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2025 DIGILAW 1765 (KAR)

Chandra, S/o. Dasanna v. State Of Karnataka

2025-12-11

K.S.MUDAGAL, VENKATESH NAIK T.

body2025
JUDGMENT : VENKATESH NAIK T, J. Challenging the order of conviction and sentence, accused Nos.1 and 2 in S.C.No.5022/2014 dated 09-11-2018 on the file of the II Additional District and Sessions Judge, Ramanagara, to sit at Kanakapura, has preferred this appeal. 2. The appellants were tried in S.C.No.5022/2014 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short, ' IPC ') on the basis of the charge-sheet filed by Harohalli Police Station in Crime No.74/2014 of their Police Station. 3. The appellants are accused Nos.1 and 2 in S.C.No.5022/2014. For the purpose of convenience, the parties herein are referred to henceforth according to their ranks before the trial Court. 4. The case of the prosecution in brief is as follows: Accused No.2 was given in marriage to Sri Mante Lingaiah (hereinafter referred to as 'victim'). Accused No.2 developed illicit relationship with accused No.1 and the victim was the obstacle for their relationship. Hence, they hatched a plan to eliminate the victim. Accordingly, on 05.03.2014 at 11:00 p.m., when the victim was sleeping in the farm house at Survey No.83 of Sidi Deverahalli, accused No.1 came to the house of the victim and called accused No.2, who was sleeping near the door of the house, at that time, the victim woke up and questioned the presence of accused No.1, immediately, accused Nos.1 and 2 by covering the victim's face and neck with MO4-towel, strangulated him near a mango tree in front of their house and escaped from there. 5. PW1-Nagaraju is the elder brother of the victim. He came to know about the incident through PW5-Nisarga, daughter of the victim and accused No.2. Thus, he lodged a complaint vide Ex.P1. PW11-D. Maruthi, Sub-Inspector of Police registered an F.I.R. vide Ex.P11 and arrested accused Nos.1 and 2. Thereafter, PW10-C. Sampath Kumar, Investigating Officer, visited the spot and conducted inquest and spot mahazars vide Exs.P2 and P3 respectively, examined the witnesses, completed the investigation and filed the charge-sheet against accused Nos.1 and 2 for the aforesaid offence. 6. The trial Court on hearing the parties, framed the charges against accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 IPC . As accused Nos.1 and 2 denied the charges, the trial was conducted. 7. 6. The trial Court on hearing the parties, framed the charges against accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 IPC . As accused Nos.1 and 2 denied the charges, the trial was conducted. 7. The prosecution, in support of its case, examined in all twelve witnesses as PWs.1 to 12 and got marked thirteen documents as per Exs.P1 to 13 and four material objects as per MOs.1 to 4. After their examination under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), accused Nos.1 and 2 neither filed defence statement nor led defence evidence. 8. The trial Court on hearing the parties, by the impugned judgment and order, convicted them for the offence punishable under Section 302 read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- each and in default to pay the fine, to undergo rigorous imprisonment for one year. 9. The trial Court held that though the case was based on eyewitness account and some of the witnesses did not support the prosecution version, however, the prosecution succeeded in establishing the circumstances set up by it by cogent evidence and accused Nos.1 and 2 failed to explain the incriminating circumstances. The said judgment is assailed in this appeal. 10. Heard both side. Submissions of Sri P.D. Subrahmanya, learned Amicus Curiae for the appellant-accused No.2 and Sri Prathap S.S., learned counsel for the appellant- accused No.1 11. The case was based solely on the circumstantial evidence. There are no direct witnesses to the incident. The chain of circumstances set up by the prosecution must be so complete pointing to only the hypothesis of the guilt of the accused and any break in the chain should enure to the benefit of the accused. Independent witnesses-PWs.2 and 4 to inquest and spot mahazars, PW3-victim’s brother's son and PW5-daughter of the victim have not supported the case of the prosecution. At the first instance, PW1 lodged Ex.P1-complaint against unknown persons and later, the names of the accused were implicated and further, he has not stated regarding illicit relationship between accused Nos.1 and 2, but in the chief- examination, he has stated regarding their relationship, which is contrary to the charge. At the first instance, PW1 lodged Ex.P1-complaint against unknown persons and later, the names of the accused were implicated and further, he has not stated regarding illicit relationship between accused Nos.1 and 2, but in the chief- examination, he has stated regarding their relationship, which is contrary to the charge. PW5-daughter of the victim and eyewitness to the incident has stated regarding the circumstances, but her statement is not trustworthy and her evidence is not normal in nature. Trial Court ought to have considered the evidence of the son of victim, who is crucial witnesses to the prosecution, but he has not been examined. Another serious infirmity in the evidence is recovery. In this case, nothing is recovered at the instance of the accused. Trial Court has convicted the accused based on medical evidence and the testimonies of other official witnesses. Therefore, the last seen theory as propounded by the prosecution fails. There are serious infirmities, contradictions and material omissions in the evidence of the prosecution. All the circumstances set up by the prosecution were not proved by cogent and consistent evidence. Hence, they prayed for setting aside the judgment and order of conviction and sentence. Submissions of Smt. Rashmi Jadhav, Additional State Public Prosecutor for the respondent-State: 12. Relationship between the parties was not disputed. PW1 is elder brother of the victim, PW3 is victim’s brother's son, PW5 is daughter of the victim and accused No.2 herself have unequivocally stated about the victim suspecting the fidelity of accused No.2 with accused No.1. Accused No.2 was having illicit relationship with accused No.1 and the victim was obstacle to their relationship and thus, they hatched a plan to eliminate the victim. Accordingly, on 05.03.2014, accused Nos.1 and 2 committed murder of the victim by strangulating him with MO4-towel. Accused Nos.1 and 2 do not dispute that the victim died homicidal death. The fact that the dead body was found in the house of the victim and accused No.2 and towel-MO4 was found elsewhere goes to show that it is not suicide, but homicidal death of the victim. If the fact is within the knowledge of accused No.2, the burden shifts on her to explain as to how the victim died in their house. Therefore, that circumstance connects them to the crime. If the fact is within the knowledge of accused No.2, the burden shifts on her to explain as to how the victim died in their house. Therefore, that circumstance connects them to the crime. Trial Court on proper appreciation of the evidence has convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 IPC . Impugned judgment does not suffer from any perversity or illegality. Hence, she prayed to dismiss the appeal. 13. On considering the submissions of both sides and examining the material on record, the point that arises for determination of the Court is: “Whether the judgment and order of conviction and sentence passed by the trial Court against accused Nos.1 and 2 for the offence punishable under Section 302 read with 34 IPC is sustainable? ANALYSIS 14. On registration of F.I.R., upon completion of investigation by the investigation agency, the accused are brought before the Court to face trial. Under our criminal jurisprudence, the Court ordinarily is not privy to the evidence collected during the investigation by the investigation agency. After completion of the investigation, what is brought before the trial Court is an array of evidence, both documentary and oral, collected by the investigating agency against the accused which are required to be marshaled and analysed by the Court to arrive at appropriate conclusion. The prosecution seeks to re-create the incident of crime before the Court in sequence, based on the evidence so collected, linking the accused with the commission of crime. Such re-creation of crime by the prosecution before the Court is akin to putting the evidence together as in a jigsaw puzzle whereby all the relevant pieces of evidence are put together to complete the picture of the crime. The prime responsibility of the Court is to see whether this jigsaw puzzle has been properly placed by the prosecution from which a clear picture emerges as to the happening of the incident with the assigned role of the accused as part of the aforesaid jigsaw puzzle. Only, thereafter, the role of the accused in perpetrating the offence can be properly ascribed and proved and accordingly, criminal liability to be fastened to the accused. 15. Only, thereafter, the role of the accused in perpetrating the offence can be properly ascribed and proved and accordingly, criminal liability to be fastened to the accused. 15. As per Section 3 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'), a fact can be said to have been proved when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The Court undertakes this exercise of examining whether the facts alleged including the particular criminal acts attributed to the accused are proved or not. 16. It is also to be noted that the law does not contemplate stitching the pieces of evidence in a watertight manner, for the standard of proof in a criminal case is not proof beyond all doubts, but only beyond reasonable doubt. In other words, if a clear picture emerges on piecing together all evidence which indicates beyond reasonable doubt of the role played by the accused in the perpetration of the crime, the Court holds the accused criminally liable and punishes them under the provisions of the penal code, in contradistinction to the requirements of proof based on the preponderance of probabilities as in case of civil proceedings. 17. It will be relevant to discuss, at this juncture, what is meant by “reasonable doubt”. It means that such doubt must be free from suppositional speculation. It must not be the result of minute emotional detailing and the doubt must be actual and substantial and not merely vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and commonsense as observed by the Hon'ble Apex Court in the case of Ramakant Rai v. Madan Rai and Others reported in (2003) 12 SCC 395, wherein at paragraph No.24, it is held as under: “24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.” 18. While applying this principle of proof beyond reasonable doubt, the Court has to undertake a candid consideration of all the evidence in a fair and reasonable manner as observed by the Hon'ble Apex Court in the case of State of Haryana v. Bhagirath and others reported in (1999) 5 SCC 96 , wherein at paragraph Nos.8 to 10, it is held as under: “8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge. 9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p.31, Vol.1 of the 12th Edn.) as follows: ‘It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.'" 10. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.'" 10. In the treatise on The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p.34, Vol.1 of the 5th Edn.) thus: "The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt." 19. The concept of reasonable doubt has to be also understood in the Indian context, keeping in mind the social reality and this principle cannot be stretched beyond a reasonable limit to avoid generating a cynical view as observed by the Hon'ble Apex Court in the case of Shivaji Sahabrao Bobade and Another v. State of Maharashtra reported in (1973) 2 SCC 793 , wherein at paragraph No.6, it is held as under: “6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted “persons” and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent .…” In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.” 20. Further, what would be the standard degree of “proof” which would be required, in any particular case, was also discussed in Ramakant Rai's case, referred supra, in the following words: “23. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to (sic) of probability amounts to “proof” is an exercise, the interdependence of evidence and the confirmation of one piece of evidence by another, as learned author says: [see The Mathematics of Proof II: Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]. “The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.” 24. xxx xxx xxx 25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was). in State of U.P. v. Krishna Gopal." 21. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was). in State of U.P. v. Krishna Gopal." 21. At this point, it may be also relevant to mention an observation made by Lord Denning, J. in Miller v. Minister of Pensions reported in (1947) 2 ALL ENGLAND LAW REPORTS 372, at pp.373-374: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice'." Thus, the requirements of law in criminal trials is not to prove the case beyond all doubt but beyond reasonable doubt and such doubt cannot be imaginary, fanciful, trivial or merely a possible doubt, but a fair doubt based on reason and commonsense. Hence, in the case on hand, if the allegations against the accused are held proved beyond reasonable doubt, certainly conviction cannot be said to be illegal. 22. In the present case, some of the admitted facts are that, the victim married one Sannamma about 18-20 years prior to the date of offence. As dispute arose between them, both were residing separately and as they did not have any issues, the victim married accused No.2 about 15 years prior to the date of incident and in their wedlock, they were blessed with two children, by name, Siddaraju and Nisarga (PW5), who as on the date of incident were aged about 13 years and 11 years, respectively. Victim died on 05.03.2014. 23. Accused Nos.1 and 2 have disputed their role in the death of the victim. The evidence of PW6-Dr. Victim died on 05.03.2014. 23. Accused Nos.1 and 2 have disputed their role in the death of the victim. The evidence of PW6-Dr. Mahesh, who conducted autopsy on the dead body of victim and prepared his report vide Ex.P4, goes to show that the death of Mante Lingaiah was homicidal one. MO4-towel found at the scene of offence was also not disputed. 24. The case in based on eyewitness account. PW5- Nisarga, daughter of the victim and accused No.2, is an eyewitness to the incident. Eyewitness account requires careful independent evaluation for its credibility. Reliability of the evidence of eyewitness depends upon the accuracy of the witness, correctness and extent of what she remembers and her veracity. 25. In order to prove its case, the prosecution relied upon the following circumstances: i. Eyewitness account; ii. Motive to commit crime - illicit relationship between accused No.1 and accused No.2; iii. Death of the victim was homicidal one; iv. The incident occurred inside the house of accused No.2 and the victim and therefore, cause of death could be said to be within the special knowledge of accused No.2. Reg. Eyewitness account: 26. To prove this circumstance, the prosecution relied on the evidence of PW5, daughter of the victim and accused No.2. She has deposed that accused No.2 is her mother, but she does not know accused No.1. She does not know as to how her father died and what is the cause of his death. As per the case of the prosecution, at the time of the incident, herself, her brother and accused No.2 and victim were living together and on 05.03.2014, accused Nos.1 and 2 committed murder of the victim by strangulation. But in the evidence recorded before the trial Court, PW5 has not stated anything as to the individual overt-act of accused Nos.1 and 2. Even she has stated that, she has not informed anything before the Police as to the cause of the death of the victim. Hence, she turned hostile to the case of the prosecution. In the cross-examination, she denied the entire suggestions made by the learned Public Prosecutor. She denied the suggestions that there was illicit relationship between her mother (accused No.2) and accused No.1, and that accused No.1 was often visiting her house. Hence, she turned hostile to the case of the prosecution. In the cross-examination, she denied the entire suggestions made by the learned Public Prosecutor. She denied the suggestions that there was illicit relationship between her mother (accused No.2) and accused No.1, and that accused No.1 was often visiting her house. She further denied the suggestion that accused No.2 used to coerce her for not disclosing the same to others about accused No.1 visiting to her house. She further specifically denied that, on 05.03.2014, when herself, her elder brother, Siddaraju, her father (victim) and her mother (accused No.2) were sleeping in the farm house, at about 11:00 p.m., accused No.1 came and knocked the door, at that time, her father-victim questioned about arrival of accused No.1, thus, there was scuffle between them, in the meanwhile, accused Nos.1 and 2 with an intention to eliminate the victim, strangulated the victim with MO4-towel and caused his death. Thus, she denied her statement said to have given before the Police. Therefore, the evidence of PW5 is of no avail to the case of the prosecution. 27. The son of accused No.2 and the victim, by name, Master Siddaraju, who was studying 7 th Standard, was very much present in the house, but he has not been cited as witness and examined before the Court. 28. PW1-Nagaraju, brother of the victim, has deposed that on the following day of the incident, he came to know about the death of the victim through PW5, he visited the scene of offence, saw the dead body of his brother and lodged the complaint as per Ex.P1 before the Police. He also stated that soon after lodging the complaint, the Police visited the scene of offence, where they conducted mahazars. In the cross- examination, he has admitted that Ex.P1-complaint was drafted by another person and he does not know the contents of the complaint. He admits that the victim was in the habit of consuming alcohol. Accused No.1 is none other than the son of victim’s brother. Thus accused No.2 happens to be the aunt of accused No.1. He further admits that the victim and accused No.2 were leading cordial relationship. He has not seen the incident and is not an eyewitness to the incident. Accused No.1 is none other than the son of victim’s brother. Thus accused No.2 happens to be the aunt of accused No.1. He further admits that the victim and accused No.2 were leading cordial relationship. He has not seen the incident and is not an eyewitness to the incident. He further admits that he came to know about the incident through one Sirimantaiah at about 6:00 a.m. on the following day of the incident. He does not know the other signatories to the mahazars. However, he denied the suggestions that, there was illicit relationship between accused Nos.1 and 2, the villagers advised accused No.1 to leave the company of accused No.2 and in that regard, twice panchayats were arranged by the victim. Apart from these aspects, he has not stated anything about the involvement of accused Nos.1 and 2. Reg. Motive to commit crime: 29. According to the prosecution, the motive behind commission of murder of the victim was illicit relationship between accused No.1 and accused No.2. To substantiate this contention, the prosecution relied on evidence of PW5, daughter of accused No.2 and the victim. However, she has turned hostile and not supported the case of the prosecution. 30. In so far as PW1 is concerned, he has categorically stated that there was illicit relationship between accused Nos.1 and 2 and the villagers advised accused No.1 to leave the company of accused No.2 and in that regard, twice panchayats were arranged. Except the evidence of PW1, there is no other evidence to prove this aspect. It is settled law that motive is a double-edged weapon. PW1 gave evidence as hearsay witness, who is related to the victim, and he may have some motive to falsely implicate the accused in the case. Under such circumstances, the evidence of PW1 requires great scrutiny. Absence of motive is immaterial, if eyewitness establishes participation by the accused. Further, motive is only a link in the evidence and motive is not significant, if direct evidence establishes the charge. Whereas, in the instant case, PW5, eyewitness to the incident, has not supported the case of the prosecution and PW1, who came to know about the incident through PW5, is hearsay witness and evidence of hearsay witness is not admissible in evidence. Reg. Death of the victim was homicidal: 31. Whereas, in the instant case, PW5, eyewitness to the incident, has not supported the case of the prosecution and PW1, who came to know about the incident through PW5, is hearsay witness and evidence of hearsay witness is not admissible in evidence. Reg. Death of the victim was homicidal: 31. In order to establish this aspect, the prosecution relied on the evidence of PW3, brother's son of the victim. He has deposed that on the following day of the incident, he visited the Government Hospital, Kanakapura, and saw the dead body of the victim, but he did not see any visible injuries on the person of the victim, however, he found blood oozing out from the mouth of the victim. Apart from that, he has not described the nature of injuries found on the dead body of the victim. Hence, he has turned hostile to the case of the prosecution. 32. PW2, inquest and spot mahazars witness, has stated that Police have not conducted inquest and spot mahazars in his presence and he does not know the contents of these mahazars. Hence, the prosecution treated him as hostile witness and was permitted to cross-examine. In the cross- examination, he denied the inquest and spot mahazars conducted by the Investigating Officer in his presence. 33. PW6-Dr. Mahesh K., Medical Officer, Achaalu Primary Health Centre, Kanakapura, who conducted the post-mortem examination on the dead body of the victim, has stated that on 06.03.2014, he conducted post-mortem examination on the dead body of the victim and noticed injuries caused by finger nails on the neck and blood was dribbling with saliva from mouth and when body was dissected, the larynx cartilage of neck was cut, hyoid bone was also cut and there was bleeding in that part. The injuries found on the neck are ante-mortem in nature. Hence, he gave report as per Ex.P4. He opined that the death is due to asphyxia as a result of strangulation. However, in the cross-examination, he admits that he has not mentioned the abrasions found on the neck of the victim as ante-mortem. He further admits that if a person hangs himself, his larynx cartilage, thyroid cartilage and hyoid bone will be cut. He further admits that there were no bruise injuries on the face, ears, hands, feet, knees, and head of the victim. He further admits that if a person hangs himself, his larynx cartilage, thyroid cartilage and hyoid bone will be cut. He further admits that there were no bruise injuries on the face, ears, hands, feet, knees, and head of the victim. There were no bloodstains, wounds, or hair in the fist of the victim. It shows that the death of the victim is homicidal and not suicidal one. 34. Except PW1, no other independent witnesses have supported the case of the prosecution. Hence, it would be necessary for us to revisit the evidence and testimonies of the prosecution witnesses and to see whether appreciation of the witnesses by the trial Court suffers from any material illegality. 35. For this, it may be appropriate to commence our analysis on the evidence and the complaint filed by PW1-Nagaraju, which triggered the criminal process and his testimony in the Court, in which, he resiled from his previous incriminating statement made against the accused under Section 161 Cr.P.C. as well as in the F.I.R. 36. Though, the F.I.R. is not a piece of substantive evidence, especially, when the complainant, i.e., PW1 did not fully support the contents of the F.I.R., yet it cannot be totally ignored and is to be treated as a relevant circumstance if the same is proved by the evidence of other prosecution witnesses. In this case, PW11, Sub-Inspector of Police, Harohalli Police Station, Ramanagar District, received complaint from PW1 and registered the F.I.R. as per Ex.P11 on the following day of the incident. 37. In this regard, we may profitably refer to the decision of the Hon'ble Apex Court in the case of Bable Alias Gurdeep Singh v. State of Chhattisgarh reported in (2012) 11 SCC 181, wherein at paragraph No.14, it is held as under: “14. Once registration of the FIR is proved by the police and the same is accepted on record by the court and the prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value of the FIR. The FIR, Ext.P-1, has duly been proved by the statement of PW10, Sub-Inspector, Suresh Bhagat. According to him, he had registered the FIR upon the statement of PW1 and it was duly signed by him. The FIR, Ext.P-1, has duly been proved by the statement of PW10, Sub-Inspector, Suresh Bhagat. According to him, he had registered the FIR upon the statement of PW1 and it was duly signed by him. The FIR was registered and duly formed part of the records of the police station which were maintained in the normal course of its business and investigation. Thus, in any case, it is a settled proposition of law that the FIR by itself is not a substantive piece of evidence but it certainly is a relevant circumstance of the evidence produced by the investigating agency. Merely because PW1 had turned hostile, it cannot be said that the FIR would lose all its relevancy and cannot be looked into for any purpose.” 38. In the present case, PW11, Sub-Inspector of Police, who was the Station House Officer of Harohalli Police Station at the relevant time, testified that on 6-3-2014, he registered F.I.R. No.74/2014 under Section 3 02 read with 34 IPC as per Ex.P11 against accused Nos.1 and 2 on the complaint lodged by PW1. Therefore, we have no reason to doubt the filing of the F.I.R. which stands proved by the evidence of PW11. 39. It is to be noted that PW1, in his testimony, did not deny filing of the F.I.R. However, he admitted that he does not know the contents of the complaint and he has not seen the incident personally. He has taken the contention that, one Sirimantaiah informed him about the incident at 6.00 a.m. on the following day when he was in his house. As per the case of the prosecution, PW5, daughter of victim, informed PW1 about the incident. Under such circumstances, it must be considered as to how far his evidence contrary to his complaint and his previous statement made under Section 161 Cr.P.C. could be believed. 40. From the aforesaid complaint/F.I.R., it can be inferred that the informant who was examined by the prosecution as PW1 is not an eyewitness. However, during trial, he resiled from his narration which is not consistent with his earlier statement made in Ex.P1-complaint as to the receipt of information and contents of the complaint. 41. 40. From the aforesaid complaint/F.I.R., it can be inferred that the informant who was examined by the prosecution as PW1 is not an eyewitness. However, during trial, he resiled from his narration which is not consistent with his earlier statement made in Ex.P1-complaint as to the receipt of information and contents of the complaint. 41. Since PW5, daughter of the victim and accused No.2, who was declared hostile, is vital to understand the real picture that unfolded before the trial Court, it may be appropriate to summarise her evidence as follows: "Accused No.2 is her mother, she does not know accused No.1, she does not know the date of death of her father and she does not know how her father died, presently she is residing with her mother, she does not know the cause of death of her father and she has not given any statement before the Police." 42. Since PW5, the alleged eyewitness to the incident, has turned hostile to the case of the prosecution, the learned Public Prosecutor treated her as hostile witness and was permitted to cross-examine. In the cross-examination, she categorically denied the suggestion that, "during the year 2014, accused No.1 often visiting the house of accused No.2 and victim, that too when the victim was away from the house, at that time, accused No.2 threatened her not to reveal about his visits to father. She further specifically denied the suggestion that, "on 05-03-2014, herself, her mother, accused No.2 and her father (victim) were sleeping after dinner, at that time, accused No.1 came and knocked the door, the victim woke up and raised objection, hence, accused Nos.1 and 2 with an intention to eliminate her father, covered the face and neck of victim with MO4-towel and strangulated him, thus, committed his murder." She also denied the suggestion, for having given the statement before the Police. 43. As discussed above, since PW5, eyewitness to the incident, turned hostile during trial, it is only the evidence of PW1, first informant, which is available. In fact, PW1 was informed by PW5 and hence, he is considered as hearsay witness and his evidence does not fully support the case of the prosecution. 44. PWs.1 and 3, brother and brother's son of the victim, respectively, who are hearsay witnesses have stated about the information they received from others. In fact, PW1 was informed by PW5 and hence, he is considered as hearsay witness and his evidence does not fully support the case of the prosecution. 44. PWs.1 and 3, brother and brother's son of the victim, respectively, who are hearsay witnesses have stated about the information they received from others. In law, hearsay evidence is not admissible, unless their source of information corroborates their version against the accused. More importantly, eyewitness to the incident has not supported the case of the prosecution. 45. If it is established that PW5, eyewitness’s account if available and supported the case of the prosecution, then the trial Court could have convicted the accused for the alleged offence, whereas, in the instant case, no such evidence is available. If her testimony is not credible and does not corroborates other evidence on record, particularly, evidence of PWs.1 and 3, the conviction of the accused cannot be said to be legal and would warrant interference at the hands of this Court. Reg: Incident occurred inside the house of accused No.2 and the victim and therefore, accused Nos.1 and 2 could be said to be within special knowledge as to what happened on the fateful day of the incident: 46. As per the case of the prosecution, accused Nos.1 and 2 with an intention to eliminate the victim, caused his death by strangulation and hence, the burden is on the accused to prove the circumstance under which the death has taken place. 47. Learned Additional State Public Prosecutor submitted that the dead body of the victim was recovered from the house of the victim and accused No.2 itself, i.e. the place where they were residing together. She would contend that in normal circumstances, the wife of the victim could be said to be best person to explain as to what happened to her husband on the date of the incident. When an offence is committed within the four walls of the house and that too, in secrecy, it is difficult for the prosecution to establish its case beyond reasonable doubt and therefore, under Section 106 of the Evidence Act, it is for the accused to explain what had actually happened and in the absence of any such explanation, it could be said that the accused committed the crime, as alleged. The law in the aforesaid regard is well settled. 48. The law in the aforesaid regard is well settled. 48. There is no dispute with regard to said proposition. However, to raise any presumption or inference under Section 106 of Evidence Act, the prosecution has to discharge its initial burden of proof of charge. The prosecution has to first lay the foundational facts before it seeks to invoke Section 106 of the Evidence Act. If the prosecution has not been able to lay the foundational facts for the purpose of invoking Section 106 of the Evidence Act, it cannot straightaway invoke the said Section and throw the entire burden on the accused to establish their innocence. Therefore, in the overall view of the matter, we are convinced that the trial Court has committed error in holding accused Nos.1 and 2 guilty for the offence of murder. 49. The trial Court convicted accused Nos.1 and 2 solely on the ground of testimonies of PW1-brother of the victim, PW6-Doctor and other official witnesses. PW5-eyewitness to the incident has turned hostile to the case of the prosecution. The prosecution failed to prove its initial burden, however, the trial Court convicted accused Nos.1 and 2 on uncorroborated testimonies of the prosecution witnesses. Therefore, the judgment of conviction and order on sentence passed by the trial Court is liable to be set aside. Hence, the following: ORDER i. The appeal is allowed. ii. The judgment and order of conviction and sentence dated 9-11-2018 passed by the II Additional District and Sessions Judge, Ramanagara, to sit at Kanakapura, in S.C.No.5022/2014, against the appellants/accused Nos.1 and 2 is hereby set aside. iii. The appellants/accused Nos.1 & 2 are acquitted of the charge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 . The appellants shall be set at liberty, forthwith, if their detentions are not required in any other case. iv. Fine amount deposited, if any, shall be refunded to the appellants. v. The order of the trial Court with regard to disposal of the properties is maintained. vi. Acting under Section 357A of the Code of Criminal Procedure, 1973 , the matter is referred to the District Legal Services Authority, Ramanagara, for determination and payment of compensation to PW5-Nisarga and Siddaraju, daughter and son of the victim and accused No.2, respectively. vii. vi. Acting under Section 357A of the Code of Criminal Procedure, 1973 , the matter is referred to the District Legal Services Authority, Ramanagara, for determination and payment of compensation to PW5-Nisarga and Siddaraju, daughter and son of the victim and accused No.2, respectively. vii. The Court places its appreciation on record for the able assistance rendered by Sri P.D. Subrahmanya, learned Amicus Curiae for appellant No.2. He is entitled to an honorarium of Rs.15,000/-. Communicate copy of this order to the trial Court and concerned Prison, forthwith.