[Cites 29, Cited by 0]
Karnataka High Court
Mr. Nagappa Mastru vs Mr. Parashurama H. P. @ H. P. Parashurama on 27 January, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 2044 of 2017
C/W CRL.A No. 132 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2026
PRESENT
R
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.2044 OF 2017 (A)
C/W
CRIMINAL APPEAL NO.132 OF 2018 (A)
IN CRL.A No.2044/2017
BETWEEN:
MR. NAGAPPA MASTRU
S/O. MR. KERIYAPPA
AGED ABOUT 66 YEARS
RESIDENT OF KEB COLONY
KODAKANI, SORABA TOWN
SORABA TALUK
SHIVAMOGGA DISTRICT - 577 429.
...APPELLANT
Digitally signed by (BY SRI K. ABHINAV ANAND, ADVOCATE)
MOUNESHWARAPPA
NAGARATHNA
Location: High Court
of Karnataka AND:
1. MR. PARASHURAMA H.P. @
H. P. PARASHURAMA
S/O. MR. ERAPPA
AGED ABOUT 35 YEARS
RESIDENT OF KANKERI
SORABA TOWN
PERMANENT RESIDENT OF GENDLA
HOSURU VILLAGE, SORABA TALUK
SHIVAMOGGA DISTRICT-577 429.
2. PRASHANTHA B.
S/O. BHADRAPPA
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CRL.A No. 2044 of 2017
C/W CRL.A No. 132 of 2018
HC-KAR
AGED ABOUT 29 YEARS
RESIDENT OF TEPPAGODU VILLAGE
SAGARA TALUK
SHIVAMOGGA DISTRICT- 577 429.
3. THE STATE OF KARNATAKA
REPRESENTED BY
THE SHO OF ANAVATTI P.S.
SHIVAMOGGA DISTRICT-577 429.
...RESPONDENTS
(BY SRI SYED AKBAR PASHA, ADVOCATE FOR
SRI D.C. PARAMESWARAIAH, ADVOCATE FOR R-1 & R-2;
SMT. RASHMI JADHAV, ADDL. SPP FOR R-3)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF THE
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 22-7-2017
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA IN S.C.NO.128 OF 2016 - ACQUITTING THE
RESPONDENTS/ACCUSED NO.1 AND 2 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 201 AND 212 OF IPC.
IN CRL.A NO.132/2018
BETWEEN:
STATE BY
ANAVATTI POLICE STATION
SHIVAMOGGA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01.
...APPELLANT
(BY SMT. RASHMI JADHAV, ADDITIONAL SPP)
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CRL.A No. 2044 of 2017
C/W CRL.A No. 132 of 2018
HC-KAR
AND:
1. MR. PARASHURAMA H.P. @
H. P. PARASHURAMA
S/O. MR. ERAPPA
FARMER
AGED ABOUT 36 YEARS
RESIDENT OF KANKERI
SORABA TOWN
PERMANENT RESIDENT OF GENDIA
HOSURU VILLAGE, SORABA TALUK
SHIVAMOGGA DISTRICT-577 429.
2. PRASHANTHA B.
S/O. BHADRAPPA
AGED ABOUT 30 YEARS
RESIDENT OF TEPPAGODU VILLAGE
SAGARA TALUK
SHIVAMOGGA DISTRICT- 577 429.
...RESPONDENTS
(BY SRI SYED AKBAR PASHA,ADVOCATE FOR
SRI D.C. PARAMESHWARAIAH ADVOCATE FOR R-1 & R-2)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CR.P.C PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 22-7-2017 IN
S.C.NO.128 OF 2016 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS COURT, SHIVAMOGGA THEREBY ACQUITTING THE
RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 201 AND 212 OF IPC.
THESE CRIMINAL APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
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CRL.A No. 2044 of 2017
C/W CRL.A No. 132 of 2018
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Crl.A.No.2044/2017 is by the appellant/complainant and
Crl.A.No.132/2018 is filed by the appellant/State questioning
the correctness of the judgment of acquittal dated 22.07.2017
passed by learned 2nd Addl. District & Sessions Judge,
Shivamogga, whereby the trial Court acquitted accused Nos.1
and 2 for the offences punishable under Sections 302, 201 and
212 IPC.
Heard learned counsels Sri. K. Abhinav Anand, Sri. Syed
Akbar Pasha, Sri. D.C. Parameshwariah and Smt. Rashmi
Jadhav, learned Addl. SPP for the respective parties.
2. The case of the prosecution before the trial Court,
while seeking the prosecution against the accused persons is
that:-
On 30.01.2016 at about 8.00 a.m., accused No.1 went
along with deceased Anamika on a Spender motorcycle bearing
registration No.KA-27/8658 from Soraba towards Jade Village,
but he did not return till 10.45 p.m. That on that day, while
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returning back to Soraba, in between 10.45 to 11.30 p.m., near
the land of Puttaswamy Gowda situated at Kerehalli Village,
when accused No.1 and deceased were sitting by the side of
the road for dinner, all of a sudden, a quarrel took place
between them and at that time, accused No.1 assaulted on the
head and face of deceased Anamika with a wooden club and
killed him. Thereafter, accused No.1 took away the bike of the
deceased, set fire to it by pouring kerosene and destroyed it in
the forest area of Shikaripura-Sagara border on 31.01.2016. It
is further stated that though accused No.1 told accused No.2
that he has committed the murder of the deceased, accused
No.2 gave shelter to accused No.1 in his house and helped him
and thus invoked the offences under Sections 302, 201 of IPC
against accused No.1 and Section 212 of IPC against accused
No.2. The police having received the complaint, recorded the
statement of the witnesses, investigated the matter and filed
the charge sheet. Both accused Nos.1 and 2, though initially
were taken to custody, were enlarged on bail and thereafter
also, they did not plead guilty and claimed trial.
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3. Hence, the prosecution relied upon the evidence of
PWs.1 to 19 and closed the side of the case of the prosecution
and got marked 32 documents as per Exs.P1 to P32 and 14
material objects MOs.1 to 14. Accused Nos.1 and 2 were
subjected to examination under Section 313 Cr.P.C. and they
denied the incriminating evidence appearing against them and
they also did not choose to lead any defence evidence.
4. The trial Court having considered both oral and
documentary evidence comes to the conclusion that the death
of the deceased is homicidal, however, the offence under
Sections 302 and 201 of IPC as against accused No.1 stands
not proved and in respect of accused No.2, the charge made
against him that he had provided shelter to accused No.1 in his
house and hence invoked Section 212 IPC, held that the same
is also not proved by the prosecution and hence acquitted
accused Nos.1 and 2 vide judgment dated 22.07.2017.
5. Being aggrieved by the judgment of acquittal, the
complainant/father of the deceased filed appeal in Criminal
Appeal No.2044 of 2017, wherein, the main ground urged by
the learned counsel for the appellant is that the trial Court
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committed an error in acquitting the accused in coming to the
conclusion that the chain of events of the circumstances of the
case is not proved, though the prosecution has proved the case
beyond reasonable doubt that the accused only have
committed the murder of the deceased. Further, learned
counsel would submit that the eye witnesses may lie or change
their version, but the circumstances will never lie; that the
investigation has been conducted by an experienced police
officer of the rank of Dy.S.P. i.e., PW.18 and the oral and
documentary evidence of the prosecution witnesses along with
material objects produced before the Court is sufficient to
convict the accused; that PW.2, PW.3, PW.4, PW.6, PW.7 and
PW.16 have deposed before the Court regarding the deceased
last seen in the company of accused No.1; minor discrepancies
in the evidence of these witnesses is highlighted by the trial
Court and the trial Court has also magnified said discrepancy
and erroneously has come to the conclusion that the
prosecution has failed to prove the case beyond reasonable
doubt; that an observation is also made by the trial Court that
PW.2 has not stated in his complaint Ex.P2 regarding deceased
and accused No.1 leaving the house together; the settled
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principle remains that complaint is not an encyclopaedia of
everything, it is a brief report to set the criminal law into
motion; that the trial Court is not justified in discarding the
evidence of PW.2; that even after considering the evidence of
PW.2, PW.3, PW.4, PW.6, PW.7 and PW.16 in totality, the trial
Court ought not to have discarded the evidence of these
witnesses and erroneously proceeded to come to the conclusion
that the prosecution has not proved the case; that accused
No.1 made voluntary statement with regard to committing the
offence and recoveries were effected under Section 27 of the
Evidence Act based on his voluntary statement; the evidence of
PW.8 is cogent and beyond reasonable doubt, wherein he
categorically stated that accused No.1 led him, other police and
panch witnesses and showed the place, where he burnt the
motorcycle of the deceased, i.e., in a forest area; that when
the Engine number of the motor bike was visible and the same
was also mentioned in the spot inspection report, where the
motorcycle was burnt, there is serious lapse on the part of the
Investigating Officer in not collecting the details from the very
owner of the said motor cycle; that the trial Court ought to
have taken note of the fact that the blood stained mud was
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recovered by drawing a mahazar in terms of Ex.P7; that
accused No.1 led police and panchas to his residence and
voluntarily produced the kerosene can, wherein only 2 to 3
litres of kerosene was remaining out of 10 litres of kerosene
and produced the blood stained shirt, which is marked as
MO.10 and the same is recovered by drawing the mahazar in
terms of Ex.P8; the accused has further led the police and
panchas to house of one Dyavappa at Kundur Village and he
showed the shop for having purchased the petrol and said
Dyavappa-PW.5 identified accused No.1 and says that he gave
1/2 litre of petrol to accused No.1, which was with him; Ex.P4
is the said mahazar, through which, MO.8 is recovered; that
accused No.1 led the police and panchas to the house of
accused No.2 and showed the new house, which was being
constructed, wherein accused No.1 has taken shelter with him;
that a separate mahazar was drawn to that effect and MOs.13
and 14/Nokia Mobile and Samsung Mobile phones were
recovered at the instance of accused No.1 and recovery of
these incriminating articles and marking of material objects
coupled with evidence of PW.8, which has not been shaken by
the defence, but in spite of the same, the trial Court fails to
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consider the material objects i.e., MOs.1 to 7, which were
recovered at the scene of occurrence and also that MOs. 11 and
12 though were proved and mahazars were drawn, the
evidence of panch witnesses is not considered in proper
perspective; that the identity of accused Nos.1 and 2 is not in
dispute as they are from local place known to the family of the
deceased and other local people; that deceased and accused
No.1 were moving together for the purpose of canvassing for
elections as father of the deceased had intended to contest for
the Zilla Panchayat elections, which is also not in dispute; that
PW.1 Doctor, who conducted the post mortem report on the
deadbody of the deceased has categorically deposed with
regard to the nature of injuries and opined that the deceased
died due to shock and severe injuries sustained and that the
skull of the deceased had fractured and brain matter had come
out; PW.14 to PW.16, who are inquest panch witnesses have
given their evidence before the court; the trial Court failed to
consider the evidence of PW.12, PW.17 to PW.19, who are the
police witnesses and PW.18 the Investigating Officer; that the
evidence of PW.8 and PW.13 clearly discloses with regard to
the recovery is concerned; learned counsel also brought to the
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notice of this court to the evidence of PW.16, who had
witnessed accused Nos.1 and 2 on the previous day and also on
the date of the incident and on enquiry, they revealed that they
are going to Jade Village and all these circumstantial evidence
has not been properly considered by the trial Court; that the
evidence of PW.8 and PW.13 is very clear with regard to Ex.P8
is concerned and the evidence of these witnesses is consistent
and corroborative in nature. Insofar as recovery is concerned,
learned counsel also brought to the notice of this Court to the
Regional Forensic Science Laboratory, Davanagere(RFSL)
Report Ex.P24, wherein also, article Nos.5(one shirt) and
10(shirt) were found with 'A' group blood and no explanation is
offered by accused No.1 and seizure mahazar report Ex.P6 is
also very clear to the effect that the bike was also burnt; that
even though PW.16 who has been examined before the Court,
at the first instance, he did not make any statement that he
found both accused and deceased together, but in the further
statement recorded on 04.02.2016, he has stated that he found
both accused No.1 and deceased going on bike and the said
evidence of PW.16 was also not taken note of; learned counsel
would submit that when there is a clear recovery at the
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instance of the accused No.1, though further statement of
PW.16 was recorded on 04.02.2016 and though motive for
committing the offence is established, the trial Court failed to
take note of the same.
6. Learned counsel for the appellant/complainant in
support of his argument also relied upon the principles laid
down in various judgments, particularly upon the judgment in
the case of Rumi Bora Dutta v. State of Assam reported in
2013 Crl.L.J.. 3260 (SC), wherein in the said case, in
paragraph No.23 and 24, the Apex Court discussed with regard
to the disclosure statement made by accused leading to
discovery of weapons of crime from their house and recovery of
weapons from house was not explained by the accused except
by making a bald denial and story of attack by masked
offenders given by wife to police found false and to be intended
to mislead police and hence, in the instant case, learned
counsel would contend that the circumstances prove the guilt of
the accused.
7. Further, learned counsel relied upon the judgment in
the case of Vasanta Sampat Dupare v. State of
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Maharashtra reported in 2015 Crl.L.J. 774, wherein at
paragraph Nos.57, 58, 59 and 60, the Hon'ble Supreme Court
held that recovery of dead body and certain articles at the
instance of the accused and also chemical analysis report
showing that blood group on stones matches with blood group
found on clothes of accused and accused has not offered any
explanation with regard to the recovery made at his instance
and hence, learned counsel would submit that the above
instance also supports the case of the prosecution as there are
incriminating circumstances.
8. Learned counsel also relied upon the judgment in the
case of Wazir Khan v. State of Uttarakhand reported in
(2023) 8 SCC 597 and brought to notice of this Court to
paragraph Nos.22 and 23, wherein also the Hon'ble Apex Court
discussed with regard to the circumstantial evidence and when
circumstantial evidence becomes an additional link in the chain
of circumstances to make it complete, the same ought to have
been taken note of.
9. Learned counsel relying upon the judgment in the case
of Ravasaheb Alias Ravasahebgouda and Others v. State
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of Karnataka reported in (2023) 5 SCC 391, brought to the
notice of this Court to paragraph Nos.33 and 34, wherein also,
the Hon'ble Apex Court held that the Court of Appeal has wide
powers of appreciation of evidence in an order of acquittal as in
the order of conviction, along with the rider of presumption of
innocence which continues across all stages of a case, but such
court should give due importance to the judgment rendered by
the trial Court and it is further held that the High Court, being
the first appellate court must discuss/re-appreciate the
evidence on record and, failure to do so is a good ground
enough to remand the matter for consideration.
10. Learned counsel also relied upon the judgment in the
case of Premchand v. State of Maharashtra reported in
(2023) 5 SCC 522 and brought to notice of this Court, to
paragraph No.18 wherein a discussion was made with regard to
examination of accused and absence of satisfactory explanation
as to facts within special knowledge of accused and held that
such infirmity can be treated as a factor against him and
further held that though such factor by itself is not conclusive
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of guilt, it becomes relevant while considering the totality of the
circumstances i.e., Section 106 of the Evidence Act.
11. Learned counsel further relied upon the judgment in
the case of Ram Gopal S/o Mansharam v. State of Madhya
Pradesh reported in (2023) 5 SCC 534 and brought to the
notice of this Court once again relying upon Section 106 of the
Evidence Act that when the accused has got special knowledge
of the incident, he has to throw light upon such facts and he
relies upon paragraph Nos.5 to 12, wherein also discussion was
made with regard to time-gap between period when deceased
was last seen with petitioner therein and recovery of corpse of
deceased was found quite proximate, particularly having regard
to the oral evidence of the witnesses, enmity between deceased
and petitioner which also surfaced and when corroborative
evidence is available before the court, even in respect of
recovery of weapon, the Court ought to have taken note of the
same.
12. Learned counsel also relies upon the judgment in the
case of Darshan Singh v. State of Punjab reported in
(2024) 3 SCC 164 and brought to the notice of this Court, to
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paragraph No.19, wherein also, discussion was made with
regard to circumstantial evidence, when the commission of
murder is said to have taken place inside a house and absence
of explanation or false explanation on the part of the accused
and when the presence of the accused inside the house is
established on record, in such a situation, if the accused
remains quiet or offers a false explanation, that is also one of
the additional link in the chain of circumstances.
13. Learned counsel relies upon another judgment in the
case of Joy Devaraj v. State of Kerala reported in (2024) 8
SCC 102 and vehemently contends that intention and nature of
fatal injury and intention to cause death can easily be discerned
from conduct of the appellant and nature of fatal injuries
inflicted, which in ordinary course of nature was sufficient to
cause death and hence counsel would contend that Court has to
take note of ingredients of Section 300 IPC, which is enough to
convict the appellant, with regard to the motive is concerned.
Learned counsel relies upon paragraph No.24, wherein the
same was discussed that the intention to cause death can be
gathered and pointed out that itself is a motive to take away
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the life, when the accused intended to take away the life with
inflicted injuries.
14. Learned counsel also relies upon the judgment in the
case of Chandan v. State (Delhi Admin.) reported in (2024)
6 SCC 799 and brought to the notice of this Court to paragraph
Nos.6 to 12, wherein also discussion was made with regard to
stabbing of deceased by accused with knife, which caused his
death, otherwise, established beyond reasonable doubt.
Absence of proof of motive held irrelevant in such a case and
conviction for murder was confirmed.
15. Learned counsel relies upon the judgment in the case
of Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
reported in (2025) 2 SCC 399 and referring this judgment
with regard to Section 27 of the Evidence Act is concerned, he
brought to notice of this Court to paragraph No.26, wherein
discussion was made with regard to the conduct of accused in
leading investigation team and pointing out hidden place of
apparel of the deceased and admissibility in absence of
admissibility of recovery evidence, irrespective of the
admissibility of discovery panchanama, recovery panchanama
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and irrespective of the admissibility of the recovery of the
clothes of the deceased on the statement of the accused, the
court has to take note of the conduct of the appellant in leading
the investigation team and the panchas and pointing out where
the apparel of the deceased was hidden, would be admissible
and hence learned counsel contends that the principles laid
down in the judgments' referred supra will come to the aid of
the case of the prosecution and hence requests the Court to
consider the same while deciding the matter.
16. Learned Addl. SPP Smt. Rashmi Jadhav, appearing for
the State also brought to notice of this Court, in addition to the
argument of learned counsel appearing for the complainant,
Mr. Abhinav Anand, the evidence of PW.2. The evidence of
PW.2 discloses that on the date of the incident, deceased went
along with accused No.1 on the motorcycle, later, dead body of
deceased was found with fatal injuries. The complaint was also
marked as Ex.P2. The evidence of PW.2 is corroborated by the
evidence of PW.3. PW.3, father of the deceased also
categorically says that there was quarrel between accused No.1
and deceased and on account of the said quarrel, the accused
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committed the murder of deceased. She also contends that the
evidence of PW.4 is also very clear that, accused No.1, who
was accompanied by a person, visited his hotel at Kerehalli,
Jade Grama. After finishing the meal, both of them left the
hotel on the bike. The evidence of PW.6 also discloses that at
about 7.30 p.m., accused No.1 visited his wine shop along with
another person and purchased liquor. The said witness has
identified accused No.1. Learned counsel also vehemently
contends that the evidence of PW.5 discloses that accused No.1
had taken half a litre of petrol from the said witness by paying
an amount of Rs.40/- and to that effect also, a mahazar(Ex-P4)
was drawn. PW.8 is the panch witness to Ex-P5 mahazar.
Learned counsel also vehemently contends that when the
recovery is made at the instance of accused No.1 and witness
PW.8 also categorically deposes with regard to the recovery is
concerned, all these materials were not considered by the trial
Court and extended the benefit of doubt in favour of the
accused.
17. Per contra, learned counsel appearing for the
respondents/accused Nos.1 and 2 would vehemently contend
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that in order to prove the factum of motive, there is no material
before the Court and only relying upon the evidence of PW.2
and PW.3 with regard to motive as well as other circumstances
that accused No.1 and deceased were last seen together, none
of the other witnesses have spoken about the same; learned
counsel also vehemently contends that though PW.16 deposes
that he found accused No.1 and deceased on the previous
dates and also on the date of the incident, but his evidence is
not consistent and not trustworthy; that regarding recovery is
concerned, Ex.P8 seizure mahazar is dated 04.02.2016 and the
incident has taken place on 30.01.2016 and though mahazar
was drawn in terms of Ex.P8 and seized the articles, but the
same were sent to FSL on 11.03.2016 and hence the RFSL
reports cannot be accepted; that Section 27 of the Evidence Act
is not complied with.
18. In support of his argument, he relies upon the
judgment in the case of Boby v. State of Kerala reported in
(2023) 15 SCC 760 and contend that the Hon'ble Apex Court
in the above judgment has taken note of the decision rendered
in the case of Subramanya v. State of Karnataka reported in
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2022 SCC Online SC 1400, wherein Section 27 of the
Evidence Act was discussed and also as to how to make the
recovery. Learned counsel would contend that while making
recovery also, the accused must explain before the panch
witnesses as to what he is going to do, particularly in respect of
recovery or discovery. There must be compliance at the first
instance where a disclosure must be a first part of recovery and
after recovery, the recovery in the presence of witnesses also
should be complied and that is the second part of mahazar.
Learned counsel brought to notice of this Court the discussion
made by the Hon'ble Apex Court in the said judgment from
paragraph No.22 onwards and contends that when the same is
not complied, question of relying upon Section 27 of the
Evidence Act does not arise. Further, in support of his
argument, learned counsel relied upon the judgment in the
case of State of Rajasthan v. Hanuman reported in (2025)
SCC Online SC 1387 to paragraph Nos.6 and 7, wherein the
Hon'ble Apex Court held 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
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required to bring home the charges against the accused and
further that the High Court seems to have overlooked the FSL
report which fact was stressed upon by learned counsel for the
appellant and further held that, even if the FSL report is taken
into account, then also, other than the fact that the weapon
was recovered at the instance of the accused tested positive for
the same blood group as that of the deceased (B +ve), nothing
much turns on the said report.
19. He further brought to notice of this Court to the
judgment of the Hon'ble Apex Court in the case of Raja
Naykar v. State of Chhattisgarh reported in (2024) 3 SCC
481, wherein also it was 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.
20. With regard to aspect of recovery is concerned,
learned counsel relying upon Subramanya's case referred
supra brought to notice of this Court to paragraph No.76,
wherein discussion was made with regard to Section 27 of the
Evidence Act and also to paragraph No.77, wherein it is held
that the first and the basic infirmity in the evidence of all the
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aforesaid prosecution witnesses is that none of them have
deposed the exact statement said to have been made by the
appellant therein, which ultimately led to the discovery of a fact
relevant under Section 27 of the Evidence Act and further
referring to paragraph No.78 also, wherein discussion was
made with regard to the first instance, wherein before the
panch witnesses, the accused must state what he is going to
reveal i.e., the first part of panchanama and also with regard to
the recovery is concerned, the same is also to be proved and
the law expects the Investigating Officer to draw the discovery
panchanama as contemplated under Section 27 of the Evidence
Act. In the instant case, if we read the entire oral evidence of
the Investigating Officer, it is clear that the same is deficient in
all the aforesaid relevant aspects of the matter. Learned
counsel referring to the discussion made in this paragraph
would contend that recovery is not proved, procedure is not
followed and the same is not disclosed in the presence of panch
witnesses and the evidence of panch witness PW.8 is not clear
as to whether only he was called to the police station, but
nothing is spoken by him, that in his presence, the accused
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disclosed as to what he is going to do and hence the same
cannot be relied upon.
21. Having heard the appellant counsel and also the
counsel appearing for the respondent, so also learned
Additional SPP, this Court has to analyze the material available
on record and having analyzed the materials, the points that
would arise for consideration of this Court are:
1. Whether the appellants in both the appeals
filed by complainant as well as State have
made out the case to reverse the finding of
the trial Court in coming to the conclusion that
trial Court has committed an error in not
considering the circumstantial evidence
available on record, which is sound
circumstance to convict the accused and in
coming to the conclusion that the prosecution
has proved the case beyond reasonable
doubt?
2. What order ?
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22. Having heard the respective counsels, who appears
for the appellants, learned Addl.SPP and also the principles laid
down in the judgment relied upon by the learned counsel
appearing for the appellant i.e., complainant's counsel, as well
as the grounds, which have been urged by the State and also
the principles laid down in the judgments of the Hon'ble Apex
Court, which have been relied upon by the learned counsel
appearing for the respondents/accused, this Court has to
analyze the evidence available on record.
23. Now the question before this Court is with regard to
the theory of last seen witnesses wherein the evidence of the
witness should be consistent and corroborative to come to a
conclusion that last seen witnesses evidence supports the case
of prosecution.
24. The counsel appearing for the victim would
vehemently contend that evidence of PW2, PW3, PW4, PW6,
PW7 and PW16 is very clear with regard to the last seen theory
in connection with seeing of the accused as well as the
deceased together and the same is proved. In this regard, this
Court has to examine the evidence of PW2. The evidence of
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PW2 is that he found accused No.1 and deceased together in
the early morning at 8.00 to 8.30 and both of them proceeded
in the motorcycle bearing KA27-8658. But in the next
sentence, he says that the said fact came to his knowledge
from his brother. Thus, his evidence reveals that his brother
called and informed him about committing of murder.
Thereafter, he rushed to the spot and he found the material
objects at the spot. It is also the evidence of PW2 that he had
lodged the complaint in terms of Ex.P2 and police came to the
spot and conducted the spot mahazar and seized the articles
which were found at the spot and also identified MO1 to MO7.
25. This witness was subjected to cross-examination. In
the cross-examination, he deposed that when he went to the
spot, he found his brother as well as two police and no other
persons were there. He also admits that he did not mention the
averments in the complaint with regard to that he found both
accused and deceased together. However, he volunteers that
once again said fact came to his knowledge only through his
brother. Hence, it is clear that he did not found both accused
No.1 and also the deceased together going in the motorcycle.
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Thus, the evidence of PW2 will not come to the aid of the
prosecution since he did not notice that both accused and
deceased went together.
26. Now, this Court has to examine the evidence of
PW3. PW3 also says that on 30.01.2016 at 8.00 a.m., the
deceased went in the motorcycle belongs to his wife's sister's
son. Thus, his evidence is that the deceased alone went in the
motorcycle and he did not turn up. When PW2 says that he
came to know through PW3 that accused No.1 and deceased
went together, but PW3 did not speak anything that accused
No.1 and deceased went together. Hence, the evidence of PW3
also will not comes to the aid of the prosecution with regard to
the fact that accused No.1 and deceased went together while
going in the motorcycle.
27. Another witness of the prosecution is PW4. PW4
says that on 30.01.2016 at around 3.00 p.m., accused No.1
came along with one person and they had the food and
thereafter both of them left in the motorcycle. This evidence
also will not comes to the aid of the prosecution since this
witness only identified the accused but not identified the
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deceased and even did not spell out the name of the deceased.
In the cross examination also he admits that he cannot tell how
many people comes to hotel and he can identify them.
28. The other witness to whom the prosecution relies
upon is PW5. PW5 says that on 31.01.2016, accused No.1 came
and purchased the petrol of half liter and made the payment of
Rs.40/-. He also says that police brought accused No.1 to his
shop and he identifies him. Having considered that this witness
is also a witness to Ex.P4, but he did not disclose anything that
both accused No.1 and deceased came together and he only
says that accused No.1 came and purchased the petrol.
29. The other witness is PW6. PW6 says that he had
seen accused No.1. That on, 30.01.2016 at around 07.30 he
found accused No.1 in the wine shop and one more person was
there along with him and both of them have purchased the pint
beer. That on 02.02.2016, police brought accused No.1 and he
identified him. He also says that he came to know that the
person who came along with accused No.1 was murdered. This
witness also not clear that both deceased and accused No.1
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were together on the date of the incident and both of them
came to the wine shop, but he only identified accused No.1.
30. Now, another witness is PW7 who is also an
advocate. In his evidence, he says that he came to know about
the death of the deceased through his brother and he also gave
further statement before the police. He speaks that he found
accused No.1 and also says that on enquiry, his brother
revealed that accused No.1 and deceased left together but the
same came to his knowledge only through his brother. Hence,
he is also a hearsay witness.
31. Now, the witness remains is PW16 wherein he says
that he is a mahazar witness to Ex.P27 and photo which is
marked at Ex.P30. Apart from that he says that on 29.01.2016
and 30.01.2016, he found both the deceased and accused No.1
who were proceeding in the motorcycle bearing No.KA27-8658
towards Soraba and they revealed that they are going to Jade
Village. He made the said statement before the police on
04.02.2016. Having perused the statement dated 04.02.2016,
no doubt, in the bottom it is mentioned that he enquired and
found, but that is the further statement. In the cross-
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examination, when suggestion was made that both of them not
moving to Soraba and also did not disclose anything that they
are going to Jade village and the said suggestion was denied.
However, he says that from 31.01.2016 to 04.02.2016, he was
in the village itself.
32. Having considered the evidence available before the
Court with regard to the last seen theory is concerned, it
discloses that there is no consistent evidence that all of them
have seen both deceased and accused No.1 together and
though an attempt is made by PW2 that he found both of them,
but he says that he came to know the same through PW3 and
PW3 is none other than the father of the deceased and he
never disclosed that he found both of them and only he
deposed that at 08.00 a.m., the deceased left in the
motorcycle.
33. With regard to the last seen theory is concerned,
this Court would like to rely upon the judgment of STATE OF
UP vs SATISH reported in (2005) 3 SCC 114. In paragraph
22, the Apex Court discussed that last seen theory comes into
play where the time-gap between the point of time when the
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accused and the deceased were last seen alive and when the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to
positively establish that the deceased was last seen with the
accused when there is a long gap and possibility of other
persons coming in between exists. In the absence of any other
positive evidence to conclude that accused and the deceased
were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases.
34. In the case on hand also, PW16 says that he found
the accused and the deceased on 29.01.2016 and 30.01.2016
and they were moving to Soraba. But his evidence is not
consistent since he says only in further statement that he found
both of them and he is one of the witnesses to the mahazar at
Ex.P27. But prosecution has cited him as a witness also but
PW16 not stated that he has seen both accused and the
deceased together. Thus, he ought not to have cited as a last
seen witness and only he has to cited as witness to Ex.P27.
Apart from that this incident has taken place at around 11.00
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p.m. But the witnesses who have spoken have not identified
the deceased along with accused No.1, though they claim that
accused No.1 came to the wine shop as well as he came to the
shop to purchase the petrol, none of them have identified that
both of them were together except the evidence of PW16 and
his evidence is also not trustworthy to rely upon the same.
35. Now, coming to the aspect of recovery is
concerned, the counsel appearing for the appellant mainly
pressing upon the recovery of blood stained cloth of the
accused at his instance and relies upon Section 27 of Evidence
Act and mainly relies upon the evidence of PW8. No doubt, PW8
is the witness for recovery. In his evidence, he says that
mahazar was drawn in terms of Ex.P5 and two mobiles were
seized from accused i.e., Samsung as well as Nokia phones. In
Samsung, there were two SIMs and in Nokia, there was one
Sim and the same were seized and he also signatory to the
mahazar. But the fact that even though IO made him as panch
witness for recovery, even after seizing the mobile also, the
deceased mobile was also found but not collected any call
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records. Thus, there is no such evidence to link the accused
and the deceased.
36. The other evidence of PW8 is that the accused only
pointed out the spot where he burnt the motorcycle and also
found half burned motorcycle and the same is in a lonely place
and mahazar was drawn in terms of Ex.P6. His evidence in the
cross examination that in the forest area Watcher will be there
and he admits the same. It was a plantation area and the same
is a government plantation. When the place is a remote place
and forest area and when the watcher will be there, suggestion
was made that no spot was shown by the accused and the
same was denied. But in order to comes to a conclusion that
the same was pointed out by the accused, Court has to take
note of the fact that whether procedure has been followed or
not.
37. The other instance spoken by the accused that he
only led all of them to the spot. It is not in dispute that the spot
already known to the police as well as the public and even
though mahazar was drawn in terms of Ex.P7, the same will not
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comes to the aid of prosecution since question of invoking
Section 27 of Evidence Act for discovery does not arise.
38. The other circumstance is with regard to the seizure
of Kerosene can and the same was produced at the instance of
the accused and also found 2 liters of kerosene in the said can.
Apart from that he had shown the shirt which was kept in the
house and the same was seized by drawing the mahazar in
terms of Ex.P8 and also identifies MO11 and MO12 i.e., plastic
cover and plastic bag and also drawing of mahazar in terms of
Ex.P4. In the cross examination of PW8, he admits that his
shop is situated in the line of police station which is in existence
and the distance is only 500 meters. The spot which was shown
is at the distance of 10 to 12 kilometees from the police
station. The police also seized the broken club and he had
signed the same and also he says that he has not stated
anything to draw the mahazar and he has not given any
instructions to prepare the mahazar, police only written the
same and he had signed the same after knowing the contents
of the same.
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39. Having considered this evidence, it discloses that it
is not the evidence of PW8 that in his presence, accused was
asked to disclose what he is going to do. This witness says that
he was called to the police station and directly says that
accused produced two mobiles and mahazar was drawn and
also the accused led him and nowhere this witness says that in
his presence, accused was asked what he is going to do. In this
regard, this Court has to take note of the judgment of the Apex
Court reported in (2023) 11 SCC 255 in case of
SUBRAMANYA vs STATE OF KARNATAKA. The Apex Court
while discussing the same in not accepting the case of
prosecution theory comes to the conclusion in keeping in mind
that we proceed to consider whether the prosecution has been
able to prove and establish the discoveries in accordance with
law as per Section 27 of the Evidence Act and the Apex Court
extracted Section 27 of the said Act in paragraph 76. In
paragraph 78, it is stated that if, it is say of the Investigating
Officer that appellant/accused while in custody on his own free
will and while volition made a statement that he would lead to
the place where he had hidden the weapon of offence, the site
of burial of the dead body, clothes, etc. Then the first thing that
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Investigating Officer should have done was to call for two
independent panch witnesses at the police station itself. Once
the two independent witnesses would arrive at the police
station, thereafter, in their presence, the accused should be
asked to make an appropriate statement as he may design in
regard to pointing out the place where he is said to have
hidden the weapon of offence etc. When the accused while in
custody makes a statement before the two independent panch
witnesses, the exact statement or rather the exact words
uttered by the accused should be incorporated in the first part
of the panchanamma that the Investigating Officer may draw in
accordance with law. The first part of the panchanamma for the
purpose of Section 27 of the Evidence Act is always drawn at
the police station in the presence of the independent witnesses
so as to lend credence that a particular statement was made by
the accused expressing his willingness and his own free will and
volition to point out the place where the weapon of offence or
any other articles used in the commission of the offence had
been hidden. Once the first part of the panchanama is
completed, thereafter the police party along with the accused
and the two independent witnesses would proceed to the
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particular place as may be led by the accused. If from that
particular place anything like the weapon of offence or blood
stained clothes or any other article is discovered, then that part
of the entire process would mark as the second part of
panchanama. This is how the law would expect the
Investigating Officer to draw the discovery panchanama as
contemplated under Section 27 of the Evidence Act.
40. In the case on hand, having considered the
principles laid down in the judgment referred supra, we do not
find any such circumstances calling upon the panch witnesses
and asking about the accused to state what he is going to do
and drawing the first part of panchanama in the police station.
Having perused the voluntary statement, it discloses that
accused had disclosed with regard to where the motorcycle was
burnt and not stated anything about producing of the blood
stained cloth. No doubt, FSL report discloses that there is a
blood stains in Article 5 as well as Article 10 i.e., the shirt of
the deceased as well as the accused. The report is very clear
that except in the mud sample, there is no blood stains and
also in respect of Article 6 is concerned, blood sample which
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was taken, the same was not helpful for prosecution to find out
the blood group.
41. In the case on hand, it has to be noted that there is
a blood group of 'A' positive and the same is also a human
blood. If the same is a 'A' positive and found the blood stain in
the shirt of the deceased as well as accused, whether the same
belongs to the deceased's blood group, there is no evidence
before the Court. Article 6 is a blood samples of the deceased is
disintegrated and did not materialise the same as the same
that of the blood group of the deceased. When the recovery is
not in accordance with law as contemplated by the Apex Court
in the case SUBRAMANYA referred supra particularly in
paragraph 78 and the very recovery is defective and the FSL
report also not conclusive to comes to a conclusion that blood
group is of the deceased and the same is found in the cloth of
the accused, the same cannot be relied upon.
42. Now the counsel also relies upon the judgment of
the Apex Court in the case of STATE OF RAJASTHAN VS
HANUMAN referred supra wherein also with regard to the
incriminating circumstances discussed in paragraphs 6 and 7
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that the motive and the recovery of the blood stained weapon
and the same cannot be a complete chain of incriminating
circumstances required to bring home the charges against the
accused. The Apex Court also relied upon the judgment of
RAJA NAYKAR vs STATE OF CHATTISGARGH reported in
(2024) 3 SCC 481, referred supra wherein also 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. Having taken note of the principles laid down
in the judgments of the Apex Court referred supra, the same
also not come to the aid of prosecution when the counsel
appearing for the appellant/victim mainly pressing upon the
recovery of blood stained cloth.
43. The other circumstance is with regard to the seizure
of two mobiles. Already this Court discussed that there is no
any such call record details. Apart from that the counsel
brought to notice of this Court that PW3 categorically spoken
while giving the evidence that there was a scuffle between the
accused and deceased. When the accused had sustained the
injuries, Court ought to have taken note of the said
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circumstances but the said contention also cannot be accepted
for the reason that prosecution not denies that accused was
subjected to medical examination. But IO has not collected
injury certificate of the accused. If prosecution has collected
the material with regard to even accused had sustained the
injuries that would have been one more linking circumstances.
But no such linking circumstances are available before the
Court to link the chain of circumstances. No doubt, it is the
case of PW3 that the said motorcycle belongs to his wife's
sister's son. But to that effect also the IO has not collected any
material. No doubt, it is settled law that the very defect of
investigation is not a ground to extend the benefit and acquit
the accused. But it is settled law that others incriminating
evidence if it is available and if any lapses on the part of the
IO, the Court can come to a conclusion that the prosecution has
proved the case.
44. It is also important to note that the counsel
appearing for the appellant mainly relies upon the judgments of
the Apex Court with regard to Section 106 of the Evidence Act.
No doubt, if nobody can access the place where the incident
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was taken place, then burden lies upon the accused to explain
the same. But here is a case of the murder which has taken
place in a public place and not in any particular vicinity. Within
the vicinity of the accused, if any such offence has taken place,
then there would be a force in the contention of the counsel
appearing for the appellant. Thus, Section 106 of the Evidence
Act also will not come to the aid of the prosecution to come to
such a conclusion.
45. With regard to the motive is concerned, when the
case is rest upon the circumstantial evidence, motive is
significant. If there is any direct evidence before the Court,
then motive is insignificant. But when the case is rest upon the
circumstantial evidence, motive is very significant. In order to
substantiate the motive, nothing is established except stating
that election was declared and PW3 was having an intention to
contest in the Zilla Panchayat election and also the deceased
came from Bangalore to canvas on behalf of his father. But it is
a case of the prosecution that deceased as well as accused both
of them were making an attempt to canvas in the election.
Even PW16 says that both of them were moving around Soraba
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that too, they intend to go to Jade village. Thus, there is no any
rivalry between them, but one of the relative of the accused
also intending to contest in the election. But to that effect, no
material is collected by the IO and there is no oral or
documentary evidence placed before the Court. Though it is
contended that there is a motive and in order to substantiate
the motive also, no material is placed before the Court to show
that there was a motive to commit the murder. None of the
circumstantial evidence inspires the confidence of the Court.
46. The counsel relies upon judgment of the Apex Court
in the case of BOBY vs STATE OF KERALA referred supra and
relies upon paragraph 21, wherein also with regard to the
discovery is concerned discussed in detail and disclosure of the
same that Section 27 of the Evidence requires that the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this and the
information given must relate distinctly to the said fact. The
information as to past user or the past history of the object
produced is not related to its discovery. The said view has been
consistently taken note of in the judgment of Apex Court in
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(1978) 4 SCC 90 in the case of Chandran vs State of Tamil
Nadu and also in the Judgment of State of Karnataka vs
David Rozario and another reported in (2002) 7 SCC 728
wherein also clearly discussed that it is therefore necessary for
the benefit of both the accused and the prosecution that the
information given should be recorded and proved and if not so
recorded, the exact information must be adduced through
evidence. The doctrine is founded on the principle that if any
fact is discovered as if such made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is true.
The information might be confessional or non-inculpatory in
nature, but it results in discovery of a fact, it becomes a
reliable information.
47. Having taken note of the principles laid down in the
judgments referred supra, it is very clear that prosecution was
not able to prove all the circumstances and to establish the
chain of circumstances to link the accused for the offence
committed as allegedly charged against the accused.
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48. With regard to the offence invoked against accused
No.2 is concerned that he had given shelter having coming to
know that accused No.1 committed the murder, to that effect
also there is no any corroborative piece of evidence before the
Court except framing the charge against accused No.2 that he
had given the shelter. When accused No.1 is entitled for benefit
of doubt when there was no any chain link is established, the
question of invoking Section 212 as against accused No.2 also
does not arise. All these factors were taken note of by the Trial
Court while appreciating the material available on record
particularly in paragraph 21 with regard to the evidence of
PW8, since with regard to the recovery, that is incriminating
material against the accused, the evidence of PW8 is relied
upon by the prosecution. So also the Trial Court taken note of
the judgment reported in 2014 SAR (Criminal) 337
Supreme Court in paragraph 23 with regard to the recovery of
incriminating articles is concerned wherein held that even
assuming to be true that recovery of certain incriminating
articles were made at the instance of the accused under Section
27 of the Evidence Act, that by itself cannot form the basis of
conviction.
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49. The Trial Court also taken note of the judgment
reported in 2016 (3) Cri.320 wherein also held that conviction
on the basis of evidence of last seen, conduct of the accused,
recovery of dead body and clothes of the accused worn by him
at the time of incident pointing out to the guilt of the accused,
cannot be halted. However motive, if proved, would supply a
link in the chain of circumstantial evidence, but absence thereof
cannot be a ground to reject the prosecution case.
50. Even taken note of the said principles and having
discussed the several judgments of the Apex Court referred
supra and also having evaluated and analysed the evidence
available on record, this Court comes to the conclusion that in
the absence of establishing chain of circumstances, the accused
cannot be convicted. The law is very settled that in a case,
prosecution must prove the case beyond reasonable doubt and
then burden shifts upon the accused to explain the
incriminating circumstances. Having taken note of all the
materials available on record, this Court comes to the
conclusion that there is no any convincing evidence before the
Court and the same has also taken note of by the Trial Court
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while acquitting the accused extending the benefit. Mere
recovery of blood stained cloth in the case on hand, there is no
evidence before the Court to show that the blood found in the
cloth of the accused is also the blood belongs to the deceased
and there is no any comparison and the Article 6 sample blood
was disintegrated and could not comes to a conclusion that the
said blood found in the cloth of the deceased as well as the
accused belongs to the deceased only. There is no any
corroborative evidence before the Court. When such being the
case, we do not find any ground to reverse the finding of the
Trial Court.
51. It is settled law that if the material available on
record is not sufficient, then the benefit goes in favour of the
accused. Thus, the benefit should be given to the accused only
and not reversing the judgment of the Trial Court. Having
considered the principles held with regard to the criminal
jurisprudence is concerned, we do not find any such
circumstances and warranted to reverse the judgment of the
Trial Court. Hence, it is not a case to reverse the judgment of
the Trial Court since not found any reasons to come to other
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conclusion that accused only committed the murder as charged
against him.
52. In the judgment of SHARAD BIRDICHAND
SARDA vs STATE OF MAHARASHTRA reported in (1984) 4
SCC 116, Apex Court held that even if certain circumstances
pointed out the role of the accused, but in a case of
circumstantial evidence, unless all chain links are established,
question of convicting the accused does not arise. Here is also a
case that the counsel appearing for the appellant pointed out
the blood stains found in the cloth of the deceased as well as
the accused and the same is one blood group, but that cannot
be only ground to convict the accused. Even pointed out the
spot where the motorcycle was also burnt and this Court having
referred the judgment of SUBRAMANYA's case referred supra,
particularly with regard to invoking Section 27 of the Evidence
Act is concerned also discussed in detail. In view of the
judgments of the Apex Court, it is settled law that throughout
in criminal jurisprudence, in a case of circumstantial evidence,
all the circumstances must be proved and there must be link to
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each of the circumstances to establish the crime. But in the
case on hand, the same is not found.
53 In view of the discussions made above, we pass the
following:
ORDER
Both the criminal appeals are dismissed.
If any bail bond is executed by the accused, the
same stands cancelled.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MN/SN
List No.: 1 Sl No.: 13
