Karnataka High Court

Sri Mallikarjuna vs State Of Karnataka on 13 July, 2023

Author:
K.Somashekar

Bench:
K.Somashekar

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CRL.A No. 666 of 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13TH DAY OF JULY, 2023

PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 666 OF 2017
BETWEEN:

1. SRI MALLIKARJUNA
@ BALAJI @ CHINNA @ ARJUN
S/O RAMAKRISHNA
AGED ABOUT 41 YEARS
CARPENTER
R/A NO.7/3, SOCIETY COLONY
MADANAPALLI TALUK
CHITUR DISTRICT
ANDRA PRADESH STATE-517418.
Digitally
\\\\\
signed by D
K BHASKAR 2. SRI V KUMAR
Location: S/O VENKATESHACHARI
High Court AGED ABOUT 43 YEARS,
of Karnataka
OCC: CARPENTER
R/A HEGGADEHALI
MAKARALU POST
K R PETE TALUK
MANDYA DISTRkICT
MYSURU-571426.

3. SRI R PRAKASH
S/O RAMAKRISHNA
AGED ABOUT 51 YEARS
OCC: COOLIE
R/A BOMMANAHALLI
BARANDURU POST
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577245.
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CRL.A No. 666 of 2017

4. SRI JAGADISH
S/O KUMAR
AGED ABOUT 45 YEARS
OCC: COOLIE
R/A AJJAMPURA, GANDHI CIRCLE
MAKKAMANDINA ROAD
THARIKERE TALUK
CHIKKAMAGALURU DISTRICT-577547.

5. SRI SURI @ SURYAKUMAR
S/O SAMJEEVA
AGED ABOUT 36 YEARS
OCC: COOLIE
R/A NO.A1-23, VENKATAPURA
SYOMADAPETE HOUSING BOARD
CHINNAMALAI, CHENNAI 60015.

6. SRI PRABHU
S/O PEETER
AGED ABOUT 46 YEARS
OCC: CARPENTER
R/A NO.8, S BLOCK
VENKATAPURAM
SYMODAPETE HOUSING BOARD
CHINNAMALAI, CHENNAI 60015.

7. SRI RAJESH
S/O ANBU
AGED ABOUT 32 YEARS
OCC: CARPENTER
R/A NO.1, R.BLOCK, VENKATAPURAM
SYODAPETE HOUSING BOARD
CHINNAMALAI, CHENNAI 60015.
...APPELLANTS
(BY SRI. PRASANNA KUMAR P - ADVOCATE)

AND:
STATE OF KARNATAKA
BY HEBBAGODI POLICE STATION
BANGALORE
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CRL.A No. 666 of 2017

REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DR B R AMBEDKAR VEEDHI
BANGALORE 560001.
...RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE - SPP-II A/W
SRI. KRISHNA KUMAR K K - HCGP)

THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
27.03.2017 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, BANGALORE RURAL DIST., SIT AT ANEKAL
IN S.C.NO.53/2010 THEREBY CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 302 AND 201
OF
IPC
, SENTENCED THE ACCUSED FOR IMPRISONMENT FOR
LIFE ALONG WITH A FINE OF RS.20,000/- AND RIGOROUS
IMPRISONMENT FOR 10 YEARS AND ALONG WITH THE FINE OF
RS.15,000/- RESPECTIVELY EACH AND IN DEFAULT OF
PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR
ONE YEAR AND NINE MONTHS RESPECTIVELY AND
CONSEQUENTLY ALLOW THIS APPEAL.

THIS CRIMINAL APPEAL, COMING ON FOR DICTATING
JUDGMENT, THIS DAY, K. SOMASHEKAR .J., DELIVERED THE
FOLLOWING:

JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence dated 27.03.2017 rendered

by the Court of the III Addl. District & Sessions Judge,

Bengaluru Rural District, sitting at Anekal in

S.C.No.53/2010 for offences punishable under
Sections 302

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CRL.A No. 666 of 2017

and 201 of the
IPC
. For the offence under
Section 302
of the

IPC, each of the appellants / Accused Nos.1 to 7 were

sentenced to undergo imprisonment for life and to pay a fine

of Rs.20,000/- each and in default of payment of fine, they

were to undergo simple imprisonment for a period of one

year; further, for the offence punishable under
Section 201

IPC, they were sentenced to undergo rigorous imprisonment

for a period of 10 years and to pay a fine of Rs.15,000/-

each and in default of payment of fine, each of them were to

undergo simple imprisonment for nine months. Both the

sentences were to run concurrently.

2. The appellants / Accused Nos.1 to 7 have preferred

the present appeal seeking to allow the appeal and to

thereby acquit the appellants / accused for offences under

Sections 302
and
of the IPC, having regard to the

grounds urged therein.

3. Heard the learned counsel Shri Prasanna Kumar P

for the appellants / accused and the learned HCGP Shri

Krishna Kumar K.K. for the respondent / State. Perused the

impugned judgment of conviction and order of sentence

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rendered by the Trial Court in S.C.No.53/2010 consisting of

the evidence of PW-1 to PW-22, the documents at Exhibits

P1 to P27 on behalf of the prosecution, the documents at

Exhibits D1 to D4 on behalf of the accused and the material

objects marked at MO-1 to MO-15.

4. The factual matrix of this appeal is as under:

It transpires from the case of the prosecution that

Accused No.1 / Mallikarjuna @ Balaji @ Chinna @ Arjun had

borrowed a sum of Rs.8,00,000/- (Rupees Eight Lakhs only)

from the deceased Sridhar. It is said that the deceased

Sridhar was frequently demanding Accused No.1 to repay

the said borrowed amount. In that regard, an enmity had

developed in between the deceased and accused persons.

Therefore, it is said that Accused No.1 had hatched a

criminal conspiracy with Accused Nos.2 to 7 to commit the

murder of the said Sridhar. Accordingly, as on 10.02.2010

in between 11.58 a.m. and 1.00 p.m., the accused persons

had committed the murder of the deceased Sridhar and in

order to screen themselves from legal punishment, tried to

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have burnt the dead body of Sridhar. However, the body

remained half burnt. In pursuance of the act of the accused,

on the filing of a complaint by the complainant namely CW-2

cited as a witness in the charge-sheet as per Exhibit P8,

criminal law was set into motion by recording an FIR as per

Exhibit P18. But another complaint is also got marked at

Exhibit P17 and one more FIR was also said to be recorded

as per Exhibit P21. Subsequent to recording the FIR and

setting the criminal law into motion, the Investigating Officer

has taken up the case for investigation and during

investigation, he recorded the voluntary statement of

Accused No.1 as per Exhibit P22 and voluntary statement of

Accused No.4 as per Exhibit P23, voluntary statement of

Accused No.3 as per Exhibit P24, voluntary statement of

Accused Nos.5, 6 and 7 as per Exhibit P25, as per Exhibit

P26 and as per Exhibit P27 and based upon their voluntary

statements, the Investigating Officer had proceeded with the

investigation of the case by conducting several mahazars

such as Exhibits P1, P2, P3, P4, P5, P6, P9, P11, P12, P13,

P14 and P19, all of them being panchanamas. These are the

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mahazars said to have been drawn by the Investigating

Officer in the presence of panch witnesses who were secured

such as PW-1, PW-2, PW-4, PW-5, PW-12, PW-3, PW-6, PW-

14, PW-7, PW-13, PW-11, PW-15, PW-22 and PW-21. They

are the witnesses secured by the Investigating Officer and in

their presence the aforesaid several panchanamas have been

drawn by the Investigating Officer and so also the Statement

of witnesses were recorded and DNA report was secured at

Exhibit P15 and so also during the course of investigation,

they have seized MO-1 to MO-15 wherein MO-9, MO-10 and

MO-11 being gold ring, gold chain and MO-1 mobile and

other articles which were seized also were subjected in P.F.

The entire investigation was completed and the Investigating

Officer laid the charge-sheet against Accused Nos.1 to 7

before the Committal Court for offences under
Section 302

and
Section 201
of the IPC. Subsequently, the Committal

Court had passed an order as contemplated under
Section
of the Cr.P.C. and committed the case to the Court of

Sessions for trial.

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5. Subsequent to committing the case to the Court of

Sessions, Accused Nos.1 to 7 were secured to face trial.

Accordingly, in S.C.No.53/2010, the Trial Court heard the

arguments of the learned Public Prosecutor and so also

defence counsel on framing of charge. On prima facie

material being found against each one of the accused Nos.1

to 7 respectively, charges were framed against Accused

Nos.1 to 7 for the offences reflected in the FIR. The charges

were read over to the accused persons in a language known

to them and they have declined the charges made against

them. Accordingly, the plea of the accused was recorded

separately but the accused claimed to be tried.

6. Subsequently, the prosecution, in order to prove the

guilt against the accused, examined in all PW-1 to PW-22

and got marked several documents at Exhibits P1 to P27

and got marked MO-1 to MO-15 on the part of the

prosecution. Exhibits D1 to D3 are the photos and Exhibit

D4 is the receipt issued by the petrol bunk and these

documents have been got marked on the part of the defence

side.

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7. Subsequent to closure of the evidence on the part of

the prosecution, Accused Nos.1 to 7 have answered to the

incriminating statements recorded by the Trial Court as

contemplated under
Section 313
Cr.P.C. whereby the

accused have declined the incriminating evidence appearing

against them and accordingly it was recorded separately.

Subsequent to recording the incriminating statements of the

accused, the Trial Court had called upon the accused to

enter into defence evidence if any. But the accused did not

choose to let any defence evidence. Accordingly, it was

recorded.

8. Subsequent to closure of the evidence on the part of

the prosecution as well as on the part of the defence, in

terms of the relevant provisions of the
Cr.P.C
., the Trial

Court had heard the arguments advanced by the Public

Prosecutor and also the counter arguments advanced by the

defence counsel for the accused, and on an examination of

the evidence of the witnesses inclusive of the exhibited

documents, rendered a conviction judgment against the

accused for the offences under
Section 302
and
Section 201

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IPC
. It is this judgment which is under challenge in this

appeal by urging various grounds.

9. Learned counsel Shri P. Prasanna Kumar for the

appellants / Accused Nos.1 to 7 contends that the impugned

judgment of conviction and order of sentence passed by the

III Addl. District and Sessions Judge, Bengaluru Rural

District, sitting at Anekal is contrary to law, facts and

evidence available on record, and as such the same is liable

to be set-aside.

10. PW-8 / Smt. Shubha being the wife of the deceased

Sridhar, is the author of the missing complaint at Exhibit P7

and she has identified the burnt dead body of her husband

Sridhar and also identified the belongings of the deceased.

But she has not mentioned in her complaint at Exhibit P7

about Accused No.1 or Accused No.2 coming to their house

to borrow money from her husband. There is no agreement

or anything in writing to show that Accused No.1 had

borrowed Rs.8,00,000/- from the deceased Sridhar. Hence,

her evidence to the effect that accused had gone to her

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house and had borrowed a sum of Rs.8,00,000/- from her

husband Sridhar, has no basis at all. This PW-8 / Shubha

has been subjected to cross-examination and her evidence

has been dismantled and does not inspire confidence in the

mind of the Court to arrive at a conclusion that the

prosecution has proved the guilt against the accused. PW-

10 / Murugeshan, PW-11 / Selvaraj, PW-12 / Joraram

Choudri, PW-13 / W.C. Chandrashekar are witnesses who

have been subjected to examination on the part of the

prosecution. But nothing worthwhile has been elicited in

their chief examination to believe the theory put forth by the

prosecution that Accused Nos.1 and 2 along with the other

accused have committed the murder of Sridhar. PW-16 /

Mahesh Kumar who is an official witness during

investigation, it was found that Accused Nos.1 and 2 were

missing and on enquiring, it was found that they were

residing in Mumbai. Subsequently they were apprehended

at Mumbai on 27.02.2010. Further on 01.03.2010, a team

of police officials went to Chennai in order to search the

other accused and apprehended them and produced before

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the Investigating Officer. Though the prosecution has let in

several witnesses to prove the guilt of the accused, but has

not been able to establish the guilt against the accused by

facilitating cogent, consistent, corroborative and so also

acceptable evidence that the accused have committed the

murder of the deceased Sridhar. But the investigation

reveals that Accused Nos.1 and 2 have committed the

murder of the deceased and burnt the dead body of the

deceased Sridhar. MO-7 / Wrist watch belonging to

deceased Sridhar came to be seized near Chandapura

Railway Bridge by drawing a mahazar at Exhibit P6. The

said watch was identified through his wife PW-8 / Shubha.

But the criminal law was set into motion on receipt of a

complaint by the said Shubha. But her evidence is not

corroborated with any other independent witnesses in order

to prove the guilt against the accused to secure conviction

for offences under
Section 302
and
Section 201
of the IPC.

11. Lastly, the learned counsel for the accused

vehemently contended that the Trial Court has misdirected

the evidence of the prosecution witnesses and also

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misinterpreted the evidence let in by the prosecution which

is contrary to law and facts and also evidence available on

record. It is contended that the reasons assigned by the

learned Sessions Judge in impugned judgment are

erroneous resulting in a substantial miscarriage of justice to

the appellants. Further, the learned Sessions Judge has

failed to take note of the fact that PW-21 / B.S. Manjunath

during his cross examination, has deposed that they went to

Mumbai to apprehend Accused Nos.1 and 2 via private

vehicle whereas PW-14 / Nataraj, S/o. Narayanaswamy has

deposed that they went through flight. The said

inconsistency is a material defect in the case of the

prosecution and the same has not at all been considered by

the learned Sessions Judge. It is further contended that PW-

17 / Shri Lakshmi Balasubramaniam has admitted that if

there are identical twins, then the DNA profile will be the

same. Such being the case, the prosecution has failed to

conclusively establish the identity of the accused persons.

These facts have not at all been considered by the learned

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Sessions Judge. Hence it is contended that as such the

appellants are entitled for an order of acquittal.

12. It is further contended that the learned Sessions

Judge has miserably failed to take note of the fact that the

prosecution has failed to establish the alleged enmity

between the deceased and the accused persons. As such

there was no motive for the accused persons to commit the

murder of the deceased. Further, the prosecution has not

recovered any incriminating article at the instance of the

appellants. When such being the case, the impugned

judgment and order of conviction is unsustainable as

against these appellants are concerned.

13. DNA analysis of the blood sample of the parents of

the deceased proved that the dead body was that of the

deceased Sridhar. It is contended that if there are identical

twins, then the DNA profile will be the same. Such being the

case, the Trial Court has failed to establish the identity of

the deceased person. On this premise also learned counsel

seeks for intervention.

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14. It is further contended that the mahazar witnesses

cited by the prosecution, have not completely supported the

case of the prosecution and that there are material

discrepancies even in their evidence which go to the very

root of the case of the prosecution and as such the recovery

of the article at the instance of the appellants would have no

legs to stand. Hence the impugned judgment and order of

conviction and sentence is unsustainable and the same is

liable to be set-aside. Hence, it is contended that if the

judgment of the learned Sessions judge is not set aside in

this appeal, it would result in a substantial miscarriage of

justice. On these grounds, the learned counsel for the

appellants seeks to allow the present appeal and to thereby

set aside the judgment of conviction and order of sentence

dated 27.03.2017 rendered by the III Addl. District &

Sessions Judge, Bengaluru Rural District, Sitting at Anekal

in S.C.No.53/2010 and consequently acquit the appellants

of the alleged offences.

15. On the contrary, learned HCGP Shri Krishna

Kumar K.K. for the respondent / State contends that the

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entire evidence of the prosecution is circumstantial in

nature and chain of circumstances would bring home the

guilt of the accused as established by the prosecution by

facilitating the evidence of PW-8 / Subha and PW-16 /

Mahesh Kumar and PW-21 / B.S. Manjunath being official

witnesses.

16. Learned HCGP contends that PW-8 / Smt.

Shubha, being the wife of the deceased Sridhar has stated in

her evidence that the first accused namely Mallikarjuna @

Balaji @ Chinna @ Arjun had visited her house to sort out

some financial dealings of Accused Nos.1 and 2 with the

deceased Sridhar. She has specifically stated in her

evidence that Accused Nos.1 and 2 are said to have visited

the house of the deceased and demanded for money

frequently. Therefore, Accused No.2 used to take that

money by coming to their house. Accused Nos.1 and 2 had

borrowed a sum of Rs.8,00,000/- for their financial

business. But in fact she has referred about some financial

dealings of her husband namely Sridhar with the accused in

Exhibit P7 of the missing complaint made by her. In view of

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examining her after a lapse of 4 years of the occurrence of

the incident, some discrepancies have arisen in the evidence

of PW-8. As noticed by the Trial Court, the said

discrepancies would not cut the root of the prosecution

theory relating to the incident of the accused having

committed the murder of the deceased Sridhar and

concealing his dead body in order to screen themselves from

legal punishment. PW-8 has been subjected to cross-

examination at length but in her cross-examination, the

defence counsel did not elicit any acceptable evidence as

regards the incident narrated in her missing complaint and

disbelieved the theory of the prosecution. But Exhibit D

series at Exhibits D1 to D4 have been got marked on the

defence side as relevant portion. The same was confronted

to the Investigating Officer who is examined as PW-21. This

PW-8 has been subjected to thorough cross-examination

and she has specifically stated that on 09.02.2010 her

husband Sridhar made a phone call to the first accused

Balaji and demanded him to repay the borrowed amount.

As on 10.02.2010, deceased Sridhar went in a car bearing

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No.KA-05/1665 stating that he would meet the first accused

/ Mallikarjuna @ Balaji and get back the borrowed money

from him. But on the aforesaid date, at around 12.40 p.m.,

calls made to his mobile were not received by her husband.

But the said calls were thereafter diverted to her mobile at

around 3.00 p.m. Though she received the telephone call,

nobody responded to her call on the either side. She had

informed the said fact to the friends of her husband Sridhar.

The aforesaid evidence that the deceased Sridhar had gone

on that day in the morning and thereafter his whereabouts

could not be known also, remained unchallenged even

though she has stood for cross-examination. Her evidence

finds corroborated with the evidence of PW-21 /

Investigating Officer in respect of the contents at Exhibit P7

of the missing complaint.

17. PW-21 / I.O. has got identified the watch and

clothes of the deceased Sridhar. PW-22 / A. Yelagaiah has

specifically stated in his evidence that the accused led the

police to the place where chilly powder was thrown and drew

the mahazar as per Exhibit P13. PW-15 / R.C. Chandra

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though has subscribed his signature to Exhibit P13, he has

not supported the case of the prosecution. But the motive

factor for the incident relating to the accused persons being

the perpetrator and so also they having committed the

murder of Sridhar as there was an enmity developed

between the accused and the deceased, is proved.

18. He has also taken us through the evidence of the

prosecution witnesses and also the charges lugged against

the accused and more importantly Accused No.1 with the

assistance of Accused No.2 having borrowed a sum of

Rs.8,00,000/- from the deceased Sridhar and when the

deceased Sridhar started demanding him to repay the

borrowed amount, an animosity developed between the

accused and the deceased. It is contended by the learned

HCGP that on information given by PW-10 / Murugeshan to

the V.A.O about a burnt dead body lying near the water

channel, the said V.A.O. Sri. Abdul had filed a complaint as

per Exhibit P8. The said dead body was decomposed and

unidentified. Thereafter the police visited the spot and drew

a mahazar as per Exhibit P9 and seized the blood stained

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mud, ordinary mud and water cans. Thereafter, on

15.02.2010 the car of the missing person was traced at

Chennai. Hence, PW-21 / I.O. went to Chennai and seized

the said car by drawing a mahazar as per Exhibit P19.

Thereafter, the wife of the deceased namely PW-8 / Smt.

Shubha got released the said car by producing the relevant

documents. Thereafter, PW-21 / I.O. received information

that a burnt dead body of an unidentified person was found

at Pallikonda Village of Tamil Nadu, which body was kept in

Government Hospital, Vellore. Hence, relatives of missing

person went along with the I.O. and identified the said dead

body as the one of the deceased Sri. Sridhar. The wife of the

deceased namely PW-8 / Shubha had also identified the

dead body to be that of her husband. Further, the Doctors

had collected the blood samples of the parents of the

deceased Sri Sridhar in order to conduct DNA analysis. The

DNA analysis also proved that the dead body was of the

deceased Sridhar. Further, gold chain of the deceased at

MO-11 and two gold rings marked as MO-9 and MO-10 /

motor cycle were recovered by drawing a panchanama at

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Exhibit P3. It is no doubt true that based on the missing

complaint made by PW-8 / Shubha, Accused Nos.1 and 2

along with other accused were apprehended by the police

and accused were put on trial relating to offences under

Sections 302
and
of the IPC. A cursory glance of the

entire evidence on the part of the prosecution reveals that

the prosecution has successfully proved the guilt against the

accused. Therefore, the Trial Court has rightly come to the

conclusion and rendered a conviction judgment for offences

punishable under
Section 302
and
Section 201
of the IPC.

Therefore in this appeal, it does not arise to call for any

interference of the impugned judgment of conviction and

sentence since the accused have committed the murder of

the deceased Sridhar and have burnt his dead body and also

have caused disappearance of evidence in order to screen

themselves from legal punishment. Therefore, it does not

arise to call for interference the judgment of conviction and

order of sentence even on re-appreciation of the same.

Consequently, learned HCGP seeks to dismiss this appeal as

being devoid of any merits.

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19. In the context of contentions made by the learned

counsel for the appellants / accused and so also the counter

arguments advanced by the learned HCGP Shri Krishna

Kumar K.K., in this matter, it requires to examine certain

important evidence on the part of the prosecution. In this

regard, it is required to establish strong circumstances,

circumstantial evidence, motive factor which bears an

important significance. Motive always locks-up in the mind

of the accused and sometime it is difficult to unlock. People

do not act wholly without motive. The failure to discover the

motive of an offence does not signify its non-existence.

20. But the law regarding circumstantial evidence is

well-settled. When a case rests upon the circumstantial

evidence, such evidence must satisfy three tests:

i) the circumstance from which an inference of guilt

sought to be drawn, must be cogently and firmly

established;

ii) those circumstances should be of definite tendency

unerringly pointing towards guilt of the accused;

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iii) circumstances taken cumulatively should form the

chain complete that there is no escape from the conclusion

that within all human probability the crime was committed

by the accused and none else. The circumstantial evidence

in order to sustain conviction must be complete and

incapable of explanation of any other hypothesis than that of

the guilt of the accused. The circumstantial evidence should

not only be consistent with guilt of the accused but should

be inconsistent with his innocence. Suspicion, however

grave it may be, cannot take the place of proof.

21. Mere identification of the dead body of the

deceased by his relatives including his wife in the absence of

any other evidence connecting the accused persons with the

murder is not enough to fasten the guilt upon the accused,

although there may be suspicion against the accused

persons. But suspicion, however strong it may be cannot be

valid substitute for proof. The chain of circumstances which

has been established on the basis of reliable evidence the

credibility of which has not in any manner been impeached

by cross-examination and which evidence gets support from

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DNA analysis that the death occurred on the account of the

injuries inflicted upon the deceased. But in the instant

case, the death occurred due to enmity in between Accused

Nos.1 and 2 and the deceased with the assistance of the

remaining accused. There is an allegation that the accused

persons committed the murder of the deceased. However,

except the say of PW-8 / Shubha that accused persons had

borrowed money from her husband Sridhar and when

Sridhar persistently started demanding repayment of the

said money from the accused, the accused had hatched a

criminal conspiracy and committed the murder of Sridhar,

there is no other evidence to establish that the accused

persons had committed the murder of the deceased and

burnt his dead body. Further, there is no written evidence

to show that deceased Sridhar had lent a sum of

Rs.8,00,000/- to Accused No.1. The allegations made by

PW-8 against the accused persons have not been proved by

the prosecution by producing convincing evidence as regards

the same. The entire case of the prosecution rests on

circumstantial evidence. Further, as regards the last seen

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theory, the foundation of this theory lies on the principle of

probability, cause, and connection as no fact takes place in

isolation. Basically, it means that if an event takes place

then other events also take place which are the probable

consequences of a major event or is related to it either

retrospectively or prospectively. These inferences or

presumptions are drawn logically according to how a

reasonably prudent man will connect the dots in the

particular scenario. Even the presumption of fact is taken

under
Section 114
of the Indian Evidence Act under which

the Court can presume that certain facts exist if some other

facts are proved to be existing in the cases of natural events,

human conduct, and public and private business. For

instance, if A was the last person seen with B just before his

murder then it can be presumed that A murdered B under

this theory because A had adequate opportunity to commit

the crime. But this presumption is not considered as

conclusive proof for the guilt of the person and these

presumptions are rebuttable by the accused. It only shifts

the onus on the person to prove that he is innocent which is

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an exception in the criminal law as the burden of proving

the guilt of the accused is on prosecution. Thus, the fact of

last seen should also be supported by other factors in such

a way that the circumstances are unerringly determinative

in nature and conclusively prove the guilt of the person. The

court needs to be on guard while deciding upon these kinds

of matters.

22.
In the judgment of
BABU VS. STATE OF KERALA

((2010) 9 SCC 189)) relating to doctrine of innocence, it is

held that criminal trial - proof - burden and onus of proof -

reversal of burden of proof - when permissible -

presumptions - presumption of innocence - Constitution of

India -
Articles 21
and
14.
It is held "every accused is

presumed to be innocent unless the guilt is proved. The

presumption of innocence is a human right. However,

subject to the statutory exceptions, the said principle forms

the basis of criminal jurisprudence. For this purpose, the

nature of the offence, its seriousness and gravity thereof has

to be taken into consideration. The courts must be on guard

to see that merely on the application of the presumption, the

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same may not lead to any injustice of mistaken conviction."

In the same reliance it is also held that in a criminal trial -

circumstantial evidence - generally - burden of proof - in

case of circumstantial evidence burden on prosecution is

always greater. Further, in respect of criminal trial -

circumstantial evidence - motive - relevance - absence of

motive in a case depending on circumstantial evidence is a

factor that weighs in favour of accused - in a case of

circumstantial evidence, motive must be established at least

to a certain extent.

23. Whereas in the case of
Sharad Birdhichand Sarda

vs. State of Maharashtra
(1984) 4 SCC 116 it is relevant to

refer to para 163 which reads as under:

"We then pass on to another important point which
seems to have been completely missed by the High Court. It
is well settled that where on the evidence two possibilities
are available or open, one which goes in favour of the
prosecution and the other which benefits an accused, the
accused is undoubtedly entitled to the benefit of doubt.
In

Kali Ram v. State of Himachal Pradesh
,this Court made the
following observations:

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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."

24. In the instant case, it is relevant to refer to the

judgment of Hon'ble Supreme Court in the case of Ram

Niwas vs. State of Haryana (Criminal Appeal No.25 of

2012) wherein it is held as under:

"The prosecution case rests on circumstantial
evidence. The law with regard to conviction on the
basis of circumstantial evidence has very well been
crystalized in the judgment of this Court in the case of

Sharad Birdhichand Sarda vs. State of Maharashtra
,
wherein this Court held thus:

"152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is
Hanumant v. State of Madhya Pradesh
[AIR

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1952 SC 343]. This case has been uniformly followed
and applied by this Court in a large number of later
decisions up-to-date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC
198] and Ramgopal v. State of Maharashtra [(1972) 4
SCC 625]. It may be useful to extract what Mahajan, J.

has laid down in
Hanumant
case [AIR 1952 SC 343] :

"It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established,
and all the facts so established should be consistent
only with the hypothesis of the guilt of the accused.
Again, the circum stances should be of a conclusive
nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within
all human probability the act must have been done by
the accused."

153. A close analysis of this decision would show
that the following conditions must be fulfilled before a

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case against an accused can be said to be fully
established:

(1) 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 legal distinction between "may be proved" and
"must be or should be proved" as was held by this
Court in
Shivaji Sahabrao Bobade v. State of Maharashtra
[(1973) 2
SCC 793] where the observations were made :

"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,

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(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.

154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."

19. This Court has held that there has to be a chain
of evidence so complete so as not to leave any
reasonable ground for a 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. It has been held that the circumstances should
be of a conclusive nature and tendency. This Court has
held that the circumstances should exclude every
possible hypothesis except the one to be proved. It has
been held that the accused 'must be' and not merely
'may be' guilty before a Court can convict.

20. It is settled law that the suspicion, however
strong it may be, cannot take the place of proof beyond
reasonable doubt. An accused cannot be convicted on

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the ground of suspicion, no matter how strong it is. An
accused is presumed to be innocent unless proved guilty
beyond a reasonable doubt."

25. PW-21 / I.O. as on 27.02.2010 after collecting the

mobile phones and doubts expressed by the informants, had

arrested Accused Nos.1 and 2 at Mumbai. PW-16 / Mahesh

Kumar had also deposed that he accompanied PW-21 while

arresting Accused Nos.1 and 2 at Mumbai. Though PW-21

during his cross-examination has deposed that they went to

Mumbai by a private vehicle, PW-16 has deposed that they

went by Flight. The inconsistency in both of their

statements looms large in spite of the fact that they had

gone to Mumbai prior to 4 years. Further, the statements

made by PW-8 / Shubha have not been proved by the

prosecution by producing convincing evidence.

26. In the present case, we find that the prosecution

has failed to establish the chain of events in order to

conclusively prove the guilt of the accused persons. Though

the prosecution has let in several witnesses to prove the

guilt of the accused, but has not been able to establish the

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guilt against the accused by facilitating cogent, consistent,

corroborative and so also acceptable evidence that the

accused have committed the murder of the deceased

Sridhar.

27.
In the case of
NAVANEETHAKRISHNAN V. THE

STATE BY INSPECTOR OF POLICE
(AIR 2018 SC 2027),

the mobile phones along with other materials were

discovered at the instance of the information given by the

accused. Those recoveries did not have any connection with

the crime committed and the fact of which the discoveries

were made, could not be proved to be a relevant one. The

Apex Court observed that in the absence of any connecting

link between the crime and the things recovered, the

recovery on the behest of accused will not have any material

bearing on the facts of the case. The Court held that no

evidence has been adduced or produced by the prosecution

as to how these objects have a bearing on the case. It further

held that the said statements are inadmissible in spite of the

mandate contained in
Section 27
of the Indian Evidence Act

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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.

28.
In the case of
BIPIN KUMAR MONDAL vs. STATE

OF WEST BENGAL
(AIR 2010 SC 368), it is held that,

motive is a thing which is primarily known to the accused

himself and it may not be possible for the prosecution to

explain what actually prompted or excited him to commit a

particular crime.

29.
In the case of
MUNISH MUBAR vs. STATE OF

HARYANA
(AIR 2013 SC 912), it is held that, in a case of

circumstantial evidence, the evidence indicating the guilt of

the accused becomes untrustworthy and unreliable, because

most often it is only the perpetrator of the crime alone, who

has knowledge of the circumstances that prompted him to

adopt a certain course of action, leading to the commission

of the crime. Therefore, if the evidence on record suggest

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sufficient/necessary motive to commit a crime, it may be

conceived that the accused has committed the same.

30. It is no doubt true that criminal law was set into

motion on receipt of a complaint by PW-8 / Shubha. But

her evidence is not corroborated with any other independent

witnesses in order to prove the guilt against the accused to

secure conviction for offences under Section 302 and
Section
of the IPC. Further, the learned Sessions Judge has

failed to take note of the fact that PW-21 / B.S. Manjunath

during his cross examination, has deposed that they went to

Mumbai to apprehend Accused Nos.1 and 2 via private

vehicle whereas PW-14 / Nataraj, S/o. Narayanaswamy has

deposed that they went through flight. The said

inconsistency goes to the root of the matter in the present

case on hand, since it is a very important piece of evidence.

PW-17 / Shri Lakshmi Balasubramaniam has admitted that

if there are identical twins, then the DNA profile will be the

same. Such being the case, the prosecution has failed to

conclusively establish the identity of the accused persons.

These facts have not at all been considered by the learned

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Sessions Judge. The learned Sessions Judge has failed to

take note of the fact that the prosecution has failed to

establish the alleged enmity between the deceased and the

accused persons. As such there was no motive for the

accused persons to commit the murder of the deceased.

Further, the prosecution has not recovered any

incriminating article at the instance of the appellants. When

such being the case, the impugned judgment and order of

conviction is unsustainable as against these appellants are

concerned.

31. DNA analysis of the blood sample of the parents of

the deceased proved that the dead body was that of the

deceased Sridhar. However, if there are identical twins, then

the DNA profile will be the same. Such being the case, the

Trial Court has failed to establish the identity of the

deceased person. Further, the mahazar witnesses cited by

the prosecution, have not completely supported the case of

the prosecution and there are material discrepancies even in

their evidence which go to the very root of the case of the

prosecution and as such the recovery of the article at the

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instance of the appellants would have no legs to stand.

Hence the impugned judgment and order of conviction and

sentence is unsustainable and the same is liable to be set-

aside. Therefore, in view of the aforesaid reasons and

findings, we are of the opinion that the impugned judgment

of conviction and order of sentence rendered by the Trial

Court suffers from infirmities and so also absurdities.

Consequently
,
the said judgment
requires intervention.

Accordingly, we proceed to pass the following:

ORDER

The appeal preferred by the appellants / accused

Nos.1 to 7 under
Section 374(2)
Cr.P.C. is hereby allowed.

Consequently, the judgment of conviction and order of

sentence dated 27.03.2017 rendered by the III Addl. District

& Sessions Judge, Bengaluru Rural District, Sitting at

Anekal in S.C.No.53/2010 is hereby set aside.

Consequently the appellants / Accused Nos.1 to 7 are

acquitted of the offences under
Sections 302
and
of the

IPC for which they were charged.

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Appellants / accused Nos.1 to 7 are on bail. Therefore,

the bail bonds if any executed by them, shall stand

cancelled.

If Appellants / Accused Nos.1 to 7 have deposited any

fine amount, the same shall be refunded to the respective

appellants, on due identification.

Sd/-

JUDGE

Sd/-

JUDGE

KS