IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No. 205 OF 2016 BETWEEN:
Sri. K. Kumar, S/o. Madhava, Aged about 33 years, Resident of Bagilmari Temple Road, Mallenahalli Post, Chikkamagalur Taluk & District – 577 101.
(By Sri.N.R. Krishnappa, Advocate) AND:
The State by Rural Police, Chikkamagalur, Represented by SPP, High Court Building, Bangalore- 560 001.
(By Sri. I.S. Pramod Chandra, SPP-II) …Appellant …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction dated 15-12-2015 and order of sentence dated 16-12-2015 passed by the II Additional Sessions Judge at Chikkamagaluru in Sessions Case No.84/2014, convicting the appellant/accused for the offence punishable under Section 302 of IPC and to acquit him of the said offence.
This Criminal Appeal coming on for Final Hearing this day, Dr.H.B. PRABHAKARA SASTRY, J., delivered the following:
J U D G M E N T The present appellant who was accused in the Court of the II Additional Sessions Judge at Chikkamagaluru (hereinafter referred to as “Trial Court” for brevity) in a judgment dated 15-12-2015 passed in Sessions Case No.84/2014 has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity) and was sentenced accordingly.
2. Challenging the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal seeking his acquittal from the aforesaid offence.
3. The summary of the case of the prosecution is that, on 14-04-2014, one Sri. John Pais (PW-1) lodged a written complaint before the respondent – Police, the summary of which is that on the same day, he received a telephone call from one Sri. Mosas Suresh (PW-3) stating to him that K.F. John S/o. Francis was found dead in his house. Based on the said information, the complainant visited the said house only to see that said K.F. John S/o. Francis was found dead in a room near a cot. He also noticed the blood stains in the said room. The said complaint was registered in U.D.R.No.29/2014 under Section 174(c) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for brevity).
On 28-04-2014, the complainant Sri. John Pais (PW-1) again appeared before the respondent - Police and gave a re-statement, summary of which is that the amount belonging to deceased K.F.John, one K.Kumar and Kunchuru Kumar was with the deceased K.F. John. The said K. Kumar and Kunchuru Kumar demanded their share of money in it. K.F. John went on dodging the matter. People were talking that, in that connection, the accused K. Kumar had been to the house of said K.F. John and quarrelled with him with respect to sharing of money and caused his murder. Based on the said re- statement, PW-10, the Police Sub-Inspector of the Respondent - Police enquired with Kunchuru Kumar, who also gave the statement on line with the re-statement of the complainant. Subsequently, based on the Post- Mortem report issued by the Doctor, being convinced that the complaint registered under U.D.R. is in fact complaint with respect to murder of deceased K.F. John, the said Police Sub-Inspector suo motu, as a complainant registered a case in their Station Crime No.215/2014 for the offence punishable under Section 302 of IPC.
4. During the course of investigation, it was revealed to the Investigating Officer that PW-6, Kandaswamy, the archaka of Subramanya Temple, in order to go to his native place to attend a marriage entrusted the task of watching his house and temple to the present appellant – K. Kumar and deceased – K.F. John who were asked to sleep in the temple and the house during night time. One Sri. Udaya Kumar @ Kunchuru Kumar (PW-8) also accompanied these two persons in the task of watching the temple and the house of PW6-Kandaswamy.
5. On return from his native place, PW-6 - Kandaswamy paid a sum of `750/- to the deceased as consideration for watching his house and temple. The appellant/accused wanted a share in the said amount which John did not pay to him. That being the case, on 12-04-2014, at about 10:00 p.m. the accused after consuming alcohol went to the house of John with an intention to kill him since he had not paid his share in the amount. Seeing John sleeping in his house, the accused got the door opened by waking him up and assaulted the deceased with a wooden reaper since he refused to share the money with him. Due to the said assault, the deceased sustained injuries and succumbed to it.
6. After completing investigation, the Police filed a charge sheet against the accused for the offence punishable under Section 302 of IPC. Since the accused pleaded not guilty, the trial was held, wherein the prosecution in order to prove the alleged guilt against the accused, examined PW-1 to PW-12, got marked documents from Exs.P1 to P23 and Material Objects from MO-1 to MO-6.
Neither any witnesses were examined nor any documents were marked on behalf of the accused.
7. Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments from both side and perused the materials placed before this Court.
9. The learned counsel for the appellant/accused in his argument vehemently submitted that admittedly there are no eye witnesses to the incident and the entire case of the prosecution is based on the circumstantial evidence which is only the alleged recovery said to have been made at the instance of the accused.
Learned counsel for the appellant further submitted that absolutely there is no evidence to establish a nexus between the alleged recovery said to have been made at the instance of the accused and the alleged incident. There is also no evidence to show that the alleged reaper at MO-5 was used in the commission of the crime. So also, there is no evidence to believe that the alleged Cell Phone at MO-4 was belonging to the accused. As such, though there was no material to prove the alleged guilt against the accused, the Trial Court merely believing the evidence of the Investigating Officer and without appreciating the evidence placed before it has erroneously convicted the accused for the alleged offence punishable under Section 302 of IPC.
10. Learned State Public Prosecutor-II in his arguments submitted that, it is not in dispute that the accused and the deceased were engaged for watching the Temple and house of PW-6 for doing which work, PW-6 had paid the deceased a consideration of `750/- to share it with the accused. It is also not in dispute that the deceased has not shared the said amount with the accused which made the accused to go to the house of the deceased on the alleged night and in the altercation, he has caused the murder of the deceased by hitting on his head with MO-5 – wooden reaper.
Learned SPP-II further submitted that, the recovery of wooden reaper is supported by the evidence of PW-5 and PW-6 and there are evidence to show that the said reaper can cause the injury which was found on the deceased. Therefore, the evidence of the prosecution witnesses including the Investigating Officer has been rightly appreciated by the Trial Court which has pronounced the judgment of conviction.
11. Among the twelve witnesses examined by the prosecution, PW-1 - John Pais has reiterated what he has stated in his complaint to the Police at Ex.P1. He has stated that on 14-04-2014, based on the telephonic information given to him by PW-3, Mosas Suresh that the deceased John was found dead, he went to the house of the deceased at 3:30 p.m. and found the dead body of the deceased near a cot and the stains of the blood in the place. Noticing the same, he lodged a complaint with the Police as per Ex.P1 after which the Police visited the spot and drew a scene of offence panchanama as per Ex.P2. He has also stated that, the Police collected the samples of the blood stained cotton swabs and also two screws from the spot which this witness has identified at Mo-1 to MO-3. The witness has further stated that the Police conducted an inquest panchanama in his presence as per Ex.P-3.
PW-1 further stated that on 28-04-2014, he has given a further statement before the Police stating that he came to know that the accused had a quarrel with the deceased regarding the share in the amount received by John for watching the temple and house of PW-6. It is in that connection, the accused had assaulted the deceased. The witness has identified the accused in the Court and also identifying a Cell Phone at MO-4 has stated that, the same was being used by deceased John.
12. PW-2 has only stated that his signature on the inquest panchanama was taken in the mortuary of the Government Hospital, Chikkamagaluru.
13. PW-3 - Mosas Suresh has stated that he knows the deceased who was his neighbour. On 14-04-2014, between 11:30 a.m. and 12:00 noon, when he visited the house of said John, he noticed that the door of the house was opened and there was no response for he calling the name of John, as such, he entered the house and noticed that, John was found dead in his bed room next to the cot. There were blood stains in that place. Immediately he informed PW-1 John Pais over phone. The said John Pais came to the spot and lodged a complaint to the Police.
The witness has further stated that in the same evening, the Police came to the spot and drew the scene of offence panchanama as per Ex.P2 and recovered MO-1 to MO-3 from the spot. He has also stated that subsequently, he came to know that since the deceased refused to share the amount received by him with the accused, he was assaulted by the accused which resulted in the death of the deceased.
The witness has also identified two photographs at Exs.P5 and P6 stating that the same were taken by the Police at the time of drawing the inquest panchanama.
14. PW-4 has stated that on 14-04-2014, on hearing the death of deceased through PW-3 Mosas Suresh, he went to the house of the deceased at which time, the Police also came there and drew a scene of offence panchanama as per Ex.P2. The witness has identified the said panchanama at MO-1 to MO-3 and also the photographs at Exs.P5 and P6.
He has further stated that he also has subscribed his signature to the inquest panchanama at Ex.P3 which was drawn in Mortuary.
15. PW-5 – K. Raju after identifying the mahazar at Ex.P8 and his signature therein has stated that, he has put his signature near the house of John where the Police had brought the accused there. The accused went inside the said house and took out a wooden reaper and produced it. Stating that with the same reaper piece, the accused assaulted the deceased and caused his death, he has identified the said reaper piece at MO-5 and the photograph said to have been taken in the spot at Ex.P9.
16. PW-6 - Kandaswamy has stated that he is the priest/archaka of Subramanya Temple at Kumaragiri and he knows the deceased John. On 14-02-2014, since he had to go to attend the marriage function along with the family to Davanagere, he had entrusted the work of watching the temple and his house to deceased John, as such, the deceased had done the said job during the said period, towards the same, he paid to the deceased John a sum of `750/-.
The witness has further stated that while he was paying the said money to John, he was told by John that along with him, one Kumar (accused) and also one Kunchuru Kumar (PW-8) had also joined him in keeping a watch on the temple.
The witness has further stated that on 28-04-2014, the Police had brought the accused near the house of the deceased where at, the accused had produced a reaper piece and stated that it was with the same reaper piece that he caused the death of the deceased by assaulting him. The witness has identified the said reaper piece at MO-5 and the panchanama drawn at that time at Ex.P8.
17. PW-7 – Liyo Lasrado stating that he has subscribed his signature to Ex.P10 on 29-04-2014 near the house of the accused has given the details that, when he had been to the said place, in his presence, the accused took out a Mobile phone from an iron box which was kept below the cot in his house. The said Mobile phone belonged to deceased John. At that time, the Police took a photograph which this witness has identified as Ex.P11. He has identified the said Mobile phone as that of ‘Nokia’ make and identified it at MO-4.
18. PW-8 – Udaya Kumar @ Kunchuru Kumar has stated that while keeping a watch on the house and the temple, he too had joined deceased John and the accused and all the three of them had kept a watch on the temple and the house of Kandaswamy for about five days towards which Kandaswamy after his return from his native had paid a sum of `750/- to deceased John.
However, deceased John had failed to share the said amount with him as well as with the accused.
The witness has further stated that in the month of April on previous day to the fair at their place, the accused after consuming liquor had approached John, demanding their share in the amount received by him from Kandaswamy. However, he (PW-8) refused to join him on that night. Next day morning, while coming near the temple, he noticed the accused sleeping there and on waking him up, he demanded `30/- from him, but when he said ‘no’, the accused went away.
The witness has also stated that it is thereafter he came to know about the death of John. Though he was initially not aware as to how John died, subsequently he came to know that it was accused who murdered him since the deceased had refused to share the money with him.
19. PW-9 – T.B. Shivakumar Naika, a Police Constable of Rural Police Station has spoken about he carrying the FIR from his Station and submitting it to the Residence of the Judge which FIR this witness has identified at Ex.P12.
20. PW-10 – Madhu P.B., the then Police Sub- Inspector of Lakkavalli Police Station has stated that he received the complaint given by PW-1 on 14-04-2014 as per Ex.P1 and registered the same in their Station U.D.R.No.29/2014 under Section 174(c) of Cr.P.C. On the same day, he visited the scene of offence and drew a panchanama as per Ex.P2 and there under seized articles which are identified at MO-1, MO-2 and MO-3.
He has further stated that on 15-04-2014, he drew inquest panchanama in the presence of panchas on the dead body of the deceased John as per Ex.P3 and recorded the statements of few witnesses. He got the Post-Mortem examination of the dead body done and after collecting the articles handed over by the Doctor which were found on the deceased, he sent the articles for their chemical examination to the Regional Forensic Science Laboratory at Mangaluru.
The witness has further stated that on 29-04-2014, the complainant appeared before him and gave his further statement as per Ex.P4 wherein he has stated that, with respect to a money dispute of a sum of `700/-, the accused and deceased had some difference of opinion, in which connection, he has some doubt about him.
Therefore, based on the said further statement, this witness has prepared a suo-motu report at Ex.P15 and registered a crime for the offence punishable under Section 302 of IPC as per Ex.P12 and submitted it to the Court. Thereafter he handed over further investigation to CW-21.
21. PW-11 - Dr. Nagaraj H.G. has spoken about he conducting Post-Mortem examination on the dead body of deceased John in the mortuary of M.G. Hospital, Chikkamagaluru on 15-04-2014 and noticing a contusion on the right side of the forehead measuring 3.5.cms. x 1 cm. with blood clot on it. He also noticed the extra- dural haematoma in right frontal region of skull and subdural haematoma in right parietal region of skull corresponding to the external injury. He collected the viscera and handed it over to the respondent Police for its further chemical examination. Reserving the opinion as to the death of the deceased for want of Forensic Science Laboratory report, he has issued a Post-Mortem examination report as per Ex.P19.
The witness has further stated that, when the Police along with Forensic Science Laboratory report gave him a submission on 22-07-2014, requesting his opinion with respect to a wooden piece, he gave his opinion on 11-08-2014 stating that the cause of death of deceased K.F. John is due to shock and haemorrhage as a result of head injury. He has also opined that the death may be possible by hitting by a hard wooden piece. The witness has identified his final opinion given to the respondent - Police at Ex.P20.
He has also identified the wooden reaper at MO-5 as the wooden piece that was shown to him for his examination and opinion.
22. PW-12 - G. Krishnaraju, the then Circle Inspector of Police of Chikkamagaluru City Circle has stated that after taking up further investigation in this matter on 29-04-2014, he continued the investigation and accused was produced before him. He interrogated the accused and recorded his voluntary statement.
This witness has stated that the accused stated in his voluntary statement that he would show the reaper with which he has assaulted the deceased and also the Cell Phone taken by him. The witness has identified the voluntary statement at Ex.P21.
He has further stated that based upon the voluntary statement, the accused took him and the panchas to the house of the deceased at Mallenahalli in Kumaragiri and after getting the door of the said house opened through one Raju, and took them inside the house and to the bedroom-cum-hall of the house and showed the spot of commission of the offence where he assaulted on the head of the deceased and from a urea bag kept nearby, the accused took out a wooden reaper from which he hit the head of the deceased and produced it, based on which, the witness has drawn the seizure panchanama as per Ex.P8. Photograph was also taken at that point of time which the witness has identified at Ex.P9.
The witness has further stated that thereafter the accused led them to his house near Bagilu Mariamma Temple at Mallenahalli and produced a Cell Phone (Mobile phone) which was brought from inside of his house from out of an iron box (steel trunk) stating that on the day he caused the death of deceased John, he had taken that Cell Phone which was lying with the deceased.
The witness drew a seizure panchanama as per Ex.P10 in the presence of panchas and the photograph said to have been taken at that place at Ex.P11. The witness has identified the Cell Phone and the wooden reaper at MO-4 and MO-5 in the Court.
Further stating that the said Cell Phone had also contained a SIM card in it, the witness has identified the said SIM card at MO-6. He also stated that through the Superintendent of Police, he collected the CDR details and also in whose name, the SIM stands and came to know that the SIM card seized by him was standing in the name of deceased John. In that regard, he also collected a copy of the application applied by deceased for pre-paid cellular connection, which he has identified at Ex.P22.
The witness further stated that on 22-06-2014, he received Forensic Science Laboratory report and Serology report as per Exs.P16 and P18 respectively and also recorded the statement of few more witnesses. Subsequently, during the course of investigation, he also collected a copy of assessment of the house as per Ex.P7 and collected CD of the photographs which he has identified at Ex.P23. Completing the investigation, he filed charge sheet on 23-07-2014. He has also obtained the final opinion regarding the cause of death of deceased from the Doctor.
The denial suggestions made to him in his cross- examination were not admitted as true by this witness.
23. From the above analysis of the evidence of the parties, more particularly PW-6, it is clear that deceased John was requested by him to keep a watch on his house and temple when he was said to have been away from the station for few days from 09-02-2014 to 14-02-2014. The evidence of PW-6 and PW-8 also goes to show that the said act of keeping a watch on the house of PW-6, Kandaswamy was done not by the deceased alone but even by the accused – Kumar as well as PW-8 – Kunchuru Kumar. It is also undisputed from the evidence of these witnesses that PW-6 after his return from Davanagere had paid a sum of `750/- to the deceased as consideration to the deceased for having kept a watch on his house and the temple during his absence. Thus, the acquaintances of the deceased with the accused and joined by PW-8 - Kunchuru Kumar in keeping a watch on the temple and the house of Kandaswamy during his absence for few days and said Kandaswamy paying a consideration of `750/- to deceased John towards the same have remained undisputed.
24. The death of deceased John in his house near Kumaragiri Temple and which death came into light on 14-04-2014 is also not in dispute. The evidence of PW-1 and PW-3 speaks about the same. The inquest panchanama as per Ex.P3 also speaks about the death of John in his house which death was unnatural. The said inquest panchanama at Ex.P3 shows that the panchas have opined that some body has caused the death of deceased, as such, the panchas have noticed the said death as a homicidal one. The evidence of the Doctor who conducted autopsy would give a clear picture as to the nature of the death of the deceased.
25. PW-11 - the Doctor has stated that he noticed a contusion in right side of the forehead measuring 3.5 cms. x 1.cm. After receiving the Regional Forensic Science Laboratory report (two Nos.), as per Exs.P16 and P17, the said Doctor has given his final opinion as to the cause of death of deceased stating that the cause of death was due to shock and haemorrhage as a result of head injury. Regarding the cause of injury, the Doctor has stated that the death may be possible by hitting by a hard wooden piece. Noticing the wooden reaper at MO-5, the Doctor has opined that the said weapon can cause the injury found on the deceased.
26. Thus, the evidence of the witnesses who have seen the dead body, scene of offence panchanama at Ex.P2, inquest panchanama at Ex.P3 and the medical evidence of PW-11 coupled with the Post-Mortem report at Ex.P19 and the final opinion of the Doctor at Ex.P20 makes it clear that the death of deceased John was homicidal.
27. The question that remains for consideration is, whether the prosecution has proved beyond reasonable doubt that it was the appellant/accused and accused alone who has caused the death of the deceased John?
28. Admittedly, when PW-1 lodged a complaint as per Ex.P1, there was no mention about the name of any suspected culprit including the present appellant. Even according to the Investigating Officer, the suspicion with respect to the alleged involvement of the accused came to the notice of the earlier Investigating Officer i.e. PW- 10 only on 29-04-2014 when the complainant was said to have appeared before him and gave a further statement as per Ex.P4 suspecting the involvement of the accused in the death of deceased John which was said to be in connection with a financial transaction of a sum of `750/-. It is based upon the said further statement of PW-1 that the Investigating Officer submitted a suo-motu report to the Court and registered a crime in the Station Crime No.215/2014 for the offence punishable under Section 302 of IPC against the accused and submitted an FIR as per Ex.P12.
29. Thus, the beginning of suspicion against the present appellant/accused was a suo motu act on the part of the Investigating Officer based upon the alleged further statement of the complainant. Though taking a suo motu cognizance of an offence or submission of a report and an FIR to the Court by an Investigating Officer is not barred under the law, but it clearly goes to show that even PW-1 in his further statement at Ex.P4 except expressing a doubt against the accused, had not whispered anything about his belief that it was the accused who has committed the alleged act, as such, the entire burden would be upon the investigation that has been carried thereafter by the Investigating Agency in proving the alleged guilt against the accused.
30. In the above process where admittedly there was no eye witness to the alleged incident and the entire case of the prosecution has developed based upon an alleged suspicion exerted by PW-1 through Ex.P4, the Investigating Officer has solely banked upon the alleged voluntary statement said to have been given by the accused and the alleged recoveries said to have been made by him.
31. According to PW-12, the main Investigating Officer based upon the alleged voluntary statement said to have been given by the accused on 29-04-2014, he has proceeded to recover MO-4 and MO-5 at the instance of the accused. According to PW-5, he was a panch for the alleged recovery of the wooden reaper at the instance of the accused from the house of the deceased. As already observed above, no doubt PW-5 has stated that, the accused entered the house of the deceased took out a wooden reaper and produced it, which wooden reaper the witness has identified at MO-5 and the panchanama said to have been drawn in the spot at Ex.P8, he adhered to his original version even in his cross- examination also. As such, attempt made in his cross- examination to weaken his evidence regarding the alleged recovery could not favour the accused though the witness at one place in his cross-examination has stated that he does not know the contents of Ex.P8 and he has subscribed his signature at the request of the Police to Ex.P8 and by that itself it cannot be concluded that no recovery of MO-5 was made in his presence.
32. The other witness who speaks about the recovery of the very same article, i.e., MO-5 is, PW-6 is none else than the priest of the Subramanya Temple whose house and temple the deceased was said to have kept a watch during the absence of the said priest. Even he has also stated that it was the accused who produced the wooden reaper from the house of the deceased and a Mahazar was drawn in that regard as per Ex.P8 for which he has also subscribed his signature. Even this witness also has identified the said wooden reaper at MO-5.
33. Thus, the evidence of PW-5 and PW-6 corroborates the evidence of the Investigating Officer that he has recovered the wooden piece at MO-5 at the instance of the accused.
34. PW-7 has spoken about the recovery of Cell Phone(mobile phone) at the instance of the accused. As already observed above, the witness has stated that he was present when the accused produced the said Cell Phone from out of a steel trunk (iron box) from beneath a cot in his house. The witness has identified the said Cell Phone at MO-4 and also the panchanama said to have been drawn at that point of time as per Ex.P10. Except stating that he does not know the SIM number of the said Cell Phone, the witness has withstood to his original version even in his cross-examination also. The said evidence of PW-7 corroborates the evidence of the Investigating Officer (PW-12) that based upon the voluntary statement of the accused, he recovered MO-4 and MO-5 at the instance of the accused. Thus, the recovery of MO-4 – Cell Phone and MO-5 - wooden reaper stands proved as has been done at the instance of the accused.
35. The other question to be considered is, whether the prosecution has able to prove that the very reaper recovered and marked at MO-5 was used in the commission of the crime by none else than the accused and also whether the Cell Phone at MO-4 was belonging to deceased and whether it had the SIM card MO-6 in it when it was seized?.
Admittedly, the wooden reaper at MO-5 though shown to have been recovered at the instance of the accused and was required to be further examined by the expert in order to ascertain whether it had any nexus with the alleged crime was not at all sent for its examination to the expert examiner or to the Forensic Science Laboratory. When the Investigating Officer is said to have sent various other articles for its chemical examination to the Forensic Science Laboratory, nothing prevented him rather it was expected of him to send the most important and alleged incriminating material for its examination by the expert. Thus, the non-examination of the wooden reaper at MO-5 by the expert results into a recovery confining to a mere recovery bereft of establishing any nexus with the alleged weapon recovered with the alleged commission of crime.
36. As observed above, the evidence of PW-7, Mahazar at Ex.P10 and the evidence of the Investigating Officer (PW-12) shows that the Cell Phone at MO-4 was recovered at the instance of the accused. Here also, the Investigating Officer has committed certain lapses in conducting the investigation. Even though the Cell Phone at MO-4 is shown to have been recovered at the instance of the accused, but the Investigating Officer has not at all taken any pain to establish that the said Cell Phone was belonging to deceased and deceased himself. Even though PW-1 in the course of his evidence has stated that the said Cell Phone at MO-4 was being used by the deceased, the same has been denied in his cross- examination from the side of the accused. As such, the Investigating Officer was expected to, and required to have established the relationship of the Cell Phone at MO-4 with the deceased. It was not impossible for the Investigating Officer to have established the said nexus making use of IMEI number found on the Cell Phone. However, for the reasons best known to the Investigating Officer, he has not put any effort in that regard. As such, merely because PW-1 appears to have stated that MO-4 was used by the deceased and particularly, in the absence of any reasons shown for PW-1 specifically identifying the said Cell Phone as belonging to the deceased, it is hard to believe that the Cell Phone at MO-4 was belonging to none else than the deceased himself.
37. The seizure panchanama of the Cell Phone at Ex.P10 which is also supported by the evidence of PW-7, except mentioning that a black colour Mobile phone of ‘Nokia’ make was produced by the accused, nowhere says as to whether the said Cell Phone had a SIM card in it or was it in a working condition. On the contrary, PW-7 in his cross- examination has admitted a suggestion as true that, that kind of Mobile Phone are abundantly available in the market. That being the situation, it was very much required of the Investigating Officer to have shown the SIM card to the witnesses who were said to be the panchas at the time of alleged recovery and got confirmation from them that the said Mobile had SIM card in it and which SIM card was none else than the one at MO-6.
38. In the absence of any evidence to believe that the alleged SIM card at MO-6 was a part of the Cell Phone at MO-4, merely because the Investigating Officer, i.e. PW-12 is said to have collected the CDR and the details about the SIM card and the copy of the application submitted by the applicant for SIM card at Ex.P22, by no stretch of imagination it can be concluded that the said SIM card (MO-6) had got any nexus with the Cell Phone at MO-4 and that the said SIM card was also recovered at the instance of the accused.
The only evidence placed by the Investigating Officer in order to prove the alleged guilt against the accused was through the wooden reaper at MO-5 and the Cell Phone at MO-4.
39. In the light of the finding given above that the prosecution could not able to establish the nexus between those two articles to the death of the deceased, it cannot be said that the prosecution has proved the alleged guilt against the accused beyond reasonable doubt. Since the serious doubt that has been crept in the case of the prosecution in the process of proving the alleged guilt against the accused has remained unanswered by them, the benefit of the same is required to be extended to the accused.
40. However, the Trial Court without appreciating the evidence placed before it in its proper perspective and more particularly, the recovery of the alleged articles, has straight away jumped to conclusion that merely because the Investigating Agency shown that recovery of MO-4 and MO-5 is stated to have been made, it concluded that the prosecution has proved its case against the accused. Since the said finding is now proved to be an erroneous finding and the accused deserves to be favoured with the benefit of doubt, the said judgment of conviction under appeal deserves to be set aside and the accused deserves to be acquitted of the alleged offence against him.
Accordingly, we proceed to pass the following:-
O R D E R [i] The Appeal filed by appellant/accused is allowed;
[ii] The judgment of conviction dated 15-12- 2015 and order on sentence dated 16-12-2015, passed by the learned II Additional Sessions judge at Chikkamagaluru, in Sessions Case No.84/2014, holding the appellant/accused guilty of the offence punishable under Section 302 of the Indian Penal Code is hereby set aside;
[iii] The appellant/accused – K. Kumar, S/o.
Madhava, Aged about 33 years, Resident of Bagilmari Temple Road, Mallenahalli Post, Chikkamagalur Taluk & District – 577 101, is acquitted of the offence punishable under Section 302 of the Indian Penal Code;
[iv] The appellant/accused be released from the imprisonment forthwith provided his continuation in judicial custody is not required in any other case;
[v] The fine amount, if any, paid by the appellant/accused, subsequent to the judgment under appeal be refunded to him in accordance with law;
Since the accused is in judicial custody, the Registry is directed to communicate the operative portion of this judgment to the concerned Jail authorities forthwith.
The Registry is also directed to transmit a copy of this judgment along with Lower Court Records to the Trial Court without delay.
Sd/- JUDGE Sd/- JUDGE BMV*