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2020 DIGILAW 946 (KAR)

Balaji v. State Of Karnataka

2020-06-02

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This Criminal Appeal is directed against the judgment and order of sentence dated 28.04.2015 passed by the learned District & Sessions Judge, Koppal in PCSO S.C. 13/2014, whereunder the appellant-accused No.1 was convicted and sentenced to undergo rigorous imprisonment for l ife til l his last breath for the offences punishable u/s 376(2) (1), 376A and 376D and to pay a f ine of Rs.1,000/- for each of the offences. He is also sentenced to undergo rigorous imprisonment for l ife for the offence punishable u/s 302 of IPC and to pay a fine of Rs.1,000/-, he is also sentenced to undergo rigorous imprisonment for ten years for the offence punishable u/s 6 of the POCSO Act 2012 (hereinafter called for short as 'Act' ). 2. The genesis of the case as per the contents of the complaint are that father of the victimcomplainant had six daughters, deceased along with his another daughter by name Sangeetha and the victim used to go to the lands to cut and collect the grass for their cattle. In that l ight, on 06.05.2014 at about 1 p.m. the victim alone went to cut the grass for the cattle, thereafter ti l l 4 p.m. she has not returned to the house, the complainant and his son by name Neelappa and his son-in-law Umesh searched for the daughter of complainant upto 6 pm but they did not secure her. They returned home under the surmise that she might have gone to their relative's house at Jinnapur thanda where there was a fair. 3. At about 10 p.m. when the complainant, his son-in-law Umesh were in the house, juveni le offender Suresh Karabari came to his house and called Umesh stating that cattle were untied in the land and they were to be tied as they were grazing the crop. The said Umesh went along with Suresh Karabari to the land at about 11 p.m. and from there he telephoned to the complainant and cal led him to come to the land of CW 17 immediately. He also informed that the victim is there in the land. The said Umesh went along with Suresh Karabari to the land at about 11 p.m. and from there he telephoned to the complainant and cal led him to come to the land of CW 17 immediately. He also informed that the victim is there in the land. The complainant and his son Neelappa went to the land of CW17 and asked about the victim, then he informed that the victim is dead and took him into the standing Jowar crop and pointed out the dead body of the deceased which was lying in supine position (face was positioned towards sky). With the help of torch they found that the blood was oozing from the nose and the tongue was protruded and there was injury over her left foot and there was black mark on the neck. The red coloured neck chain was cut into pieces and was lying there; her chappal was there; one more pair of plastic chappal of a male person was lying there. They immediately shifted the body from the land and kept by the side of the crop; they also found a Vale of the victim and the grass cut and collected was put on the Vale. Next day the complainant went to the Pol ice Station and f i led the complaint. On the basis of the said complaint a case has been registered in Crime No. 97/2014. Thereafter the Investigating Off icer commenced the investigation and fi led the charge sheet against accused No.1. At the time of f il ing the charge sheet the Investigating Off icer fi led charge sheet against rest of the accused before the Juvenile Justice Board as the remaining accused persons were the juveni les and they were legal ly chal lenged persons. 4. The learned Sessions Judge secured the presence of the accused after fol lowing the procedure as contemplated u/s 207 Cr.P.C. After supplying copies of the charge sheet and after hearing the learned counsel and the learned Publ ic Prosecutor with regard to charge, the charge was prepared, read over and explained to the accused. The accused pleaded not gui lty and he claimed to be tried and as such the trial was fixed. The prosecution in order to establ ish its case got examined 11 witnesses and got marked 26 documents and 22 material objects. The accused pleaded not gui lty and he claimed to be tried and as such the trial was fixed. The prosecution in order to establ ish its case got examined 11 witnesses and got marked 26 documents and 22 material objects. Thereafter statement of the accused was recorded by putting the incriminating material as against him. He denied the same. The accused has not chosen to lead any evidence on his behalf nor got marked documents. After hearing the learned Publ ic Prosecutor and the learned counsel for the accused, the trial Court found the accused gui lty and convicted. Chal lenging the legal ity and correctness of the said judgment, the appellant-accused No.1 is before this Court. 5. The main grounds urged by the learned counsel for the appel lant-accused No.1 are that the judgment of conviction and order of sentence passed by the learned Sessions Judge is contrary to evidence and material placed on record. It is his further submission that the entire case rests on circumstantial evidence, though the prosecution has utterly failed to establ ish the fact that there is continuity in the l ink of the chain of circumstances so as to lead to the only and inescapable conclusion that the accused being the assailant, only on wrong presumption and assumption believing the evidence of PWs 6 and 7, has convicted the accused. 6. It is his further submission that the last seen theory invoked by the prosecution is not based upon any material and even the last seen theory is not attracted to the present facts of the case on hand. Even though there is no substantial material, the trial Court has wrongly convicted the accused. Further, there is delay in f i ling the complaint. Though the complainant, his son and son-in-law came to know about the al leged incident at about 11 pm, the complaint was registered on the next day at 6 a.m. They have not made any venture to inform the Pol ice though they were having mobile phone facil ities. Further, the mahazar which has been drawn at the spot itself is going to create doubt in the case of the prosecution. The contents of the complaint are contrary to Ex.P.1. Further, the mahazar which has been drawn at the spot itself is going to create doubt in the case of the prosecution. The contents of the complaint are contrary to Ex.P.1. In the complaint it is stated that they have lifted body of the deceased from the jowar crop along with one pair of chappal belonging to the deceased so also one more plastic chappal belonging to a male member was left there itself. But the spot mahazar and the photographs produced by the prosecution clearly go to show that the chappal belonging to the victim has been placed at the place of incident, that itsel f shows the concoction and creation of the investigating officer. It is his further submission that there is no proximity between the al leged incident and the accused, the trial Court only on surmises and presumptions and assumptions has wrongly convicted the accused. 7. He further submitted that the prosecution has not clearly established the fact that the said remaining chappal of a male member belonged to the accused. Further CW17 is the owner of the land where the dead body was found. For the reasons best known to the prosecution, he has not been examined. The joint recovery which has been made at the instance of all the accused is not admissible but the trial Court without looking into the said evidence has come to a wrong conclusion and has wrongly convicted the accused. Further, the ligature mark found on the body indicates that it was measuring 8 cm x 0.30 cms present over the anterior aspect of neck which is interrupted for a distance of 3 cm in midl ine. But the material object which has been seized from the place of incident, is MO3, the wire. As per Ex.P.17 the photograph, it is a thin wire and even if it is used for the purpose of strangulation, then under such circumstances, the l igature mark wi l l not be in the position in which it has been found by the Doctor. Further he submitted that, there is no ample material to connect the accused but the trial Court has wrongly appreciated the evidence and convicted the accused. 8. Further he submitted that, there is no ample material to connect the accused but the trial Court has wrongly appreciated the evidence and convicted the accused. 8. He further submitted that, in a case of circumstantial evidence the prosecution is required to establ ish the continuity in the l ink of the chain of circumstances, if the said l ink is not connected and if it is not leading to the only and inescapable conclusion that the accused being the assai lant, then under such circumstances, benefit of doubt should have been given to the accused. In order to substantiate his contention he has relied upon the decision of the Hon'ble Supreme Court in the case of Reena Hajarika Vs. State of Assam,2019 AIAR(Cri) 177so also, in the case of Navaneethakrishnaan Vs. The State by Inspector of Police,2018 AIAR(Cri) 562. 9. Further, recovery of incriminating articles at the instance of the accused cannot form the basis of conviction. The other incriminating circumstances may also be brought to connect the accused to the al leged crime. In that l ight, he relied upon the decision of the Hon'ble Supreme Court in the case of Wakkar and another Vs. State of Uttar Pradesh, (2011) 3 SCC 306 . 10. He further submitted that, the sentence imposed on the accused is not proportionate to the offence committed by him. No such gravity has been pleaded during the course of investigation. Even then, the trial Court has convicted and sentenced the accused ti l l his last breath, even though there is no corroboration in the evidence of the prosecution so as to convict the accused. On these grounds he prayed to al low the appeal and to set aside the judgment of conviction and order of sentence and to acquit the accused. 11. Per contra, learned Addl. SPP vehemently argued and submitted that the entire case rests on circumstantial evidence. The witnesses have seen lastly the deceased going towards the land of CW 17 and immediately thereafter the accused persons have also proceeded to the said land and subsequently the deceased was found dead in the land belonging to the father of the accused. The accused persons have not explained why they had been to the land of CW17, with substantive evidence to disbel ieve the circumstance. 12. Learned Addl. The accused persons have not explained why they had been to the land of CW17, with substantive evidence to disbel ieve the circumstance. 12. Learned Addl. SPP further submitted that PWs6 and 7 are the material witnesses and there is consistency in their evidence having seen the deceased going towards the land of CW17 and so also PW7 saw the accused persons going towards the land of CW17. It is further submitted that the medical evidence clearly goes to show that the deceased has been raped and thereafter she has been murdered. The Forensic Science Laboratory Report which has been marked at Ex.P.11 clearly goes to show that there was presence of seminal stains detected in item nos.3 and 4 and even in the postmortem report Ex.P.9, which also goes to show that there was contusion present over the anterior aspect of upper limb and lower limbs and there was a l igature mark and contusion over right breast above the right nipple. 13. Al l these circumstances clearly go to show that the accused persons have sexual ly assaulted and gang raped, thereafter when the victim told that she is going to disclose the said fact to the members of the community, being apprehended, they have committed her murder. Further he submitted that, there is joint recovery. PW1 has clearly supported the case of the prosecution. It is his further submission that if joint recovery has been made at the instance of the accused, who were in Pol ice custody it wi l l not go out of the purview of Sec.27 altogether and the same can be relied upon by the prosecution. 14. In order to substantiate the said contention, he has relied upon the decision in the case of State (NCT OF DELHI) V. Navjot Sandhu Alias Afsan Guru,2005 SCC(Crl) 1715. He further submitted that the trial Court after taking into consideration of the material evidence placed on record, has come to the right conclusion and rightly convicted the accused taking into gravity of the offence which they have committed. The witnesses have also identif ied the wire and the chappal and Vale of the victim. Even the spot mahazar also goes to show that the jowar crop has been destroyed at the place where the rape has been committed and thereafter murder has also been committed there. The witnesses have also identif ied the wire and the chappal and Vale of the victim. Even the spot mahazar also goes to show that the jowar crop has been destroyed at the place where the rape has been committed and thereafter murder has also been committed there. It is his further submission that there are no good grounds made out by the accused so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be conf irmed. On these grounds he prayed to dismiss the appeal. 15. We have careful ly and cautiously gone through the submission made by the learned counsel for the appel lant and the learned Addl . SPP and we have perused the records including the original records. 16. Before going to consider the submissions which have been made by the appellant it is just and necessary that the prosecution has to establ ish the fact that the deceased died a homicidal death. In order to substantiate the said fact the prosecution has got examined PW2 inquest mahazar panch to Ex.P.2 and PW4 the complainant and the father of the victim and PW9 the Doctor who has conducted postmortem over the body of the victim, as per Ex.P.9. 17. Though during the course of arguments the learned counsel for the appellant-accused contended that the inquest mahazar has not been conducted at the spot and the same has been conducted in the hospital. But, merely because the inquest mahazar-Ex.P.2 has been drawn in the hospital it wi l l not take away the case of the prosecution. As could be seen from the said mahazar Ex.P.2 and the postmortem report Ex.P.9 there were external injuries found over the body of the deceased and there was l igature mark present over the anterior aspect of the neck which is interrupted in a distance of 3 cms in midl ine and there was also contusion present over the right breast which is above the right nipple; the Doctor has opined that the death is due to asphyxia as a result of smothering and compression over neck. 18. Al l these materials which have been produced clearly establish the fact that the deceased died a homicidal death. 18. Al l these materials which have been produced clearly establish the fact that the deceased died a homicidal death. Even during the course of arguments the learned counsel for the accused has not seriously disputed the fact that the deceased died a homicidal death. In that light, we are of the considered opinion that the deceased died a homicidal death. 19. Before appreciating the evidence we are of the considered opinion that admittedly there are no eyewitnesses to the alleged incident and the entire case rests on circumstantial evidence. In order to bring home the gui lt of the accused on circumstantial evidence, all the circumstances are to be linked up with one another and then the Court wi l l be in a position to see the chain of events and if al l the chain of events and important l inks have been established by the prosecution then it is stated to have been proved by the prosecution. In order to substantiate the said fact we want to rely upon the decision of the Hon'ble Supreme Court in the case of Sheikh Abdul Hamid V. State of M.P., (1998) AIR SC 942 and another decision in the case of Rukia Begum Vs. State of Karnataka, (2011) AIR SC 1585 . 20. In the above said decisions it has been observed that in case of circumstantial evidence the prosecution has to establ ish the circumstances proved lead to one and only conclusion towards the gui lt of the accused. The evidence must be complete and incapable of explanation of any other hypothesis that of the guilt of the accused. In a recent decision of the Hon'ble Supreme Court the said principles have been reiterated in the case of Reena Hajarika quoted supra. At paragraph Nos. 8 and 18 it has been observed as under: "8. The essentials of circumstantial evidence stand wel l establ ished by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. At paragraph Nos. 8 and 18 it has been observed as under: "8. The essentials of circumstantial evidence stand wel l establ ished by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suf f ice it to observe that in a case of circumstantial evidence the prosecution is required to establ ish the continuity in the l inks of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible wi th the possibil ity of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, wi l l not suf f ice to shif t the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution f irst establ ishes a prima facie case. If the l inks in the chain of circumstances itself are not complete, and the prosecution is unable to establ ish a prima facie case, leaving open the possibil ity that the occurrence may have taken place in some other manner, the onus wil l not shif t to the accused, and the benef it of doubt wil l have to be given. 18. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisf ied that the l inks in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been establ ished leading to the inescapable conclusion that the appel lant was the assailant of the deceased, incompatible with any possibil ity of innocence of the appel lant. The possibil ity that the occurrence may have taken place in some other manner cannot be completely ruled out. The appel lant is therefore held entitled to acquittal to the benef it of doubt. We accordingly order the acquittal and release of the appel lant f rom custody forthwi th, unless wanted in any other case." 21. The possibil ity that the occurrence may have taken place in some other manner cannot be completely ruled out. The appel lant is therefore held entitled to acquittal to the benef it of doubt. We accordingly order the acquittal and release of the appel lant f rom custody forthwi th, unless wanted in any other case." 21. It has also been observed by the Apex Court that the Court has to be vigi lant and avoid the danger of al lowing the suspicion to take the place of legal proof in case of circumstantial evidence and there must be legal proof in order to convict the accused. It has also been observed that the prosecution has to place and prove al l the necessary circumstances which would constitute a complete chain without a snap pointing to the hypothesis that except the accused no-one had committed the alleged offence. It has been observed in the case of Navaneet Krishnan (quoted supra) at paragraph Nos. 14, 16, 17, 18, 20, 21, 22 and 23 as under: 14) In the present case, there is no witness of the occurrence and it is only based on circumstantial evidence. Before moving further, it would be apposite to refer the law regarding reliability of circumstantial evidence to acquit or convict an accused. The law regarding circumstantial evidence was aptly dealt with by this Court in Padala Veera Reddy vs. State of Andhra Pradesh and Others, (1989) Supp2 SCC 706 wherein this Court has observed as under:- "10. x x x x (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; and (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." 16. The pivotal evidence in the given case is the testimony of PW-11 who is believed to have lastly seen the appellants-accused with the deceased. The pivotal evidence in the given case is the testimony of PW-11 who is believed to have lastly seen the appellants-accused with the deceased. Learned counsel appearing for the appellants-accused has contended that all the accused were unknown to PW-11 but no identification parade was conducted and the said witness has identified the said accused directly in court after a lapse of about 50 days' and hence his evidence should not be relied upon. 17. It is a settled proposition of law that the identification parade of the accused before the court of law is not the only main and substantive piece of evidence, but it is only a corroborative piece of evidence. Regarding this, reliance can be safely placed on Rafikul Alam & Others vs. The State of West Bengal, (2008) CriLJ 2005 wherein it was held as under:- "32.....It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades do not constitute substantive evidence. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting upon corroboration" 18. PW-11 was able to identify all the three accused in the Court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW-11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. 20. In this view, the information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Evidence Act, 1872. Further, in Selvi (supra), this Court held as under:- "264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872." 21) In Madhu vs. State of Kerala, (2012) 2 SCC 399 , this Court while discussing the mandate of Section 27 of the Evidence Act held as under:- "49. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872." 21) In Madhu vs. State of Kerala, (2012) 2 SCC 399 , this Court while discussing the mandate of Section 27 of the Evidence Act held as under:- "49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited " as relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act." 22) Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No. 3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of John Bosco. The said statements are inadmissible in spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case. 23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove. - - - 22. Keeping in view the above said principles of law, let us consider whether the prosecution has establ ished al l the circumstances on which it is intending to rely. 23. The prosecution has relied upon the aspects, namely, the last seen theory; recovery of red cloth of the victim at the instance of the accused; and the medical evidence. In order to establ ish the case of the prosecution, the prosecution has got examined 11 witnesses. PW1 is the recovery mahazar pancha to Ex.P.1 whereunder a red cloth was produced by the accused as per MO1. PW2 is the inquest mahazar panch to Ex.P.2. PW3 is the in charge Headmaster who has issued copy of the appl ication for admission of the accused, which has been got marked at Ex.P.4. Though it is contended by the learned counsel for the appel lant-accused No.1 that there is joint recovery at the instance of all the accused and it is fatal to the case. PW3 is the in charge Headmaster who has issued copy of the appl ication for admission of the accused, which has been got marked at Ex.P.4. Though it is contended by the learned counsel for the appel lant-accused No.1 that there is joint recovery at the instance of all the accused and it is fatal to the case. But in view of the law laid down by the Hon'ble Supreme Court, the said contention wi l l not be having any force. In the case of State (NCT of Delhi) quoted supra at paragraph No.145 it has been observed as under: "Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel." Keeping in view the ratio laid down by the Hon'ble Supreme Court, if at the instance of al l the accused the recovery has been made then it wil l not take away the letter and spirit of Sec.27. But, however, in the instant case on hand the recovery said to have been made is not acceptable because of the reason that the said red cloth lying by the side of the pond and also so many persons have come over there to the place of incident and it was not hidden somewhere, then under such circumstances, it cannot be held that recovery of red cloth of the deceased has been recovered at the instance of the accused alone. In that l ight, it is not acceptable. 24. Pw4 is the father of the victim, he has spoken with regard to the relationship with the victim and the victim going at about 1 p.m. on the date of incident to f ield in order to bring the grass and she did not turn up and they made search up to 6 p.m. and thereafter at about 11 p.m. PW8-the younger brother of CW15 informed over the phone and he went to the field at about 12 midnight and there he saw the body of the victim. He also told that the victim is inside the jowar crop. Thereafter, in the morning at about 6.30 a.m. he went to the Police Station and f i led complaint as per Ex.P.6. PW5 is the recovery mahazar panch with regard to the place of incident as per Ex.P.7. MOs 3 to 7 have been recovered from the spot. PW6 is the material witness. He has deposed with regard to the fact that at about 1.30 p.m. he was proceeding towards his land. At that time, he saw the deceased going to the land of CW17 by holding a smal l sickle in her hand and she was wearing a Vale. The Vale has been marked as MO6. 25. PW6 is the material witness. He has deposed with regard to the fact that at about 1.30 p.m. he was proceeding towards his land. At that time, he saw the deceased going to the land of CW17 by holding a smal l sickle in her hand and she was wearing a Vale. The Vale has been marked as MO6. 25. Pw7 is the witness who has seen the accused persons going towards their land wherein the standing jowar crop was in existence. PW8 is the son-in-law. He has deposed with regard to the searching of the victim and they felt that she might have gone to fare in Jinnapur thanda and at about 8.30 p.m. the juveni le offender by name Suresh Karabari, the younger brother came to the house and informed that the accused has telephoned him and told him that bul locks were untied and they were grazing in his land and he requested to go to the land of the accused, they proceeded to the land of the accused and there was a standing jowar crop. When he went in search of the bul locks, a Vale was found lying by the side of the jowar crop. He saw the said Vale in torch l ight and he conf irmed that it is the Vale of the deceased, then they proceeded further by using the torch l ight and found the body of the deceased and thereafter he also saw there was cut injuries in front portion of her tongue, blood was oozing from her nose and the tongue was protruded and there was injury over her left foot and there was black mark on the neck. The red coloured neck chain was cut into pieces and was lying there and her chappal was there; and one more pair of plastic chappal of a male member was lying there. Thereafter he telephoned to the father-in-law of PW4 and he informed that the deceased was found lying in the land. 26. Pw9 is the Doctor who has conducted autopsy over the body of deceased and has issued postmortem report as per Ex.P.9. He has opined that the death of the deceased is due to asphyxia as a result of smothering and compression over the neck. PW10 is the CPI who has conducted investigation and f i led the charge sheet as against the accused. He has opined that the death of the deceased is due to asphyxia as a result of smothering and compression over the neck. PW10 is the CPI who has conducted investigation and f i led the charge sheet as against the accused. PW11 is the ASI who registered the case on the basis of the complaint as per Ex.P.6 and issued FIR as per Ex.P.26. He has also apprehended the accused. 27. During the course of cross examination of al l these witnesses, though much evidence has not been brought on record so as to discard their evidence, but when the entire case rests on circumstantial evidence, then under such circumstances al l the circumstances incriminating to bring home the gui lt of the accused has to be ful ly and properly satisf ied. The circumstances from which the inference of guilt is sought to be drawn, must be cogent and firmly establ ished. 28. The first circumstance on which the prosecution has relied upon is that of last seen theory. In order to bring the said fact, the prosecution has relied upon the evidence of P.W.6-Kasenappa, who has seen the deceased going towards the land of CW17. PW7-Ningappa is the person who has seen the accused persons going towards their land, i.e., land of father of accused No.1, and there was a standing jowar crop. In case of circumstantial evidence the prosecution is required to establ ish the continuity in the link of chain of circumstances so as to lead to the only and inescapable conclusion of the accused being the assai lant inconsistent and incompatible with the possibi l ity of any other hypothesis compatible with the innocence of the accused. 29. Mere invocation of the last seen theory sans the facts and evidence in a case of last seen to shift the onus upon the accused u/S 106 of the Indian Evidence Act, unless the prosecution first establ ish a prima facie case. If the l inks in the chain of circumstances itself are not complete and the prosecution is unable to establ ish a prima facie case leaving open the possibi l ity that the occurrence may have taken place in some other manner, the onus wil l not shift to the accused and the benefit of doubt wi l l have to be given to the accused. In the case of Reena Hajarika quoted supra, at paragraph No.8 it has been observed as under: 8. The essentials of circumstantial evidence stand wel l establ ished by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suf f ice it to observe that in a case of circumstantial evidence the prosecution is required to establ ish the continuity in the l inks of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible wi th the possibil ity of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, wi l l not suf f ice to shif t the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution f irst establ ishes a prima facie case. If the l inks in the chain of circumstances itself are not complete, and the prosecution is unable to establ ish a prima facie case, leaving open the possibil ity that the occurrence may have taken place in some other manner, the onus wil l not shif t to the accused, and the benef it of doubt wil l have to be given." - - - 30. Section 106 of Evidence Act is an exception to the general rule that burden of proof l ies on the person who asserts a fact. In order to see the first l imb of the case of the prosecution, the theory underlying is that the accused and deceased were last seen together. Then the accused has to explain when deceased departed from the company of accused. The principles of last seen theory have been wrongly applied in the present case on hand. Why they have not gone together and there is time gap between them, then in that event, the said principle wi l l not apply. In that l ight, let us see the evidence on record. 31. The principles of last seen theory have been wrongly applied in the present case on hand. Why they have not gone together and there is time gap between them, then in that event, the said principle wi l l not apply. In that l ight, let us see the evidence on record. 31. On close reading of the evidence of PW6, in the first instance the deceased has gone to the field of CW17 at about 1.30 p.m. and PW7 says that at about 2 p.m. he has seen the accused persons also going towards their field and the dead body of the deceased was found only at the night. Even the evidence of PWs4 and 8 also clearly indicates that they went in search of the deceased, they did not find the deceased even though they have searched upto 6.30 p.m. at that place and they returned empty handed and thereafter the juveni le offender took PWs 8 and 9 to the field, there he has shown the body of the deceased. Taking into consideration the time gap, there is no proximity of any act of the accused with the deceased, there is a long gap of time of tracing the body, then under such circumstances, we are of the considered opinion, in the first instance itself the last seen theory which has been meted out by the prosecution is not a safe circumstance. Firstly, the deceased has gone into the field and after that the accused have gone, in between, there is possibi l ity of somebody committing the offences, cannot be over-ruled. If any doubt arises, it should go to the accused. 32. Be that as it may, even it is not the case of the prosecution that the accused and the deceased went together and thereafter the deceased was found raped and she has been smothered by pressing the neck. In that l ight, if the entire circumstance which they are seen, then the said evidence does not repose confidence of the Court so as to hold that it is the accused persons who have lastly seen along with the deceased and they might have committed the offences. In that l ight, if the entire circumstance which they are seen, then the said evidence does not repose confidence of the Court so as to hold that it is the accused persons who have lastly seen along with the deceased and they might have committed the offences. When the basic tenets of last seen theory was not there in the case, relying upon such thin circumstances only on the basis of conjunctures or suspicion, the trial Court on suspicion has held that it is a legal proof, which is not correct in the eye of law. In that light, the prosecution has not clearly establ ished the said circumstance to connect the l ink to point out the guilt towards the accused. 33. The second circumstance on which the prosecution is intending to rely upon is that of the recovery of the Vale. As could be seen from the evidence of PW1 he has deposed that the accused was there along with the Pol ice and he has been requested to act as panch. The accused took them and the Pol ice to the land of CW17 and there was a standing crop of jowar and there was a smal l pond. The accused took them near the pond and showed a red cloth which was lying by the side of the pond and the accused has produced it before the Pol ice and the same is seized by drawing the mahazar Ex.P.1. This evidence is also though corroborated with the evidence of IO-PW10 but the said evidence cannot form basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the l ight of the other relevant circumstances as well as the chain of events supporting the involvement of the accused. 34. As could be seen from the evidence of PW8 he has deposed that, when they went in search of the body along with the juvenile offender, a Vale was found lying by the side of the jowar crop. The evidence further shows that in the same field they have also seen that some grass has been put on the Vale after cutting the same. The evidence further shows that in the same field they have also seen that some grass has been put on the Vale after cutting the same. In that l ight, there are three Vales, if it is the Vale which was already within the knowledge of the witnesses, then under such circumstances the said recovery is not going to be considered as a recovery as contemplated u/s 27 of the Act. Even the said recovery is not an incriminating material so as to commit an offence. In that l ight also the recovery which is said to have been made at the instance of the accused by the prosecution is not just evidence so as to bring home the gui lt of the accused beyond al l reasonable doubt. In that l ight, we want to rely upon the decision of the apex Court in the case of Wakkar and another quoted supra wherein at paragraph No.26 it has been observed as under: "26. It is true that recovery of certain incr iminating ar ticles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating ar ticles and its evidentiary value has to be considered in the lght of other relevant circumstances as wel l and the chain of events suggesting the involvement of the accused. The tr ial court as wel l as the appel late court did not rest the conviction of the appel lants solely based on the recoveries. The fact remains that the recovery of ar ticles used in the commission of of fence has been taken into consideration together wi th other incr iminating circumstances brought on record by the prosecution." 35. In the light of the ratio laid by the Hon'ble Supreme Court, the circumstances on which the prosecution is intending to rely upon for the recovery it is also not going to substantiate the case of the prosecution. The only evidence which has been left out by the prosecution is the medical evidence. Though the prosecution has clearly established the fact that through the evidence of PW9 that the deceased died a homicidal death due to asphyxia as a result of smothering and compression over the neck but there also doubt has been created with regard to MO3 with regard to the bundle of wire. Though the prosecution has clearly established the fact that through the evidence of PW9 that the deceased died a homicidal death due to asphyxia as a result of smothering and compression over the neck but there also doubt has been created with regard to MO3 with regard to the bundle of wire. If the said bundle of wire is used for smothering by pressing the neck of the deceased, then under such circumstances, the ligature mark which is found on the neck of the deceased also is not going to substantiate the case of the prosecution in this behalf. Taking into consideration the said factual circumstances we are of the opinion that the prosecution has also not clearly establ ished, it is the accused who has smothered the deceased with the said wire and the said link is also not going to substantiate the case of the prosecution. 36. On perusal of al l the circumstantial evidence, on which the prosecution is intending to rely, has utterly fai led to establish the continuity in the links of chain of circumstances so as to lead to the only and inescapable conclusion of the accused being the assai lant and incompatible with the possibi l ity of any hypothesis compatible with the innocence of the accused. In that l ight, if the entire evidence if it is looked into, we are of the considered opinion that the trial Court without looking into the factual aspect of the case, has come to a wrong conclusion and has wrongly convicted the accused. 37. We have careful ly and cautiously gone through the judgment of the trial Court. The judgment of the trial Court only on the basis of suspicion and surmises without there being any connection between the chain of circumstances, has wrongly convicted the accused. There are no good grounds so as to convict the accused. In that l ight, the judgment of the trial Court deserves to be set aside. In view of the discussion held by us, the fol lowing order is passed. ORDER The appeal filed by the appel lant-accused No.1 is al lowed and the judgment of conviction and order of sentence dated 28.04.2015 passed by the learned District & Sessions Judge, Koppal in PCSO S.C. No. 13/2014 is hereby set aside. The appel lant-accused No.1 is acquitted of al l the charges level led against him. ORDER The appeal filed by the appel lant-accused No.1 is al lowed and the judgment of conviction and order of sentence dated 28.04.2015 passed by the learned District & Sessions Judge, Koppal in PCSO S.C. No. 13/2014 is hereby set aside. The appel lant-accused No.1 is acquitted of al l the charges level led against him. Registry is directed to communicate the operative portion of the judgment to the concerned jai l authorities so as to release the appel lant-accused No.1, i.e., Mr.Balaj i son of Krishnappa Karabari, forthwith if he is not required in any other case. SD JUDGE SD JUDGE bvv