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2015 DIGILAW 204 (KAR)

Hosamanera Prakash v. State Of Karnataka

2015-02-24

MOHAN M.SHANTANAGOUDAR, P.S.DINESH KUMAR

body2015
JUDGMENT : The judgment and order of conviction dated 18.11.2011 passed by the I Addl. District and Sessions Judge, Davanagere, in S.C. No.29 of 2011 is appealed against by the convicted accused. The accused were tried, convicted and sentenced for the offences punishable under Sections 120B, 302, 201 r/w Sec.34 of IPC. 2. Case of the prosecution in brief is that the deceased Uday, is the husband of accused No.3 – Halamma; accused No.1 had illicit relationship with accused No.3 and in that background all the accused with a common intention said to have committed murder of the deceased Uday during night hours intervening between 7.8.2010 and 8.8.2010. It is further case of the prosecution that accused No.1 owned a mobile shop and was also doing money lending business at Danihalli Village; accused No.2 was working in the mobile shop of accused No.1, he was also attending pigmy collection work and accused No.4 was a milk vendor; accused Nos.1, 2 and 4 were friends and residents of Danihalli Village; accused Nos.1 and 3 had illicit sexual relationship; they had run away from the Village and were brought back; Panchayaths were held and they were suitably advised; the deceased – Uday had resisted illicit relationship between accused Nos.1 and 3; despite the advice of panchayathdars, illicit relationship between accused Nos.1 and 3 continued; they planned to do away with the life of the deceased with the help of accused Nos.2 and 4; accused No.4 took the deceased to Nyamathi Village in the evening of 7.8.2010 on his motor cycle and made the deceased to consume liquor at his cost; accused No.4 intimated accused Nos.1 and 2 to come to the spot of incident; accordingly, they came to the said spot and all of them committed murder of the deceased; thereafter, all of them took the deceased to the house of the deceased and laid his body on the cot in the presence of accused No.3, who in turn did not intimate about the incident to anybody till morning; however, death of the deceased came to light only at 6.00 a.m. on 8.8.2010; thereafter PW24 Rajendrappa, elder brother of the deceased, went to Nyamathi Police Station on 8.8.2010 at 12.30 p.m. and lodged a complaint, which came to be registered in Crime No.147/2010. It is further case of the prosecution that accused No.3 had permitted accused No.1 to pledge her gold thali (mangalasutra) and another gold chain for generating funds for commission of murder of the deceased. 3. In order to prove its case, the prosecution in all has examined 28 witnesses and got marked 37 documents as Exhibits and 15 Material Objects. On behalf of the defence, 9 documents were got marked as Ex.D1 to D9. The trial Court on evaluation of the material on record convicted all the four accused for the offences punishable under Sections 120B, 302, 201 r/w Section 34 of IPC. 4. The learned counsel Sri Chandrashekar, appearing on behalf of accused No.2 to 4 and the learned counsel Sri R.B. Deshpande appearing for accused No.1 taking us through the material on record, submitted that the Court below is not justified in convicting the accused merely on assumptions and presumptions; prosecution has not proved its case beyond reasonable doubt; none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt; the entire chain of circumstances would not prove the guilt of the accused; accused No.3 has not at all participated in commission of the offence; there is nothing on record to show as to how the incident took place; the version as found in the complaint – Ex.P26 is given a go bye by the prosecution during the course of investigation by generating a different theory altogether; if really PW.24 had seen the deceased at 11.30 p.m. on 7.8.2010 he would not have missed to lodge the complaint or intimate to third parties; the complaint at Ex.P26 is silent about the role of accused Nos.3 and 4; the circumstance of motive is not proved by the prosecution, inasmuch as, there is nothing on record to show that accused Nos.1 and 3 had continued their illicit relationship after panchayaths were held in the village; the circumstance relating to recovery of MO.No.9 – gold thali (mangalasutra) of accused No.3 at the instance of accused No.1 does not help the case of the prosecution, inasmuch as, MO.No.9 is not the incriminating substance; MO.No.9 – gold thali is of the mother of accused No.1 and not of accused No.3; the evidence of PW.16 – Shanthappa, Branch Manager of Muthoot Finance, Shimoga, makes it clear that MO.No.9 – gold thali does not belong to accused No.3. On these among other grounds they prayed for acquittal of the accused. 5. The learned Government Pleader appearing on behalf of the respondent State, per contra, argued in support of the judgment of the Court below contending that the Court below is justified in convicting all the accused, more particularly, accused Nos.1 and 3; all the circumstances relied upon by the prosecution are proved beyond reasonable doubt against all the accused, more so against accused Nos.1 and 3. 6. PWs.1 and 2 are the witnesses for inquest panchanama. PWs.3, 4, 5, 14 and 19 have deposed about the motive for commission of the offence, i.e., the illicit relationship between accused Nos.1 and 3. PWs.6 and 7 have turned hostile and their evidence is of no use either for the prosecution or for defence. PW.8 is the witness for seizure panchanama – Ex.P4, under which MO.No.9 – gold thali and MO.No.10 – gold chain owned by accused No.3 were seized at the instance of accused No.1 from Muthoot Finance, Shimoga. PW.9 is the witness for mahazars at Ex.P5 to P9. Ex.P5 relating to seizure of MO.No.7 – Mobile phone of accused No.1 from his house; Ex.P6 is the spont panchanama; Ex.P7 is the panchanama relating to recovery of MO.No.8 – Mobile phone from the house of accused No.3; Ex.P8 is the panchanama relating to seizure of MO.Nos.1 to 6, i.e., clothes of deceased; Ex.P9 is the panchanama relating to seizure of the motor cycle belonging to accused No.1 from him. PW.10 has deposed about motive for commission of offence. PW.11 is the witness for seizure panchanama – Ex.P11 under which the receipt (Ex.P10) was seized from Muthoot Finance at the instance of accused No.1. PWs.12, 13 and 15 have turned hostile. PW.16 is the Manager of Muthoot Finance, who has deposed about the recovery of the gold chain and gold thali by the police from his shop, which were pledged by accused No.1. He has also deposed about recovery mahazars at Ex.P4 and P17. PW.17 is the witness who saw accused No.1 and deceased near the bus stand at Nyamathi village prior to the incident, i.e., in the evening of 7.8.2010. PW.18 is another witness for recovery mahazars Ex.P18 and P19, under which motor cycle and mobile phone of accused No.4 were recovered at the instance of accused No.4. PW.20 is the doctor who conducted postmortem examination over the dead body. PW.18 is another witness for recovery mahazars Ex.P18 and P19, under which motor cycle and mobile phone of accused No.4 were recovered at the instance of accused No.4. PW.20 is the doctor who conducted postmortem examination over the dead body. Ex.P20 is the postmortem report and Ex.P21 and P22 are opinions given by the doctor. PWs.21 and 22 are the police constables. They have deposed about apprehension of accused Nos.3, 1 and 2. PW.23 is the wife of PW24. She has not only deposed about motive for commission of offence, but also on the point that she has seen accused Nos.1 and 2 quarreling with the deceased at Nyamathi bus stand in the evening of 7.8.2010. PW.24 is the brother of the deceased. He has also deposed about motive for commission of offence. He lodged the complaint as per Ex.P26. PWs.23 and 24 have identified the chain and gold thali seized from Muthoot Finance as belonging to accused No.3. PW.25 is the Engineer, who prepared the sketch of scene of offence as per Ex.P27. PW.26 is another police constable, who carried FIR and submitted to the jurisdictional Magistrate. PW.27 is the Investigating Officer who completed the investigation and laid the charge sheet. PW.28 is the another Investigating Officer, who had initially commenced the investigation of the case and handed over the case for further investigation to PW.27. 7. There are no eye witnesses to the incident in question. The case of the prosecution fully rests on the circumstantial evidence. The circumstances relied upon by the prosecution are as under: (a) Motive for commission of offence – PWs.3, 4, 5, 10, 14, 19, 23 and 24 have deposed about the said circumstance. (b) The deceased was last seen with accused Nos.1 and 2 near Nyamathi bus stand in the evening of 7.8.2010 – PW.23 deposed that she saw accused Nos.1 and 2 quarrelling with the deceased. (c) Accused No.4 was last seen with the deceased in the evening of 7.8.2010 near Nyamathi bus stand – PW.17 deposed about the said circumstance. (d) Accused No.1 pledged MO.No.9 gold thali (mangalasutra) and MO.No.10 gold chain belonging to accused No.3 at Muthoot Finance on 29.7.2010 – PW.16 deposed about the said circumstance. The recovery of receipt is deposed by PW.11. (d) Accused No.1 pledged MO.No.9 gold thali (mangalasutra) and MO.No.10 gold chain belonging to accused No.3 at Muthoot Finance on 29.7.2010 – PW.16 deposed about the said circumstance. The recovery of receipt is deposed by PW.11. (e) Recovery of MO.Nos.9 and 10 – gold thali (mangalasutra) and gold chain at the instance of accused No.1 from Muthoot Finance under panchanama at Ex.P4 – PWs8 and 16 have deposed about the said circumstance. (f) The unnatural conduct of accused No.3 in not taking the victim to the hospital and not intimating to the neighbours (including PWs.23 and 24) during the night of 7.8.2010. (g) Accused No.3 has not explained as to how the dead body was found in the bed room of the house wherein she alone was residing with the deceased. 8. Re. Motive for commission of offence: Case of the prosecution is that accused No.3 had illicit relationship with accused No.1; both of them had eloped from the village about one year prior to the incident in question and they were brought back to the village and panchayaths were held, despite the same, relationship between them is continued; the deceased being husband of accused No.3 was opposed to such illicit relationship between accused Nos.1 and 3; hence, accused Nos.1 and 3 planned to do away with the life of the deceased with the help of accused Nos.2 and 4. It is not disputed that the deceased is the husband of accused No.3. However, according to the defence, the problem created due to the illicit relationship between accused Nos.1 and 3 if any, was sorted out before the panchayath in the village and absolutely no material is forthcoming to show that such relationship continued since one year prior to the incident in question. PW.23 (sister-in-law of the deceased) has deposed that the illicit relationship continued even after panchayaths were held in the village. Accused No.3 used to call accused No.1 over phone regularly, so also accused No.1 was talking with accused No.3 over phone frequently. Despite the family members of deceased opposing the same, accused Nos.1 and 3 neglected the same and accused No.1 continued to visit the house of accused No.3 in the absence of the deceased. Though the deceased and accused No.3 were living under the same roof, illicit relationship between accused Nos.1 and 3 continued stealthily. Despite the family members of deceased opposing the same, accused Nos.1 and 3 neglected the same and accused No.1 continued to visit the house of accused No.3 in the absence of the deceased. Though the deceased and accused No.3 were living under the same roof, illicit relationship between accused Nos.1 and 3 continued stealthily. PWs.3, 4, 10, 24 and other witnesses have also deposed that even after panchayaths were held in the village, the illicit relationship between accused Nos.1 and 3 continued and that the deceased was being threatened by accused No.1 with dire consequences. The evidence on record amply discloses that the illicit relationship between accused Nos.1 and 3 continued even after panchayaths were held in the village. The evidence of PWs.3, 4, 10, 14, 23 and 24 fully supports the case of the prosecution with regard to motive for commission of offence. 9. Re. the circumstance that deceased was last seen with accused Nos.1 and 2 near Nyamathi bus stand in the evening of 7.8.2010: The case of the prosecution that PW.23 was taken by the deceased on his motor cycle to give lift up to Nyamathi bus stand, inasmuch as, PW.23 wanted to go to her parents’ house to see her father who was unwell. PW.23 is none other than the wife of PW.24, who is brother of the deceased. PW.23 has deposed that at about 4.30 p.m. on 7.8.2010, the deceased took her on the motor cycle from Danihalli Village to Nyamathi bus stand on his motor cycle and dropped her in the bus stand to enable her to go to her parents’ house to see her father who was unwell. At that point of time (i.e., after reaching the bus stand at Nyamathi) PW.23 saw accused Nos.1 and 2 quarreling with the deceased. After seeing quarrel between accused Nos.1 and 2 on the one side and deceased on the other, she left for her parents’ place and on the next day morning she came to know about the incident in question. As aforementioned, she has also deposed about the motive for commission of offence, i.e., regarding illicit relationship between accused Nos.1 and 3. Though PW.23 was examined by the prosecution to prove that she saw accused Nos.1 and 2 with the deceased in the evening of 7.8.2010 and the quarrel with the deceased, curiously there is scanty cross-examination on that aspect of the matter. Though PW.23 was examined by the prosecution to prove that she saw accused Nos.1 and 2 with the deceased in the evening of 7.8.2010 and the quarrel with the deceased, curiously there is scanty cross-examination on that aspect of the matter. The defence has concentrated only on the aspect of motive and recovery of MO.No.9. However, it is suggested to PW.23 by the defence that she is deposing falsely because her intention was to see that accused No.3 should be behind the bars so that PWs23 and 24 can get all the properties left behind by the deceased. It is also suggested by the defence that the victim had sustained injuries in the motor cycle accident. All such suggestions are denied by PW.23. Except these suggestions, which are denied by PW.23, the defence is not able to show that her version that she saw deceased with accused Nos.1 and 2 at Nyamathi bus stand as false. Virtually the defence has admitted that accused Nos.1 and 2 were present along with the deceased in the evening of 7.8.2010 at Nyamathi bus stand, inasmuch as, version of PW.23 in that regard is not controverted by the defence. Thus, it is clear that PW.23 has seen accused Nos.1 and 2 with the deceased just prior to the incident and they had quarreled with each other. Therefore, the said circumstance is proved by the prosecution beyond reasonable doubt. 10. Re. the circumstance that accused No.4 was last seen with the deceased in the evening of 7.8.2010 near the Nyamathi bus stand: PW.17 has deposed that he has seen accused No.4 with the deceased in Nyamathi bus stand in the evening of 7.8.2010. Though PW.17 has deposed about the said circumstance to the effect that accused No.4 had brought the deceased on the motor cycle to the bus stand, the said version to certain extent is contradictory to the version of PW.23. As aforementioned, the version of PW.23 reveals that accused Nos.1 and 2 were seen quarrelling with deceased at Nyamathi bus stand on 7.8.2010. It is also uncontroverted version of PW.23 that deceased had brought PW.23 on his motor cycle. However, PW.17 has deposed that deceased had come with accused No.4 on a motor cycle and they went back. As aforementioned, the version of PW.23 reveals that accused Nos.1 and 2 were seen quarrelling with deceased at Nyamathi bus stand on 7.8.2010. It is also uncontroverted version of PW.23 that deceased had brought PW.23 on his motor cycle. However, PW.17 has deposed that deceased had come with accused No.4 on a motor cycle and they went back. In the cross-examination, PW.17 has admitted that when PW.17 came near Gandhi Circle, the deceased alone was there, which means subsequently, accused No.4 was not found in the company of the deceased. It is also admitted by PW.17 that accused No.4 gave lift to the deceased and went away. Therefore, from the evidence of PW.17, it is clear that accused No.4 has no role to play in the commission of offence. Though he was earlier found with the deceased, it seems, he left the place subsequently. At the time when accused No.4 left the place, none of other accused was present. Therefore, this circumstance is not proved satisfactorily to show that accused No.4 was present at the time of commission of offence. The evidence of PW.17 does not implicate accused No.4. However, his evidence may be helpful for the prosecution to show that the deceased was at Nyamathi bus stand in the evening of 7.8.2010. The evidence of PW.17 to that extent is supported by the evidence of PW.23 that the deceased was near Nyamathi bus stand. 11. Re. the circumstance of pledging the gold ornaments MO.Nos.9 and 10 by accused No.1 with Muthoot Finance on 29.7.2010: PW.16 has deposed about the said circumstance. PW.16 is none other than the Manager of Muthoot Finance. He has deposed that he knew accused No.1. According to him, accused No.1 went to the office of Muthoot Finance and pledged MO.Nos.9 and 10, i.e., gold thali (mangalasutra) and gold chain on 27.9.2010 and received a sum of Rs.60,000/. PW.16 had taken voter’s identity card from accused No.1 as additional security. Ex.P15, P16, P17 and P10 are identified by this witness. Ex.P15 is the account opening form filled by accused No.1, while pledging the gold ornaments. Ex.P16 is the voter’s identity card provided to accused No.1 by the Election Commission. Ex.P.17 is the khata extract (register extract) in respect of accused No.1 maintained by Muthoot Finance at the time of pledging the gold ornaments. All these documents are specifically adverted to by PW.16. Ex.P16 is the voter’s identity card provided to accused No.1 by the Election Commission. Ex.P.17 is the khata extract (register extract) in respect of accused No.1 maintained by Muthoot Finance at the time of pledging the gold ornaments. All these documents are specifically adverted to by PW.16. He identified accused No.1 as the person who came to his Office. He has also endorsed his signature to panchanama at Ex.P4 under which all the materials were seized. In the cross-examination it is deposed by PW.16 that MO.Nos.9 and 10 were pledged by accused No.1 stating that those ornaments belong to him and that he needs money for his personal expenses. Ex.P17 discloses that accused No.1 obtained loan for agricultural purposes by pledging the gold ornaments. Based on such material collected during the cross-examination, Sri R.B. Deshpande, learned advocate appearing on behalf of the first appellant submits that the gold ornaments are belonging to accused No.1 and that he had pledged the said ornaments to get loan for the agricultural purposes. However, nothing is produced on record to show that these gold ornaments are belonging to accused No.1. In his statement recorded under Section 313 of Cr. P.C., accused No.1 has stated that golden thali (mangalasutra) is of his mother and he pledged the same to get loan for the purpose of his business. It is hard to believe that accused No.1 had pledged the thali of his mother for obtaining the loan. Thali (mangalasutra) is a sacred possession of a married lady. The married lady possesses the same till her last breath. No married lady would forego such a sacred possession. The thali is tied to the neck of a bride by her husband (bridegroom) in the sacred ceremony, i.e., the marriage. Therefore, the trial Court is justified in disbelieving the defence taken by accused No.1 that the pledged ornament MO.No.9thali was belonging to mother of accused No.1. It is the case of the prosecution that accused No.3 had given thali and gold chain to accused No.1 in order to generate funds for commission of the murder of the deceased. Such case of the prosecution is amply proved from the evidence of PW.16 who has deposed that the gold ornaments were pledged by accused No.1 and accused No.1 obtained loan of Rs.60,000/- on 29.7.2010 i.e., about 8 days prior to the incident in question. Such case of the prosecution is amply proved from the evidence of PW.16 who has deposed that the gold ornaments were pledged by accused No.1 and accused No.1 obtained loan of Rs.60,000/- on 29.7.2010 i.e., about 8 days prior to the incident in question. It is also relevant to note that MO.No.9 is identified by the brother of deceased (PW.24) and his wife (PW.23). Both of them deposed that MO.No.9thali is belonging to accused No.3. It has also come in the evidence of PWs.23 and 24 that since about 8 to 10 days prior to the incident, accused No.3 was wearing different thali (artificial thali) and it was not the same which she used to wear regularly; in that regard accused No.3 was even questioned by PW.23. All the aforementioned facts would clearly reveal that accused No.3 has actively participated in the crime by providing money in the form of gold ornaments (MO.Nos.9 and 10) to accused No.1. So also, it is proved by the prosecution that accused No.1 pledged the gold ornaments of accused No.3 and generated funds. 12. Re. recovery of MO.Nos.9 and 10 from the Bank of PW.16 (Muthoot Finance): The said circumstance is deposed by PW.8 and 16. PW.8 is the mahazar witness for recovery panchanama at Ex.P4. He has deposed that on 23.8.2010, the accused lead the police to the office of PW.16 (Muthoot Finance) wherein accused No.1 had pledged the gold ornaments. MO.Nos.9 and 10 i.e., gold thali and gold chain were recovered by the police; the gold thali was weighing 33.97gms and chain was weighing 9.9 gms. Both were seized under panchanama at Ex.P4. Curiously except suggesting that PW.8 has not acted as pancha by going to the office of PW.16, nothing is elicited by the defence so as to discard the evidence of PW.8. He is a retired Government Servant. The evidence of PW.8 is fully supported by PW.16. PW.16 has also deposed about the aspect of recovery of MO.Nos.9 and 10 under panchanama Ex.P4. As aforementioned, PW.16 has also deposed about the seizure of account opening form (Ex.P15), khatha extract pertaining to accused No.1 (Ex.P17) and even the receipt of Muthoot Finance at Ex.P10. All those records are regularly maintained by PW.16 during the course of his ordinary business. As aforementioned, PW.16 has also deposed about the seizure of account opening form (Ex.P15), khatha extract pertaining to accused No.1 (Ex.P17) and even the receipt of Muthoot Finance at Ex.P10. All those records are regularly maintained by PW.16 during the course of his ordinary business. We do not find anything on record, so as to disbelieve those documents, more particularly khatha extract (register extract) is maintained by PW.16 during the course of ordinary business. It is clearly mentioned in Ex.P17 that two row chain (thali) and a chain were pledged in Muthoot Finance by accused No.1 and an amount of Rs.60,000/- was paid to him. The name of accused No.1 finds place in Ex.P17. He has also signed the said document while pledging the ornaments and receiving the amount. Therefore, in our considered opinion, the prosecution has proved the circumstance of pledging the gold ornaments with Muthoot Finance by accused No.1 and the police recovered those ornaments at the instance of accused No.1 under panchanama at Ex.P4. 13. Re. un natural conduct of accused No.3 in not taking the victim to the hospital and intimating anybody about the death of the deceased: It is the case of the prosecution that the incident has taken place in the evening of 7.8.2010 or in the night intervening between 7.8.2010 and 8.8.2010. It is no doubt true that there are no eye witnesses to the incident in question and consequently it cannot definitely be said as to how the incident has taken place. But the fact remains that the dead body is found in the bedroom of matrimonial house of accused No.3. It is admitted by accused No.3 that she was present in the house. It is also not in dispute that the dead body was found in the house in which the deceased alone was living. The incident has taken place in the mid night. If it is so, the natural conduct of the wife of the deceased would be to take him to the hospital, if she had seen him with grievous injuries in the house. She has kept quiet till morning without intimating anybody including the police and PW.24 who is the brother of the deceased residing in the adjoining house. There is no reason as to why she should conceal the factum of the victim sustaining grievous injuries. She has kept quiet till morning without intimating anybody including the police and PW.24 who is the brother of the deceased residing in the adjoining house. There is no reason as to why she should conceal the factum of the victim sustaining grievous injuries. If really accused No.3 is not involved in the crime, she would not have failed to intimate the fact of the deceased sustaining injuries to the villagers, more so, to brother and mother of the deceased who were residing in the neighbouring house. She has not even attempted to admit the deceased to the hospital or to intimate the brother of the deceased. Thus, this unnatural conduct of accused No.3 is an additional and important circumstance against her. 14. Re. non-explanation by accused No.3 in respect of the dead body with injuries found in the bedroom of the house; It was not only unnatural on the part of accused No.3 in not informing the police or non-taking of the deceased to the hospital, but also such non-intimation was not explained by her. Such non-explanation, it would lead to an adverse inference to be drawn against her. Even in her statement recorded under Section 313 of Cr. P.C., accused No.3 has not whispered anything as to how and when the deceased sustained injuries and as to why he sustained the injuries. She has also not explained as to how the dead body of her husband was found in her house. It is not the defence of accused No.3 or anybody that any other person entered the house of the deceased during night intervening between 7.8.2010 and 8.8.2010. It is also not in dispute that accused No.3 alone was residing with the deceased in the said house. Accused Nos.1 and 3, more particularly accused No.3 did not offer any explanation during recording of the statement under Section 313 Cr. P.C. It is not even disputed that the incriminating evidence was put to accused No.3 while her statement under Section 313 of Cr. P.C. was recorded. Except for a vague denial, accused No.3 has not stated anything more. Even in response to the relevant questions relating to the dead body with the injuries found in the house, accused No.3 opted to make a denial. The statement recorded under Section 313 Cr. P.C. was recorded. Except for a vague denial, accused No.3 has not stated anything more. Even in response to the relevant questions relating to the dead body with the injuries found in the house, accused No.3 opted to make a denial. The statement recorded under Section 313 Cr. P.C. would serve a dual purpose; firstly, to afford to the accused an opportunity to explain his conduct, and secondly, to use denials of established facts as incriminating evidence against him. It was expected of accused No.3 to render proper explanation for the injuries sustained by the deceased as well as for finding the dead body with injuries in the bedroom of the house. However, accused No.3 opted to deny the same and in fact she gave false replies. Since she did not explain the incriminating circumstances against her and as she gave false information at the time of lodging the complaint itself, the Court can draw an adverse inference against her. Accused No.3, in the present case, has not only failed to explain her conduct in the manner in which every person of normal prudence could be expected to explain, but had even given evasive and incorrect answers. The Court in such circumstances is justified in not only justified in drawing adverse inference, but such conduct of accused would also tilt the case in favour of the prosecution. Such non-explanation by the accused forms an additional link in the chain of circumstances which point to her guilt. As has been held by the Apex Court in number of cases including the case of Munna Kumar Upadhyay @ Munna Vs. State of Andhra Pradesh, reported in (2012)6 SCC 174 and in the case of Anjanappa Vs. State of Karnataka, reported in (2014)2 SCC 776 , the adverse inference may be drawn against the accused if the incriminating circumstance is not explained by him under Section 313 of Cr. P.C. Wherever his explanation is necessary, the accused should come out with such explanation though it is the burden on the prosecution to prove its case. In the matter on hand, except accused No.3, none else could know as to under what circumstances the victim sustained injuries and as to how the dead body was found inside her house. These facts would clearly reveal that accused No.3 was actively involved in the crime along with accused No.1. 17. In the matter on hand, except accused No.3, none else could know as to under what circumstances the victim sustained injuries and as to how the dead body was found inside her house. These facts would clearly reveal that accused No.3 was actively involved in the crime along with accused No.1. 17. From the aforementioned discussion, we are of the clear opinion that the prosecution has proved all the circumstances relied upon by it at least against accused Nos.1 and 3, beyond reasonable doubt. 18. It is no doubt true that initially the complaint was lodged by PW.24 as per Ex.P26 at 12.30 p.m. on 8.8.2010, which came to be registered in Crime No.147/2010. It is also true that in the said complaint it is mentioned that the deceased came at 11.50 p.m. on 7.8.2010 and talked with PW.24 and told him that accused Nos.1 and 2 assaulted him; immediately after saying so, he died. However, in the further statement of PW.24 recorded during the course of investigation as per Ex.D9, he has explained as to under what circumstances, he lodged the complaint as per Ex.P26. Ex.P26 was lodged based on the information given to him by accused No.3, which means that accused No.3 has mislead the complainant by giving wrong information. Based on such wrong information supplied by accused No.3, PW.24 has lodged the complaint as per Ex.P26 with erroneous facts. However, during the course of investigation, in his further statement, PW.24 has clarified the same. Furnishing of wrong information by accused No.3 relating to the crime is an additional circumstance against her. 19. Be that as it may, we find that the ample material is forthcoming as against accused Nos.1 and 3 to conclude that with a common intention, they committed the murder of the deceased. However, the case of the prosecution as against accused Nos.2 and 4 appears to be shaky. It is no doubt true that there is material to show that accused Nos.2 and 4 were seen along with the deceased near Nyamathi Bus Stand in the evening of 7.8.2010. However, there is no further connecting link as against them. There cannot be any dispute that merely on suspicion, a person cannot be convicted for the offence of murder. It is no doubt true that there is material to show that accused Nos.2 and 4 were seen along with the deceased near Nyamathi Bus Stand in the evening of 7.8.2010. However, there is no further connecting link as against them. There cannot be any dispute that merely on suspicion, a person cannot be convicted for the offence of murder. Having regard to the facts and circumstances of the case, in our considered opinion, the trial Court is not justified in convicting accused Nos.2 and 4 for the offences with which they are charged. However, the material on record proves the case of the prosecution beyond reasonable doubt as against accused Nos.1 and 3. 20. Before parting with the case, we may mention that the trial Court has heavily relied upon the telephone call lists at Ex.P31 to P34 pertaining to mobile phones of accused Nos.1, 3, 4 and the deceased. The call lists no doubt disclose that accused Nos.1, 3 and 4 have talked with each other from 4.00 p.m. on 7.8.2010 till 11.30 p.m. on 7.8.2010, which means that they have talked inter se over mobile phones frequently during the period in which the incident has taken place and even thereafter. The call records also reveal that accused No.4 has talked with the deceased and vice versa over mobile phone. According to the prosecution, the mobile phone number of accused No.1 is 9343970199; of accused No.3 is 9341636883; of accused No.4 is 9844028393 and of the deceased is 9900369164. However, there is nothing on record to show that those SIM cards are belonging to the accused and the deceased. No official records are produced to prove the said aspect of the matter. In addition to the same, we find that call lists at Ex.P31 to P34 are produced and marked during the course of evidence by the Investigating Officer. Those call lists are said to have been obtained by the Police Constable and handed over to the Investigating Officer. None of the Officers of either BSNL or Airtel are examined to depose about the call details at Ex.P1 to P34. Not even a certificate is issued by the said companies evidencing that the call details furnished to the Investigating Officer are by the responsible Officer of the companies who is incharge of issuing such call details. None of the Officers of either BSNL or Airtel are examined to depose about the call details at Ex.P1 to P34. Not even a certificate is issued by the said companies evidencing that the call details furnished to the Investigating Officer are by the responsible Officer of the companies who is incharge of issuing such call details. In the absence of such material on record, such call details cannot be looked into, inasmuch as the same are hit by the provisions of Section 65B of the Indian Evidence Act. In the Statement of Objects and Reasons to the Information Technology Act it is stated thus: “New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business”. If the evidence is produced before the Court properly, it makes the system function faster and more effective. Any documentary evidence by way of an electronic record under the Indian Evidence Act, 1872 (‘Act’ for short) in view of Sections 59 and 65A of the Act, can be proved only in accordance with the procedure prescribed under Section 65B of the Act. Section 65B of the Act deals with the admissibility of electronic records. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. Section 65B of the Act makes it amply clear that only if the conditions mentioned in sub-Section (2) of Section 65B of the Act are satisfied, notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by the computer shall be deemed to be a document to further prove or production of the original. Thus, it is clear that the very admissibility of such document i.e., electronic record, which is called as computer output, depends upon the satisfaction of four conditions mentioned under Section 65B(2) of the Act. Thus, it is clear that the very admissibility of such document i.e., electronic record, which is called as computer output, depends upon the satisfaction of four conditions mentioned under Section 65B(2) of the Act. Following are the conditions specified in Section 65B(2) of the Act: a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. Subsection (4) of Section 65B of the Act states that, where it is desired to give a statement in evidence by virtue of Section 65B of the Act in any proceedings, the certificate signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be the evidence of any matter stated in the certificate. For the purposes of subsection (4) of Section 65B of the Act, it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. However, subsection (4) of Section 65B of the Act further clarifies that a) the certificate must identify the electronic record containing in the statement. b) even the certificate must describe the manner in which the electronic record was produced. c) the certificate must furnish the particulars of the device involved in the production of that electronic record. d) the certificate must deal with the applicable conditions mentioned in Section 65B(2) of the Act. b) even the certificate must describe the manner in which the electronic record was produced. c) the certificate must furnish the particulars of the device involved in the production of that electronic record. d) the certificate must deal with the applicable conditions mentioned in Section 65B(2) of the Act. In addition to the same, as aforementioned, the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. The person issuing certificate shall state in the certificate that contents are to the best of his knowledge and belief. It is also important to note that such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD) pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. As the electronic records are more susceptible to tampering, alteration, transposition, etc., the aforementioned safeguards are to be taken to ensure the source and authenticity pertaining to electronic record sought to be used as evidence. Without such safeguards the whole trial based on proof of electronic records may lead to travesty of justice. The evidence relating to electronic record being a special provision, the general law of secondary evidence under Section 63 r/w. Section 65 of the Act, shall yield to special law. 21. The Apex Court in the case of Anvar P.V. Vs. P.K.Basheer & Others, reporting in (2014) 10 SCC 473, considering its earlier judgment in the case of State (NCT of Delhi) Vs. Navjot Sandhu, { (2005)11 SCC 600 } has concluded that the statement of law of admissibility of secondary evidence pertaining to electronic record as stated by the Apex Court in Navjot Sandhu’s Case (cited supra) does not laid down the correct legal position. Consequently, the Apex Court in Anvar’s Case (cited supra) over ruled the dictum laid down in Navjot Sandhu’s Case. The Apex Court proceeded to conclude that the electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of the Act are satisfied. Consequently, the Apex Court in Anvar’s Case (cited supra) over ruled the dictum laid down in Navjot Sandhu’s Case. The Apex Court proceeded to conclude that the electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of the Act are satisfied. It is also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate obtained in terms of Section 65B of the Act at the time of taking the document and without which, the secondary evidence pertaining to that electronic record is inadmissible. Thus, it is clear that the Apex Court in Anvar’s Case has come down heavily on Courts relying upon such call details which do not satisfy the conditions as contemplated under Section 65B of the Act. Hence, the call details relied upon by the prosecution in this case cannot be held to be duly admitted in evidence and consequently cannot be relied upon while coming to the conclusion. If the call details as found in the call lists at Ex.P31 to P34 are eschewed from consideration because of the reasons mentioned supra, it can safely be held that the case as against accused Nos.2 and 4 is not proved inasmuch as no reliable material is found to connect them to the crime in question. However ample material is found as against accused Nos.1 and 3. We have already narrated in the preceding paragraphs as to the actual role played by accused Nos.1 and 3 in commission of the crime. The evidence on record and other attending circumstances would lead to the conclusion that accused Nos.1 and 3 have committed the offence punishable under Sections 302,201 r/w 34 of IPC. In view of the above, the judgment and order of conviction passed by the trial Court is liable to be modified to the following extent: i) The judgment and order dated 18.11.2011 passed by the I Additional District and Sessions Court, Davanagere, in SC.No.29/2011, convicting accused Nos.1 and 3 for the offence punishable under Section 302 r/w. Section 34 of IPC, stands confirmed. They are also convicted for the offence punishable under Section 201 r/w. Section 34 of IPC. The sentence imposed on them by the trial Court for the respective offences will continue to remain and the same stands confirmed. They are also convicted for the offence punishable under Section 201 r/w. Section 34 of IPC. The sentence imposed on them by the trial Court for the respective offences will continue to remain and the same stands confirmed. ii) The judgment and order of conviction and sentence dated 18.11.2011 passed in SC.No.29/2011 against accused Nos.2 and 4, namely, Patrekayi Palakshi S/o.Bharmappa and Manjayya S/o. Channaiah, stands set aside. iii) Accused Nos.2 and 4, namely, Patrekayi Palakshi S/o. Bharmappa and Manjayya S/o. Channaiah are acquitted of all the charges leveled against them. They shall be released forthwith if they are not required in any other case. Appeal is partly allowed accordingly.