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2020 DIGILAW 1356 (KAR)

Karegowda D v. State Of Karnataka

2020-07-08

B.VEERAPPA, PRADEEP SINGH YERUR

body2020
JUDGMENT B.Veerappa, J. - The unsuccessful appellant / accused No.1 has filed the present appeal against the judgment and order of conviction and sentence dated 10th October 2014, made in S.C. No.158/2013 passed by the II Addl. District and Sessions Judge, Tumkur, whereby the accused No.2 was acquitted and accused No.1 was convicted for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and shall also pay a fine of Rs.10,000, in default, to undergo imprisonment for a period of six months. 2. The brief facts of the case are as under: (i) It is the case of the prosecution that the accused No.1 - Karegowda, Muralidhara - PW2 and Manjunathaswamy, the deceased, are brothers. There was some land dispute among themselves with regard to Sy. No. 36/2 and 37/2 of Kallambella Village, Sira Taluk and in this behalf there were several quarrels between them. (ii) On 18.07.2013 at about 2.30PM, when Manjunathaswamy was near pump house, accused No.1 threw chilly powder and assaulted him on his face, head and right leg with a sickle. Further, the accused No.2, wife of accused No.1, assaulted him with a bamboo stick (Donne) and stone. Due to the said assault, the said Manjunathaswamy, succumbed to the injuries on the spot. (iii) Muralidhara - PW2, came to the Kallambella Police Station on 18.07.2013 at about 10.30PM and lodged a complaint, which came to be registered in Cr. No.110/2013 for the offence punishable under Section 302 read with Section 34 of IPC against the accused No.1 and 2. (iv) The Station House Officer of Kallembella Police Station handed over the case file to the Circle Inspector of Police, Sira Rural Circle, Sira. On receipt of the same he took up further investigation and visited the spot, conducted inquest mahazar, produced the body before the Medical Officer for post-mortem examination, arrested accused No.1 and 2, recorded statements of witnesses, collected material objects and necessary reports and after completion of investigation laid the charge sheet for the offence punishable under Section 302 r/w Section 34 IPC against the accused No.1 and 2 before the Civil Judge & JMFC, Sira. (v) The learned Magistrate took the congnizance for the offence punishable under Section 302 r/w Sec. 34 of IPC and registered a case in C.C. No.453/2013 and thereafter, referred the case to learned Principle District and Sessions Court, Tumkur and the same was registered in S.C. No.158/2013. 3. In order to prove the case of the prosecution, the prosecution examined in all 13 witnesses as PW1 to PW13 and marked 11 documents at Ex.P1 to P11 and 16 material objects as MO1 to MO16. The accused persons did not choose to lead any evidence in their defence. 4. After completion of the evidence on the prosecution side, the statement of the accused under Section 313 of the Code of Criminal Procedure has been recorded and both the accused have denied all the incriminating circumstantial evidence appeared against them in the prosecution evidence. 5. The learned Sessions Judge considering the entire materials on record has recorded a finding that the prosecution has proved beyond reasonable doubt that on 18.07.2013 at about 4.00 PM near the pump house situated at Sy. No. 36/2 of Kallambella Vilage within the limits of the complainant Police Station, with common intention both the accused, to commit murder of Manjunathaswamy - accused No.1 threw chilly powder to his eye and assaulted him with sickle and accused No.2 assualted him with stone and club and committed murder and thereby both the accused committed the offence punishable under Section 302 r/w Sec.34 of IPC. Further, the learned Sessions Judge acquitted the accused No.2 and convicted the accused No.1 of the said charges. Hence, the present appeal by the accused No.1 against the said judgment and conviction and order of sentence. 6. The respondent - State has not filed any appeal against the judgment and order of acquittal against the accused No.2 for the offence punishable under Section 302 r/w Sec. 34 of IPC. 7. We have heard the learned counsel for the parties to the lis. 8. Mr. R.P.Chandrashekar, the learned counsel for appellant - accused No.1, vehemently contended that the impugned judgment and conviction and order of sentence passed by the learned Sessions Judge against the accused No.1 is erroneous and contrary to the materials on record. He would further contend that the learned Sessions Judge has totally erred in not property appreciating the evidence on record. R.P.Chandrashekar, the learned counsel for appellant - accused No.1, vehemently contended that the impugned judgment and conviction and order of sentence passed by the learned Sessions Judge against the accused No.1 is erroneous and contrary to the materials on record. He would further contend that the learned Sessions Judge has totally erred in not property appreciating the evidence on record. He would further contend that the entire case of the prosecution is only based by the circumstantial evidence and the prosecution has failed prove the case beyond all reasonable doubt against the accused No.1. He would further contend that the last seen circumstance theory of the prosecution is not proved in view of the evidence of PW3. He would further contend that though PW2, 4, 7 and 9 have stated about the motive, they are all only interested witnesses and the same cannot be accepted to convict the accused No.1 for the offence punishable under Section 302 r/w 34 IPC. He would further contends that actual place of occurrence was not put to mahazar, as Ex.P5 spot mahazar was carried out in Sy. No. 33/1. Further, he would contend that in the charge memo it is stated the occurrence of offence is at 4.00PM near the pump house situated in Sy. No. 36/2. Therefore, he would contend that there are many discrepancies about the place of incident itself and absolutely the prosecution has not made out any case against the accused. 9. The learned counsel for the accused further contended that even though the incident occurred at 4.00PM the complaint came to be lodged at 10.00PM and in this regard absolutely there is no explanation offered about the delay in lodging the complaint. He would further contend that the prosecution has not made out any case against the accused No.1 beyond all reasonable doubt. Therefore, the order of conviction and sentence imposed against the accused No.1 to undergo imprisonment for life is disproportionate to the charge made, as there was no intention for the accused to kill the deceased. He further contended that the there was a quarrel between the accused and the deceased and due to sudden provocation the incident occurred and there was no intention to kill the deceased. Therefore, the learned Sessions Judge ought to have convicted the accused No.1 under the provisions of Section 304(2) of Cr.P.C. 10. He further contended that the there was a quarrel between the accused and the deceased and due to sudden provocation the incident occurred and there was no intention to kill the deceased. Therefore, the learned Sessions Judge ought to have convicted the accused No.1 under the provisions of Section 304(2) of Cr.P.C. 10. In support of his contentions, the learned counsel for the appellant / accused No.1 placed reliance on the following decisions of the Hon'ble Supreme Court in the case of; (1) AHMED SHAH AND ANOTHER vs STATE OF RAJASTHAN, (2015) 3 SCC 93 , with regard to converting the offence punishable under Section 302 IPC to Sec. 304(2) IPC; and (2) DIGAMBER VAISHNAV AND ANOTHER AND STATE OF CHHATTISGARH, (2019) 4 SCC 522 , paras - 15, 20 & 40, with regard to last seen theory. Hence, he sought to allow the appeal. 11. Per contra, Mr. Rachaiah, the learned High Court Government Pleader, while justifying the impugned judgment and conviction and order of sentence, contended that there is no denial with regard to the land dispute to the extent of 12 guntas between the deceased and the accused. It is also not in dispute that accused No.1, PW2 and the deceased were brothers and quarrel took place between the brothers. In the earlier legal dispute between the accused and the deceased, the accused succeeded and subsequently, on remand the deceased succeeded. In those circumstances, the deceased had ill-will and enmity to the accused. On 18.07.2013, the accused No.1 by throwing chilly powder on the deceased killed him. Therefore, the learned Sessions Judge is justified in convicting the accused for imprisonment of life. He would further contend that the PW1-Doctor has opined that the death was due to shock and hemorrhage as a result of multiple injuries sustained by the deceased. He would further contend that PW3, who is the witness to last seen theory, stated on oath that deceased and accused persons were seen together before the death of the deceased. 12. The learned HCGP further contended that PW17, son of the accused No.1 through first wife, stated about the motive that, three days prior to the incident the accused No.1 abused the deceased that he will kill him and there was a land dispute between the deceased and the accused. Though in the cross-examination, he stated that there is ill-will between him and the accused. Though in the cross-examination, he stated that there is ill-will between him and the accused. He further contended that the entire material both oral and documentary evidence clearly indicate events of the chain of circumstances, fight and accused killing the deceased. He would further contend that in order to prove the guilt of the accused, the prosecution has proved the homicidal death of the deceased, motive, last seen circumstance of the accused with the deceased at 4.30 PM and recovery of incriminating articles like blood stained clothes of the deceased. Therefore, he sought to dismiss the appeal. 13. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present appeal are:- "(1) Whether the appellant-accused No.1 has made out a case to interfere with the impugned judgment and conviction and order of sentence passed by the learned Sessions Judge convicting the accused No.1 for the offences punishable under Section 302 r/w Sec. 34 of IPC in the facts and circumstances of the present case? (2) Whether the learned Sessions Judge is justified in passing the impugned judgment and conviction and order of sentence imposing rigorous imprisonment for life punishable under Section 302 r/w Sec.34 of IPC?" 14. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. 15. In order to appreciate the impugned judgment and conviction and order of sentence passed by the learned Sessions Judge, we would like to consider the evidence of the prosecution witnesses and the material documents of the parties to the lis. 16. Pw1 - Dr. Shylaja, who conducted post mortem examination on the dead body of Manjunathaswamy, on 19.07.2013, has categorically deposed that she has conducted PM examination as per request of the Circle Inspector of Police, Sira and stated that there were as many as ten injuries on the dead body. After dissection of the dead body she found internal injuries. According to her, the death was due to hemorrhage and multiple injuries sustained. She further stated that the injuries found on the dead body could be caused by using weapon like MO1 / roti - khazal and accordingly to her all these injuries are fatal in nature. After dissection of the dead body she found internal injuries. According to her, the death was due to hemorrhage and multiple injuries sustained. She further stated that the injuries found on the dead body could be caused by using weapon like MO1 / roti - khazal and accordingly to her all these injuries are fatal in nature. She identified the PM report as per Ex.P1 and also with regard to the letter/Ex.P3. In the course of cross-examination, it was suggested to her that a person can sustain injuries noted in Ex.P1 if he falls on a sharp knife, glass pieces or a sharp stone. But this alternate mode of suggesting injuries suffered by the deceased has been denied by the Doctor. 17. Pw.2, who is none other than the brother of accused No.1 and deceased has stated in his evidence that 12 guntas of land belonging to complainant was in possession of accused No.1. When he claimed possession of the same, accused No.1 refused to handover possession. He further stated that in this regard a suit was filed and appeal is pending before the High Court. It is his further evidence that as per Partition Deed the Borewell water is to be shared among three brothers. The said Borewell motor was not functioning. The son of accused No.1 who has removed the same for repair had not brought back the same. In this regard, there was a scuffle between Manjunathaswamy (deceased) and accused No.1 and accused No.1 has proclaimed that he will kill Manjunathaswamy. 18. Pw.3 - Linganna (Ninganna) stated that he had last seen accused No.1 and deceased together on 18.7.2013 at about 4.30 pm. Accused No.1 and Manjunathaswamy were quarrelling near pump house. He had seen them quarrelling from a distance. He further stated that at that time his buffaloes were grazing the land. Thereafter, he went home as the fight was between two brothers. He further stated that he hails from the village of accused No.1 and deceased. Nothing is elicited during the cross-examination of PW-3 to establish that there is some ground against accused No.1. It appears, PW.3 is a natural witness. He has deposed that he has seen accused No.1 and deceased on a particular date. He further stated that he hails from the village of accused No.1 and deceased. Nothing is elicited during the cross-examination of PW-3 to establish that there is some ground against accused No.1. It appears, PW.3 is a natural witness. He has deposed that he has seen accused No.1 and deceased on a particular date. PW.3 further stated that when he was sitting near a shop, the wife of deceased came to the shop at about 7.00 pm., and ascertained whether he has seen her husband. Thereafter, after the incident he went to the spot. By that time, PW.2 and CW.3 were present. The body of the deceased was lying near the Bore well and there were injuries on the head. He has denied the suggestion that he has not visited the spot, that he has seen nothing and that on the basis of the statement made by the complainant he is making a false statement. 19. Pw.4 - Praveen, who is none other than the brother-in-law of the deceased has stated in his evidence that there was some dispute between accused No.1 and Manjunathaswamy. He was accompanied by PW.2 and he has supported the case of the prosecution. 20. Pw.5 - Lokeshbabu is a panch witness to the spot mahazar Ex.P5. 21. Pw.6 - Rangamma who is a resident of the same village stated that accused No.1 was uttering words against the deceased and she stated that there was a quarrel between them in respect of their land. 22. Pw.7 - Lokesh Kumar is none other than the son of the accused. He also stated in his evidence that there was a civil dispute between his father and his uncle Manjunathaswamy. That three days prior to the incident, there was a quarrel between accused No.1 and Manjunatha swamy. According to him, his father proclaimed that he will kill Manjunathaswamy. In the cross-examination, he admitted that there was a ill will between Manjunathaswamy and his father after his father got married for third time. He has denied the suggestion that his father had not made such proclamation. 23. Pw.8 - Henjarappa is witness to inquest mahazar Ex.P7 and he has stated that Charge sheet Witnesses 10 and 11 were also present at that time. He has identified his signature at Ex.P7(A). He has denied the suggestion that his father had not made such proclamation. 23. Pw.8 - Henjarappa is witness to inquest mahazar Ex.P7 and he has stated that Charge sheet Witnesses 10 and 11 were also present at that time. He has identified his signature at Ex.P7(A). He has stated in the cross-examination that he does not know about the injuries on the dead body of the deceased. 24. Pw.9 - Pushpavathi who is the wife of deceased Manjunathaswamy in her evidence has stated that there was a civil dispute between her husband and accused No.1 in respect of 12 guntas of land. The trial Court order was in favour of Manjunathaswamy and appeal is pending before the High court. Though there was a decision to use the Bore well water by all of them, only accused No.1 was utilizing the Bore well water and he has sold the pump set to somebody. Therefore, there was a quarrel between accused No.1 and her husband. She has supported the case of the prosecution to establish a motive for the incident. 25. Pw.10 - Suresh is the panch witness to recovery of articles as per Ex.P8 i.e, MO.1 - Sickle and MO.16-blood stained shirt of the deceased. He stated that on 27.10.2013 police came to the village and summoned him so as to prepare the mahazar. Accused No.1 took them to the place of incident, traced a rod/sickle and produced it before the police. Later, at his residence the accused No.1 has produced a shirt before the police and same was seized which are at MO.1 and MO.16. 26. Pw.11 - Ravichandra Kumar is Assistant Executive Engineer, who prepared the sketch as per ex.P9. He stated that on the request made by Circle Inspector, Sira, on 20.7.2013 he visited the spot on 2.8.2013 along with Police Constable 119. That at his instance he has prepared the sketch at Ex.P9 and his signature is at Ex.P9(A). He had denied the suggestion that he has not inspected the spot and as per the instructions of the investigation officer Ex.P9 is prepared. 27. Pw.13 - P.Ravi is CPI/Investigation Officer who completed the investigation and filed final report. He stated on oath that on 19.7.2013 at about 7.00 am., he went to the Government Hospital, Kallambella and drawn inquest mahazar - Ex.P7 and his signature is at Ex.P7(B). 27. Pw.13 - P.Ravi is CPI/Investigation Officer who completed the investigation and filed final report. He stated on oath that on 19.7.2013 at about 7.00 am., he went to the Government Hospital, Kallambella and drawn inquest mahazar - Ex.P7 and his signature is at Ex.P7(B). At the time of inspection, CWs.9, 15 and 16 were also present and after enquiry, their statements are recorded. He also stated that he visited the spot and drew panchanama as per Ex.P5 and his signature is at Ex.P5(C). 28. Based on the aforesaid material on record, both oral and documentary the learned judge proceeded to pass the impugned judgment and order of conviction. The learned judge mainly relied upon the evidence of PW.1 - Dr.Shylaja, PW8 - attestor to the inquest mahazar of the dead body as per Ex.P7, PW.12 - Investigation Officer, who investigated the matter and filed final report and PW.2, who is none other than the brother of accused No.1 and also PWs.4, 6 and 9 to establish motive for the offence. The learned judge further relied upon the evidence of PWs.10 and 3. The material on record clearly depicts that there was a dispute in respect of 12 guntas of land between accused No.1 and deceased and PW.2. Though the prosecution was able to prove motive behind the incident, the fact that on the date of incident there was a civil dispute pending between the parties and in that, since the deceased has succeeded, he went to the land of Accused No.1 in Sy.No.36/2 of Kallambella village. 29. Thereafter, by sudden provocation and aggravation in respect of 12 guntas of land and with regard to share and rights over the Borewell water, a scuffle ensued between the parties. But there was no previous deliberation or premeditation or determination and the incident is a result of fury and fight. There was no intention for accused No.1 to kill the deceased though he has used sickle - MO.1. Therefore, the learned judge was not right in proceeding to convict accused No.1 for the offence under Section 302 and sentence to imprisonment for life mainly on the basis of evidence of PWs.2, 3 and 9. 30. There was no intention for accused No.1 to kill the deceased though he has used sickle - MO.1. Therefore, the learned judge was not right in proceeding to convict accused No.1 for the offence under Section 302 and sentence to imprisonment for life mainly on the basis of evidence of PWs.2, 3 and 9. 30. The provision of Explanation (4) to Section 300 would attract to the facts and circumstances of the present case, which reads as under: "Culpable Homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 31. A careful reading of the aforesaid provision makes it clear that to invoke said provision, four requisites must be satisfied, namely; i) it was a sudden fight; ii) there was no premeditation; iii) the act was committed in a heat of passion and iv) the assailant has not taken any undue advantage or acted in a cruel manner. 32. Admittedly, in the present case, it was a sudden fight between the brothers with regard to 12 guntas of land and the rights of share in the Borewell water. The material on record clearly depicts that there was no premeditation on the part of accused No.1 and the act committed by accused No.1 is in a heat of passion and used the sickle on the head of deceased without any premeditation and as stated supra accused No.1 has not taken any undue advantage and acted in a cruel manner in causing the death of deceased. In view of the above, the present case cannot be said to be a case punishable under Section 302 of IPC. But, a case falling under Explanation 4 to Section 300 of IPC. Since accused No.1 inflicted injuries on the head of deceased without an intention to cause death, the act of accused No.1 is punishable under the provisions of Section 304 Part-II of IPC with imprisonment for 10 years or fine or both. 33. It is well settled proposition that, one of the fundamental principles of criminal jurisprudence is undoubtedly the burden of proof squarely rests on the prosecution and general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. 33. It is well settled proposition that, one of the fundamental principles of criminal jurisprudence is undoubtedly the burden of proof squarely rests on the prosecution and general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity or defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. 34. Admittedly, in the instant case, the learned judge proceeded to convict the accused No.1 mainly on the evidence of PWs.1, 2, 3, 9 and 12 in the absence of any convincing oral and documentary evidence produced and proved beyond reasonable doubt by the prosecution that the accused with an intention caused head injury to the deceased. Therefore, the punishment of imprisonment for life imposed by the learned trial judge deserves to be modified. 35. Having considered the submissions made by the learned counsel for the parties and having perused the material available on record including the original record, the occurrence of offence undoubtedly has taken place at the spur of the moment without premeditation and it cannot be said that the accused had any intention to kill or knowledge that death was likely to ensue. Accused No.1 only intended to vent his ire against the deceased and there was no occasion for him to kill the deceased. Admittedly, the accused is aged about 75 years as on today and 70 as on the date of the incident. Taking into consideration the mitigating circumstances and fight between the brothers, the deceased succumbed to the injuries on the head. The injury is attributable to the accused. The absence of any intention makes him individually answerable and therefore, the conviction has to be under Section 304, Part-II of IPC. 36. Our view is fortified by the dictum of Hon'ble Supreme Court in the case of AHMED SHAH AND ANOTHER -VS- STATE OF RAJASTHAN, (2015) 3 SCC 93 relied upon by the learned counsel for accused No.1. The absence of any intention makes him individually answerable and therefore, the conviction has to be under Section 304, Part-II of IPC. 36. Our view is fortified by the dictum of Hon'ble Supreme Court in the case of AHMED SHAH AND ANOTHER -VS- STATE OF RAJASTHAN, (2015) 3 SCC 93 relied upon by the learned counsel for accused No.1. In paragraph 21 the Hon'ble Supreme Court has held as under: "21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC." 37. It is evident at this stage that in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied; i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii) the circumstances should be a definite tendency unerringly pointing towards the guilt of the accused; and iii) 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, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 38. 38. Though the learned SPP has stated that in the present case the prosecution has proved the guilt of the accused on the basis of homicidal death, motive and recovery of the weapon, the fact remains that the dispute between the brothers is in respect of land and in a sudden scuffle between the deceased and accused No.1 there was a sudden provocation and aggravation when the deceased went to the land of accused No.1 and in the said scuffle ensued between the brothers there was no previous deliberation or premeditation. The incident occurred as a result of sudden fight. 39. Admittedly, the prosecution has not proved the intention of accused No.1 to kill the deceased and not produced any material both oral and documentary to show that the sickle used by the accused on the head of deceased is only to kill the deceased. Therefore, the sentence imposed by the learned judge for imprisonment of life cannot be sustained. 40. The Hon'ble Supreme Court while considering the provisions of Section 302 r/w 34, Section 394 r/w 34 of IPC and Section 27 of Evidence Act in the case of DIGAMBER VAISHNAV AND ANOTHER -VS- STATE OF CHATTISGARH, (2019) 4 SCC 522 , at paragraphs 18, 19, 40, 41 and 42 has held as under: 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406 , this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely prob- able doubt, but a fair doubt that is based upon reason and common sense". 19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 ]. 40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body. 41. In Arjun Marik & Ors. v. State of Bihar, (1994) Supp2 SCC 372 , it has been held as under:- "31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded". 42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 , the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus: "12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing con- nectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant" In view of the above, the impugned judgment and order of conviction has to be modified in the peculiar facts and circumstances of the present case. 41. The material on record clearly depicts that there was dispute between the brothers i.e., accused No.1, PW.2 and deceased in respect of a land. It is also not in dispute that deceased Manjunathaswamy has succeeded before the trial court and appeal is pending before this Court. In this circumstance, naturally there was some enmity between the brothers and a scuffle ensued when the deceased went to the land of accused No.1. It is also not in dispute that deceased Manjunathaswamy has succeeded before the trial court and appeal is pending before this Court. In this circumstance, naturally there was some enmity between the brothers and a scuffle ensued when the deceased went to the land of accused No.1. As a result of the sudden fight, accused No.1 has used MO.1 on the head of deceased thereby inflicted injuries all over the body as stated by PW.1. As already stated above, there was no premeditation and incident has occurred in a sudden provocation. Therefore, the impugned punishment of life imprisonment has to be modified and converted into one under Part-II of Section 304 of IPC and accused No.1 is liable to be punished for a period of 10 years imprisonment with fine of Rs.20,000/-. Accordingly, the points 1 and 2 are answered and the accused has made out a case to interfere with the judgment and order of conviction passed by the learned Sessions Judge. 42. For the reasons stated above, we pass the following: ORDER 1. The Criminal Appeal is allowed in part. 2. The impugned Judgment and order of conviction and sentence passed by the trial Court convicting the appellant - Accused No.1 for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life is modified and Accused No.1 is convicted for the offence punishable under the provisions of Section 304 Part II of IPC and sentenced to undergo imprisonment for a period of TEN years and to pay a fine of Rs.20,000/- (Rupees twenty thousand only). In default of payment of fine, Accused No.1 shall undergo further imprisonment for six months. 3. The appellant (Accused No.1) is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure