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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 28TH DAY OF JUNE, 2023

PRESENT

THE HON'BLE MR JUSTICE K.SOMASHEKAR

AND

THE HON'BLE MR JUSTICE RAJESH RAI K

CRIMINAL APPEAL NO. 183 OF 2017

BETWEEN:
1. VENKATACHALA @ CHALI
S/O LATE MUTTAIAH,
AGED 24 YEARS,

2. SHIVARAJA
S/O KEMPAIAH,
AGED 25 YEARS,

3. DEVARAJA
S/O MADEVA,
AGED 26 YEARS,

4. RAMESHA
S/O CHINNANNA
AGED 24 YEARS,

5. MUNIRAJU
S/O CHIKKAMARANNA
AGED 24 YEARS,

6. CHANDRA
S/O MARAIAH,
AGED 25 YEARS,

ALL ARE R/A LINGANAPURA

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AND APPELLANTS No.2 AND 3 ARE

R/AT BUDAGAIAHANA DODDI
MARALAWADI HOBLI
KANAKAPURA THALUK
RAMANAGARA DISTRICT – 562 117.
…APPELLANTS
(BY SRI. G. M. SRINIVAS REDDY, ADVOCATE AND
SRI. BADRINATH R. ADVOCATE)

AND:

STATE OF KARNATAKA
BY KANAKAPURA RURAL POLICE,
RAMANAGARAM DISTRICT,
THROUGH STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE – 01.
…RESPONDENT
(BY SRI. H.S. SHANKAR, HCGP)

THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO

SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION DATED 19.1.2017 PASSED BY THE II ADDL. DIST.
AND S.J., RAMANAGARA TO SIT AT KANAKAPURA IN
S.C.NO.97/2011 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 143,147,302 R/W 149 OF IPC.

THIS CRIMINAL APPEAL, COMING ON FOR HEARING,

THIS DAY, K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is directed against the judgment and order

of conviction rendered by the Court of II Additional District

and Sessions Judge, Ramanagaram sitting at Kanakapura in

S.C.No.97/2011 dated 19.01.2017, whereby convicting the

accused for the offence punishable under Sections 143, 147,

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302 read with Section 149 of I.P.C. and accused Nos.1 to 6

sentenced to undergo simple imprisonment for a period of

two months for the offence punishable under Section 144

read with Section 149 of I.P.C. Further, the aforesaid

accused directed to undergo simple imprisonment for a

period of one year for the offence punishable under Section

147 read with Section 149 of I.P.C. They shall undergo

rigorous imprisonment for life and to pay a fine of

Rs.25,000/- each for the offences punishable under Section

302 read with Section 149 of I.P.C. and in default for

payment of fine amount they have to further undergo

rigorous imprisonment for a period of one year. All the

sentences awarded against the accused shall run

concurrently.

2. Factual matrix of this appeal are as under:

It is the case of the prosecution that on 18.02.2011 at

around 8.30 p.m. at Chatra-Tigalarahalli Road on BWSSB

Road near Pipeline Canal the accused being the persons

have formed an unlawful assembly with a common object to

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eliminate the deceased - Rajendra. Accordingly, they took

him on their motor cycles bearing No.KA-04-V-1371, KA-51-

J-2679 and moped bearing No.KA-01-K-2188 from his house

by saying him that they are going to Kallahalli fair/jatra.

The said Rajendra was earning Rs.5,000/- per month by

working in a factory at Bengaluru. The aforesaid Rajendra

did not provide alcohol having a habit to consuming the

same. Therefore, some enmity developed in between the

aforesaid accused and the deceased. Therefore, the accused

persons pushed the deceased - Rajendra into a ditch beside

pipeline, later by alighting into the ditch, accused Nos.2 to 5

hold the hands and legs of deceased - Rajendra and accused

Nos.1 and 6 assaulted on his head with stone and

committed murder.

3. In pursuance of the filing of a complaint by the

complainant the criminal law was set into motion by

registering FIR as per Ex.P-16 for the aforesaid offences.

Subsequent to registration of FIR against the accused being

culprits, the investigating agency has taken up the case for

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investigation and investigation has been done thoroughly

and during investigation, the investigating agency has

recorded the statement of witnesses and so also drew the

panchanama at Ex.P7 and so also taken the PM report at

Ex.P11 enclosed thereof during the seizure mahazar at

Ex.P14. On completion of entire investigation by the

investigating agency filed the charge sheet against the

accused before the committal court. Subsequent to filing of

the charge sheet, the Committal Magistrate had passed an

order under Section 209 of Cr.P.C. and accordingly, the case

in S.C.97/2011 has been registered. In that case, the Trial

Judge having secured the accused for facing up a trial, the

accused who defended the case by engaging the service of

the advocate.

4. Heard the learned counsel Sri.G.M.Srinivas Reddy

for the appellants and so also, learned HCGP namely

Sri.V.S.Hegde for the State. Perused the impugned

judgment of conviction and order in terms of a sentence

rendered by the trial court in S.C.No.97/2011.

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5. Subsequently heard the arguments of the learned

Public Prosecutor for the State and defence counsel for the

accused and framing of a charge. On prima-facie materials

found against the accused and framing the charge against

the accused under Section 143, 147, 302 read with Section

149 of I.P.C., the charges shall be read out to the accused in

the language known to them and the accused not pleaded

guilty but claimed to be tried. Accordingly, heard the

accused and recorded the evidence.

6. Subsequent to framing of charge against the

accused, wherein the prosecution in order to establish the

case against the accused led in evidence by examining PW-1

to PW-21 and marked Exs.P1 to P16 and so also got marked

the material objects as M.Os.1 to 9 and subsequently, closed

their side. Subsequent to closure of the evidence of the

prosecution whereby the accused have been examined as

required under Section 313 of Cr.P.C. recorded the

statement, wherein the accused have denied the truth of the

evidence of the prosecution adduced by them. Accordingly it

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was recorded separately. Subsequent to recording the

incriminating statement as contemplated under the

aforesaid provisions of law and wherein the accused have

been called upon to adduce the defence evidence as

contemplated under Section 233 of the Cr.P.C. but they did

not chose to lead any defence evidence. Accordingly, it was

recorded but got marked Exs.D1 to D6 on their side.

7. Subsequent to closure of the evidence on the part

of the prosecution and so also on the part of the defence, the

Trial Court heard the arguments advanced by the learned

Public Prosecutor for the State and the defence counsel for

the accused.

8. P.W.1 - Mahadeva is none other than the author

of the complaint at Ex.P1 and so also the father of deceased

- Rajendra. Based upon his complaint the Criminal law was

set into motion by registering FIR as per Ex.P16. His

evidence has been considered by the trial Court inclusive of

the contents in Ex.P2 of the inquest panchanama of the

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dead body and so also the contention of the P.M. report at

Ex.P11 and this report issued by PW.17, who conducted

autopsy of the dead body and also indicating the injuries

inflicted on the deceased. Similarly also appreciating the

contentions of Ex.P14 of the seizure mahazar said to have

been conducted by the investigating officer during the

course of investigation. These are all the evidence has let in

by the prosecution in order to prove the guilt against the

accused. Though the evidence has been let in and also PW.1

- Mahadeva who is none other than the father of the

deceased - Rajendra and PW.6 - Nagaraju who is none other

than the relative of the deceased. Ex.P2 has been held by

the investigating officer in the presence of the punch

witnesses and Ex.P14 seizure mahazar was also conducted

by the investigating officer in the presence of the punch

witnesses. The mahazar held by the investigating officer

having been seized M.O.1 and M.O.2 - stone, M.O.6 - pan,

M.O.7 - one thread locket and such other material and

based upon his evidence the trial Court arrived at a

conclusion that the prosecution has proved guilt against

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accused beyond all reasonable doubt and rendered a

conviction judgment relating to offences under Section 143,

147, 302 read with Section 149 of I.P.C. It is this judgment

which has been challenged in this appeal by urging the

various grounds.

9. Whereas the learned counsel Sri.G.M.Srinivas

Reddy appearing for the appellants taken us through the

evidence of PW.1 - Mahadeva who is none other than the

father of the deceased - Rajendra and PW.6 who is none

other than the relative of the deceased. But it is the domain

vested with the prosecution to prove the guilt against the

accused relating to motive. But whether the deceased was in

such a position to bear his influence to fetch jobs for others

according to the theory of the prosecution in charge sheet

made by the investigating officer. But in the cross-

examination of the parents of the deceased - Rajendra

reveals that they do not know where their son namely

Rajendra was working, when he joined to work in the factory

at Bengaluru and they made a contradictory statement

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regarding his work, salary and also his contribution

subsequent visit to his village. These are all the evidence

that are on record on the part of the prosecution to prove the

guilt against the accused. His father PW.1 who is author of

the complaint in his evidence he has stated that his son

Rajendra was working at Bengaluru since two months.

Whereas his mother PW.2 - Nagamma stated in her evidence

that Rajendra was working in a factory at Bengaluru since

one year. But claims that he was receiving entire salary at

Rs.7,000/-. Whereas his mother PW.2 - Nagamma says in

her evidence that he gave all his salary of Rs.6,000/- to her

only not to her husband i.e., PW.1 - Mahadeva. These are all

the contradictory evidence and so also contradictory

statement which has made on the part of the prosecution

but the material admission made by PW.2 - Nagamma is

that on the previous date of the incident, the deceased had

not come to his village. On assessment of the evidence on

the part of the prosecution, PW.1 - Mahadeva and PW.2 –

Nagamma, are the material witnesses who are the parents of

the deceased - Rajendra. Their evidence even on close

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scrutiny, it is false or highly improbably to believe the theory

of the prosecution relating to motive, factor and so also the

intention to eliminate the deceased as narrated in the charge

sheet and also the criminal law was set into motion by

registering FIR and it is based upon the complaint at Ex.P1.

This contention has been made by the learned counsel for

the appellants and seeking intervention, if not intervened

certainly there shall be miscarriage of justice and the

accused persons would be the sufferers. These are all the

contention that has been made by the learned counsel for

appellants seeking intervention of the impugned judgment of

conviction or order of sentence rendered by the trial Court.

10. The second limb of arguments advanced by the

learned counsel for appellants that PW.17 being a doctor,

whereby held autopsy of the dead body and issued P.M.

report which indicates the following injuries:

1) A lacerated injury over right parieto-occipital

region measuring 5x1 cm
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2) abrasion over right scapular region measuring 2

x 1/2 cm

3) abrasion over right knee measuring 1x1 cm

4) abrasion over right thigh lateral aspect

measuring 2x1 cm.

11. However, PW.17 being a doctor, who has issued a

P.M. report and also rendered opinion for cause of death of

the deceased as it is a death due to head injury. Apart from

stating that the death is due to hemorrhage in brain, he has

said nothing as to whether on account of the use of the

material object projected in the case set up by the

prosecution relating to the death of the deceased and also

cause of death. In the result, the inference could be drawn

relating to the evidence of PW.17 is restricted only to an

extent of cause of his death but not on account causative

factor. Failure to corroborate that his death is due to assault

by use of stones, material objects as alleged is fatal. These

entries are very much require on the part of the prosecution

to prove the guilt against the accused. But in the instant

case, the prosecution has failed to establish the guilt against

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the accused proving that the death was caused by assault

by means of stones, which was marked at M.O.1 and M.O.2.

12. In support of his contention, learned counsel for

the appellants referring to the judgment rendered by the

Hon'ble Supreme Court of India in the case of KARTAREY AND

ORS. VS THE STATE OF UTTAR PRADESH reported in AIR 1976

SC 76. In that reliance, in para No.25, it has been observed

that it is the duty of the prosecution, and no less of the

Court, to see that the alleged weapon of the offence, if

available, is shown to the medical witness and his opinion

invited as to whether all or any of the injuries on the victim

could be caused with that weapon. Failure to do so may

sometimes, cause aberration in the course of justice. In this

reliance as placed by the learned counsel for the appellants,

keeping in view, the evidence of PW.17 being a doctor who

subjected to held autopsy of the dead body and issued the

P.M. report as per Ex.P11, wherein noticed some injuries

inflected in the person of the deceased - Rajendra and M.O.1

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and M.O.2 - stones said to have been recovered by the

investigating officer during the course of the investigation.

13. The last limb of the arguments has been

advanced by the learned counsel for the appellants by

referring the evidence of PW.1 and PW.2, who are the

parents of the deceased. PW.2 is none other than the mother

of the deceased, wherein she has stated in her evidence that

her son Rajendra had come to their village 20 days prior to

the incident. An astounding admissions by this witness is

that one day prior to the alleged incident, her son had not

come to the village. But this story has been set up by the

prosecution and also deviating the theory of the prosecution

relating to death of the deceased by the accused persons is

animosity developed stating that by consuming alcohol took

the deceased in their motor bike to the place of Kallahalli

fair/jatra. PW.2 being a mother of the deceased - Rajendra

had been subjected to cross-examination at length and the

same has been ceased on the part of the prosecution. She

has stated that she had given the statement to the police
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after 20 days of the incident, but she has admitted that she

did not give such kind of statement. The statement of PW.1

and PW.2 said to have been recorded by the investigating

officer and so also their evidence which are found to be

contradictory versions on the part of the prosecution about

the company of the deceased - Rajendra with the accused

persons. Neither the statement of Halagamma nor that of

Smt. Sudha is not forthcoming even in the charge sheet and

the prosecution did not venture into recording their

statements to pursuing whether the accused persons have

committed the murder of the deceased - Rajendra by a

motive factor. But the prosecution did nothing to cure this

fact during the pendency of the case even before the trial

Court. Whereas in this matter, the last seen theory is an

important theory of the prosecution and it is domain vested

with the prosecution to establish the guilt against the

accused for conviction in an heinous offence under Section

302 of I.P.C. But the trial Court arrived at an erroneous

conclusion that even though the prosecution did not

facilitate the worthwhile and acceptable evidence in relation

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to the accused person committing the murder of the

deceased by inflicting injury to the deceased - Rajendra.

14. In support of his contention, the learned counsel

for the appellants has placed reliance in the case of ASHOK

VS. STATE OF MAHARASHTRA reported in 2015 AIR SCW

1823, wherein it was held that "the initial burden of proof is

on the prosecution to bring sufficient evidence pointing

towards guilt of accused. However, in the instant case and

so also in case of last seen together, the prosecution is

exempted to prove exact happening of the incident as the

accused himself would have special knowledge of the

incident and thus, would have burden of proof as per

Section 106 of Indian Evidence Act, 1872. Therefore, last

seen together itself is not a conclusive proof but along with

other circumstances surrounding the incident, like relations

between the accused and the deceased, enmity between

them, previous history of hostility, recovery of weapon from

the accused etc., non-explanation of death of the deceased,

may lead to a presumption of guilt". But Section 106 of the

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Indian Evidence Act, 1872 (for short 'the Act of 1872'), the

role of the prosecution has to prove to the guilt against the

accused. But in the instant case, the prosecution has failed

to establish the guilt against the accused even the last seen

theory set up. But the question of accepting the appellants

to explain the incident from their mouth looses significance.

By default it cannot be a conclusive proof against the

accused person. In view of the above, learned counsel for the

appellants herein ought to have emphatically submitting

and contending that looking into utmost suspicion by the

Court of law. On the contrary, the trial Court has failed to

impart justice to the appellants being arrayed as accused

and also facing up of a trial in the heinous offences under

Section 302 of I.P.C.

15. Sections 3 and 4 of the Act of 1872 relating to

conclusive proof. That it is the domain vested with the

prosecution to prove the guilt against the accused to

facilitating the worthwhile evidence and equally the domain

vested with the trial Court as to appreciate the evidence and

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also no scrutiny of the evidence inclusive of examination-in-

chief and so also cross-examination stood by the witnesses.

But in the instant case, the trial Court has not appreciated

the evidence in a proper perspective to arrive at a conclusion

that the prosecution has proved the guilt against the

accused for the heinous offence under Section 302 of I.P.C.

16. Whereas, the learned counsel for the appellants

has placed reliance in the case of TULSIRAM KANU VS. STATE

reported in AIR 1954 SC 1, wherein the Hon'ble Supreme

Court has addressed the issue with the concept of the

presumption permitted to be drawn under Section 114 of the

Act of 1872. The Evidence Act, has to be read along with the

important time factor. If ornaments or things of the deceased

are found in the possession of a person soon after the

murder, a presumption of guilt may be permitted. But if

several months expire in the interval, the presumption may

not be permitted to be drawn having regard to the

circumstances of the case. This illustration has emphasized

by the learned counsel for the appellants, keeping in view of

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the provision of Section 114 of the Act of 1872 and similarly

Section 134 of the Act of 1872. But Section 134 of the Act of

1872 determines the quality of the evidence and not the

quantity of the evidence. But the trial Court has not

appreciated the evidence of PW.1 and PW.2 and these two

witnesses are the vital witnesses on the part of the

prosecution inclusive of the evidence of PW.17, being a

doctor, who conducted autopsy of the dead body and had

noticed the injury inflicted over the deceased person. Even

Section 134 of the Act of 1872 reveals the quality of the

evidence and not the quantity of the evidence. Even solitary

evidence are suffice to arrival of the conclusion that the

prosecution has proved guilt against the accused and suffice

to convict the accused. But in the instant case, it is rest

upon the circumstantial evidence, but the prosecution has

failed to establish the case against the accused by

facilitating the worthwhile evidence and so also in the nature

of cogent, corroborating and acceptable evidence and to

probablise that the accused alone committed the murder of

the deceased - Rajendra. PW.2 who is none other than the

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mother of the deceased, has led the evidence on the part of

the prosecution that her evidence has inclusive evidence of

PW.1-Mahadeva who is none other than the father of

deceased - Rajendra. But their evidence runs contrary to the

evidence of PW.17 relating to infliction of injuries over the

deceased person. Further contending that PW.18 -

R.Manjunath, who is the investigating officer, investigated

the case and laying the charge sheet against the accused

and recorded the statement of witnesses and so also drew

the mahazar at the presence of the punch witness such as

Ex.P2 - inquest panchanama held over the dead body and

Ex.P14 - seizure mahazar relating to seizure of certain

material object and so also recording the statement of

witnesses. But PW.8, PW.9, PW.10, PW.11, PW.12, PW.13

and PW.14 have been subjected to examination on the part

of the prosecution and moreso, they had given statements

before the investigating officer during the course of

investigation. But they did not withstood the statements of

the persons and they are contradictory thoughts such

portions have been got it marked as per Ex.P3 to Ex.P10

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respectively. Therefore, the evidence of PW.1 and PW.2

which runs contrary to the evidence of the aforesaid

witnesses on the part of prosecution and the same has not

been properly appreciated by the trial Court and also not

properly scrutinized the evidence relating to rendering a

conviction judgment. On all these premises, learned counsel

for the appellants in this matter emphatically submitting for

intervention or needs, if not intervened certainly the

gravamen of the accusation would be the sufferers and also

some substantial miscarriage of justice. Looking all these

premises, the learned counsel for the appellants seeking for

release of the accused by setting aside the judgment of

conviction and order of sentence rendered by the trial Court

in S.C.No.97/2011.

17. On contraverted to the arguments advanced by

the learned counsel for the appellants, the learned HCGP for

the State, namely, Sri.H.S.Shankar has contended that

based upon the complaint, the criminal law was set into

motion by writing an FIR as per Ex.P16 under Section 154 of

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Cr.P.C. Even the case relating to cognizable in the nature,

soon after receipt of a complaint, the criminal law was set

into motion and registered the FIR. Accordingly, the

investigating officer has registered the case and then

proceed with the matter and during the investigation, held

autopsy of the dead body of Rajendra as per Ex.P2 and also

recorded the statement of witnesses, who are the nearest

relatives of the deceased and drew the mahazar as per

Ex.P14 in the presence of the panch witnesses and so also

having been seized M.O.1 and M.O.2 - stones said to have

been used by the accused person relating to causing of the

injury inflicted over the deceased. These are all the evidence

as let in by the prosecution to prove the guilt against the

accused and the same has been appreciated by the trial

Court while rendering a conviction judgment, where the

accused took the deceased in their motor bike. Some enmity

was developed in between them and the same was resulted

in committing the murder by inflicting the injuries and the

same can be seen in the evidence of PW.17 - the doctor, who

had conducted autopsy of the dead body and issued the

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P.M. report as per Ex.P11. Therefore, learned HCGP for State

in this matter emphatically submitted that the learned

counsel for the appellants had cited certain reliance and also

dwelling in detail about evidence of PW.1, PW.2 and PW.17.

PW.18 - R.Manjunath, who led the charge sheet against the

accused. These are all the evidence which has been

appreciated by the trial Court and rightly comes to the

conclusion that the last seen theory has been established by

let in the evidence of PW.1 and PW.2 whereby the deceased -

Rajendra was accompanying with the accused persons in

their motor bike and committed the murder and the same

can be ceased on the part of the prosecution. Therefore, the

contentions which was made by the learned counsel for the

appellants seeking for a intervention of the impugned

judgment of conviction and order of sentence does not arise.

Consequently dismissal of this appeal as devoid of merits

and confirm the judgment of conviction and order of

sentence rendered by the trial Court.

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18. It is in this back ground of the contention made

by the learned counsel for the appellants and inclusive of

the learned HCGP for the State which is based upon the

evidence let in by the prosecution and the evidence of PW.1 -

Mahadeva, who is the author of the complaint - Ex.P1 and

so also being the father of the deceased - Rajendra and PW.2

- Nagamma, who is none other than the mother of deceased

- Rajendra, these two witnesses have been subjected to

examination and moreso, they are the vital witnesses on the

part of the prosecution relating to the theory, which has

indicated on the part of the prosecution. The FIR has been

recorded based upon Ex.P1 made by P.W.1 - Mahadeva.

Therefore, in the instant case, it requires to refer Section

154 of the Cr.P.C, but it is not a substantive case of the

evidence. It is only used to contrary or corroborate the

matter thereof. Accordingly, the Hon'ble Supreme Court

addressed the issue in a judgment of

SRI SAMBHU DAS @ BIJOY DAS & ANR VS. STATE OF ASSAM

reported in AIR 2010 SCC 3300 a mere information received

by the police against without any details as regards the

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accused person for involvement of commission of offence

even the nature of injuries caused by the deceased as well as

the name of the culprits may not be treated as FIR. This

issue was also in a greater extent addressed by the Hon'ble

Supreme Court of India. Therefore, this settled position of

law relating to receipt of information and recording the FIR

and thereafter to proceed with the case for investigation.

19. In the instant case which is relating to the death

of the deceased - Rajendra by committing the murder of him

and the appellants being arrayed as accused and so also the

motive factors relating to some enmity developed between

the accused and the deceased in connection with the

deceased did not provide alcohol to the accused person.

These are all the material evidence found in the record even

though the charge sheet has been led by the investigating

officer. But it is the duty cast upon the prosecution to prove

the guilt against the accused beyond all reasonable doubt to

convict them.
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20. The appellate Court should not normally re-

appreciate the evidence and it was extensively addressed by

the Hon'ble Supreme Court in the case of STATE OF WEST

BENGAL VS. KAILASH CHANDRA PANDEY reported in AIR 2012

SC 119. Whereas the judgment rendered by the Hon'ble

Supreme Court in the case of PADAM SINGH VS STATE OF U.P

reported in AIR 2000 SC 361, the Hon'ble Supreme Court

has addressed the role of the appellate Court, wherein it is

the duty of the appellate Court to look into the evidence

adduced in the case and arrive at an independent

conclusion as to whether the evidence can be relied upon or

not? and even it can be relied upon, whether prosecution

said to have been proved beyond all reasonable doubt on the

said evidence. The credibility of the witness has to analyse

by the appellate Court in drawing inference from proved and

admitted facts. Therefore, the duty cast upon even the trial

Court under Section 3 of the Act of 1872 relating to

appreciation of the evidence and also close scrutiny of the

evidence, inclusive of examination-in-chief and so also the

cross-examination it is on the part of the defence side.

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Therefore, the law which is clearly expects that the appellant

Court would dispose of the appeal on merits not merely by

perusing the reasoning of the trial Court in the judgment

rendered. But by cross checking the reasoning within the

evidence on record with a view to satisfying itself the

reasoning and the findings recorded by the trial Court are

consisted with the materials on record. This issue has

extensively addressed by the Hon'ble Supreme Court of India

in a judgment of MAHENDRA SINGH AND ORS. VS STATE OF

RAJASTHAN reported in AIR 1997 (3) Crimes 102 Rajastan.

However, it is relevant to the judgment of LALIT KUMAR

SHARMA AND ORS. VS SUPERINTENDENT AND REMEMBRANCER OF

A LEGAL APPEAL, GOVERNMENT OF WEST BENGAL reported in

AIR 1989 SC 2134. In this judgment, the Hon'ble Supreme

Court had extensively addressed this Court and also the

power of the appellate Court to review evidence in appeals

against acquittal is as extensive as its powers in appeals

against convictions, but the appellate Court should be slow

in interfering with the orders of acquittal. But the conviction

cases are concerned, it is a domain vested within the

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appellate Court to heal the entire matter dwelling in detail

about the evidence i.e., the examination-in-chief and also

cross-examination as well as other material which facilitated

by the prosecution. But in the instant case, it is relevant to

refer the judgment rendered by the Hon'ble Supreme Court

in the case of SHARAD BIRDHICHAND SARDA V. STATE OF

MAHARASHTRA reported in (1984) 4 SCC 116. In this

judgment, the Hon'ble Supreme Court had addressed the

issue relating to circumstantial evidence and so also scope

of the provision of the Act of 1872 and so also the benefit

and interference by Hon'ble Supreme Court even under

Article 136 of the Constitution of India, 1950. But in this

judgment, at para No.153, it reveals a close analysis of this

decision would show that the following conditions must be

fulfilled before a case against an accused can be said to be

fully established. Firstly, the circumstances from which the

conclusion of guilt is to be drawn should be fully

established. It may be noted here that this Court indicated

that the circumstances concerned 'must or should' and not

'may be' established. There is not only a grammatical but a

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legal distinction between 'may be proved' and 'must be or

should be proved' as was held by this Court in SHIVAJI

SAHABRAO BOBADE & ANR. V. STATE OF MAHARASHTRA,

wherein it was reported in SCC (CRIME) 1047 held that

certainly, it is a primary principle that the accused must be

and not merely may be guilty before a court can convict and

the mental distance between, may be' and 'must be' is long

and divides vague conjectures from sure conclusions. (2) The

facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say they

should not be explainable on any other hypothesis except

that the accused is guilty (3) the circumstances should be of

a conclusive nature and tendency (4) they should exclude

every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the

accused. These five golden principles, if we may say so,

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constitute the panchsheel of the proof of a case based on

circumstantial evidence.

21. The paragraph 156 of the judgment reveals

that Lord Goddard slightly modified the expression, morally

certain by 'such circumstances as render the commission of

the crime certain'. This paragraph also reveals that it

indicates the cardinal principle' of criminal jurisprudence

that a case can be said to be proved only when there is

certain and explicit evidence and no person can be convicted

on pure moral conviction.

22. Whereas in paragraph 163 of the aforesaid

judgment, when we pass on to another important point

which seems to have been completely missed by the High

Court, it is well settled that whether the evidence two

possibilities are available or open, one which goes in favour

of the prosecution and the other which benefits the accused

and the accused is undoubtedly entitled to the benefit of

doubt. IN KALI RAM V. STATE OF HIMACHAL PRADESH reported

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in SCC (CRIME) 1060 this Court made the following

observations:

"Another golden thread which runs through the web

of the administration of justice in criminal cases is
that if two views are possible on the evidence
adduced in the case one pointing to the guilt of the
accused and the other to his innocence, the view
which is favourable to the accused should be
adopted This principle has a special relevance in
cases where in the guilt of the accused is sought to
be established by circumstantial evidence."

23. Subsequent to filing of this judgment rendered by

the Hon'ble Supreme Court of India whereby rendering a

judgment in the case of RAM NIWAS VS. THE STATE OF

HARYANA reported in AIR 2022 SC 3748. In this judgment,

para No.18, the prosecution case rests on circumstantial

evidence. The law with regard to conviction on the basis of

circumstantial evidence has very well been crystallized in the

judgment of this Court in the case of SHARAD BIRDHICHAND

SARDA VS. STATE OF MAHARASHTRAREPORTED in AIR (1984 )4

SCC 113 equallent to AIR 1984 SC 1622. In this judgment,

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in para No.153 has been made an observation that the facts

so established should be consistent only with the hypothesis

of the guilt of the accused i.e., to say that is to say they

should not be explainable on any other hypothesis except

that the accused is guilty (3) the circumstances should be of

a conclusive nature and tendency (4) they should exclude

every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the

accused.

24. In the judgment of (1984) 4 SCC 1164 the five

golden principles, if we may say so, constitute the

panchsheel of the proof of a case based on circumstantial

evidence.

25. Apart from the reliances which has been placed

by the learned counsel and facilitate one more reliance of

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ASHOK @ MADIWALLAPPA AND OTHERS VS. STATE OF KARNATAKA

THROUGH SUB-URBAN P.S., reported in 2021(5) KCCR 1052,

whereas in this judgment the Division Bench of this Court

had addressed the issues relating to the scope of Section

302 and 106 of the Act of 1872. Whereas the Conviction

appeal -Last seen theory-Burden to rebut lies on the

accused-Circumstance of last seen alone cannot discharge

the burden of establishing the guilt of the accused-Presence

of accused in the vicinity where the deceased was found

lying injured-All the places are public places having access

to public-Pancha witness to seizing of MO's turned hostile-

prosecution failed to establish weapons used for assault-

Chain of events not proved. Therefore these reliances are

squarely applicable to the present case on hand and the

same may be consider.

26. In the present case, wherein the theory has been

set up by the prosecution that last seen theory and also the

motive factor which the accused having an intention to

eliminating the deceased - Rajendra. But we find that the

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prosecution has utterly failed to establish the chain of

events which can be exclusively lead to the one and only

conclusion is the guilt of the accused. In that view of the

matter we find that the judgment and order of the Trial

Judge are not sustainable. In the instant case even on close

scrutiny of the evidence and even the totality of the

circumstances of the case it is found that the trial Court had

misread the evidence and also arrival of a conclusion

erroneously opened that the prosecution has proved the

guilt against the accused with beyond all reasonable doubt.

Therefore, in this appeal, it requires intervention or needs, if

not intervened certainly there shall be miscarriage of justice

and the accused persons would be the sufferers. However it

is made it clear that the trial Court has not appreciating the

evidence in a proper perspective and the evidence of the

prosecution are found to be suffer from infirmity.

37. In view of the aforesaid reasons and findings, we

proceed to pass the following:

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ORDER
1) The appeal preferred by the appellants/accused under
Section 374(2) of Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction and the
order of sentence rendered by the trial Court in
S.C.No.97/2011 dated 19.01.2017 is hereby set aside.
However, consequent upon setting aside the impugned
judgment of conviction, whereby the accused being the
appellants herein acquitted for the offences punishable
under Section 143, 147, 302 read with Section 149 of
IPC, for which they have charged.

2) If the accused are executing the bail bond, the bail

bond shall stand cancelled.

3) If the appellants/accused deposited the fine amount, if

any, in pursuance of the order passed by the trial
Court the same shall be refunded to the accused on
proper identification.

Ordered accordingly.

Sd/-
JUDGE

Sd/-
JUDGE
SSB