3. The circumstances should be of a conclusive
nature and tendency.
"The following conditions must be fulfilled before
a case against an accused can be said to be fully
established by the prosecution:
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established. The
Supreme 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". Certainly, it is a primary
principle that the accused must be and not merely
may be guilty before a court can convict and the
mental distance between "may be" and "must be" is
long and divides vague conjectures from sure
conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
These five golden principles constitute the
panchsheel of the proof of a case based on
circumstantial evidence.
In a case of circumstantial evidence, the
judgment remains essentially inferential. The
inference is drawn from the established facts as the
circumstances lead to particular inferences. The Court
has to draw an inference with respect to whether the
chain of circumstances is complete, and when the
circumstances therein are collectively considered, the
same must lead only to the irresistible conclusion that
the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be
of a conclusive nature, and consistent only with the
hypothesis of the guilt of the accused."
19. Keeping in view the principles laid down in the
judgments referred supra, this Court has to appreciate the
evidence available on record.
20. P.W.1 is the father of the victim. In his evidence, he
says that he came to know about the murder of his son through
police and in respect of these accused persons is concerned, the
case of the prosecution is that accused No.6 availed the services
of the accused persons on supari and these accused persons
were part of the crime. P.W.1 says that on information he went
and saw the dead body and he gave the complaint in terms of
Ex.P.1. The police conducted the mahazar and seized the
articles at the spot and he identifies M.Os.1 to 6 and identifies
his signature on the cover of the M.Os. and also he identifies his
signature on Ex.P.2. He says that the body was shifted to
Rajarajeshwari Hospital and after post mortem the body was
cremated in their native, wherein people were talking that
accused Nos.1 and 7 were loitering with each other and the
same was brought to the notice of the police. He identifies his
signature on Ex.P.3 and also identified accused No.1. This
witness was subjected to cross-examination.
21. In the cross-examination, it is elicited that the father
of accused No.7 gave an amount of Rs.3,00,000/- at the time of
marriage and both son and daughter-in-law were cordial. But the
witness volunteers that they were cordial only for one month.
His son while going took 5 plants in TVS and he was also using
the mobile. He does not know who all signed the mahazar and
admits that more number of people were present at the time of
drawing the mahazar. The knife which was found at the spot
was blood stained and it was broken and the police seized the
same at the spot. He admits that in M.O.3 and M.O.5 now there
are no blood stains. It is suggested that he had signed the
mahazar in the police station and the same was denied and says
that next to the dead body mahazar was drawn. He admits that
on the date of the incident his daughter-in-law was along with
his wife at Palamaner.
22. In the further cross-examination, he admitted that
he had never seen accused Nos.7 and 1 roaming around holding
their hands. He says that he has not stated that they were
talking over the mobile. He admits that C.W.2 to C.W.10
belongs to his village. He says that for the first time he had
seen accused No.1 near the house of accused No.7 at Kuppam.
He also admits that prior to registration of this case, he was not
knowing accused No.1. He came to know about accused No.1
when he was shown in the police station. It is suggested that
accused No.1 has not made any plan to commit the murder and
the same was denied. He says that accused No.1 gave Rs.6
lakhs as supari. He claims that accused No.1 only made the
statement before the police that he gave supari to kill his son.
He admits that he had not seen the assailants. He claims that
when they were arrested, they admitted that they only killed.
He admits that the slips which were affixed on M.Os.6, 8, 9, 10,
11 and 12 does not bear any signature. It is suggested that
P.W.2 and P.W.4 are the residents of Nelasanapally and the
same was denied. However, witness volunteers that they are in
Bengaluru, but they were the original residents of Nelasanapally.
The witness volunteers that P.W.4 is residing in Bengaluru from
the beginning.
23. P.W.2 is the panch witness for recovery of knife at
the instance of accused Nos.2 and 3. He categorically says that
at the time of recovery, himself and P.W.4 were present. When
he came to know about the murder, he went to the police
station. The accused revealed that they are going to show the
place where they committed the murder. The accused Vasu @
Sajju, Abdul Razak, himself and P.W.4 went to the spot and they
showed the place where they committed the murder and they
found blood on the tree. The three accused persons took them
at the distance of 1 kilometer from that place near the railway
track and they found two knives and the accused persons
showed the same and removed the same from the bush. Those
knives were blood stained and police seized the same, pasted
the slip and mahazar was drawn in terms of Ex.P.4. He
identifies M.O.13 and M.O.14 and his signature on M.O.13. This
witness was subjected to cross-examination.
24. In the cross-examination, he admits that P.W.1 only
brought him to the Court. He says that while drawing the
mahazar, he himself and P.W.4 were present and he do not
know the name of the Investigating Officer and also says that
several persons were there. It is his evidence that cloth and
chappal were not seized in his presence. He says that both the
accused showed the knives and the Investigating Officer took the
same to his custody. He again says that one of the accused
produced the same and he does not know his name. He admits
that M.O.13 and M.O.14 will be available in the steel shop.
When a suggestion was made that he is not aware of the
contents of the mahazar, he says that the police explained the
same. It is suggested that he had signed the mahazar in the
police station and the same was denied. He says that he had
signed at the spot. He made two signatures including seizure of
knife. When a suggestion was made that he is falsely deposing,
the witness replied that he has deposed what he has witnessed.
He identifies his signature in M.O.13 as M.O.13(c). The
signature in M.O.13(c) was confronted to him and asked there is
a difference in his signature in M.O.13(c) and the signature
before the Court and he says that at the time of signing
M.O.13(c), his hands were shaking.
25. The other witness is P.W.3, who is an inquest
witness to Ex.P.5 and seizure of pant and shirt. This witness is
not material witness to connect accused Nos.2 and 3.
26. P.W.4 is another panch witness and he also gave the
evidence similarly in the line of evidence of P.W.2 regarding
recovery and found the knife in a bush and the accused Vasu @
Sajju and Abdul Razak gave the same to the police and there
were blood stains. He also identifies M.O.13 and M.O.14 and the
same are seized at the spot. In the cross-examination, he
admits that he is a permanent resident of Madamari and through
police he came to know that the accused persons have
committed the murder. When a question was put to him that
when the mahazar was drawn and sealed at the police station
whether he had signed and the witness says that seizure was
made at the spot where knife was seized and cannot tell the
location, since he is not aware of the boundary description.
When a suggestion was made that M.O.13 and M.O.14 are in no
way connected to the case, the same was denied and he says
that accused only produced the same. He admits that in M.O.13
there are no blood stains. It is suggested that in M.O.14 there
are no blood stains and the same was denied. It is suggested
that in his presence knives were not seized and the same was
denied. He admits that the police have not called him over
phone, but he voluntarily went to the police station. He admits
that he was having acquaintance with P.W.1 and hence, he went
to the police station. He admits that while conducting the
panchanama, himself, P.W.2 and police were present.
27. P.W.5 is the engineer, who prepared the sketch with
regard to the location. The learned counsel appearing for the
appellants brought to the notice of this Court regarding location
of the place where the murder was committed and the same was
near the railway track, that too in a cart road and motorcycle,
cart, tractor and pedestrians move in the said road, which is
shown in the sketch at Ex.P.6.
28. P.W.6 is the doctor, who conducted the post mortem
and issued the post mortem report in terms of Ex.P.8. He
deposes that the knife could cause the injuries, which have been
found in Ex.P.8 and also identifies his signatures in Exs.P.8, 9,
11 and 12. He categorically says that having examined the
M.Os., he gave the report that injuries found in Ex.P.8 could be
caused by use of M.Os.3, 4, 5, 13 and 14. This witness was
subjected to cross-examination.
29. In the cross-examination, he admits that in Exs.P.8
and 10, witness signatures are not found. The defence got
elicited the answer from the mouth of this witness that it is not
true that when a knife is stabbed, the outer part of the wound is
'V' shaped and the inner part is 'U' shaped. It is not true that
when a knife is stabbed, the outer part of the wound is 'U'
shaped and the inner part is 'V' shaped. He admits that M.O.7
was fully stained with blood. He admits that neck, chest, back,
abdomen and waist are connected to each other. In the further
cross-examination, he admits that M.O.11 belt appears to be old
one. He admits that he did not mention how many buttons were
there in the shirt, but all are in order. When a suggestion was
made that shirt is in no way connected to the dead body, the
same was denied. It is elicited that M.O.5 handle was straight
and there are two curves in the lower portion. In Ex.P.10 report
it is stated that there is a curve at the top and bottom of the
knife handle. He admits that M.O.13 having curve and in the
end also there is a slant cutting. He admits that signature is
found in the slip affixed on M.O.14. He also admits that there
are two curves in the lower portion and in the upper portion it
was straight and also admits that there is slant cutting. The
witness volunteers that he mentioned the same in his report
also. It is suggested that the opinion Ex.P.10 and M.Os.3, 4, 5,
13 and 14 are in no way connected to each other and the same
is denied.
30. This Court already discussed the evidence of P.W.7
with regard to recording the statement of accused No.7. P.W.8
is the one who registered the case and issued the FIR. P.W.9
speaks about the arrest of accused No.1. P.W.10 speaks about
collection of viscera and giving the same to the FSL. P.W.11 is
the FSL witness who conducted the examination of blood stained
mud and unstained mud and compared both soil and gave the
report in terms of Ex.P.13.
31. P.W.12 is the FSL Officer, who received the seized
articles and conducted the examination and in item No.1,
stomach and its contents, portion of small intestine and its
contents were there. In item No.2, portion of liver and kidney
was there. In item No.3 preservative used saturated solution of
sodium chloride was there and gave the report in terms of
Ex.P.14. She says that as per her opinion, color tests and gas
chromatographic methods have responded for the presence of
ethyl alcohol in article Nos.1 and 2, but no other poison was
detected in all the articles. It is suggested that she has not given
the report in terms of Ex.P.14 and the same was denied.
32. P.W.13 is the Nodal officer in respect of telephonic
details collected for the period from 01.04.2015 to 06.04.2015.
The prosecution also not relied upon the same before the Trial
Court i.e., Ex.P.16 that it was not standing in the name of any of
the accused, but it was standing in the name of one Karthik.
33. The other witness is P.W.14 spot pancha of Ex.P.2.
He says that spot panchanama was conducted in terms of Ex.P.2
and found steel knife, another broken knife, broken handle of
the knife and chappal and the same were seized at the spot. He
identifies his signature in Ex.P.19 and also identifies M.O.1 to
M.O.6. He is also a witness to the inquest in terms of Ex.P.5. He
says that he went to Kuppam and arrested accused No.1 at
Andhra Pradesh and recorded the voluntary statement of
accused No.1 and also other accused Vasu @ Sajju, Abdul Razak
and all of them made the statement that they are going to point
out the knife. Voluntary statements are also marked as Exs.P.20
and 21. He recorded the voluntary statement of accused No.7 in
terms of Ex.P.11. He says that accused Nos.2 and 3 led them to
the incident spot and produced the knife at the distance of 35
feet from the place where the crime was taken place and
mahazar was drawn in terms of Ex.P.4 and he identifies his
signature in Ex.P.22 as well as M.O.13 and M.O.14. He says that
he recorded the statement of witnesses and seized the clothes of
the deceased in hospital by drawing the mahazar in terms of
Ex.P.24 and obtained the post mortem report in terms of Ex.P.8.
Having seized the knife, he sent the same to the FSL in terms of
Ex.P.26 and also written letter to PWD as per Ex.P.27. He
obtained the opinion in respect of knife and other articles and
also obtained sketch in terms of Ex.P.6 and covering letter is
marked as Ex.P.7. After the investigation, he filed the charge-
sheet. The FSL reports are marked as Exs.P.14 and 30 and he
identifies his signature as Ex.P.14(a) and Ex.P.30(a). This
witness was subjected to cross-examination.
34. In the cross-examination, he says that Ex.P.6 shows
the location of the incident and the same is a cart road. He
admits that the said place was at a distance of 200 feet from
Voderahalli village and local witnesses were available. He admits
that P.W.1 is a witness to Ex.P.2 and other two witnesses are
from Andhra Pradesh. P.W.1 is a resident of Nelasanapally. It is
suggested that Ex.P.10 not corresponds with M.O.3 to M.O.5 and
the same was denied. He says that the deceased was having
hefty personality. A suggestion was made that chappal and belt
does not belong to the deceased and the same was denied. It
was suggested that the witnesses Ramaiah, Bhoolakshmamma
and Sudhakara have not given any statement and the same was
denied. He admits that all these witnesses are the residents of
Nelasanapally. He admits that accused No.1 was young and was
working at Andhra Pradesh. It is suggested that accused No.1
was not knowing Kannada language. But witness volunteers that
he knows both Kannada and Telugu and hence, got it written in
Kannada language. He admits that in terms of Ex.P.28, phone
number belongs to Meghanathan. A suggestion was made that
Meghanathan was not having any connection with the accused
and the same was denied. He admits that there are no thick
trees near the place of the incident. He also admits that in
Bengaluru-Mysore corridor road, more vehicle will move. A
suggestion was made that in the FSL report, no report is
received against the accused and the same is denied. He was
further examined before the Court and got marked the
documents at Exs.P.31, 31(a) to (d).
35. This witness was further cross-examined. A
suggestion was made that accused Nos.1 and 7 were not having
any illicit relationship or love affair and the same was denied. It
is suggested that accused No.1 never called accused No.7 and
the same was denied. It is suggested that the details given in
Ex.P.31 is not connected to accused No.1 and no nexus and the
same was denied. However, he admits that accused persons
belong to different villages. It is not correct to say that there is
no evidence to show that accused No.6 introduced accused No.1
to accused No.2 in order to commit the crime.
36. P.W.15 is FSL witness and on examination of the
articles sent to FSL, he found bloodstains on article Nos.1, 3 to 8
and 12 to 17 and the same belongs to 'B' group. In article No.2
bloodstains were not found. The report is marked as Ex.P.30 and
he identifies the signature as Ex.P.30(c) and (d) and identifies
M.O.1 to M.O.14. In the cross-examination, it is elicited that it is
correct to say that it cannot be concluded that the bloodstains
found in Ex.P.30 are related to the deceased Ganesh.
37. D.W.1 is accused No.7. In her evidence she says
that she is in no way connected to the murder of her husband
and her father gave an amount of Rs.3,00,000/- as dowry. She
admits that herself and her father-in-law had good relationship
and they were respecting each other. Accused No.1 is the
resident of D.K.Palli and distance between her house and
accused No.1 house is 1 kilometer. She is not aware of the
mobile number of accused No.1 and she has not given her
mobile number to accused No.1. Accused No.1 and herself
studied in different college and there was no friendship or love
affair between them. She says that she has been falsely
implicated in the case. She says that she was pregnant and the
same was naturally aborted and accused No.1 is in no way
connected to her abortion and he has not given any tablet. She
says that she has not conspired with any of the accused to
commit the murder of her husband. Ex.D.1 was got marked and
this witness was subjected to cross-examination.
38. In the cross-examination, a suggestion was made
that her husband was killed by cutting his neck and the witness
says that she is not aware of the same. A suggestion was made
that there were stab injuries in her husband's abdomen and she
says that she is not aware of the same. However, she admits
that at the time of cremation she was very much present. It is
her evidence that abortion was taken place within three months
of her marriage and at that time her husband was alive. It is
suggested that herself and accused No.1 were studying in the
same college and the same was denied. It is elicited that she
has not given any complaint about her father-in-law receiving
dowry of Rs.3,00,000/- during her marriage. It is also elicited
that she has not given any complaint to the Judge or police
officers about the police arresting her and harassing her in
connection with this case.
39. This witness was further examined and she says that
she had no friendship or any connection with accused Nos.2 to 6
and for the first time she saw accused Nos.2 to 6 in the Court. It
is her evidence that her husband had a fight over financial
matters in Chamarajanagara, Mysore and Ramanagara while he
was running a nursery business and they might have killed her
husband. This witness was further cross-examined. She says
that her husband was murdered in 2015. She says that her
husband was murdered the very day he died and she suspected
murder might have been because of business quarrel, but not
given any complaint to that effect. It is suggested that prior to
abortion she was not having any health issues and the same was
denied. It is suggested that she took tablet, which resulted in
abortion and the same was denied.
40. Ex.P.1 is the statement of P.W.1, Ex.P.2 is the spot
panchanama, Ex.P.3 is the further statement of P.W.1, Ex.P.4 is
the seizure mahazar at the instance of accused Nos.2 and 3,
Ex.P.5 is the inquest mahazar, Ex.P.6 is the spot sketch
prepared by the PWD Engineer, Ex.P.7 is the letter written by
Engineer to the Investigating Officer, Ex.P.8 is the post mortem
report, Ex.P.9 is the final opinion as to the cause of death and
cause of death is due to shock and hemorrhage due to incise
injury of neck, Ex.P.10 is the further opinion, Ex.P.11 is the
voluntary statement of accused No.7, Ex.P.12 is the FIR, Ex.P.13
is the FSL report regarding soil test, Ex.P.14 is the FSL report in
respect of examination of stomach, Ex.P.15 is the certificate
under Section 65B(4)(c) of the Evidence Act, Exs.P.16 and 17
are the phone details of Karthik, Ex.P.18 is the voter ID of
Karthik, Ex.P.19 is the PF, Ex.P.20 is the voluntary statement of
accused No.2, Ex.P.21 is the voluntary statement of accused
No.3, Ex.P.22 is P.F. form, Ex.P.23 is the call details, Ex.P.24 is
the mahazar conducted in the hospital i.e., seizure of cloth,
Ex.P.25 is the P.F., Ex.P.26 is the letter written to the FSL,
Ex.P.27 is the letter written to the Engineer, Ex.P.28 is the
report, Ex.P.29 is the acknowledgement, Ex.P.30 is the FSL
report and Ex.P.31 is the voluntary confessional statement of
accused No.1.
41. Having considered both oral and documentary
evidence available on record and also the principles laid down in
the judgments referred supra, it is clear that in a case of
circumstantial evidence, it is reiterated throughout that
circumstances from which the conclusion of guilt is to be drawn
should be fully established that circumstances should be of a
conclusive nature and tendency and the circumstances should
exclude every possible hypothesis except the one to be proved
and 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 and the
Panchasheela of circumstantial evidence is reiterated
throughout.
42. This Court would like to rely upon the judgment of
the Apex Court reported in (2025) 3 SCC 314 in the case of
RAJA KHAN vs STATE OF CHHATTISGARH wherein also the
Apex Court reiterated where the case rests entirely on
circumstantial evidence, the chain of evidence must be so far
complete, such that every hypothesis is excluded but the one
proposed to be proved. Further, such circumstances, held, must
show that the act has been done by the appellant/accused within
all human probability and reiterated the five golden principles,
which must be satisfied for circumstantial evidence to
conclusively establish the guilt of the accused considering
Section 3 of the Evidence Act.
43. This Court also would like to rely on the judgment of
the Apex Court reported in (2025) 9 SCC 31 in the case of
CHETAN vs STATE OF KARNATAKA wherein the Apex Court
while dealing with the circumstantial evidence, again reiterated
that while confirming the judgment of the conviction held that
circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the
one proposed to be proved. Therefore, their held must be a
chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human
probability the act must have been done by the accused. It is
further held that there must form a complete chain without any
break to clearly point out to the guilt of the accused person. The
court has to examine the cumulative effect of the existence of
these circumstances, which would point to the guilt of the
accused, though any single circumstance may not in itself be
sufficient to prove the offence. Thus, if the combined effect of all
the circumstances, each of which has been independently
proved, establishes the guilt of the accused, then the conviction
based on such circumstances can be sustained. These
circumstances so proved must be consistent only with the
hypothesis of the guilt of the accused and should exclude every
hypothesis except the one sought to be proved.
44. This Court also would like to rely upon the judgment
of Apex Court in the case of STATE OF RAJASTHAN vs.
HANUMAN reported in 2025 SCC ONLINE SC 1387 wherein,
the Apex Court in paragraph 4 held that the High Court held that
the prosecution could not prove the complete chain of
circumstances required to bring home the guilt of the accused in
the case which was based entirely on circumstantial evidence
and further observed in paragraph 6 that incriminating
circumstances relied upon by the prosecution i.e., the motive
and the recovery of the blood stained weapon, even taken in
conjunction cannot constitute the complete chain of incriminating
circumstances required to bring home the charges against the
accused. Further, observation made that even if the FSL report is
taken into account, then also, other than the fact that the
weapon recovered at the instance of the accused tested positive
for the same blood group as that of the deceased, nothing much
turns on the said report and in paragraph 7, considered the
judgment of RAJA NAYKAR vs STATE OF CHHATTISGARH
reported in (2024) 3 SCC 481, wherein it is held that mere
recovery of a blood-stained weapon even bearing the same
blood group of the victim would not be sufficient to prove the
charge of murder.
45. The Court also would like to rely upon the judgment
of the Apex Court reported in 2025 SCC ONLINE SC 2148 in
the case of RAJENDRA SINGH AND OTHERS vs STATE OF
UTTARANCHAL wherein the Apex Court in paragraph 27
discussed with regard to the recovery of the weapons of crime to
establish the identity of the appellants as the persons involved in
the crime. On the basis of the recovery of the said weapons, we
have to determine if the said recoveries are good enough to
connect the appellants with the crime. In paragraph 28, it is held
that undoubtedly, the recovery of one of the swords was made
from a garage, and the recovery of another sword and the Kanta
was made from bushes in the sugarcane field, which was in open
space. The weapons were no doubt recovered allegedly on the
pointing out of the appellants. However, no effort was made to
match the blood on the said weapons with that of the deceased.
The weapons were sent for forensic examination but no report of
the forensic laboratory was produced to establish that the
weapons specific performance recovered were smeared with the
blood of the deceased to prove that they were actually used in
the murder of the deceased and did not accept the case of the
prosecution. In paragraph 29, it is held that we are afraid that
the submission of the State counsel, that as the appellants
themselves stated that they took the police to the place where
they hide the weapons, by which they committed the offence
indicates that appellants admitted to have committed the offence
with the above weapons, cannot be accepted and discussed the
scope of Section 27 of the Indian Evidence Act in the light of
provisions of Sections 25 and 26 conjointly and comes to the
conclusion that Section 27 provides an exception to the above
provisions and even considered the judgment in the case of
PULUKURI KOTTAYA AND OTHERS vs THE KING EMPEROR
reported in 1947 MWN CR 45 with regard to the discovery, on
information supplied by the accused is a relevant fact.
46. Having taken note of the principles laid down in the
judgments throughout to till date, it is clear that each and every
linking circumstances must be proved and there cannot be any
breaking of link. In keeping the principles laid down in the
judgments referred supra, this Court has to consider the
material available on record. While answering Point No.1 in
respect of accused Nos.1, 6 and 7 is concerned, this Court
already comes to the conclusion that to prove the offence under
Section 120B of IPC against all the accused, nothing suggested
to this Court to come to the conclusion that conspiracy is proved.
It is settled law that conspiracy should be proved only based on
the circumstances and not on direct evidence and this Court
comes to the conclusion that no such material available before
the Court and when conspiracy is not proved, then consideration
of other material before the Court does not arise.
47. Now, coming to the case of accused Nos.2 and 3 is
concerned, to connect these accused, this Court has to see the
material on record. PW1 is the father of the deceased, who is a
witness to Ex.P2 wherein other incriminating articles that is
knives which were lying at the spot were also seized. The Trial
Court comes to the conclusion that there is no material to
connect the accused Nos.4 and 5 in the alleged crime and
acquitted them. But the charge against accused Nos.2 to 5 as
per the case of the prosecution is that all of them are the supari
killers. The work was entrusted by accused No.1 to accused
No.6. In turn, accused No.6 engaged the services of these sapari
killers i.e., accused Nos.2 to 5. When the Trial Court comes to
the conclusion that there is no evidence against accused Nos.4
and 5, but convicted accused Nos.2 and 3 mainly based on
recovery of weapons at their instance i.e., MO13 and MO14.
According to the prosecution, these accused Nos.2 and 3 have
led the Investigating Officer as well as panch witnesses i.e., PW2
and PW4 to the spot and in their presence, produced both MO13
and MO14. The Trial Court accepted the evidence of PW2 and
PW4 who are the witnesses to this panchanama i.e., Ex.P4. No
doubt, the evidence of PW2 and PW4 is with regard to recovery
of MO13 and MO14 at the instance of accused Nos.2 and 3
wherein they spoken that these two accused persons led the
police as well as both of them to the spot and showed the knives
which were blood stained and police have seized the same by
drawing the mahazar at Ex.P4. The fact is that these two
witnesses categorically admit that at the time of conducting the
mahazar, local persons were also there, but, those local persons
are not made as witnesses to the seizure. It is also important to
note that this recovery is at the distance of 35 feet from the
place where the incident had taken place and both knives were
kept in the bush. PW2 and PW4 are the witnesses from Andhra
Pradesh and not the locals and they belonged to the village of
PW1.
48. It has to be noted that in chief evidence of PW2, he
says that accused Nos.2 and 3 produced MO13 and MO14 and
mahazar was drawn. But in the cross-examination, he admits
that this type of knives would be available in the shop. When
suggestion was made that he has not aware of the contents of
the mahazar, he categorically says that what had happened at
the spot only written and also read the contents of the mahazar
and identifies the signature. The other witness to the recovery is
PW4 who reiterate the evidence in consonance with the evidence
of PW2 deposing that there were blood stains when the knives
were seized. PW4 deposed that through the police, he came to
know that these accused persons have committed the murder.
PW4 also disputes the fact that mahazar was drawn in the police
station and categorically says that it was done at the spot itself.
Hence, it clearly discloses that there is a consistent evidence of
PW2 and PW4 with regard to the recovery is concerned. It is
important to note that PW2 and PW4 deposed that they
voluntarily went to the police station, police have not called them
or given any notice. They categorically admits that they are
having acquaintance with PW1 and voluntarily went to the police
station.
49. It has to be noted that FSL report also discloses that
weapon contains the blood stains, thus, there is a positive
evidence before the Court. Now, the question before this Court is
that only based on the recovery of knives at the instance of
accused Nos.2 and 3 and also the FSL report, which is positive,
whether the Court can connect accused Nos.2 and 3 in a case of
circumstantial evidence. In view of the principles laid down in
the judgments referred supra, it is very clear that only based on
the recovery of weapon and FSL report, the Court cannot comes
to such a conclusion. In the case on hand, except the recovery
at the instance of accused Nos.2 and 3, no other evidence
available before the Court. It has to be noted that there is no
last seen theory to show that the accused persons were found
along with the deceased either with accused No.1 or with
accused No.6. Apart from that these accused persons are from
Andhra Pradesh and Investigating Officer did not collect any
material that in which mode, they travelled from Andhra Pradesh
to Bangalore. Though, it is case of the prosecution that accused
went in an auto to the incident spot, not recorded the statement
of auto driver. In order to connect accused Nos.1 and 6 to
establish the fact that accused No.1 was having the motive to
commit the murder of the deceased, there is no cogent evidence
and nothing is placed on record except the evidence of PW1. But
PW1 deposed that he came to know about the relationship of
accused Nos.1 and 7 at the spot through somebody and none of
the witnesses were also examined to prove the fact that accused
Nos.1 and 7 were meeting together and both of them are having
love affair and illicit relationship. In order to connect accused
Nos.1 and 6 also, there is no CDR or phone call details to
establish that accused No.1 entrusted the work to accused No.6
to eliminate the deceased and in turn, accused No.6 availed the
services of accused Nos.2 to 5 in the alleged act but there is no
material before the Court to prove the said fact except the
recovery at the instance of accused Nos.2 and 3. There is no
chain link established by the prosecution to connect the accused
persons. It is settled law that in a case of circumstances
evidence, each circumstances must be proved and there must be
no breaking of any link. Even though the evidence of PW2 and
PW4 is consistent with regard to the recovery is concerned, the
Court has to take note of the fact that those witnesses are
known to PW1 and they are not local witnesses and they are
from Andhra Pradesh. In view of having acquaintance with PW1,
they are arrayed as witnesses to the recovery. When there is no
material before the Court to connect the accused persons and
only based on the voluntary statement, they cannot be termed
that they committed the murder unless the connection between
accused No.6 and accused Nos.2 and 3 is established showing
that they were in constant touch with each of them. Though, an
attempt is made by the prosecution by examining the Nodal
Officer-PW13 for marking of the CDR, it is very clear that the
same stands in the name of one Karthik and not stands in the
name of any of the accused persons. Thus, in order to connect
all these accused, no such circumstances is proved and available
evidence before the Court is recovery witnesses evidence.
Hence, even the evidence of Nodal Officer in respect of
telephonic details will not comes to the aid of the prosecution
and prosecution also not relies upon the same and same is
discussed by the Trial Court regarding evidence of PW13-Nodal
Officer.
50. No doubt, the prosecution mainly relies upon the
evidence of PW6-doctor who conducted the post mortem and
also PW12- Officer of FSL. No dispute with regard to the fact that
cause of death is on account of the injuries found on the dead
body and Ex.P8-PM report discloses the nature of injuries and it
is a case of homicidal. Evidence of PW15 is also very clear that
Article Nos.1, 3 to 8 and 12 to 17 contains 'B' group blood. But
the fact is that no clothes of the accused were seized and seized
cloth was belongs to the deceased and only 'B' group blood was
found in MO13 and MO14. MO13 and MO14 are the only article
which point out the role of accused Nos.2 and 3 since the same
were seized at their instance as deposed by the witnesses PW2
and PW4 but PW2 and PW4 are not the independent witnesses of
the local place and they known to PW1 and material is very clear
that local persons were also present at the spot. When such
being the case, only based on recovery of MO13 and MO14 at
the instance of accused Nos.2 and 3, this Court cannot come to a
conclusion that accused Nos.2 and 3 have committed the murder
of the deceased at the instance of accused No.6 as there is no
independent evidence of panch witnesses. This Court already
comes to the conclusion that no material is found with regard to
the conspiracy and given the benefit of doubt in favour of
accused Nos.1, 6 and 7. When the Trial Court also given benefit
of doubt in favour of accused Nos.4 and 5, ought not to have
convicted the accused Nos.2 and 3 only based on recovery of the
weapons at their instance in considering the evidence of PW2
and PW4 who are the known persons to PW1 when no
independent witnesses were examined regarding the recovery is
concerned and those witnesses are also from Andhra Pradesh.
No doubt, the prosecution has made an attempt that though
PW2 and PW4 are from Andhra Pradesh, they are staying in
Bangalore. But the fact is that both PW2 and PW4 are the known
to PW1 is not in dispute. When such all materials available
before the Court, the Trial Court committed an error in
convicting accused Nos.2 and 3 only based on recovery and FSL
report. The Panchasheela of circumstantial evidence which have
been discussed above by referring the judgments of the Apex
Court has not been proved.
51. Even in the case of SHARAD BIRDICHAND SARDA
(referred supra), the Apex Court in 1984 itself with regard to the
consideration of the circumstantial evidence have been discussed
in paragraph 16 and so also in the case of RAJA @ RAJINDER
(referred supra) and also in a case of SUBRAMANYA (referred
supra) and also the other recent judgments which have been
relied upon in a case of CHETAN; HANUMAN and RAJA KHAN
(referred supra), it is very clear that based on only one
circumstance, the accused cannot be convicted and all
circumstances must point out that the role of the accused
persons in committing the murder as per the Golden rule of
Panchasheela. In the case on hand, five golden principles in a
case of circumstantial evidence have not been proved. Hence,
we answer Point No.2 as affirmative holding that Trial Court
committed an error in convicting accused Nos.2 and 3 for the
offence punishable under Section 302 of IPC.
52. This Court is of the view that it is a clear case of
lapses on the part of the Investigating Officer in not collecting
the material with regard to the circumstantial evidence to
connect the accused persons including the conspiracy. No doubt,
it is a settled law that only based on the lapses on the part of
the Investigating Officer, the Court cannot acquit the accused
and there must be a material before the Court to accept the case
of the prosecution. In the case on hand, no such material is
found. It is a classic example of lapse on the Investigating
Officer in not collecting linking evidence though the case is rest
upon the circumstantial evidence and not on direct evidence. The
Court cannot assume and presume the things that the accused
persons only committed the murder and there must be a
semblance of material before the Court to come to such a
conclusion. In the absence of cogent material to establish the
actual facts, benefit of doubt goes in favour of the accused.
Hence, benefit of doubt is extended in favour of the accused
persons which is not extended by the Trial Court. This Court is
also in view of the fact that the Trial Court committed an error in
marking the inadmissible evidence of voluntary statement made
by the accused persons and voluntary statement can be taken as
admissible if there is any recovery and other than the recovery,
the voluntary statement cannot be marked in respect of any
statement and contents of the voluntary statement.
Point No.3:
53. In view of the discussions made above, we pass the
following:
ORDER
(i) The appeals filed by accused Nos.1, 6, 7 and
so also accused Nos.2 and 3 in
Crl.A.Nos.1114/2018, 988/2018, 1254/2018,
1154/2018 and 1153/2018 respectively are
allowed.
(ii) The judgment of conviction and sentence dated
28.05.2018 passed in S.C.No.68/2015 by the
Trial Court is set aside and consequently, the
appellants are acquitted from the charges
leveled against them and set at liberty if they
are not required in any other cases.
(iii) If bail bond is executed by the accused
persons, the same stands cancelled.
(iv) If any fine amount is deposited, the same is
ordered to be refunded on proper
identification.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
SN/MD
