahazar was held in the
presence of Taluk Executive Magistrate who is a responsible
person. PW-6, PW-7 and PW-8 have been examined on the
part of the prosecution and even the dead body has been
exhumed and proceeded further but they did not support the
case of the prosecution and there appears to be inconsistencies
and contradictions in their statements. On this ground also, it
requires intervention of the impugned judgment of conviction
and order of sentence. If not, certainly it would result in a
miscarriage of justice to the appellants / Accused Nos.1 to 3
respectively.
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14. The dead body of Ravishankar was exhumed as per
the instructions in terms of direction issued by the Assistant
Commissioner, Bangalore Rural District and based upon his
direction, the Taluk Executive Magistrate / Tahsildar of Anekal
Taluk had conducted a mahazar over the dead body of the
deceased Ravishankar but the entire body was decomposed
and it was difficult to arrive at the conclusion by the Doctor
relating to the cause of death. However, the PM report was
issued by the Doctor who was subjected to examination as
PW-20. Exhibit P-18 is the opinion report issued by the
concerned Doctor who conducted autopsy over the dead body.
Exhibit P18 indicates that white plastic stripe which was present
inside the neck was corresponding to the ligature mark on the
dead body of Ravishankar. However, the said plastic stripe is
not produced as evidence.
15. It is contended that though only skeleton was found
in the place where the dead body of Ravishankar was buried
while exhuming his body, there is no information as regards
any bone material collected from the skeleton and performing
DNA analysis by the concerned FSL to identify whether the
dead body belonged to Ravishankar who is the brother of
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Accused No.1 and son of the complainant Rajamma. These are
all the contentions made by the learned Senior Counsel for the
appellant / Accused No.1 and similar contention is made by the
learned counsel for the appellant / Accused No.3. Hence, it is
stated that the entire theory set up by the prosecution is found
to be camouflaged and somersault. However, the learned
counsel for the appellant in both appeals / Accused Nos.1 and 3
have specifically contended that the dead body was buried by
Accused Nos.2 and 3 with the help of Accused No.1 in a
Eucalyptus grove. But certain portion of the bone was said to
be protruding outside the land and was thus exposed. This
contention was made by the learned counsel Shri G.M.
Srinivasareddy and similar contention was also made by the
learned Senior Counsel for the appellant. These are the
evidence let in by the prosecution. Hence, the prosecution
theory and evidence do not repose confidence that the accused
had committed murder of the deceased Ravishankar by
strangulating with the rope alleged to be used by accused
persons. On all these grounds urged, learned counsel for
appellants pray that the judgment of the Trial Court be set
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aside and the appellants / accused be acquitted of the alleged
offences.
16. On the contrary, learned Addl. SPP for the State has
taken us through the contents of the panchanama and taken us
through the evidence of PW-18 / M. Narayana who is said to be
the witness who was subjected to examination in respect of last
seen theory on the part of the prosecution. It is further
submitted that the dead body of Ravishankar had been
exhumed in the presence of the Taluk Executive Magistrate /
Tahsildar and in the presence of PW-4 and PW-25. Hence, the
recovery of dead body of deceased cannot be denied by the
accused persons.
17. Further, the learned Addl. SPP has taken us through
the evidence of PW-8, PW-10 and PW-15 wherein the dead
body of Ravishankar had been identified and several witnesses
had been subjected to examination on the part of the
prosecution to prove the guilt against the accused. However,
merely because many witnesses were subjected to
examination, the theory of the prosecution that the accused
had alone committed the murder of the deceased Ravishankar
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by strangulating his neck by means of a nylon rope, cannot be
accepted as gospel truth. As per the direction issued by the
Sub-Divisional Magistrate in the rank of Assistant
Commissioner, the Tahsildar / Taluk Executive Magistrate had
conducted mahazar over the dead body on 26.09.2013 after
the body was exhumed. There is a delay, which delay has not
been explained by the prosecution to consider their evidence.
18. Though the prosecution has examined several
witnesses and got marked several documents in support of its
case, no worthwhile evidence has been let in to prove the guilt
against the accused. On this count also, it requires to set aside
the judgment of conviction and order of sentence rendered by
the Trial Court.
19. Accused Nos.1 and 3 have preferred these appeals.
Accused No.2 is also a co-accused along with Accused Nos.1
and 3 to have committed the said act complained of. However,
Accused No.2 has not chosen to prefer any appeal against the
judgment of conviction and sentence rendered by the Trial
Court. Accused No.2 was also convicted for the very same
offences and was sentenced to undergo imprisonment similarly
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as that of Accused No.3 and his role also is similar to that of
the role of Accused No.3.
20. As regards the last seen theory, it requires
corroboration. The accused person cannot be convicted solely
on the evidence of last seen together with the deceased.
Therefore, in the instant case, it is required to refer to the
reliance in the case of Navaneethakrishnan vs. State by
Inspector of Police (AIR 2018 SC 2027)).
In the instant case, PW-18 / M. Narayana had been
subjected to examination relating to last seen theory set up by
the prosecution. He had stated that Accused Nos.2 and 3 who
are the co-accused, had accompanied the deceased
Ravishankar in the auto-rickshaw belonging to the deceased to
the Eucalyptus grove where the dead body of Ravishankar was
buried and later exhumed in the presence of panch witnesses.
PW-18 who has been subjected to examination relating to the
last seen theory, had also accompanied the complainant /
Rajamma to the police station to register a missing complaint.
But Rajamma has not whispered about the role of Accused No.1
/ Mohan Kumar though being the author of the complaint
lodged with the Jurisdictional Police. Deceased Ravishankar
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was the step-brother of Mohan Kumar. There was a civil
dispute which emerged between the parties. PW-9 / Sudha
who is the wife of the deceased Ravishankar has been
subjected to examination. A cursory glance of the evidence of
PW-9 runs contrary to the evidence of Rajamma who had been
subjected to examination. Even though the last seen theory
has been set up by the prosecution, there is no corroboration to
consider that the accused are deserving for conviction.
21. The material on record reveals that auto rickshaw KA-
02 / B 6541 was used by Accused Nos.2 and 3 along with the
deceased Ravishankar, to proceed to the place where the body
of Ravishankar was buried after committing his murder.
However, the said auto-rickshaw belonged to one Balaji but it
was in the possession of Mohan Kumar. But there is no specific
evidence that the said auto-rickshaw was used by Accused
Nos.2 and 3 who had accompanied Ravishankar to the place of
burial, that is Eucalyptus grove. These are the evidence let in
on the part of the prosecution, but there is no specific evidence
to prove the guilt against the accused. The dead body of
Ravishankar was decomposed and the same has been noticed
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by the Doctor. The delay in exhuming the dead body is almost
all 3 days and more importantly, the nylon rope alleged to be
used by the accused to strangulate his neck, has not been
recovered. Though it is stated in the PM report that there was
ligature mark around the neck but any material such as rope
has not been recovered in order to convict Accused Nos.1 to 3.
Even relating to offences under Section 114 IPC, or Section 120
B of the IPC relating to conspiracy, there is no specific evidence
on the part of the prosecution to prove the guilt against the
accused as regard to conspiratorial meetings having been
conducted among the accused persons. Further, the
ingredients of Section 302 IPC and more so, the motive and
intention and preparation and in terms of mens rea and actus
rea have not been properly established by the prosecution by
producing cogent and corroborative evidence in order to convict
the accused. But in the criminal justice delivery system, the
domain is vested with the prosecution to prove the guilt of the
accused beyond all reasonable doubt. There should not be any
doubt crept in the mind of the Trial Court. Unless fortified
evidence is facilitated by the prosecution, it cannot arise for the
Trial Court to convict the Accused.
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22. It is well-known principle of law that reliance can be
based on the solitary statement of a witness if the court comes
to the conclusion that the said statement is the true and correct
version of the case of the prosecution. This issue has been
extensively addressed by the Hon'ble Supreme Court in the
case of Raja v. State (1997) 2 Crimes 175 (Del).
Therefore, the domain is vested with the prosecution to
prove the guilt of the accused by facilitating worthwhile
evidence, which should not give any room for doubt in the
theory put forth by the prosecution for convicting the accused.
It is the quality of evidence and not the quantity of evidence
which is required to be judged by the court to place credence
on the statements of witnesses and material evidence
facilitated, in order to prove the guilt of the accused. But the
plurality of witnesses in the matter of appreciation of evidence
of witnesses is the domain vested with the Trial Court alone. It
is not the number of witnesses but the quality of their evidence
which is an important, as there is no requirement in law of
evidence that any particular number of witnesses are to be
examined to prove / disprove a fact. The evidence must be
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weighed and not counted. Further, the test is whether the
evidence has a ring of trust, is cogent, credible and trustworthy
or otherwise. Whereas the legal system has laid emphasis on
value provided by each witness, rather than the multiplicity or
plurality of witnesses. It is the quality and not quantity, which
determines the adequacy of evidence as has been provided by
Section 134 of the Indian Evidence Act, 1872. The same has
been observed by the Hon'ble Supreme Court in the case of
Laxmibai (Dead) through LRs vs. Bhagwantbura (Dead)
through LRs reported in AIR 2013 SC 1204.
23. In the peculiar facts and circumstances of the matter
and in the totality of circumstances, it is relevant to refer to the
judgment in the case of Lalit Kumar Sharma and Ors. Vs.
Superintendent and Remembrancer (AIR 1989 SC 2134),
wherein it is held that the power of an Appellate Court to
review evidence in appeals against acquittal is as extensive as
its powers in appeals against convictions, but that power is with
a note of caution that the appellate Court should be slow in
interfering with the orders of acquittal unless there are
compelling reasons to do so.
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24. It is further relevant to refer to the judgment of the
Hon'ble Apex Court in the case of Sharad Birdhichand Sarda
vs. State of Maharashtra reported in (1984) 4 SCC 116 ::
AIR 1984 SC 1622 wherein it is held as under:
"Evidence-Circumstantial evidence - Onus on
Prosecution to prove that chain is complete -
Infirmity or lacuna in prosecution cannot be cured by
false defence or plea"
The following conditions must be fulfilled before a
case against an accused based on circumstantial
evidence can be said to be fully established:
1. The circumstances from which the conclusion
of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and
not may be 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
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accused and must show that in all human probability
the act must have been done by the accused."
25. Further, it is relevant to refer to the judgment in the
case of RAM NIWAS vs. STATE OF HARYANA (CRL.A.No.25
OF 2012). In the said judgment, the Hon'ble Supreme Court
has extensively addressed the concept of 'extra-judicial
confession' made by accused to the witnesses at paragraph 15.
The said paragraph 15 of the judgment reads thus:
15. The prosecution relies on the extra-judicial
confession made by the accused/appellant Ram Niwas to
these witnesses. This Court in the case of S. Arul Raja vs.
State of Tamil Nadu ((2010) 8 SCC 233), after considering
the earlier judgments of this Court, has observed thus:
"48. The concept of an extra-judicial confession is
primarily a judicial creation, and must be used with
restraint. Such a confession must be used only in limited
circumstances, and should also be corroborated by way of
abundant caution. This Court in Ram Singh vs. Sonia
[(2007) 3 SCC 1 : (2007) 2 SCC (Cri) 1] has held that an
extra-judicial confession while in police custody cannot be
allowed. Moreover, when there is a case hanging on an
extrajudicial confession, corroborated only by
circumstantial evidence, then the courts must treat the
same with utmost caution. This principle has been
affirmed by this Court in Ediga Anamma vs. State of A.P..
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[(1974) 4 SCC 443 : 1974 SCC (Cri) 479] and State of
Maharashtra vs. Kondiba Tukaram Shirke [(1976) 3 SCC
775 : 1976 SCC (Cri) 514] . It is significant to observe that
A1 has subsequently sought to retract this statement upon
his arrival in Tamil Nadu."
In this judgment of Ram Niwas, the Hon'ble Supreme
Court has also referred to the case of Sharad Birdhichand
Sarda (supra), particularly to Paragraph 153 of the said
judgment, which reads thus:
153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may
be" established. There is not only a grammatical but a
legal distinction between "may be proved" and "must be or
should be proved" as was held by this Court in Shivaji
Sahabrao Bobade vs. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made : [SCC para 19, p. 807 : SCC
(Cri) p. 1047]
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
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convict and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
These are the evidence which are required to be referred
by appreciating the evidence on the part of the prosecution.
On a totality of the circumstances of the entire case, we find
that the entire evidence on record is found to be camouflaged,
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creating doubt in the mind of the Court whether the accused
deserve conviction.
26. Contrary to the contentions of the learned Senior
Counsel for Accused No.1 and the learned counsel for Accused
No.3, the learned Addl. SPP has taken us through the evidence
of the prosecution and has supported the judgment of
conviction and order of sentence rendered by the Trial Court.
Though he has supported the said judgment, the evidence
which finds place on record must be cogent, consistent and
there must be sound and justifiable reason to convict the
accused. If doubt arises in the mind of the Court and
mitigating circumstances arise, it must be accrued in favour of
the accused alone. In the instant case, the Trial Court has
misdirected and misread the evidence on record and has
convicted the accused persons. Hence, the judgment of the
Trial Court calls for interference in these appeals. If the same
is not interfered, it would result in a miscarriage of justice.
Hence, we are of the opinion that the accused persons must be
acquitted of the alleged offences.
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27. In the meanwhile of dictation of this judgment, it is
submitted by the learned Senior Counsel Shri C.V. Nagesh that
Accused No.2 / Harisha @ Kunta, S/o. late Rajappa who had
also faced trial along with Accused Nos.1 and 3, has also been
convicted by the Trial Court by the very same order in
S.C.No.5021/2014 dated 28.08.2017. Though Accused No.2 is
in incarceration, he has not filed any appeal challenging the
said judgment of conviction and sentence. In view of the fact
that the co-accused namely Accused Nos.1 and 3 are to be
acquitted in the appeals, he prays that the said benefit of
acquittal be extended to Accused No.2 who is in incarceration
as well. In support of his contention, learned Senior Counsel
produces a judgment of the Hon'ble Apex Court in the case of
SAHADEVAN AND ANR. Vs. STATE OF T.N. (AIR 2012 SC 2435),
wherein the relevant paragraph 41 of the said judgment is
extracted thus:
"41. It is very difficult to set any universal
principle which could be applied to all cases
irrespective of the facts, circumstances and the
findings returned by the Court of competent
jurisdiction. It will always depend upon the facts and
circumstances of a given case. Where the Court
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finds that the prosecution evidence suffers from
serious contradictions, is unreliable, is ex facie
neither cogent nor true and the prosecution has
failed to discharge the established onus of proving
the guilt of the accused beyond reasonable doubt,
the Court will be well within its jurisdiction to return
the finding of acquittal and even suo moto extend
the benefit to a non-appealing accused as well,
more so, where the Court even disbelieves the very
occurrence of the crime itself. Of course, the role
attributed to each of the accused and other
attendant circumstances would be relevant
considerations for the Court to apply its discretion
judiciously. There can be varied reasons for a non-
appealing accused in not approaching the appellate
Court. If, for compelling and inevitable reasons, like
lack of finances, absence of any person to pursue
his remedy and lack of proper assistance in the jail,
an accused is unable to file appeal, then it would
amount to denial of access to justice to such
accused. The concept of fair trial would take within
its ambit the right to be heard by the appellate
Court. It is hardly possible to believe that an
accused would, out of choice, give up his right to
appeal, especially in a crime where a sentence of
imprisonment for life is prescribed and awarded.
Fairness in the administration of justice system and
access to justice would be the relevant
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considerations for this Court to examine whether a
non-appealing accused could or could not be
extended the benefit of the judgment of acquittal.
The access to justice is an essential feature of
administration of justice. This is applicable with
enhanced rigour to the criminal jurisprudence.
Where the court disbelieves the entire incident of
the occurrence or where the role of the accused who
has not appealed is identical to that of the other
appealing accused or where the ends of justice
demand, the Court would not hesitate and, in fact,
is duty bound, to dispense justice in accordance
with law. The powers of this Court, in terms of
Articles 136 and 142 on the one hand and the rights
of an accused under Article 21 of the Constitution on
the other, are wide enough to deliver complete
justice to the parties. These powers are incapable of
being curtailed by such technical aspects which
would not help in attainment of justice in the
opinion of the Court. In light of the above principles,
this Court is required to consider the effect of these
judgments on the case of the non-appealing
accused in the present case"
28. On a perusal of the above judgment and having
regard to Articles 21, 136 and 141 of the Constitution of India,
we find justification in the contention of the learned Senior
Counsel and we are of the opinion that the benefit of acquittal
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ought to be extended to Accused No.2 who has not preferred an
appeal challenging the order of Trial Court, as well.
Accordingly, we proceed to pass the following:
ORDER
Crl.A.No.1550/2017 preferred by the appellant / Accused
No.1 and Crl.A.No.1532/2018 preferred by the appellant /
Accused No.3 under Section 374(2) of Cr.P.C., are hereby
allowed.
Consequently, the judgment of conviction and order of
sentence dated 28.08.2017 rendered by the III Addl. District &
Sessions Judge, Bengaluru Rural District sitting at Anekal in
S.C.No.5021/2014 is hereby set-aside. Consequent upon
setting aside the conviction judgment, Accused No.1 / Mohan
Kumar is hereby acquitted for offences punishable under
Sections 302, 201, 120B, 114 of the IPC, 1860 and Accused
No.3 / Manjunatha, is hereby acquitted for offences punishable
under Sections 302, 201, 120B of the IPC, 1860.
The accused No.3 / Manjunatha who is in incarceration, is
ordered to be set at liberty forthwith, if he is not required in
any other case.
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Accused Nos.1 and 3 have preferred criminal appeals
before the High Court of Karnataka challenging the judgment of
conviction and order of sentence rendered by the Trial Court in
S.C.No.5021/2014. However, Accused No.2 / Harisha @ Kunta,
S/o. late Rajappa, has not filed any appeal challenging the said
judgment of conviction and sentence.
Though Accused No.2 has not preferred any appeal
challenging the judgment in S.C.No.5021/2014, having regard
to the judgment rendered by the Hon'ble Supreme Court of
India in the case of SAHADEVAN AND ANR. Vs. STATE OF T.N.
(AIR 2012 SC 2435), the benefit of acquittal rendered by this
Court in the present appeals in favour of Accused Nos.1 and 3,
shall also stand extended in favour of Accused No.2 / Harisha
@ Kunta, S/o. late Rajappa, who has not preferred any appeal.
The said accused is acquitted also keeping in view Article 136
and 141 of the Constitution of India inclusive of Article 21 of
the Constitution of India relating to protection of life and
liberty. Hence, Accused No.2 shall be set at liberty forthwith, if
he is not required in any other case.
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Registry of this Court is directed to forward a copy of the
operative portion of the judgment to the concerned
Superintendent of Jail Authority where Accused No.2 / Harisha
@ Kunta, S/o. late Rajappa and Accused No.3 / Manjunatha,
S/o. Nagaraju are housed, with a direction to set them at
liberty forthwith, if they are not required in any other case.
Ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KS
