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2019 DIGILAW 1972 (KAR)

Mahanthesh v. State of Karnataka

2019-09-07

H.B.PRABHAKARA SASTRY, R.DEVDAS

body2019
JUDGMENT : 1. The present appellant was the accused in the Court of learned Prl. District and Sessions Judge, Davanagere, (hereinafter for brevity referred to as "trial Court'), who was convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter for brevity referred to as "IPC"), by the said Court by its judgment of conviction and order on sentence dated 26.02.2016. The accused was sentenced to undergo life imprisonment and also to pay a fine of Rs. 10,000/- and in case of default, to undergo ten months simple imprisonment for the proven guilt. It is against the said judgment of conviction and order of sentence, the accused has preferred the present appeal. 2. The summary of the case of the prosecution is that, on 28.04.2014 PW-1 (CW-3) P.H. Venakappa, appeared before the respondent-Police and gave an information intimating that he has noticed a dead body of a lady who was identified by him as one Smt.Suvarnamma, a known person to his family, in the vacant site adjoining to his house in the morning of 28.04.2014. When the police received the said information at 9.30 on that morning, they registered a case in their Station in UDR No.10/2014 under Section 174(c) of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "Cr.P.C). During the course of investigation, the respondent-Police after visiting the spot, came to know that it is a case of murder and in that regard, registered FIR in the case and continued the investigation. PW-3 - Police Sub-Inspector, recorded the statement of PW-4 (CW-2) Rahul, who is said to have stated before the said Police Officer that on the evening, he saw the accused, joined by a lady, bringing the deceased in their Tempo Traveller bearing registration No.KA-17-A-8522 and they shifting a lady in an undisposable condition in the said vacant site and leaving the place. Based upon the said vehicle number received by them, the Police are said to have continued their investigation and seized the said vehicle and apprehended its driver on the very next day i.e. on 29.04.2014. Based upon the said vehicle number received by them, the Police are said to have continued their investigation and seized the said vehicle and apprehended its driver on the very next day i.e. on 29.04.2014. During interrogation, it was revealed to them that it was the accused himself who was the driver of the said Tempo Traveller, who was acquainted with the deceased and had illicit relationship with her and in the evening of 28.04.2014, after having sexual intercourse with the said lady (with the deceased) at a different place called Shamanuru, a little bit away from the alleged place of incident, had shifted her to the vacant site adjacent to the house of PW-1. It is the further the case of the prosecution that their investigation further revealed that the accused after leaving the deceased in the said site, after taking the assistance of PW-5 Premakka, had once again visited the deceased in the same night at about 11.00 O'clock and had second time sexual intercourse with her on that night. At that time, the deceased is said to have demanded money from him. Being enraged by the same, the accused is said to have strangulated Suvarnamma making use of a veil (part of the dress material which generally ladies wear and which will be in the form of a plain cloth of considerable length) and caused her death. It is the further case of the prosecution that, in order to mislead the people to get an impression that the deceased had fallen there in an inebriated condition, the accused also placed two empty beer bottles in the spot before leaving the scene. The respondent-Police also claims to have seized a cell phone said to be belonging to the deceased from the house of PW-5, but, at the instance of the accused. After getting the postmortem examination done and recording the evidence of few more witnesses, also after getting Forensic Science Laboratory report, the respondent-Police came to a conclusion that it was the accused and accused alone who has committed the murder of deceased Suvarnamma. As such, they filed charge sheet against the accused for the offence punishable under Section 302 of IPC. 3. Charge for the offence punishable under Section 302 of IPC was framed against the accused. As such, they filed charge sheet against the accused for the offence punishable under Section 302 of IPC. 3. Charge for the offence punishable under Section 302 of IPC was framed against the accused. Since the accused pleaded not guilty, trial was held, wherein the prosecution in order to prove the alleged guilt of the accused, examined fifteen witnesses from PW-1 to PW-15 and got marked documents from Exs.P-1 to P-17(a) and produced Material Objects at MO-1 to Mo-3. No defence evidence was led from the side of the accused. After hearing the arguments from both side, the trial Court by its impugned judgment, convicted the accused for the offence punishable under Section 302 of IPC. It is against the said judgment, the accused has preferred this appeal. 4. The appellant-accused is being represented by a learned counsel from the panel of Legal Services Committee of this Court. The respondent is being represented by learned High Court Government Pleader. 5. The lower Court records were called for and the same are placed before this Court. 6. Heard the arguments from both side and perused the materials placed before this Court. 7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 8. The learned Counsel for the appellant in his argument submitted that since the entire case of the prosecution is based on circumstantial evidence, the prosecution has utterly failed to prove each of the links of the chain leading to the alleged incident. The prosecution has left many of the loopholes and lapses both in the investigation aspect, as well in the evidence of the prosecution witnesses. As such, the chain of events has not been properly linked and proved by the prosecution. Consequently, the benefit of the same must be given to the accused. He further submitted that, even though according to PW-3, the alleged veil said to have been used in the act of strangulation of the deceased was found on the dead body, for no reasons, he has failed to collect the same. As such, one of the important material to prove the alleged guilt was not collected by the Investigating Officer. He further submitted that, even though according to PW-3, the alleged veil said to have been used in the act of strangulation of the deceased was found on the dead body, for no reasons, he has failed to collect the same. As such, one of the important material to prove the alleged guilt was not collected by the Investigating Officer. He also submitted that the alleged recovery of the cell phone at MO-1 at the instance of the accused would not take the case of the prosecution any further, since the prosecution has failed to secure any further details as to the alleged ownership of the article and the call details, if any, made by using the said cell phone. He further submitted that the only witnesses i.e. PW-4 and PW-5, upon whom the entire effort of the prosecution to prove the last seen theory is based upon, also have not been able to support the case of the prosecution to the required extent, more particularly PW-4, who has turned hostile to the case of the prosecution. The learned Counsel for the appellant concluded his arguments submitting that the prosecution has utterly failed to prove the alleged motive behind the commission of crime. As such, apart from the prosecution failing to establish the last seen theory, it also failed to establish the alleged motive behind the commission of the crime. However, the trial Court ignoring all these material and vital aspects, has embraced the evidence of PWs.4 and 5 and in a hurried manner pronounced the impugned judgment convicting the accused. 9. Per contra, learned High Court Government Pleader in his argument submitted that the acquaintance between the accused, deceased and PW-5 is an undisputed fact. The evidence of PW-5 clearly go to establish that it was the accused who was found lastly in the company of the deceased. The act of PW-5 accompanying the accused and the deceased at that time further shows that her evidence is reliable since she too had accompanied them when the accused took the deceased to the place of incident. He further submitted that the evidence of PW-4-Rahul, is trustworthy who has admitted that he has given the registration Number of the Tempo Traveller used in the commission of the crime. He further submitted that the evidence of PW-4-Rahul, is trustworthy who has admitted that he has given the registration Number of the Tempo Traveller used in the commission of the crime. Further, the owner of the said vehicle has also given his evidence clearly stating that it was the accused and accused alone who was in possession of the said vehicle on the date of the incident in his capacity as a driver of the said vehicle. Thus, every link in the chain of last seen theory has been established and proved by the prosecution beyond any reasonable doubt. As such, the Sessions Court appreciating the evidence in its proper perspective, has pronounced the judgment of conviction, which does not warrant any interference at the hands of this Court. 10. Among the fifteen witnesses examined by the prosecution, PW-1 Sri P.H.Venkappa, is the person who gave the information to the Police on 28.04.2014, in the morning at 11.00 a.m. about he noticing the dead body of the deceased Suvarnamma in a vacant site nearby to his house. He has deposed in his evidence to the same effect stating that, he noticed the dead body of Suvarnamma, who was working in his house as maid servant since seven years, in the vacant site nearby to his house in the morning of 28.04.2014. The said evidence which has not been seriously disputed from the accused side would only go to show that it was PW-1 who for the first time saw the dead body of Suvarnamma in the vacant site adjoining to his house. 11. PW-2 (CW-5) Ramesh, in his evidence has stated that, when he had been to Police Station about a year back from the date of his evidence, he saw the accused present in the Police Station and the said accused took him and the police near channel, at a place called Shamanuru, nearby Davanagere and stated that it was the place where he had taken the deceased for the first time and has committed the sexual act. The witness has further stated that, from there, the accused took him and the police to the house of a lady and at his instance, the said lady produced a cell phone which was seized by the police by drawing a mahazar in that regard, which cell phone, the witness has identified at MO-1. The witness has further stated that, from there, the accused took him and the police to the house of a lady and at his instance, the said lady produced a cell phone which was seized by the police by drawing a mahazar in that regard, which cell phone, the witness has identified at MO-1. In his cross-examination, attempts were made to shaken the evidence of this witness, however, the witness adhered to his original version. 12. PW-4 (CW-2) Rahul, in his evidence has stated that, he is residing in a house nearby to the house of PW-1 Venkaappa. He had not seen the deceased earlier. On the date of the incident, at about 6.00 p.m., he saw a Tempo vehicle on the road in front of his house. He did not observe who was there in the Tempo vehicle. When the police came to him on the next day, he revealed about the registration number of the Tempo vehicle. He further stated that the police had come on the next day since a dead body was found lying in the vacant site nearby his house. However, he did not know who had put that dead body in the said place. The prosecution expected something more from this witness, more particularly, the witness revealing the registration number of the vehicle, as well identifying the accused and PW-5 Premakka, so also the deceased, who according to the prosecution, were seen by this witness when they were said to have come to the vacant site in the evening of the said day. Since the witness did not give any evidence on those lines, at the request of the prosecution, the witness was permitted to be treated as hostile and prosecution cross-examined him thereafter. In the said cross-examination, even though the witness admitted that the said registration number of the Tempo vehicle which he had given to the police was KA-17-A-8522, but, he continued to plead his ignorance about the identity of the persons who were said to be in the said vehicle at that evening when this witness was said to have seen the vehicle in front of his house. Therefore, on this point, the suggestions made by the prosecution were not admitted as true by the witness. The relevant portions in the statement of the said witness recorded under Section 161 of Cr.P.C. was marked at Ex.P-5 and Ex.P-6. 13. Therefore, on this point, the suggestions made by the prosecution were not admitted as true by the witness. The relevant portions in the statement of the said witness recorded under Section 161 of Cr.P.C. was marked at Ex.P-5 and Ex.P-6. 13. PW-5 Smt.Prema, in her examination-in-chief has stated that, she knows both the accused and the deceased. It was she who had got the job for the deceased Suvarnamma to work as a domestic servant in couple of houses. She further stated that accused and deceased were knowing each other. The witness also stated that on the previous evening of the death of Suvarnamma, she had seen her lastly. On the said day, the accused had brought Suvarnamma to her house in his Tempo Traveller, which he was driving. At that time, both the accused and the deceased were in inebriated condition. The request of the accused to keep Survarnamma in her house was rejected by this witness. As such, at the request of the accused, she accompanied the accused and Suvarnamma to show them the house where the deceased Suvarnamma was working as a domestic servant. The witness has stated that, after she showing the house where the deceased was working as domestic servant, the accused taking her help (of this witness), shifted Suvarnamma and made her to lie in a vacant site adjoining to the said house. It is thereafter, accused left this witness back to her house and went away from that place. PW-5 has further stated that, they shifted Suvarnamma from Tempo Traveller to the vacant site and made her to lay down there. She also noticed a cell phone which fell in that place and belonging to the deceased. As such, she picked it up and handed over to the police subsequently. The witness has identified the said cell phone at MO-1 in the Court. The witness also stated that, it was the accused who is the cause for the death of said Suvarnamma. She further stated that for collecting the said cell phone, the police had visited her house. In her cross-examination, a suggestion was made to the witness to the effect that since the deceased was known to the accused, the said accused had brought the deceased to her house and at the advice of the neighbours, the deceased was brought to her house. The witness has admitted the said suggestion as true. In her cross-examination, a suggestion was made to the witness to the effect that since the deceased was known to the accused, the said accused had brought the deceased to her house and at the advice of the neighbours, the deceased was brought to her house. The witness has admitted the said suggestion as true. 14. PW-6 (CW-7) P.R.Thippeswamy has stated that the inquest panchanama as per Ex.P-7 on the dead body of the deceased Suvarnamma was drawn in his presence. 15. PW-7 (CW-10) Smt.Thippavva and PW-8 (CW-9) Devendrappa, have uniformly stated that the deceased Suvarnamma was their younger sister, who was eking her livelihood by working as domestic servant in some houses at Davanagere. Neither of them have added any more details about their relationship with her. 16. PW-9 (CW-13) Hanumantha Naik, has stated that two empty beer bottles at MO-2 and a pair of Hawai slippers at MO-3 were seized in his presence by drawing a seizure panchanama as per Ex.P-2 from the spot where the dead body of the deceased was found. He has identified the said panchanama in the Court. 17. PW-10 (CW-18) Sunil, in his evidence has stated that he is the owner of the Tempo Traveller motor vehicle bearing registration No.KA-17-A-8522 and the accused was the driver of the said vehicle. On 27.04.2014, it was the accused who was in possession of the said vehicle as its driver. The witness has further stated that the police have seized the said vehicle, which he got released subsequently after the alleged incident. He has identified the said vehicle through a photograph marked at Ex.-P4. In his cross-examination, he has stated that the accused was working under him since three months prior to the incident. 18. PW-11 (CW-20) Dr.Bharathi S.G., has stated that at the request of the complainant-police, she has conducted the postmortem examination on the dead body of the deceased Suvarnamma on 29.04.2014. She has given detailed account of the observations made by her during the external and internal examination of the dead body. She has also given the details of the injuries said to have been noticed by her on the person of the deceased. The witness has stated that she also collected the viscera and sent it for its chemical examination through the police. She has also given the details of the injuries said to have been noticed by her on the person of the deceased. The witness has stated that she also collected the viscera and sent it for its chemical examination through the police. After seeing the Forensic Science Laboratory report in the Court, the witness has opined that, according to her, the cause of death was due to asphyxia as a result of strangulation. Stating that she has issued postmortem report in that regard, the witness has identified the said report at Ex.P-8. An attempt was made in her cross-examination to establish that, had really the deceased been strangulated by making use of a veil, then, there ought to be necessarily some marks on the neck of the deceased corresponding to the veil. However, the witness did not admit the said suggestion as true in all cases, rather, she gave an explanation stating that, it depends upon the pressure exerted on the body of the deceased, the time and the tightness of the veil surrounding the neck of the deceased. 19. PW-13 (CW-22) Prabhudeva, Police Head Constable has stated that a vehicle release panchanama as per Ex.P-11 was drawn while releasing the vehicle seized in this case in favour of its owner. 20. PW-14 CW-14 Siddalingappa, who was projected as a witness for the seizure panchanama of the vehicle as per Ex.P-9 though has stated that he has subscribed his signature to the said panchanama, but, has pleaded his ignorance about the purpose for which the said panchanama was drawn. As such, he was permitted to be treated as hostile. Even in his cross-examination, the prosecution could not get any support from him. 21. PW-3 (CW-1) Sridhar, PW-12 (CW-23) Chandrahasa Laxmana Naik and PW-15 (CW-24), Smt.Arjumanbanu K., who are the Investigating Officers in this case, have given their evidence on the lines of investigation said to have been conducted by them in this case. PW-3 has stated that, on 28.04.2014, he received a written complaint lodged by PW-1 as per Ex.P-1 and based on the information given in the said complaint about the dead body of a lady, he visited the spot immediately and after noticing the dead body of the deceased Suvarnamma there, he drew a scene of offence panchanama as per Ex.P-2. He recorded the statement of few witnesses in the spot, including PW-4 Rahul. He recorded the statement of few witnesses in the spot, including PW-4 Rahul. Based on the information revealed by Rahul, wherein he had disclosed the registration number of the Tempo Traveller vehicle, his staff traced the said vehicle and he noticed the accused also along with the said vehicle and apprehended him. During his interrogation, the accused gave his voluntary statement disclosing that he had illicit relationship with Suvarnamma and on the date of the incident, which was on 27.04.2014, in the evening, he had taken her nearby a channel in a place called Shamanuru, near Davanagere and had sexual intercourse with her. Thereafter, he brought Suvarnamma to the house of PW-5 Premakka and joined by said Premakka, he laid down Suvarnamma who was not in a fit stage to talk at that time in the vacant site adjoining the house of PW-1. Thereafter, once again the accused came to the deceased at about 11.00 p.m. in the night and after having intercourse with her once again, since the deceased demanded some money from him, he caused her death by strangulating her using a veil worn by her. The witness has further stated that the accused also revealed before him that he would show the place of the incident and also the house of PW-5 wherein he has given the cell phone belonging the deceased. The relevant portions of the voluntary statement were marked at Ex.P-15(a), Ex.P-15(b), Ex.P-15(c) and Ex.P-15(d). The witness has identified the cell phone at MO-1, a pair of empty beer bottles at MO-2 and a pair of Hawai chappals at MO-3 as the articles seized in this case. The denial suggestions made in his cross-examination were not admitted as true by this witnesses. PW-12 the second Investigating Officer has stated that, after taking up further investigation in this case from PW-3, he seized the Tempo vehicle by drawing a mahazar as per Ex.P-9. He has identified the said Tempo vehicle through its photograph at Ex.P-4. The witness has further stated that on 30.04.2014, he recovered the cell phone at MO-1 at the instance of the accused from the house of PW-5 Premakka. The witness says that the accused has also shown him and the panchas, a place near the channel at Shamanuru, stating that it was to the said place the deceased was taken by him for the first time. The witness says that the accused has also shown him and the panchas, a place near the channel at Shamanuru, stating that it was to the said place the deceased was taken by him for the first time. The witness has stated that with respect to the place of offence, after he visiting the said place, he has prepared a sketch as per Ex.P-10, apart from drawing the panchanama as per Ex.P-3. He further stated that after getting the autopsy done on the dead body of Suvarnamma, he had sent the viscera collected by the Doctor to the Forensic Science Laboratory for its chemical examination. However, due to his transfer, he did not continue the further investigation in the matter. PW-15 in her evidence has stated that after she taking over the investigation in this matter, she requested the Doctor to give Postmortem examination report and the Revenue Officer to give revenue records with respect to the place of the incident and after completing investigation, she has filed the charge sheet. Both PWs.12 and 15 have denied the suggestions made to them in their cross-examination from the accused side. 22. From the evidence of the above witnesses, the fact which remains unchallenged or undisputed is that the accused, deceased and PW-5 Premakka were knowing to each other. It is not in dispute that the deceased Suvarnamma was working in the house of PW-1 Venkappa as a domestic servant. In such background, the first point as to the spot of the incident, it is PW-1, PW-2, PW-3, PW-4 and PW-5, who have spoken about the spot where the dead body of the deceased was found. Regarding the place where the dead body of the deceased was found, which according to these witnesses, was a vacant site nearby to the house of PW-1, is not in dispute. In that regard, the evidence of PW-3 about drawing the scene of offence panchanama as per Ex.P-2 and the evidence of PW-4 that in the vacant site nearby his house, he noticed the dead body where the police had come and more particularly, the evidence of PW-5 that she too had accompanied the accused to leave the deceased who was in inebriated condition in the said vacant site, would support the case of the prosecution about the place of offence. The evidence of PW-3 would also go to show that, it is from the said place, under the panchanama at Ex.P-2, the police have seized the articles at MO-2 and MO-3. Thus, the place of incident has been established by the prosecution. 23. The next question would be regarding the nature of death of the deceased. The prosecution case is that the death of Suvarnamma was a murder. Admittedly, the entire case of the prosecution is based on circumstantial evidence. As such, there is no witness who can speak as an eye witness about the alleged incident. The first witness who could speak about the nature of death of the deceased is PW-6, who claims to be a pancha for inquest panchanama. However, a reading of the said evidence would go to show that the said witness except stating that an inquest panchanama as per Ex.P-7 was drawn in his presence in the mortuary at C.G. Hospital, Davanagere, nothing else this witness has stated about the nature of death of the deceased. He has not even whispered as to what was the opinion of panchas regarding the nature of death of the deceased. However, a perusal of the said inquest panchanama at Ex.P-7 would go to show that the persons who alleged to have given their statement during the inquest panchanama and the panchas have opined that it was a suspicious death. However, the inquest panchanama has not stated specifically the opinion of the panch as to the nature of death. Thus, the panch as have opined that death must be an unnatural death. 24. The elder brother and elder sister i.e. PWs.7 and 8 have identified the deceased as their sister. However, they have not whispered anything about the nature of the death of the deceased. The only witness who could throw some light about the nature of death of the deceased is Doctor PW-11, who conducted the autopsy on the dead body of Suvarnamma. The said witness in her evidence has given the details of the injuries found on the dead body are extracted herein-below: "(1) Contusion on left side forehead, swelling present. (2) Contusion on right thigh lateral aspect with greenish (not clear) seen. (3) Right thigh, bilateral knees and right elbow anteriorly (not clear) seen crawling, on c/s lerious are pale, suggestive of post mortem injuries. (2) Contusion on right thigh lateral aspect with greenish (not clear) seen. (3) Right thigh, bilateral knees and right elbow anteriorly (not clear) seen crawling, on c/s lerious are pale, suggestive of post mortem injuries. (4) Abrasion with blood clots on right shoulder, posterior aspect and right elbow posterior aspect, c/s shows hyperemic s/o antemortem wound. (5) Contusion over the neck anteriorly below thyroid cartilage on dissection haemorrhage seen in the underlying muscles and contusion of muscles seen, Petechiae seen in larynx and trachea." Among the above said injuries, according to the said witness, it is only injury Nos.1, 2, 4 and 5 are ante-mortem, but, injury No.3 was post-mortem. However, the Doctor has not given her final opinion regarding the cause of the death in her postmortem examination report. As observed above, it is only in the Court, during the course of her evidence and after going through the Forensic Science Laboratory report, which are at Ex.P-13 and Ex.P-14, she has opined that the cause of death was due to asphyxia as a result of strangulation. The said evidence of PW-11 has not been seriously disputed from the accused side. As already observed, it was only an attempt made in her cross-examination to elicit that, had really a veil is being used in the commission of the crime, there ought to be some mark on the neck of the deceased in that regard. However, the witness did not admit the said suggestion as true in all circumstances, but, put a rider stating that the creation of such mark in such a situation depends upon the pressure, duration and the tightness exerted around the neck of the deceased. Thus, the evidence of PW-11,more particularly, the explanation given by her that injury No.5 found on the body of the deceased is possible to be caused when a person is strangulated by tying a veil around the neck and also her evidence that the bluish colour of the tip of the fingers, as well the lips of the deceased and the blood oozed out from the nostrils of the deceased, would show that the deceased was strangulated and her respiration was restricted soon prior to her death. It would clearly go to show that the death of the deceased Suvarnamma was a culpable homicide. As such, the prosecution could able to prove that the death of the deceased was culpable homicide. 25. It would clearly go to show that the death of the deceased Suvarnamma was a culpable homicide. As such, the prosecution could able to prove that the death of the deceased was culpable homicide. 25. The next question that arises for consideration is that, whether the prosecution has proved beyond reasonable doubt that it was the accused and accused alone who has committed the said culpable homicide of the deceased Suvarnamma. As already observed above, the entire case of the prosecution is based on circumstantial evidence. When in the absence of any eye witness in the case, in order to prove the case through circumstantial evidence, the prosecution has to prove all the relevant circumstances which leads to only one conclusion that it was the accused and accused alone who has committed the alleged offence. Every link of the chain has to be proved by the prosecution without leaving scope for loophole or gap in it. In that regard, the learned Counsel for the appellant in his argument has relied upon a judgment of the Hon'ble Apex Court in the case of State of Goa vs. Sanjay Thakran and Others, MANU/SC/7187/2007. In the said judgment at paragraph-12, the Hon'ble Apex Court was pleased to observe as below: "12. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) The circumstances from which an inference of guilt is sought, to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." In the light of the above principles laid down by the Hon'ble Apex Court, it has to be seen whether the prosecution could able to prove that it has established its case cogently and firmly and could able to show that the materials placed before it would only lead to a single conclusion that it was the accused and accused alone who has committed the alleged guilt. 26. In order to prove that it was the accused himself and none else has committed the alleged guilt, the prosecution mainly banks upon the evidence of PW-4 Rahul, PW-5 Premakka and the alleged recovery of cell phone at MO-1 which is said to be at the instance of the accused. As already observed, PW-4 Rahul though has stated that in the evening of the alleged date of the incident, at about 6.00 p.m., he saw a Tempo vehicle on the road in front of his house, but, he has not given further details of the said vehicle or about the accused or even about the deceased in his examination-in-chief. It is only in his cross-examination from the prosecution side, he admitted a suggestion as true that the registration number of the vehicle which he has given to the police on the next day when they visited the place of the offence was, KA-17-A-8522. However, in the very next sentence, the witness again stated that he does not remember the number of the said Tempo vehicle. Thus, the witness has shown himself to be not sure or certain about the registration number of the vehicle which he claims to have seen on the evening of the alleged date of the incident. However, in the very next sentence, the witness again stated that he does not remember the number of the said Tempo vehicle. Thus, the witness has shown himself to be not sure or certain about the registration number of the vehicle which he claims to have seen on the evening of the alleged date of the incident. Even after assuming that this witness has seen the very same Tempo vehicle bearing registration No.KA-17-A-8522 on the said evening, still, his evidence fails to give any details about any of the three persons i.e. either the accused, deceased or PW-5 Prema (Premakka). No where the witness has stated as to who were all there in the said Tempo vehicle when he saw that. As such, merely because PW-4 is said to have seen the Tempo vehicle at about 6.00 O'clock on 27.04.2014, by that itself, it cannot be inferred that, at that time, the deceased and PW-5 were also there in the said Tempo vehicle and that the deceased was made to lay down in the vacant site adjacent to the house of PW-1 by the accused and PW-5. 27. The evidence of PW-10 - the owner of the Tempo Traveller though would go to show that on 27.04.2014 the vehicle was in possession of the accused and when the said evidence is read with the evidence of PW-4 Rahul, it would only go to show that at that time when PW-4 was said to have seen the Tempo vehicle, probably the accused must be in its driving seat. Except that, the evidence of PW-4 is of no help to the prosecution in establishing that it was the accused who has committed the crime. 28. The evidence of PW-5 plays an important role in the theory of last seen, upon which the prosecution mainly banks upon. The said witness, as observed above, has stated that in the evening of the alleged date, the accused had brought Suvarnamma, who was a person known to both of them, to her house, at which time, Suvarnamma and the accused were in inebriated condition. She has stated that it was in the very same Tempo, the photograph of which this witness has identified at Ex.P-4, the accused had brought the deceased Suvarnamma to her house. She has stated that it was in the very same Tempo, the photograph of which this witness has identified at Ex.P-4, the accused had brought the deceased Suvarnamma to her house. The witness has further stated that, she joined the accused to take Suvarnamma to the house of PW-1 where she was working and after taking to the said place, she helped the accused in shifting the person of the deceased to a vacant site and laying it there. The witness has stated that thereafter the accused left her (this witness) to her house. The said evidence of PW-5 in this regard has not been categorically denied in the cross-examination of the said witness. On the other hand, a suggestion was made to this witness from the accused side suggesting that the accused had brought Suvarnamma since she was acquainted with the accused and that he had brought Suvarnamma to the house of PW-5 at the advice of the neighbours, would go to show that the accused himself in the form of said suggestion admitted that the deceased was taken to the house of PW-5 Premakka in the evening on the date of the incident. However, the prosecution case is not that the deceased was murdered at the very same time, when the accused and PW-5 Premakka had taken the deceased to the vacant site, which is the place of the incident. Even according to the prosecution, between the timings when PW-5 and accused are said to have taken the deceased to the said place and the alleged death (murder) of deceased Suvarnamma, there is not less than three and half hours to four hours gap. The prosecution has not placed any material to show as to nothing had transpired during that period and it was the accused alone who was in the company or association with the deceased till the alleged murder of Suvarnamma which is said to have taken place at about 11.00 O'clock on that night. 29. Even according to the prosecution, after leaving Suvarnamma in the said spot at about 7.30 p.m., both the accused and PW-5 returned from that place. 29. Even according to the prosecution, after leaving Suvarnamma in the said spot at about 7.30 p.m., both the accused and PW-5 returned from that place. It is the further case of the prosecution that, thereafter once again the accused alone went to the said place in his Tempo Traveller and had sexual intercourse with the deceased and after enjoying the sexual pleasure, the deceased is said to have demanded money from him and enraged by such demand said to have been made by the deceased, he strangulated her using the same veil worn by the deceased. According to the prosecution, it was at 11.00 O' Clock in the night. No material has been placed by the prosecution to show that after returning of the accused from the place of the incident at about 7.30 p.m. in the evening, he had been to the very same place once again in the night at about 11.00 O'clock. There is no material placed by the prosecution to the effect that the accused had the pleasure of sexual intercourse twice on that lady at about 6.00 0'clock once near channel at Shamanuru and second time at about 11.00 O'clock in the place of incident, which was a vacant site adjoining the house of PW-1. There are no witnesses who are said to have seen the accused in association with the deceased in the second alleged visit of the accused to the spot at about 11.00 O'clock in the night. Even the evidence of PW-4, who claims to have seen the Tempo vehicle, if believed, would only go to show that he has seen only the vehicle, not any inmates of the vehicle at about 6.00 O'clock in the evening and not at 11.00 O'clock in the night, which is alleged to be the second visit of the accused when he is alleged to have committed the crime against the deceased. Even the evidence of PW-5 is also silent about the same. She has nowhere whispered as to what happened either to the deceased or to the accused once she was dropped back to her house by the accused after laying the deceased in an inebriated condition in the vacant site in the evening. Even the evidence of PW-5 is also silent about the same. She has nowhere whispered as to what happened either to the deceased or to the accused once she was dropped back to her house by the accused after laying the deceased in an inebriated condition in the vacant site in the evening. Therefore, the case of prosecution that the deceased was found lastly in the company of the accused comes to a halt latest by 7.30 in the evening of 27.04.2014 and it does not take the case of the prosecution any further. Admittedly, the said place where the dead body of the deceased was found was adjoining to a public road where it had the movement of the general public and the vehicles. Apart from PW-4, even the Investigating Officer i.e. PW-3, has also given his evidence on the same line. Admittedly the deceased was alive till she is alleged to have subjected to second sexual intercourse upon her at about 11.00 p.m. As such, from 7.30 p.m. till 11.00 p.m. in the evening, what transpired and whether the deceased was there alone in the said place or whether anybody visited her during said time, nothing has been placed by the prosecution either through oral evidence or by producing the documents. 30. As observed, even to believe that it was the accused alone who visited the deceased at the second time at 11.00 O'clock in the same night, absolutely no evidence either oral or documentary have been placed by the prosecution. As such, the chain of circumstances suffer with a great breakage at 7.30 p.m. itself and fails to establish any link with that of the alleged incident of murder or culpable homicide said to have been taken place at 11.00 O'clock in the night. The trial Court did not appreciate this aspect in its proper perspective. On the other hand, taking the evidence of PW-4 that he had seen a Tempo vehicle on that evening and the evidence of PW-5 that she had accompanied the accused while shifting the deceased to the said vacant site in the evening, had jumped to a conclusion that the prosecution has proved its case on the theory of last seen beyond any reasonable doubt. The said reasoning of the trial Court now is proved to be an erroneous one. 31. The said reasoning of the trial Court now is proved to be an erroneous one. 31. The second aspect and the last aspect upon which the prosecution banks upon and so also the trial Court has relied upon is the alleged recovery of cell phone at MO-1, which according to the prosecution, was at the instance of the accused. In that regard, if the evidence placed before the Court on the said aspect is perused, the first evidence in that regard is that of the Investigating Officer i.e. PW-3. The said witness has stated that after the apprehension of the accused and during his interrogation, the accused gave voluntary statement before him, wherein he has stated that he has taken the cell phone found nearby the deceased and delivered it to Premakka (PW-5). The witness has also stated that, the accused volunteered to say that, in case he was taken to the said place, he would get the said cell phone produced before them. The continuation of the said evidence regarding recovery is stated by PW-12, the second Investigating Officer, who in his evidence has stated that on 30.04.2014, the accused stating that in case if he is taken along with them, he would show the place of the offence, as well would produce the cell phone, he took the accused firstly to the house of PW-5 Premakka, where at the request of the accused, Premakka produced the cell phone, which this witness seized by drawing a mahazar. The witness has identified the said cell phone at MO-1. The said evidence of PWs.3 and 12 when read together and appreciated, it can be noticed that PW-3 claims that the accused gave voluntary statement before him and apart from stating so, he has got marked relevant portions of the alleged voluntary statement of the accused at Exs.P-15 (a), P-15(b), P-15(c) and P-15(d). However, the witness has not stated as to when the accused has given the alleged voluntary statement before him. A perusal of Ex.P-15 also would go to show that the said voluntary statement is shown to have been recorded on 29.04.2014. PW-12 also says that the accused has stated before him on 30.04.2014 reiterating that he would produce the cell phone in case if he is taken. A perusal of Ex.P-15 also would go to show that the said voluntary statement is shown to have been recorded on 29.04.2014. PW-12 also says that the accused has stated before him on 30.04.2014 reiterating that he would produce the cell phone in case if he is taken. However, PW-12 has not recorded any statement, much less, the voluntary statement of the accused in that regard nor PW-12 has stated that the accused had already given a voluntary statement before his predecessor i.e. PW-3 as per Ex.P-15. A reading of the evidence of PW-12, the second Investigating Officer, would not go to show that he had the knowledge of the alleged voluntary statement of the accused as per Ex.P-15. As such, the evidence of PW-12 would go to show that it was only on 30.04.2014, he came to know through the accused that accused would produce the cell phone if he is accompanied by them. Secondly, PW-12 has stated that the accused led him to the house of Premakka (PW-5). However, nowhere the witness has stated that when the accused is said to have led him to the house of Premakka. There were no witnesses accompanying this Investigating Officer and the accused when they said to have gone to the house of PW-5 Premakka. Therefore, the evidence of PW-12 is silent as to, apart from this witness, who else had accompanied the accused to the house of PW-5 Premakka. Lastly, though the witness has stated that there was mahazar drawn for the recovery of the said cell phone in the house of PW-5 Premakka, but, the witness has not identified the said mahazar as an exhibit in the Court. All these leads to a suspicion regarding the alleged recovery of cell phone at MO-1 at the instance of the accused. 32. Irrespective of the above discrepancies noticed in the alleged recovery of the cell phone, if it is taken that a cell phone was recovered at the instance of the accused, still, it cannot be ignored of the prosecution version that the cell phone was taken by the accused or PW-5 much prior to the time of the commission of crime. Irrespective of the above discrepancies noticed in the alleged recovery of the cell phone, if it is taken that a cell phone was recovered at the instance of the accused, still, it cannot be ignored of the prosecution version that the cell phone was taken by the accused or PW-5 much prior to the time of the commission of crime. The version of prosecution is that the recovery of the cell phone was at the first time when the deceased was said to have been left in the vacant site by the accused and PW-5, whereas, the alleged incident of murder was at 11.00 p.m. on the said day. As such also, the recovery even if it is taken as proved, would not be sufficient to establish any nexus between the alleged act of murder and the accused. However, the trial Court ignored the said aspect also. 33. In the result, the trial Court without noticing that the case of the prosecution was with several loopholes and blanks, has proceeded to convict the accused. In the said process, the trial Court also ignored the fact that the Investigating Officer i.e. PW-3, when he is said to have visited the spot and drew inquest panchanama on the deceased, had also noticed the presence of the veil around the neck of the deceased in a tight position, but still for the reasons best known to him, he has not collected the said important piece of evidence, because, it is by making use of the said piece of cloth, the deceased was said to have been strangulated by the culprit. 34. Though the postmortem report at Ex.P-8 would go to show that the Doctor who conducted the autopsy has collected several of the articles belonging to the deceased, including the said chudidar veil and sent them for chemical analysis, but, the Investigating Officer i.e. PW-3, has specifically and categorically stated that neither he has seized the said veil nor he has attempted to send the said veil to Expert for its examination. Thus, if the version of the Investigating Officer is believed, the another important material article which would have thrown some light in the case also has not been recovered. Thus, if the version of the Investigating Officer is believed, the another important material article which would have thrown some light in the case also has not been recovered. The trial Court did not notice all these major loopholes in the case of the prosecution, consequently, has failed to give the benefit of doubt in favour of the accused and ignoring these material lacunas in the case of the prosecution, since has proceed to pronounce the judgment of conviction, holding the accused guilty of the alleged offences, we are of the opinion that the said finding of the trial Court and the judgment and conviction and order of sentence passed by the trial Court deserves to be set aside. 35. Accordingly, we proceed to pass the following: ORDER: The Appeal is allowed. The judgment of conviction and the order on sentence dated 26.02.2016, passed by the learned Principal District and Sessions Judge, Davanagere, in S.C. No. 93/2014, is set aside. The accused/appellant-Mahanthesh S/o Fakirappa, residing at Thalavagalu Village, Harappanahalli Taluk, Davanagere District, is acquitted for the offence punishable under Section 302 of Indian Penal Code. Since the accused is in judicial custody and is serving the sentence, the Jail authorities are directed to set him at liberty forthwith, if he is not required to be continued in judicial custody in any other case/s. The fine amount paid by the accused, if any, stands forfeited to the State. The Registry is directed to communicate the operative portion of this order to the Jail authorities immediately. The Material Objects in the case be preserved till the expiry of period of appeal and if no appeal is preferred. Registry is directed to transmit a copy of this judgment along with lower Court records to the Trial Court without delay.