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2017 DIGILAW 119 (KAR)

MOHAMMED SULTAN v. STATE OF KARNATAKA

2017-01-17

A.S.BOPANNA, B.A.PATIL

body2017
JUDGMENT : B.A. PATIL, J. 1. This appeal is preferred by the accused assailing the judgment and order of conviction dated 7.7.2012 passed by the Additional District and Sessions, Bidar in SC.No.67/2012, by which the accused-appellants herein are convicted for the offences punishable under Sections 302, 392 and 201 r/w Section 34 of IPC. 2. The brief factual matrix of the case as per the prosecution is that one Premsingh Anadhu Naik filed a complaint on 3.10.2011 stating that by the side of his land, under the bridge of Karaknahalli Thanda two female dead bodies were lying. On the basis of the said information, a case has been registered before Bhemalakheda Police Station. Thereafter, police visited the place of incident, prepared inquest mahazar and during the course of investigation they collected the details of the mobile phone of deceased Meenakshi, which revealed that accused No. 1 had talked with the deceased Meenakshi. It is further case of the prosecution that the deceased Meenakshi and Sridevi were of easy virtues and accused Nos. 1 and 2 fixed the price of Rs. 500/- for enjoyment with them. In that context, on 2.10.2011 they brought both Meenakshi and Sridevi in an autorikshaw bearing Regn. Nos. KA.39- 1359 from their house at Markunda and took them to Vithalpur Forest Area for having sexual enjoyment with them. Thereafter they hatched a plan to rob the ornaments found on the person of Meenakshi and Sridevi. The accused proceeded to finish the deceased. Accused No. 3 caught hold of Meenakshi and pushed her on the ground. Accused No. 2 brought a rope which was being used for starting the autorickshaw and tied to the neck of Meenakshi. Thereafter, accused Nos. 2 and 3 caught hold of leg and head of Sridevi, accused No. 1 tied the rope to her neck and the accused killed both the deceased. After they came to know that the ornaments of the deceased were artificial, they tied the dead bodies with the help of their sarees and thrown them at Karakanalli under bridge with an intention to destroy the evidence. It is further case of the prosecution that during the course of investigation, recovery has been made on the basis of the voluntary statement of the accused. After completion of investigation, charge-sheet came to be filed against the accused. 3. It is further case of the prosecution that during the course of investigation, recovery has been made on the basis of the voluntary statement of the accused. After completion of investigation, charge-sheet came to be filed against the accused. 3. After following the procedure laid down in the Code of Criminal Procedure, the trial Court committed the case to the Sessions Court. The Sessions Court after securing the presence of the accused who were in custody and after hearing them, has framed the charge. The accused denied the charge and claimed to be tried and as such the trial was fixed. 4. In order to prove its case, the prosecution in all has examined 24 witnesses and got marked Exhibits P1 to P27 and MO. Nos. 1 to 12. After closure of the prosecution evidence, the accused persons were examined under Section 313 of Cr.P.C. by putting to them the incriminating materials against them. They denied the same. However, they did not choose to lead any evidence on their side. After closure of the evidence and after hearing the arguments on both sides, the learned Sessions Judge has passed the impugned judgment convicting the accused-appellants herein for the offences punishable under Sections 302, 392 and 201 r/w Section 34 of IPC. Being aggrieved by the same, the accused persons are before this Court in this appeal. 5. It is urged by the learned counsel for the appellants that the entire case of the prosecution rests on circumstantial evidence. The prosecution has relied upon the two circumstances, namely: i) last seen theory; and ii) recovery. It is further urged that insofar as recovery is concerned, the voluntary statement of the accused has not been recorded in accordance with law and even the accused persons have not led the police in accordance with law to show the place of incident to recover the articles. As such the recovery said to have been done at the instance of accused Nos. 1 and 3 is not acceptable in law. It is contended by the learned counsel appearing on behalf of the appellants that there is no corroboration in respect of the joint recovery made by the Investigating Officer and the evidence produced by the prosecution to establish the recovery of the said articles at the instance of the accused by showing the place of incident is not trustworthy and reliable. It is also contended that the said recovery is hit by Section 27 of the Indian Evidence Act ('Act' for short). Even though the prosecution is intending to rely upon the evidence of PWs.14 and 19 as well as PWs.10 and 11, who is said to have seen the accused persons taking both the deceased in an auto-rickshaw, the same is not reliable on the ground that the Investigating Officer has not conducted the Test Identification Parade as contemplated under Section 9 of the Act. There is inconsistency in the evidence of PWs.10, 14 and 19 with regard to the time of taking the deceased in the autorickshaw. It is further contended that at the first instance, complaint-Ex.Pl was filed against unknown persons and thereafter the complainant goes and identifies the accused in the Police Station. Prosecution case does not reveal the identification of the accused by the complainant. The rope stated to have been used for commission of offence has not been seized by the Investigating Officer under a panchanama and has not been produced before the Court. Prosecution case also does not reveal the details of sending the said rope to the Medical Officer for getting the opinion as per Exs.P8 and P9. The said fact itself indicates that the prosecution case is concocted by planting the Material Objects. Learned counsel for the appellants has also contended that though accused No. 1 has been apprehended on the basis of the call details of the mobile and his voluntary statement has been recorded on the basis of which, co-accused have also been apprehended, the said call details connecting the link have not been produced, so also there is nothing to show as to whom the said mobile phone was belonging. In that light, he has submitted that there are so many inconsistencies and doubts in the case of the prosecution. It is his further contention that even though it is the case of the prosecution that at the first instance the accused persons had sexual enjoyment with the deceased and thereafter took away their life, the medical report is silent as to whether the deceased had sexual act with the accused prior to their death. It is also contended that recovery was made after 30 days of the alleged incident that too in an open place. It is also contended that recovery was made after 30 days of the alleged incident that too in an open place. Therefore, the said recovery of articles in the open place creates suspicion and the same cannot be acceptable and reliable. On these grounds, he prays for allowing the appeal by setting aside the impugned judgment. 6. Per contra, the learned Additional SPP appealing for the respondent-State has supported the impugned judgment contending that there is corroboration in the evidence of PWs.4, 5 and the Investigating Officer-PW.24. Insofar as recovery is concerned, there is also corroborative evidence of PWs.10, 14, 19 and 24, who have last seen the accused and the deceased together. Even the accused have not explained as to what had happened and when they departed the company of the deceased. He submitted that keeping in view these two things, the Court below has rightly convicted the accused-appellants and no good grounds are made out by the appellants to interfere with the impugned judgment. Hence, he prays for dismissal of the appeal. 7. Admittedly, in the case on hand there are no eye-witnesses to the incident in question. The entire case of the prosecution rests upon the circumstantial evidence. In order to establish the guilt of the accused, the prosecution has to establish all the circumstances on which it relies upon. It is well established principle of law that the proof of circumstantial evidence I is based on the fact that men may lie, but the circumstances do not. If all the circumstances are properly established so as to convince the Court in respect of the truth and reliability, then the Court can convict the accused on the basis of said circumstances. It is also well established principle of law that in order to bring home the guilt of the accused under circumstantial evidence, all the circumstances are to be linked up with one another and the Court should be in a position to see the chain of the events and if the chain of events and important links are established by the prosecution and if the network is completed without there being any gap, then the case of the prosecution is said to have been established. If the said network is not complete and there are gaps and doubts, then it creates a doubt in the case of the prosecution. If the said network is not complete and there are gaps and doubts, then it creates a doubt in the case of the prosecution. In that event, benefit of doubt goes in favour of the accused. This proposition of law has been laid down by the Apex Court in decisions reported in AIR 1998 SC 942 Sheikh Abdul Hamid & another v. State of Madhya Pradesh; AIR 2011 SC 1863 Bhagwan Dass v. State (NCT) of Delhi; AIR 2011 SC 1585 Rukia Begum v. State of Karnataka. 8. It is relevant to note here itself that in a case based on circumstantial evidence, the circumstances from which an inference of guilt of the accused is sought to be drawn are to be cogently and firmly established and the circumstances so proved must unerringly point towards the guilt of the accused. 9. Keeping in view the aforesaid principles, it is necessary to consider the question as to whether the prosecution has established the circumstances of i) last seen theory; and ii) recovery, on which it intends to rely upon. 10. The first circumstance relied upon by the prosecution is last seen theory. In order to prove the said circumstance, the prosecution has led the evidence of PWs.10, 11, 14 and 19. PW. 10, the father of the deceased Sridevi in his evidence has deposed that the accused have taken his daughter in an auto-rickshaw last year during Dasara. They left the house at about 5.00 p.m. and he was not present at that time. PW.11, the mother of the deceased Meenakshi has also deposed that she knows the accused. Her daughter Meenakshi was residing at Markunda after the death of her husband. She was doing coolie work, she knows the deceased Sridevi. Her daughter and Sridevi left about 5.00 p.m. last year during Dasara. She does not know where they had gone. 11. PW.14, the cattle boy has deposed that on 1.6.2001, he was grazing the cattle along with Keshappa. About one year back, the deceased Sridevi and Meenakshi went along with accused persons in an auto-rickshaw and they never returned. He saw the dead bodies of both the deceased. PW.14 has further deposed that Sridevi asked Keshappa to take the cattle away to the side of the road when she was going in the autorickshaw. He saw the accused in the said auto-rickshaw along with both the deceased. He saw the dead bodies of both the deceased. PW.14 has further deposed that Sridevi asked Keshappa to take the cattle away to the side of the road when she was going in the autorickshaw. He saw the accused in the said auto-rickshaw along with both the deceased. He has also deposed that he can identify the auto-rickshaw. 12. PW. 19, another cattle boy has deposed that he was watching the cattle in Markunda. He knows both the deceased and the accused. He saw the accused along with both the deceased in an auto-rickshaw, when he was taking the cattle to the shed at about 4.00 p.m. He has further deposed that deceased Meenakshi asked him to drive the cattle to the side of the road, when she was in the auto-rickshaw along with the accused. Subsequently, he came to know that both the deceased were killed by the accused and the same was published in a newspaper. 13. During the course of his cross-examination, PW.14 has deposed that he does not know who was driving the auto-rickshaw, he does not know the colour of dress that was worn by the deceased and their age. He also does not know the names, father's name and their residence. He has also deposed that police have read over his statement under the tree and showed the accused before he deposed. 14. During the course of cross-examination of PW.19, he has deposed that he does not know the date on which he saw the accused and he also does not know the Regn. Number of auto-rickshaw and the driver of the said auto-rickshaw. He saw only the auto-rickshaw in which the accused were travelling. He does not know as to how many auto-rickshaws plied on the said road during the relevant day. 15. Keeping in view the above evidence, if we analyse the last seen theory relied upon by the prosecution, it is clear that PWs.10 and 11 have deposed that the accused had taken both the deceased at about 5.00 p.m. on the date of incident. It is also clear from the evidence of PW.10 that he was not present when the accused took the deceased. In that light, his evidence is not reliable. 16. The only evidence which remains for consideration by this Court with regard to the 'last seen' theory is that of PW. It is also clear from the evidence of PW.10 that he was not present when the accused took the deceased. In that light, his evidence is not reliable. 16. The only evidence which remains for consideration by this Court with regard to the 'last seen' theory is that of PW. 11, mother of the deceased Meenakshi and PWs.14 and 19, the cattle boys. During the course of cross-examination, PW.11 has admitted that the deceased never used to tell her as to where they were going and for what purpose they had to go. She never knew that with whom the deceased went on the relevant day. PW. 11 has further deposed that she cannot say the date on which she saw the accused and their names, etc. If really she was present in the house at the time when accused was taking both the deceased in an auto-rickshaw from her house, she would have definitely informed about the incident in question, after she came to know about the death of the deceased. 17. PWs.14 and 19, the cattle boys have deposed that at the time when they were grazing the cattle, they saw both the deceased going in an auto-rickshaw. They also saw the accused in the said auto-rickshaw. At that time, deceased Meenakshi asked them to driver the cattle to the side of the road. As could be seen from the evidence of these two witnesses, it is deposed that they saw the accused going along with the deceased at about 4.00 p.m., but as could be seen from the evidence of PWs10 and 11, it is revealed that the deceased have left the house at about 5.00 p.m. in an auto-rickshaw along with the accused. If really both the deceased and the accused have left the house at about 5.00 p.m., the question of PWs. 14 and 19 seeing them in the auto-rickshaw at 4.00 p.m. does not arise at all. 18. In order to rely upon the evidence relating to identification there are certain principles to be followed by the Court. Even though in assessing the evidence relating to identification, neither it is possible nor desirable to lay down any hard and fast rule, but certain general aspects can be inferred in this behalf. 18. In order to rely upon the evidence relating to identification there are certain principles to be followed by the Court. Even though in assessing the evidence relating to identification, neither it is possible nor desirable to lay down any hard and fast rule, but certain general aspects can be inferred in this behalf. If the witnesses have seen the accused taking the deceased along with them in an auto-rickshaw as claimed by them, then the aspect of distance from which they saw the accused becomes relevant. The question as to whether the said witnesses have acquaintance with the accused is to be considered by the Court. In that light, if the evidence of PWs.10, 11, 14 and 19 is perused, it appears that there is remote chance of they seeing the accused along with the deceased. Even in the cross-examination of these witnesses, they have not deposed as to who was driving the auto-rickshaw and about other particulars. Leave apart this, even assuming that five persons were going in an auto-rickshaw including the driver, there would have been conjunction as all the persons were majors. In that light, within a short span, that too when auto-rickshaw was passing through, it is very difficult for the witnesses to have seen the face of the accused when they are unknown to them. Apart from this, if really they have seen the accused along with the deceased, they could have immediately informed the police after coming to know that two dead bodies were lying beneath the bridge and they were the daughters of PWs.10 and 11. Even otherwise, PWs.10 and 11 could have immediately informed the police about the said fact of the accused having taken the deceased in an auto-rickshaw. In the same line, PWs.14 and 19 could have also stated the said fact. All these witnesses have not stated sufficient description of the features of the accused. In that light, the evidence of these witnesses cannot be accepted to be relied upon by this Court. 19. That apart, when the witnesses have subsequently deposed that the accused persons took the deceased in an auto-rickshaw and they have seen the said fact, then under such circumstances, the Investigating Officer ought to have held the Test Identification, Parade to identify the accused persons properly by these witnesses. 19. That apart, when the witnesses have subsequently deposed that the accused persons took the deceased in an auto-rickshaw and they have seen the said fact, then under such circumstances, the Investigating Officer ought to have held the Test Identification, Parade to identify the accused persons properly by these witnesses. When the Investigating Officer has failed to do so, it creates a doubt in the case of the prosecution. The Test Identification Parade is not necessary if the witnesses have acquaintance with the face of the accused and there was sufficient time to see the accused when they were taking both the deceased or if subsequently the witnesses have met the accused persons on some other occasion. But, in the case on hand, no such evidence is put forth by the prosecution so as to hold that the Test Identification Parade is not necessary. Keeping in view the aforesaid facts and circumstances, we are of the considered opinion that the first leg on which the case of the prosecution intends to stand, fails. 20. The other circumstance on which the prosecution intends to rely upon is recovery at the instance of the accused. In order to prove the said circumstance, the prosecution has relied upon the evidence of PWs.4, 5 and 24. 21. PW.4 is a panch witness to the recovery panchanama at Ex.P4. He has deposed that after preparation of Ex.P3, the accused led them to Forest Area, Changalare and Karkanalli and they have shown the place where they had thrown the dead bodies. PW.4 was treated as hostile. During the course of cross-examination by the Public Prosecutor, he has deposed that after showing the spot, accused led them to Vithalpur Forest Area and shown the place of murder and they have shown the red slipper at the spot. They have seen two pairs of ear studs, one pair of leg chain and a necklace in a bush which were taken out from the bush and produced before the police and police have recovered the same. PW.4 has further deposed that accused No. 3 has produced the silver chain from his house as he kept the same and the same was recovered by the police. During the cross-examination, nothing has been elicited from the mouth of this witness. 22. PW.5 has deposed that accused led them to Markunda and produced the articles M.O. Nos. PW.4 has further deposed that accused No. 3 has produced the silver chain from his house as he kept the same and the same was recovered by the police. During the cross-examination, nothing has been elicited from the mouth of this witness. 22. PW.5 has deposed that accused led them to Markunda and produced the articles M.O. Nos. 9 and 10 which were concealed in the bush. Accused No. 3 produced mobile phone pieces. PW.5 was treated as hostile. During the course of cross-examination by the Public Prosecutor it has been elicited that accused led them to Markunda and shown the place from where they picked up the deceased and thereafter led them to Vithalpur Forest Area, where they have committed murder of both the deceased. Further the accused led them to Karkanalli Road where they have thrown the dead bodies and they have produced one slipper, two pairs of earring, one pair of leg chain and a necklace by taking them out from the bush, which were seized by the police. Thereafter accused No. 3 led them to his house and produced one silver chain and all the articles were recovered by the police by preparing mahazar. During the course of cross-examination nothing has been elicited from the mouth of this witness. 23. PW.24, the Investigating Officer has deposed that on 30.10.2011 Iranna, PSI of Bemalkheda Police Station produced accused No. 1-Mohd.Sultan along with the report at Ex.P.17. PW.24 has interrogated him and recorded his voluntary statement as per Ex.P22. Accused No. 1 has stated before him that after committing the crime, he concealed the ornaments found on the dead bodies and auto-rickshaw as well as the rope used for commission of the offence. PW.24 has also deposed that ASI-Shankar produced accused No. 2-Syed Tayab with the report at Ex.P16. He interrogated accused No. 2 and recorded his voluntary statement as per Ex.P23. He has further deposed that PSI produced accused No. 3 before him by filing a report at Ex.P18. He interrogated accused No. 3 and recorded his voluntary statement as per Ex.P24. He has also deposed that accused No. 3-Shaik Abed had kept the silver chain in his house. On 31.10.2011 the accused led him to Vithalpur Forest Area along with the panch witnesses. He interrogated accused No. 3 and recorded his voluntary statement as per Ex.P24. He has also deposed that accused No. 3-Shaik Abed had kept the silver chain in his house. On 31.10.2011 the accused led him to Vithalpur Forest Area along with the panch witnesses. Accused have shown the ornaments found on the dead bodies, namely, one pair of silver chain, ear studs, broken mobile phone pieces, one necklace and one more pair of ear studs which were seized by them by preparing a mahazar. Thereafter, accused No. 3 led them to his house and produced silver chain from his house and the same was seized in the presence of panchas. Accused No. 2 also led them to his house. He has shown the auto and produced the rope which was used for commission of offence. The said articles have been seized by preparing mahazar at Ex.P4. 24. Before considering the above evidence, it is necessary to analyse the admissibility or otherwise under Section 27 of the Indian Evidence Act. On a close reading of Section 27 of the said Act, it reveals that what is admissible is the information leading to recovery and the same has to be proved by adducing evidence. It indicates that said recovery must be at the instance of the accused. It also indicates that the voluntary statement of the accused with reference to the recovery, has to be recorded in the words of the accused, in the same fashion and the same has to be marked separately. Thereafter, the Investigating Officer while giving such evidence should reproduce the contents of such voluntary statement made by the accused leading to discovery. Only if all these things were to be exist in the evidence, then the Court can rely upon such recovery evidence and on that basis, an inference can be drawn that the accused has committed the alleged offence. 25. Keeping in view the aforesaid proposition of law, if we analyse the evidence of PWs.4, 5 and 24, it does not repose any confidence to rely upon the said evidence so as to infer that recovery was made at the instance of the accused. PWs.4 and 5 have not stated in their evidence that they were present at the time of recording the voluntary statements of the accused by PW.24. PWs.4 and 5 have not stated in their evidence that they were present at the time of recording the voluntary statements of the accused by PW.24. They have stated that accused would lead and show the incriminating articles which was the subject-matter of the case. Even if we keenly observe the evidence of PWs.4 and 5, it does not specifically reveal as to which accused led them to the place of recovery and which articles were produced by each of the accused. Even though the said two witnesses have deposed that the accused have led and shown the place where they had thrown the dead bodies and the spot of murder, etc., there is no corroboration of the material particulars in the evidence of PWs.4, 5 and PW.24, the Investigating Officer. PWs.4 and 5 have not deposed that accused No. 3 has produced the rope which was used for commission of offence, whereas PW.24 has deposed that accused No. 2 led them to his house and produced the rope. It has come in the evidence of PWs.4 and 5 that accused No. 3 has produced silver chain from his house. But they have not specifically stated about the place as to where the said chain was kept in the house and who were all present in the said house, whether doors of the house were open or not at the time of leading to the said house. These particulars are not forthcoming in the evidence of these witnesses. Leave apart this, no where it was deposed by PWs.4 and 5 about the production of rope from the house. But PW.24 has deposed about the recovery of the said rope. For the reasons best known to the prosecution, such rope has not seen the light of the day and has not been produced before the Court. 26. In the light of the above discussion, the entire evidence which the prosecution intends to rely upon for the purpose of recovery of the articles at the instance of the accused, is not acceptable and reliable. 27. 26. In the light of the above discussion, the entire evidence which the prosecution intends to rely upon for the purpose of recovery of the articles at the instance of the accused, is not acceptable and reliable. 27. It is well established principles of law that when the entire case rests on the circumstantial evidence, and if the prosecution fails to prove the chain of circumstances and events to point out the guilt of the accused, then the case of the prosecution has to fail and the benefit of doubt should go in favour of the accused persons. In the above background, we have perused the impugned judgment passed by the trial Court. Even though the trial Court has accepted the two circumstances relied upon by the prosecution, without proper appreciation of the evidence on record and without reference to the proposition of law, it has wrongly convicted the accused-appellants herein. As such, the judgment of the trial Court is liable to be set aside. Accordingly, we pass the following order:- 28. The impugned judgment of conviction and order of sentence dated 7.7.2012 passed by the Additional District and Sessions Judge, Bidar in SC.No.67/2012, stands set aside. The accused-appellants herein are hereby acquitted of the offences punishable under Sections 302,392 and 201 r/w. Section 34 of IPC. The accused-appellants herein are set at liberty if they are in custody and if they are not required in other case. The bail bonds executed if any, stand cancelled. 29. Appeal is allowed accordingly.