JUDGMENT : Aggrieved by the judgment dated 24.09.2012 in Sessions Case No.29/2011 passed by the learned First Additional Sessions Judge, Vijayapur convicting the present appellant for the offence punishable under Section 302 of the Indian Penal Code (‘IPC’ for short), the present appeal has been filed before this Court. 2. PW.21 – Siddappa is the complainant. The allegation of the prosecution is that on 06.08.2010 at about 9.00 a.m., PW.21 was informed by his relative that his elder sister Dyamawwa (deceased) was lying dead in a field on the way to her house. Immediately, PW.21 rushed to the land of PW.13 – Somappa along with his relatives and saw the dead body of Dyamawwa lying with injuries on her face and further contusion injury on the neck. It is also alleged that near the said dead body there was a boulder which was bloodstained, a beetle nut pouch and one Kurupi were also lying in the said field with standing Sajje crop and there were also broken pieces of bangles and chappal of the deceased. Golden ornaments of the deceased were missing and purse was empty. Accordingly, PW.21 lodged the complaint before Muddebihal police. 3. After investigation, the police have filed charge sheet against the accused for the offence punishable under Section 302 of IPC. After observing necessary formalities, learned Sessions Judge framed charge against the accused and on the accused insisting for trial, trial was also duly held. During the trial, prosecution examined PWs.1 to 30 and Exs.P.1 to P.50 were marked. MOs.1 to 18 were also marked. Thereafter, prosecution closed its side and the statement of the appellant was recorded under Section 313 of Cr.P.C. drawing his attention to the incriminating circumstances appearing against him in the deposition of the prosecution witnesses. The case of the defence was one of total denial and false implication. After hearing, the learned Sessions Judge by his judgement dated 24.09.2012 convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life. 4. There are no eyewitnesses to the incident and case of the prosecution entirely rests on circumstantial evidence. 5. There is no dispute before us about homicidal nature of the death of deceased Dyamawwa. 6. 4. There are no eyewitnesses to the incident and case of the prosecution entirely rests on circumstantial evidence. 5. There is no dispute before us about homicidal nature of the death of deceased Dyamawwa. 6. Learned counsel for the accused/appellant contended before us that there is no evidence to prove the case beyond reasonable doubt that the accused/appellant has committed the murder of the deceased and therefore the judgment under appeal is wholly unsustainable. He submitted that the learned Sessions Judge was in error in holding that a golden Boramala was seized from the possession of the accused by PW.30. He submitted that similarly recovery of MO.11 – Golden Karimani Tikke from the shop of PW.25 which is said to be on the information provided by the accused is also not proved by the prosecution. He submitted in this behalf that the evidence of PW.30 clearly shows that even before the accused was apprehended and his alleged voluntary statement was recorded, PW.25 had already given a statement before PW.30 to the effect that the accused had kept MO.11 in his shop and therefore recovery of said MO.11 cannot be said to be a discovery pursuant to voluntary statement made by the accused before the police. He also submitted that even if the recovery of MOs.11 and 12 are said to be at the instance of the accused, prosecution has failed to show that MOs.11 and 12 belonged to the deceased and therefore the said evidence has no bearing on the charge against the accused. He contended that even though bloodstained clothes of the deceased (MOs.8 and 9) and bloodstained clothes of the accused (MOs.13 and 14) are stated to be recovered, the important connecting link, namely, the blood group of the deceased has not been proved before the Court and therefore the said evidence also is not incriminating against the accused. He therefore submitted that the circumstances produced before the Court are not sufficient to hold the appellant guilty of the offence punishable under Section 302 of IPC and therefore the judgment of the learned Sessions Judge is not based on acceptable evidence and that being so, the appellant is entitled to be acquitted. 7. He therefore submitted that the circumstances produced before the Court are not sufficient to hold the appellant guilty of the offence punishable under Section 302 of IPC and therefore the judgment of the learned Sessions Judge is not based on acceptable evidence and that being so, the appellant is entitled to be acquitted. 7. Learned Additional SPP appearing in support of the impugned judgment submitted that after committing the offence on 05.08.2010, at about 7.30 p.m., the accused remained absconding and he was arrested by the police on 25.08.2020 at Mukihala. He submitted that thereafter he was brought to the police station and during the interrogation, he gave a voluntary statement and further he produced MO.12 – Golden Boramala from his pant pocket which was duly seized in the presence of panchas under Ex.P40. Thereafter, as disclosed by him in the voluntary statement, he led the police and the panchas to the jewelry shop of PW.25 and at his instance PW.25 produced one golden Karimani Tikke which was seized in the presence of panchas under recovery panchanama Ex.P41. It was the submission of learned Additional SPP that the accused led the police to the shop of PW.25 only because he had kept MO.11 in the shop of PW.25 and therefore it was in his exclusive knowledge. He further contended that the bloodstained clothes of the deceased namely MO.8 – Ilkal Sari and MO.9 – Blouse and bloodstained clothes of the accused namely MO.13 – Lungi and MO.14 – Tshirt when subjected to forensic examination were found to be stained with ‘B’ group blood. He contended that the accused has failed to explain as to how his clothes were found stained with the blood of the deceased and therefore it is a serious incriminating circumstance implicating the accused in commission of the offence. He therefore submitted that the judgment under appeal was passed by the learned Sessions Judge on proper appraisal of the evidence placed before the Court and since the said evidence proved the commission of the offence by the accused beyond reasonable doubt, there is no warrant for interference with the impugned judgment and accordingly, the appeal is liable to be dismissed. 8. The law regarding appreciation of circumstantial evidence in cases of this nature is well settled. 8. The law regarding appreciation of circumstantial evidence in cases of this nature is well settled. The Hon’ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra reported in 1984 (4) SCC 116 , has observed that whenever a case is based on circumstantial evidence the following features are required to be fully satisfied, namely: (i) “The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established; (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 9. Now, following are the circumstances which have impressed the learned Sessions Judge to record a judgment of conviction: (a) Seizure of golden Boramala (MO.12) allegedly belonging to deceased. (b) Seizure of golden Karimani Tikke (MO.11) allegedly belonging to deceased. (c) Seizure of bloodstained clothes of ‘B’ group blood. 10. The question before us is whether there is in this case a chain of evidence so complete that we can say that there is no reasonable ground for the conclusion that accused is innocent and further that in all human probabilities the act must have been done by the accused. On a careful consideration of the records our answer must be in the negative. 11. One of the circumstances relied upon by the prosecution to bring home the charge against the accused is alleged seizure of MO.12 – Golden Boramala said to be belonging to deceased Dyamawwa from the pant pocket of the accused pursuant to voluntary statement given by him. In this connection, it is necessary to notice the evidence of the Investigating Officer who is examined as PW.30. The relevant portion of his evidence reads as follows: XXXXXXXXXXXXXXXXXXX (Emphasis supplied) 12. In this connection, it is necessary to notice the evidence of the Investigating Officer who is examined as PW.30. The relevant portion of his evidence reads as follows: XXXXXXXXXXXXXXXXXXX (Emphasis supplied) 12. The above evidence of PW.30 shows that the accused was arrested in Mukihala and thereafter he was brought to the police station and his voluntary statement was recorded and thereafter accused produced MO.12 from his pant pocket. It is therefore evident that search of the accused was not done at the place of his arrest (Mukihala) and recovery was done not at the place of arrest and subsequently it was allegedly done in the police station. This creates serious doubt about authenticity and genuineness of the recovery. Further, as rightly contended by the learned defence counsel, MO.12 cannot be said to be an incriminating material in this case in the absence of any evidence to show that the said ornament actually belonged to the deceased and she was wearing the same at the time when she died. It is apposite to refer to the observation of the Hon’ble Supreme Court in the case of Prakash vs. State of Karnataka reported in (2014) 12 SCC 133 . The relevant observation is at paragraph No.46 of the judgment and it reads as follows: “46. According to the prosecution, Prakash had led the investigating officer to various places from where some ornaments belonging to Gangamma were recovered. The recovery witnesses were examined by the prosecution as well as those persons from whom the ornaments were recovered. However, what is of significance is that none of the recovered ornaments could be connected to Gangamma. This is a serious lapse in investigation and mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged to Gangamma.” ……… 13. As observed by the Hon’ble Supreme Court, in this case prosecution has completely failed to connect MO.12 to deceased Dyamawwa and therefore this circumstance is of no use for the prosecution to prove the offence against the accused. 14. Prosecution has further placed reliance on the circumstance of recovery of MO.11 said to be done at the instance of the accused. 14. Prosecution has further placed reliance on the circumstance of recovery of MO.11 said to be done at the instance of the accused. The case of the prosecution in this behalf is that on 25.08.2010 after accused was arrested, he was interrogated by PW.30 and during the said interrogation accused had made a voluntary statement offering to lead PW.30 and panch witnesses to the recovery of MO.11 – Golden Karimani Tikke from the shop of one Mohanlal Goramal Oswal (PW.25). According to the further case of the prosecution, accused had led PW.30 and two panch witnesses namely PWs.26 and 27 to the shop of PW.25 and at the instance of the accused, PW.25 had produced MO.11. 15. However, the evidence of PW.30 shows that even before the accused was arrested on 25.08.2010, on the same day, PW.25 appeared before him in the police station and had given a statement to the effect that on 07.08.2010 accused had visited the shop of PW.25 for selling MO.11 to him and at that time he had advised the accused to bring some elders from the village and thereafter accused had left MO.11 in his shop. 16. Now it is useful to refer to the evidence of PW.30 on this aspect at paragraph No.5 of his evidence, that is what PW.30 states: xxxxxxxxxxxxxxxxxxxxx 17. As rightly contended by the learned defence counsel, it is crystal clear from the above evidence of PW.30 that even before the alleged voluntary statement was made by the accused, he (Investigating Officer) was already aware of MO.11 being in the possession of PW.25 and therefore obviously, there was no question of recovering MO.11 solely on the disclosure of the accused. In this connection, it is useful to notice the observation of the Hon’ble Supreme Court in the case of Aher Raja Khima vs. State of Saurashtra reported in AIR 1956 SC 217 . The relevant observation is at paragraph No.20 which reads as follows: “20. Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat’s house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden. Their information was not derived from the appellant but from Dewayat (one of the other suspects). The false beard and mask were found buried in the grounds of Dewayat’s house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden. Their information was not derived from the appellant but from Dewayat (one of the other suspects). The way the police came to find this out was this.” (Emphasis supplied) 18. It, therefore, follows that recovery of MO.11 is inadmissible in evidence. Besides, as in the case of MO.12 – Golden Boramala, in the case of MO.11 – Golden Karimani Tikke also no evidence is placed to show that the said MO.11 belonged to the deceased and she was wearing it at the time of the incident. 19. It has also to be borne in mind that the voluntary statement based on which the prosecution usually claims that incriminating articles linking the accused to the offence are recovered are invariably recovered when such accused are in police custody. Courts have to guard against, in the felicitous expression of the Privy Council in the case of Pulukuri Kotayya and Others vs. King Emperor reported in AIR 1947 PC 67 , ‘persuasive powers of the police will prove equal to the occasion ..…’ does not take place and thereby such statement from the accused is not extracted taking advantage of the previous knowledge of the police about certain incriminating materials connected to the offence being available at a particular place and thereafter the same is not fastened on the frightened and hapless accused with disastrous consequences on him. The relevant observation of the Privy Council in the case of Pulukuri Kotayya and Others (supra) in paragraph No.9 is as follows: “9. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the information is accused. Mr. Megaw, for the Crown, has argued that in such a case the “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A”, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (Emphasis supplied) 20. The evidence of PW.30 very clearly shows that before accused was arrested on 25.08.2010, PW.25 had already disclosed to the Investigating Officer that the accused had kept MO.11 in his shop and he had gone away. Examination of the records leads us to the conclusion that till the Investigating Officer recorded the statement of PW.25 on 25.08.2010, the police had no clue as to the identity of the accused and it is only after the statement of PW.25 was recorded, the police machinery moved to arrest the accused. Under such circumstances, it is safe to infer that so called voluntary statement of accused about discovery of MO.11 was only on account of “persuasive powers” of the police proving equal to the occasion and therefore the prosecution cannot take the benefit available under Section 27 of the Evidence Act. 21. Under such circumstances, it is safe to infer that so called voluntary statement of accused about discovery of MO.11 was only on account of “persuasive powers” of the police proving equal to the occasion and therefore the prosecution cannot take the benefit available under Section 27 of the Evidence Act. 21. The prosecution has also placed reliance on bloodstained clothes of the deceased namely MO.8 – Ilkal Sari and MO.9 – Blouse and blood stained clothes of the accused namely MO.13 – Lungi and MO.14 – Tshirt being stained with ‘B’ group blood. As per the case of prosecution, PW.29 the police constable has produced the same before PW.30 in the presence of two panchas under seizure panchanama Ex.P35. However, PW.29 himself has not whispered about his producing MOs.8 and 9 before PW.30. In any case, no evidence is placed before the Court to show the blood group of Dyamawwa and more particularly whether it was ‘B’ group blood which would have enabled the prosecution to connect the accused with commission of the offence against her. In this behalf, it is useful to refer to the observation of the Hon’ble Supreme Court in the case of Prakash (supra) at paragraph No.45 which reads as follows: “45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were bloodstained and the stains before the same blood group as that of Gangamma, the circumstance could be used against Prakash. A Serological comparison of the blood of Gangamma and Prakash and the bloodstains on his clothes was necessary and that was absent from the evidence of the prosecution.” Therefore the above circumstance also does not help the case of the prosecution. 22. The evidence placed before the Court might raise strong suspicion against the accused. However, mere grave suspicion cannot take the place of proof beyond reasonable doubt. The learned Sessions Judge has not appreciated the evidence in the proper perspective and has also observed that accused had won over the material witnesses (vide paragraph No.27 of the impugned judgment). He has not given any reason on what basis he has come to such a conclusion. 23. On an entire reappreciation of the evidence, we are of the view that the circumstantial evidence placed before the Court do not make the complete chain. He has not given any reason on what basis he has come to such a conclusion. 23. On an entire reappreciation of the evidence, we are of the view that the circumstantial evidence placed before the Court do not make the complete chain. From the fact and materials placed before the Court, it cannot be said that they are consistent only with the hypothesis of guilt of the accused. In that view of the matter, this appeal is entitled to succeed and accordingly appeal is allowed. Hence, the following: ORDER Appeal is allowed. The judgment dated 24.09.2012 in Sessions Case No.29/2011 on the file of the First Additional Sessions Judge, Vijayapur is set aside and the accused/appellant is acquitted of the offence punishable under Section 302 of IPC. He shall be set at liberty forthwith unless his presence is required in any other case.