Karnataka High Court

Harisha vs State Of Karnataka on 5 July, 2023

Author:
K.Somashekar

Bench:
K.Somashekar

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CRL.A No. 780 of 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF JULY, 2023

PRESENT

THE HON'BLE MR JUSTICE K.SOMASHEKAR

AND

THE HON'BLE MR JUSTICE RAJESH RAI K

CRIMINAL APPEAL NO. 780 OF 2017

BETWEEN:

HARISHA,
S/O GOVINDARAJU,
AGED ABOUT 26 YEARS,
R/AT BASAVANAHALLY VILLAGE,
HOLAVANAHALLY HOBLI,
KORATAGERE TALUK,
TUMKUR DISTRICT,
PIN CODE-572 121.
...APPELLANT

Digitally signed (BY SRI. M.SHASHIDHARA, ADVOCATE)
by VINUTHA M
Location: HIGH AND:
COURT OF
KARNATAKA STATE OF KARNATAKA,
BY KORATAGERE P.S.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING PREMISES,
BANGALORE-560 001.
...RESPONDENT

(BY SRI. H.S.SHANKAR, HCGP)

THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 28.02.2017
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CRL.A No. 780 of 2017

PASSED BY THE IV ADDL. DIST. AND S.J., MADHUGIRI IN
S.C.NO.5011/2015 - CONVICTED THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE P/U/S 302 OF
IPC
.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
K.SOMASHEKAR, J., DELIVERED THE FOLLOWING:

JUDGMENT

In this appeal challenging the judgment of conviction and

order of sentence rendered by the Court of the IV Additional

District and Sessions Judge, Madhugiri in S.C.No.5011/2015

dated 28.02.2017, wherein the trial Court held conviction of

accused No.1 for the offence punishable under
Section 302
of

IPC and directed to undergo imprisonment for life and

sentenced to pay a fine of Rs.30,000/- in default to pay fine

amount, he shall undergo rigorous imprisonment for a period of

three years for the offence punishable under
Section 302
of

IPC. However, the case against accused No.2 was ended in

acquittal.

2. Heard Sri.M.Shashidhara, learned counsel for the

appellant and so also Sri H.S.Shankar, learned HCGP for the

respondent-State and perused the judgment of conviction and

order of sentence passed in S.C.No.5011/2015 consisting the

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evidence of PW.1 to 39 and Exs.P1 to P52 inclusive of MO.1 to

MO.22.

3. The factual matrix of the appeal is as under:

It is transpired in the case of the prosecution that

accused No.1 namely Harisha S/o. Govindaraju sported a

grudge against the deceased Anjinappa, who is the husband of

CW.1 on the ground, he had some illicit intimacy with his wife

and the accused persons with an intention to eliminate the

deceased Anjinappa, called the deceased behind the Mylara

Lingeshwara Temple situated at Cheelaganahally, in the guise

of holding a party on 13.07.2014 at around 8.00 pm, wherein

the accused persons made him to consume excessive alcohol

and threw the boulder on the head of the deceased to eliminate

him.

4. In pursuance of the act of the accused, the

complainant filed the complaint and on the basis of the said

complaint, the criminal law was set into motion by recording

the FIR as per Ex.P43. Subsequently, the Investigating Officer

taken the case for investigation and thorough investigation has

been carried out and laid the charge sheet against the accused

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persons before the committal Court. Subsequently, the

committal Court passed an order under
Section 209
of Cr.P.C

and committed the case to the Court of Sessions for trial.

Subsequently, the accused has been secured to face the trial in

S.C.No.5011/2015. On hearing the learned Public Prosecutor

for the State and learned defence counsel for the accused in

respect of framing of charges against the accused, on prima

facie material found against them, the charges were framed

against the accused for the offence punishable under
Section
of IPC, wherein they declined the charges made against

them and claims to be tried.

5. Subsequent to framing of charges against the

accused, the prosecution let in evidence of PW.1 to PW.39 and

got marked Exs.P1 to P.52 inclusive of Mo.1 to Mo.22.

Subsequent to closure of the evidence on the part of the

prosecution, the accused were subjected to examination as

contemplated under
Section 313
of Cr.P.C. for incriminating

evidence adduced against them, whereby the accused denied

the truth of the evidence of the prosecution adduced so far.

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6. Subsequent to recording of incriminating statement

of the accused, wherein they have been called upon to enter

into the defence evidence as contemplated under
Section 233

of Cr.P.C., the accused did not come forward to adduce any

defence evidence on their parts.

7. Subsequent to closure of the entire evidence on the

part of the prosecution, the trial Court heard the arguments

advanced by the learned Public Prosecutor and the defence

counsel and assessed the evidence of the prosecution adduced

so far. The prosecution examined PW.4, who is said to be the

witness relating to the spot mahazar at Ex.P2 and also inquest

mahazar at Ex.P4 conducted by the Investigating Officer in the

presence of the aforesaid panch witness and this mahazar

relates to only correspondence the death as homicidal and the

deceased was eliminated by crushing with means of boulder

thrown on him. However, PW.26 in her evidence stated that

she is the sister of the deceased and the deceased has gone

along with the accused persons for having party. This version of

PW.26 corroborates with that of CW.2 and establishes strong

link in the case of the prosecution. Therefore, the trial Court

has come to the conclusion that the prosecution has proved the

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guilt against the accused with beyond all reasonable about.

Further, the trial Court taken into consideration the evidence of

PW.32, who being the FSL witness, stated in his evidence that

he has been assigned the duty to search the accused persons

along with CW.44 and during the course of the search of the

accused persons, they have apprehended accused No.1 from

his house and produced him before the Investigating Officer

and CW.44 has given a report as per Ex.P34. PW.36, being an

official witness, stated that he has been assigned the duty of

searching of the absconding accused persons along with CW.40

and during the course of the search of the absconding accused,

they have apprehended accused No.2 from Tumakuru bus

stand and produced him before the Investigating Officer and

gave the report as per Ex.P41. These are all the

correspondence only to trace the accused persons and to

produce before the investigating officer.

8. PW.37 is the scribe of Ex.P42 relating to spot

mahazar drawn in the presence by the Investigating officer and

also apprehended the accused persons, who showed the scene

of crime where the incident has taken place in terms of murder

of the deceased as per their voluntary statements and also

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stated that the scribe of Exs.P11 and P12-Seizure mahazar,

under which the motor cycle and the blood stained cloths of the

accused were seized by the Investigating Officer. PW.39, being

an Investigating Officer, conducted the entire investigation and

wherein, he has stated in his evidence relating to drew of the

mahazar and also conducting mahazar in the presence of the

panch witnesses. But the important aspect relating to

circumstances of motive of accused No.1 to commit the crime

as alleged has not been established. PW.39, who is none other

than the Investigating Officers and wherein after completion of

the entire investigation, laid the charge sheet against the

accused persons and whereby, the accused was facing trial for

the heinous offence under
Section 302
of IPC. However, the

trial Court has taken into consideration of the entire evidence

let in by the prosecution despite of several witnesses have been

given in go by to the versions of their statements. Ex.P37 is the

post mortem report, Ex.P38 is the FSL report, Ex.P39 is the

report received by PW.35 and inclusive of Ex.P42- spot

mahazar shown by the accused. The voluntary statements of

accused Nos.1 and 2 were recorded as per Exs.P46 and P47

and based upon their voluntary statements, the Investigating

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Officer has taken up the case for investigation and also drew

the mahazar and subjected in P.F.No.108/2014 and

P.F.No.109/2014 which marked at Exs.P50 and P51. The

material objects i.e., MO.1-cycle, MOs.6 and 7-two Whisky

bottles, MO.11-Switch box, MO.12-Sigarette packet, MO.18-

Shirt of accused No.2, MO.19-pant of accused No.2, MO.20-

shirt belongs to accused No.1, MO.21-pant belongs to accused

No.1 and MO.22-Motor cycle said to have been used by the

accused persons were seized and also got marked on the part

of the prosecution. However, the trial Court assessed the entire

evidence on the part of the prosecution and arrived at the

conclusion that the prosecution has proved the guilt against the

accused. Accordingly, rendered conviction against the accused

No.1 for the offence punishable under
Section 302
of IPC,

which is incorporated in the operative portion of the order and

acquitted accused No.2 namely Anantharaju S/o

Siddagangaiah. Whereas, under this appeal, accused No.1 is

challenging the judgment of conviction and order of sentence

rendered by the trial Court against him.

9. It is contended by the learned counsel for the

appellant by referring the evidence of PW.21 that PW.21 has

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stated in his evidence that he did not know the motive factor

for committing the murder of the deceased. But the trial Court

taking into consideration the voluntary statement of the

accused No.1, which marked at Ex.P.46. In the impugned

judgment, the trial Court has specifically stated as per Ex.P46,

the voluntary statement of accused No.1 and the prosecution

theory, it was accused No.1 who threw the stone-MO.4 on the

head part of drunken deceased several times, resulting in

crushing injuries caused on the vital part of the head. Once

again act of accused No.1 is established. This is the way the

trial Court appreciated the evidence to arrive at the conclusion

that the prosecution has proved the guilt against the accused

with beyond all reasonable doubt.

10. In so far as
Section 27
of the Indian Evidence Act,

1872 relating to how much of information have been received

and to what extent, the information said to have been proved

by the prosecution against the accused persons, the trial Court

failed to understand the position of law relating to
Section 27
of

the Indian Evidence Act, 1872 and more so, committed serious

error while appreciating the evidence on hand and so also role

of accused No.1 and accused No.2. Though accused No.1 was

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subjected to cross-examination, nothing has been explained in

respect of contents of Ex.P11 in his incriminating statement

recorded under Section 313 of Cr.C.P. The trial Court framed

four questions relating to the evidence of PW.1, PW.3 and

PW.20, who are the non-official witnesses in the case and the

accused has answered all the questions and declined the truth

of evidence of the prosecution adduced so far. But, the trial

Court has not properly appreciated the evidence and also the

scope of
Section 313
of Cr.P.C. and absolutely failed to

appreciate the case on hand in a proper perspective. On this

premise alone, it requires intervention and seeks to set aside

the conviction judgment rendered by the trial Court against

accused No.1.

11. The second limb of the argument advanced keeping

in view the evidence of PW.30-Kiran Kumar, the photographer.

Nothing worthwhile has been elicited from PW.30 by the

prosecution, even though he has been subjected to cross-

examination. Subsequently, he was treated as hostile. The

prosecution even failed to prove the contents at Exs.P13 to

P15. In spite of which, the trial Court erroneously appreciated

the evidence and rendered the conviction judgment against

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accused No.1. But the case against accused No.2 was ended in

acquittal even though the role of accused Nos.1 and 2 founds to

be similar.

12. The last limb of the argument advanced is that

though the prosecution let in several witnessed by subjecting

them to examination, collected plethora of materials inclusive

of the charge sheet, no witnesses come forwarded to adduce

the evidence relating to charges made against the accused

persons. But the entire investigation carried by the

investigating authorities is nothing but the preparatory

investigation. Therefore, in this appeal, it requires intervention

and re-appreciation of the evidence and so also re-visiting the

impugned judgment of conviction and order of sentence

rendered against accused No.1 namely Harisha, if not

intervened, certainly the accused will be the sufferer and also

causing miscarriage of justice would occur.

13. The prosecution has miserably failed to establish

the guilt against the accused regarding his involvement in the

commission of the offence. The trial Court, without appreciating

the evidence on record, rendered conviction judgment against

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accused No.1. Therefore, it requires for consideration of the

grounds urged in this appeal akin to that evidence and also to

concentration on the exhibited documents which are marked on

the part of the prosecution. But the trial Court has seriously

erred in brushing aside the material omissions i.e., the material

which has secured by the Investigating Officer during the

course of the investigation including the charge sheet.

Therefore, in this appeal, it requires intervention relating to

re-appreciation of the evidence and also revisiting the

impugned judgment of conviction and order of sentence

rendered by the trial Court. On this premise, the learned

counsel prays for allowing the appeal and setting aside the

judgment of conviction and order of sentence rendered by the

trial Court in S.C.No.5011/2015 dated 28.02.2017.

Consequently, acquit accused No.1 for the offence punishable

under
Section 302
of IPC.

14. On controverted to the arguments advanced by the

learned counsel for the appellant, Sri H.S.Shankar, learned

HCGP taken us through the evidence let in by the prosecution

mainly, commission of the offence on 13.07.2014 and accused

Nos.1 and 2 said to be apprehended by the Investigating

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Agency on 18.07.2014. The accused persons committed the

murder of the deceased-Anjanappa, who is the husband of

CW.1 on the ground that he had some illicit intimacy with the

wife of accused No.1. The accused took the deceased in his

motor cycle Mylara Lingeshwara Temple situated at

Cheelaganahall in the guise of holding the party among them.

Accordingly, on 13.07.2014 at around 8.00 p.m., the accused

persons made the deceased to consume excessive alcohol and

threw the boulder on the head of the deceased. As a resultant,

he sustained injuries and lost his breath at the spot itself.

These are all the evidence let in by the prosecution and more

so the post-mortem at Ex.P37 indicating the injuries inflicted

over the person of the deceased, Ex.P38-the FSL report and

Ex.P40-sketch relating to the scene of crime drawn by the

concerned Authority, where the accused committed the murder

of the deceased. Ex.P42-the spot mahazar, which shown by the

accused and drawn by the Investigation Officer. Exs.P5, P6, P7

and P8 are the statement of PW.6 to PW.9 respectively relating

to the inquest proceedings held over the dead body and Ex.P9-

seizure mahazar dated 14.07.2014. Ex.P12-another seizure

mahazar drawn by the Investigation Officer in the presence of

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the panch witnesses. These are all the mahazars have been

conducted by the Investigation Officer and also secured the

materials during the course of the investigation and so also

recorded the voluntary statements of accused Nos.1 and 2 as

per Exs.P46 and Ex.P47 and two photographs at Ex.P48 and

Ex.P49. These are all the evidence finds place on the part of the

prosecution to prove the guilt against the accused persons. But

mere because several witnesses have been turned around to

their statements, it cannot be said that the entire case of the

prosecution has to be thrown out. However, the evidence of

PW.3-Siddaraju and PW.31-Dilip has been appreciated by the

trial Court while rendering the conviction judgment. Whereas

PW.39, being the Investigation Officer, laid the charge sheet

against the accused after completion of the entire investigation

done by him thoroughly and the same has been appreciated by

the trial court while rendering the conviction judgment for the

offence punishable under
Section 302
of IPC insofar as accused

No.1. But the case against accused No.2 was ended in

acquittal. Mere because, accused No.2 was acquitted, it cannot

be the ground otherwise justifiable reason to seek intervention

in the impugned judgment of conviction and order of sentence

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and to acquit accused No.1. On this premise, the learned HCGP

for State seeks dismissal of this appeal even on merits as this

accused has committed the murder of the deceased by

dropping the stone boulder on the vital part of the head and

caused some injuries which indicates in the post-mortem report

issued by the doctor, who conducted autopsy over the dead

body.

15. It is in this background of the contention made by

the learned counsel for the appellant and so also the learned

HCGP for the State, the evidence of prosecution witnesses very

much required to arrive at a proper conclusion. This appeal is

nothing but continuity of the proceedings and more so, it

requires re-appreciation of the evidence relating to marking of

the documents and also role of each one of the accused.

Whereas, accused No.1 sported a grudge against the deceased-

Anjinappa, who is the husband of CW.1, on the ground that the

deceased had some illicit intimacy with his wife. Therefore,

accused No.1 had conspiracy to eliminate the deceased to clear

their way out. Accordingly, on 13.07.2014 at around 8.00 p.m.,

the accused took the deceased to hold a party and made him to

consume excessive alcohol and thereafter, the accused persons

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dropped the stone boulder on the head part of the deceased

and as a resultant, he lost his breath.

16. PW.1, who is the complainant and also the author

of the complaint and based upon her complaint, the criminal

law was set into emotion. No doubt, she is not an eye

witnesses to the incident narrating in her complaint, but she

known about the illicit relationship of the wife of accused No.1

with her husband, who is the deceased. Thus, she has stated in

her evidence that the incident took place in the night of

14.07.2014, it is hereby clarified as in between 13.07.2014 and

14.07.2014. As per the theory of the prosecution, the

complainant's husband was murder by the accused persons and

it is the domain vested with the prosecution to establish the

guilt against the accused by facilitating the worthwhile evidence

inclusive of cogent, corroborative and so also acceptable

evidence that the accused persons have committed the murder

of the deceased as narrated in the complaint made by PW.1

before the Investigating Agency. However, PW.1 deposed that

she has not seen the deceased accompanying with the accused

persons behind the Mylara Lingeshwara Temple, but she has

categorically stated in her evidence that the deceased told her

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that he was proceeding with the accused persons to that places

to hold some party. It is clear that she has seen the deceased

alive lost when he had told her that he would be in the

company of the accused persons in order to holding a party on

13.07.2014 at 8.00 p.m. But for the offence under
Section 302

of IPC, it is the domain vested with the prosecution to prove

the guilt against the accused by facilitating the worthwhile

evidence and also the motive factors and so also the intention

of the accused to eliminate the deceased. But the prosecution

has let in evidence by subjecting several witnesses and the

major witnesses, who have been examined, turned around and

no witnesses come forwarded to adduce the evidence in order

to secure the conviction for the offence under
Section 302
of

IPC. But strangely, the case against accused No.2 was ended in

acquittal of the offence under
Section 302
of IPC even though

accused Nos.1 and 2 were facing trial for the same offences

and the evidence has been let in by the prosecution in order to

prove the guilt against the accused. Even PW.1 had been

subjected to examination on the part of the prosecution, her

evidence has not been finds place to corroborate with any other

strong evidence to prove that the accused persons have

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committed the murder of the deceased. Accused No.2, who is

the cousin of CW.1, does not want his cousin to become widow

by killing the deceased. In fact, no one has spoken about his

motive or any act as finds place in the theory of the

prosecution. PW.1 has stated in her evidence about the murder

of her husband. One Prabhu S/o Ventakaswamy was cited as

CW.2. PW.2-One Dasakka was cited as CW.3 and in her

evidence, she has deposed that she has not seen the dead

body of the deceased. CW.4, who cited as a witness, went to

the house and passed on the message to CW.1 about the death

of her husband. These are all the witnesses examined on the

part of prosecution, but there is no corroborative evidence or

any strong evidence let in by the prosecution to prove the guilt

against the accused to secure conviction for the offence under

Section 302
of IPC.

17. PW.5 said to have been examined relating to the

inquest proceedings held over the dead body of the deceased

which marked as Ex.P4. Though this witness has turned around

to the contents made in the inquest proceedings, subsequent to

treated as a hostile, this witness has been examined on the

part of prosecution and nothing worthwhile has been elicited to

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believe the version of the prosecution to arrive at a proper

conclusion.

18. As at a cursory glance of the entire evidence which

has let in by the prosecution i.e., PW.13 to PW.29, it is clear

that they did not support the case of the prosecution.

Consequently, the contradictory statements at Exs.P16 to P30,

P33, P35 and P36 have been got marked. However, their

evidence are contradictory to the contents made in Ex.P1 i.e.,

the complaint inclusive of the contents made in spot mahazar

of Ex.P2 and seizure mahazars at Exs.P9 and P12. These are all

the mahazars said to have been conducted by the Investigation

Officer during the course of the investigation.

19. Keeping in view the evidence of prosecution

witnesses and so also the contention made by the learned

counsel for the appellant and even counter argument advanced

by the learned HCGP for the State relating to the conviction

judgment of accused No.1 which has been challenged under

these appeals are concerned, it is relevant to refer the

judgment rendered by the Hon'ble Supreme Court of India in a

case of Lalit Kumar Sharma and others vs.

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Superintendent and Remembrances of Legal Affairs,

Government of West Bengal reported in AIR 1989 SC 2134

whereas in this judgment, the Hon'ble Supreme Court has

addressed the scope and also issue relating to the power of an

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.

20. Even though similar offences are lugged against the

accused persons, the trial Court acquitted accused No.2 and

convicted accused No.1 for the offence under
Section 302
of

IPC. However, the domain vested with the prosecution to prove

the guilt against the accused by facilitating the worthwhile

evidence, cogent, consistent and corroborative evidence. But in

the instant case, there is clouds of doubt and the same does

not repose confident to arrive at the conclusion. Therefore, it is

appropriate to refer the provision of
Section 134
of the Indian

Evidence Act, 1872 wherein the plurality of witness concept has

been referred. But, in the matter of appreciation of the

evidence, it is not the number of witnesses but quality of their

evidence which is important, as there is no requirement in law

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of evidence that any particular number of witnesses is to be

examined to prove/disprove a fact. It is time honoured

principle, that the evidence must be weighed and not counted.

The test is whether the evidence has a ring of truth, is cogent,

credible and trustworthy or otherwise. The legal system has

laid emphasis on value provided by each witnesses, rather than

the multiplicity or plurality of witnesses. It is quality and not

quantity, which determines the adequacy of evidence as has

been provided under
Section 134
of the Evidence Act. This

scope of the said provision has been in greater extent

addressed by the Hon'ble Supreme Court in the case of

Laxmibai (Dead) through LRs. vs. Bhagwanthbura

(Dead) through LRs. reported in AIR 2013 SC 1204.

21. It is the domain vested with the prosecution

relating to requirement of acceptable evidence and the number

of evidence does not arise. The law of evidence does not

require any particular number of witnesses to be examined in

proof of a given fact. However, faced with the testimony of the

single witness, the court may classify the oral testimony of a

single witness, the court may classify the oral testimony in to

three categories namely (i) wholly reliable, (ii) wholly

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unreliable, and (iii) neither wholly reliable nor wholly unreliable.

In the first two categories there may be no difficulty in

accepting or discarding the testimony of the single witness. The

difficulty arises in the third category of cases. The court has to

be circumspect and has to look for corroboration in material

particulars by reliable testimony, direct of circumstantial before

acting upon testimony of single witness. This issue was in

greater extent addressed by the Hon'ble Supreme Court of

India in the case of
Lallu Manjhi vs. State of Jharkhand

reported in AIR 2003 SC 854.

22. In the instant case, it requires to refer
Section 3
of

the Indian Evidence Act, 1872 relating to the scope of (i)

"proved". - A fact is said to be proved when, after considering

the matters before it, the Court either believe 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 and (ii) "Disproved". - A fact is said to

be disproved when, after considering the matters before it, the

Court either believes that it does not exist, or considers its non-

existence so probable that a prudent man ought, under the

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circumstances of the particular case, to act upon the

supposition that it does not exist.

23. In the instant case, even though last seen theory

requires corroboration, the accused persons cannot be

convicted solely on the evidence of even last seen theory

together with the deceased. But in instant case, the prosecution

was failed to establish the guilt against the accused even the

last seen theory. It was addressed by the Hon'ble Supreme

Court of India in a case of
Navaneethakrishnan vs. The

State
by inspector of Police reported in AIR 2018 SC 2027.

24. In totality of the circumstances of the entire case

and so also role of accused No.1 wherein alleged to committed

the murder of the deceased by securing him to attend party, it

was depicted in the complaint and even it was clearly depicted

in the theory of the prosecution as well as the material which

has been secured by the Investigation Officer during the course

of the investigation. But the motive factor thereby meaning of

motive is a thing which is primarily known to the accused

themselves and it is not possible for the prosecution to explain

what actually prompted or excited them to commit the

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particular crime. This factor was also decided by the Hon'ble

Supreme Court of India in a greater extend by rendering a

judgment of
Bipin Kumar Mondal v. State of West Bengal

reported in AIR 2010 SC 3638. Motive in a circumstantial

evidence - 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 into adopt a certain course of acts, leading to the

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

suggest sufficient/necessary motive to commit the crime. It

may be conceived that the accused has committed the same. It

is the domain vested with the prosecution to proven the guilt

against the accused in all material ingredients and also the

ingredients of the offences under
Section 302
of IPC 1860.

But

is relevant to refer the judgment of
Sampath Kumar vs.

Inspector of Police, Krishnagiri
reported in AIR 2012 SCC

1249 wherein, it held that, motive may be an important

circumstance in a case based on circumstantial evidence but

cannot take the place of conclusive proof.

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CRL.A No. 780 of 2017

25. As far as the instant case, it requires to be

attending when motive is not sine qua non where the ocular

evidence is a very clear and convince and the role of the

accused persons in the crime stands clearly established.

Establishment of motive is not a sine qua non for proving the

prosecution case. It issue was extensively addressed by the

Hon'ble Supreme Court of India in the case of Yunis alias

Kariya Vs. State of M.P.
reported the AIR 2003 SCC 539.

26. These are all the reliances rendered by the Hon'ble

Supreme Court of India. Despite of which, the trial Court had

rendered the conviction judgment for the offence punishable

under
Section 302
of IPC in so far as accused No.1. But, insofar

as accused No.2 is concerned, the case was ended in acquittal.

But the role of accused No.1 and accused No.2 is concerned,

the evidence has to be independently assessed. But the case

against the co-accused No.2 was ended in acquittal even

though, he was facing trial along with accused No.1. The

prosecution was failed to establish the guilt against accused

No.2 and consequently, the similar benefit shall be extended to

accused No.1.

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CRL.A No. 780 of 2017

27. As at the cursory glance of the entire evidence,

which are facilitated by the prosecution in toto and also in

totality of the case, as a prudent man can be inferred. But in

the instant case, we have assessed the evidence in entirety and

come to the conclusion that the trial Court has not appreciated

the evidence in a proper perspective and misdirected the

evidence. Therefore, in this appeal it requires re-appreciation of

the evidence and also revisiting the impugned judgment of

conviction rendered against accused No.1. Therefore, in the

instant case, considering that the grounds urged by the learned

counsel for the appellant are having some substances, we are

of the opinion to interfere with the impugned judgment of

conviction rendered by the trial Court against accused No.1

requires interference. In view of the aforesaid reasons and

findings, we are of opinion that accused No.1 deserves to be

acquittal. Consequently, the appeal requires to be allowed even

on merits.

28. Accordingly, we have to proceed to pass the

following:

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CRL.A No. 780 of 2017

ORDER

i. The appeal preferred by the appellant/accused
No.1 under
Section 374(2)
of Cr.P.C. is hereby
allowed.

ii. Consequently, the judgment of conviction and
order of sentence rendered by the trial Court in
S.C.No.5011/2015 dated 28.02.2017, in
respect of accused No.1 namely Harisha S/o
Govindaraju, is hereby setting aside.

iii. Consequent upon setting aside the judgment of
conviction stated supra, the appellant/accused
i.e., Harisha S/o Govindaraju, is hereby
acquitted for the offences punishable under

Sections 302
of IPC, 1860.

iv. The appellant/accused No.1, who is the
appellant herein, is on bail. Therefore, if any
bail bond has been executed by the aforesaid
accused, the same shall stand cancel.

v. If the appellant/accused No.1 has deposited
any fine amount, the same shall be ordered to
be refunded to him on due identification.

Sd/-

JUDGE

Sd/-

JUDGE
VM

List No.: 1 Sl No.: 8