NAGA @ NAGARAJ @ NAGESH vs STATE OF KARNATAKA

This appeal is directed against the impugned judgment of conviction and order of sentence held by the Trial Court in S.C.No.208/2005 dated

13.04.2012 convicting the appellant - accused and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default

to undergo simple imprisonment for three months for the offence under Section 302 IPC and further sentencing him to undergo simple

imprisonment for three years and to pay a fine of Rs.10,000/- for the offence punishable under Section 201 IPC. The sentences were ordered to

run concurrently.

The brief facts of the prosecution case are as under:

It is alleged in the case of the prosecution that the accused was employed as a driver in respect of a Maruthi van bearing Registration No.TN-05-

D-2513 owned by one Murthy of Tamil Nadu, who had come to Mysuru on some work. On 31.03.2005 at about 7.30 a.m., when the accused

had accompanied deceased Murthy as his driver in the said Maruthi van, he happened to see that Murthy was in possession of cash and valuables.

In his greed to possess the same, when they were proceeding on the Mysuru - Nanjungud road at about 10.30 p.m. to have dinner, suddenly the

accused stopped the car in front of RMC Yard gate in a dark place and thereafter pushed away Murthy from the car and assaulted him on his

head using his hands. The said Murthy who was already said to be suffering from many ailments, was not in a position to resist the attack of the

accused. The accused is said to have gagged Murthy''s mouth with a towel and had throttled his neck using the other end of the towel until he died.

Thus, it is stated that Murthy died in view of strangulation. Subsequent to committing the murder of the deceased, the accused with an intention to

conceal the evidence in order to escape from legal punishment, is said to have transported the dead body of Murthy in the said Maruthi van to

Holenarasipura and is said to have dropped the dead body in the Hemavathi river after tying the same tightly with creepers, so that it would not

float. He is also said to have burnt the cloths worn by Murthy, the documents in his possession and so also the cushion seats of the car, on the

bank of the Hemavathi river, in order to destroy the evidence. He had also changed the number plate of the maruthi van bearing registration No.

TN-05-D- 2513 to that of CKO-9922 and had then parked the said van in the premises of the Mission Hospital at Mysuru and had gone away

with the cash, mobile phone and valuables of the deceased.

On 31.05.2005 when the accused went to the Mission Hospital to bring back the said maruthi van from the premises and when he was about to

move the said van, he is said to have been apprehended by the Mandi police. Subsequently, the Mandi police took up investigation and on

interrogating him had obtained voluntary statement from him, on the basis of which a case was registered against the accused for offences

punishable under Sections 302 and 201 of IPC. The Investigating Officer had then laid a charge-sheet against the accused for the aforesaid

offences. Subsequently, the Trial Court had framed the charge against the accused for the offences punishable under Sections 302 and 201 of the

IPC, where the accused pleaded not guilty but claimed to be tried. Accordingly, the plea of the accused had been recorded.

In order to establish the case against the accused, the prosecution in all examined 27 witnesses as PW-1 to PW-27 and got marked 43

documents apart from getting marked 12 material objects. Subsequent to the closure of the evidence of the prosecution, the statement of the

accused under Section 313 Cr.P.C. was recorded, wherein the accused has denied the truth of the evidence of the prosecution adduced so far.

Subsequently, the accused did not come forward to adduce any defence evidence. Exhibit D4 had been got marked during the course of the

cross-examination of the prosecution witnesses. Subsequently, the Trial Court had heard the arguments advanced by the learned Public Prosecutor

for the State and the defence counsel for the accused and held that the prosecution had proved the guilt of the accused beyond all reasonable

doubt and convicted the accused in respect of the offences under Sections 302 and 201 IPC. It is this judgment which is under challenge in this

appeal.

We have heard the arguments of Shri Y.S. Shivaprasad, the learned counsel for the appellant as well as Shri Vijayakumar Majage, learned

Additional State Public Prosecutor for the State.

In view of these, the points that arise for our consideration is,

Whether the judgment of conviction and sentence passed by the Trial Court in S.C.No.208 of 2005 dated 13.12.2012 convicting the accused

under Section 302 and Section 201 IPC and sentencing him to imprisonment for life and to pay fine is justified?

Learned counsel for the appellant has contended that the Trial Court has failed to appreciate the evidence on record in order to prove the guilt

of the accused beyond all reasonable doubt, as the entire case rests on circumstantial evidence. The prosecution did not establish the case against

the accused relating to the ingredients of the offences where the accused is alleged to have committed the murder of the deceased for gain, i.e., in

order to possess the maruthi van the deceased was owning as well as the cash and valuables. The Trial Court has committed an error by convicting

the appellant - accused on the allegation that he had committed the murder of the deceased by assaulting him with his hands and gagging his mouth

with a towel and throttling his neck till his death on 31.03.2005 at 10.30 p.m. PW-1 Niranjanegowda, working as a PSI in V.V. Puram Police

Station has deposed to the effect that on 30.04.2005 at about 11.00 a.m., while he was working as a Station House Officer, PW-27 had come to

the police station and given a written report. In the report, it was stated that in the premises of the Mission Hospital, Mysuru, that one Maruthi van

bearing No.CKO - 9922 had been parked since 10 days. Neither the owner of the vehicle nor the driver had come to that place. The report was

given to the Sub-Inspector and information given to the staff members to put an alert over the vehicles. On 31.05.2005 at about 12.00 noon, while

he was on duty along with his staff members, as indicated in the report at Exhibit P1, the accused had come to the place where the Maruthi van

was parked in the said Mission Hospital and he was about to move the vehicle from there. In the meanwhile, all the staff members who were with

PW-1 including the security guard, made an attempt to stop the Maruthi van. By the time, the accused being perplexed, had made an attempt to

escape from there. In the process, that he had dashed the maruthi van on the left side of the gate of the Mission Hospital. The accused had then

been made to alight from the maruthi van and had been enquired about his name and particulars. He had told that his name was Naga @ Nagaraja

and an abode of Kyathanahalli and that his native place was Chowdanahalli village in Hassan District. On suspicion, this accused along with the

vehicle were produced before the Police Inspector with a report given at Exhibit P1. Exhibit P2 bears his signature. In the cross-examination, he

has stated on 30.04.2005, the Police Inspector had given instruction to be alert over the Maruthi van. Subsequent to producing the accused along

with the Maruthi van, the investigation had been taken up by the Police Inspector. However, he did not get any information about that vehicle. He

had denied that the accused had been falsely implicated in the case. He has further denied the suggestion that the Police Inspector has not seized

the said vehicles and also he did not conduct any mahazar. PW-2 Kumar had deposed in his evidence that PW-7 Balakrishna of Tamil Nadu, on

31.03.2005 brought the Maruthi van by towing along with the help of two boys, to his garage. That the owner of the maruthi van also was inside

the vehicle. However, he did not know the registration number of the vehicle, but the vehicle was of Tamil Nadu registration. PW-7 Balakrishna

had informed that the said maruthi van was under repair. Subsequently, on inspecting the vehicle, it was seen that some spare parts required to be

changed. Therefore, he went to the shop of PW-3 and purchased spare parts relating to that maruthi van. The owner of the said vehicle was sitting

in the very van itself. Accused and two boys also came to that garage. But he has deposed that he did not know who introduced the accused to

Balakrishna. An amount of Rs.450/- was paid by the owner, towards repair of the said maruthi van. As the repair work was completed on the

same day around 2.00 p.m., the accused had drove the maruthi van along with his owner. Though this witness has been treated as hostile, he had

been subjected to cross-examination, wherein he had denied the statement which had given before the Investigating Officer as per Exhibit P6 and

he did not support the case of the prosecution of his own version of Exhibit P-6 recorded by the Investigating Officer. PW-3 Josh had stated in his

evidence that he is running a spare parts shop in Gandhi Circle, Mysuru. He was acquainted with the accused and PW-2 Kumara. On

31.03.2005, the accused as well as PW-2 Kumara had come to his shop to purchase spare parts for their car, such as clutch plates and clutch

discs by paying an amount of Rs.1,303/- in respect of which he had given a receipt. After two to three days, the Mandi police had come to his

shop along with the accused and had made enquiry with him about the spare parts relating to that vehicle. He had informed the police that on

31.03.2005, by paying the amount spare parts had been purchased by them. This witness was also treated as hostile for the prosecution, as he did

not withstand his version as at Exhibit P-8. But, he has been partially hostile to the prosecution version. However, on evaluating the evidence of

PW-2 and PW-3, it is found that there are discrepancies and further their evidence are also inconsistent with each other relating to the maruthi van

towed by PW-7 along with two boys to the garage of PW-2 and so also for having purchased the spare parts of the maruthi van from the shop of

PW-3 where the accused was also present to take the maruthi van along with his owner. PW-5 - A.V. Bharanidharan, has stated in his evidence

that the deceased was working in BSNL office and on grounds of his ill-health, he got voluntary retirement from his service. That he was married

to one Bhuvaneshwari, but he had divorced her and that PW-5 did not know the place where deceased Murthy and his wife resided. Even

subsequent to getting divorced from his wife Bhuvaneshwari, PW-5 did not know in which place Murthy used to reside. Further, he did not know

where Murthy had invested the amounts that he got out of voluntary retirement. But PW-5 had deposed to the effect that he knew that Murthy

owned a blue colour Maruthi van. PW-23 has been examined for the prosecution and Exhibit P-16 has been got marked and also bears his

signature. The police have seized one ledger book and also a bill in connection with Tara Lodge wherein in his presence, a mahazar had been

drawn by the Investigating Officer as per Exhibit P-21 which bears his signature. The Investigating Officer had taken the accused along with him to

Kyathanahalli wherein the accused is said to have produced one suitcase before the police which contained a mobile phone and the police had

conducted a mahazar as per Exhibit P-16 which bears his signature. He had identified the mobile phone which was shown to him. The mahazar

which was got marked as Exhibit P-22 and P- 22(a) bears his signature. He has identified MO-4 and MO- 5 the burnt sweater and burnt cushion

piece, MO-7 burnt water bottle which has been got marked, burnt broom has been got marked as MO-8, burnt scent bottle marked as MO-11

and car cushion marked as MO-12. The ledger and the Tara Lodge had already been marked as Exhibit P-10. In the cross-examination, he has

specifically stated that he has not personally spoken to the accused at the time of conducting the mahazar and also he has not seen the accused in

the police station. But on 31.05.2005, when he had been to lodge a complaint, at that time he saw the accused for the first time when he was

brought to the police station. But the accused himself had shown certain properties near the river in Holenarasipura. He has denied the suggestion

that he has not accompanied the police and accused to Tara Lodge, RMC Yard, Mysuru, and Holenarasipura and denied the suggestion that no

properties were seized by the police at the instance of the accused. This evidence relates to the mahazar conducted by the Investigating Officer in

his presence. But, his evidence runs contrary to the evidence of PW-27 being the Investigating Officer who laid the charge-sheet against the

accused. The prosecution had examined several witnesses as PW-1 to PW-27 in order to prove the guilt of the accused. But the averments made

in Exhibit P-2 the complaint which bears the signature of PW-1 as well as the signature of PW-27, PW-2 have been subjected to examination and

also got marked Exhibits P6 and P6(a), and he has not withstood his own statements. PW-22 has been examined for the prosecution, but he did

not support the case of the prosecution. Portions of his statement which had been got marked as Exhibit P- 20 and P-20(a) runs contrary to the

evidence of the Investigating Officer who has laid a charge-sheet against the accused. Exhibit P-21, Exhibit P-22, P-23 has been conducted by

PW-27 in the presence of PW-23, wherein all these seizure panchanama has been conducted by him in his presence. But, on a cursory glance of

the entire material in terms of this panchanama are concerned, it is said that the fulcrum of the said panchanama runs contrary to the evidence of

PW-27 wherein he has recorded the voluntary statements of the accused as Exhibit P-30 as it bears the signature of PW-25 as per Exhibit P-

30(b). Exhibit P-37 is the portions of the voluntary statement of the accused. Exhibit P-40 is the map of scene of crime. It bears the signature of

PW-27 being the Investigating Officer. Similarly, Exhibit P-42 map of scene of crime has been drawn by the Assistant Executive Engineer. But, all

these mahazars conducted by the Investigating Officer in the presence of panch witnesses run contrary to the evidence of PW-3 and so also the

evidence of PW-27.

Though the case of the prosecution rests upon circumstantial evidence, none of the circumstances narrated has been proved by the prosecution

in order to bring home the guilt of the accused. The last seen theory put up by the prosecution has also not been proved beyond all reasonable

doubt. Despite of it, the Trial Court has come to a conclusion that the accused had killed the deceased Murthy by throttling his neck after gagging

his mouth with a towel.

In the instant case, the dead body of the deceased has not been traced by the Investigating Officer during the course of investigation. The

Investigating Officer, on recording the voluntary statement of the accused who is said to have thrown the dead body into the Hemavathi river, led

by the accused, had proceeded to conduct a search on the said Hemavathi river. But however, the dead body had not been traced. In spite of

which the Trial Court has come to the conclusion that the entire case of the prosecution has been proved beyond reasonable doubt and had

proceeded to convict the accused, merely because the accused has been fit into the case that he being the driver of the aforesaid Maruthi van and

also he having changed the number plate of the vehicle as CKO/9922. The aforesaid Maruthi van was parked in the premises of the Mission

Hospital Mysuru. On 31.05.2012 at about 12.00 p.m., the accused is alleged to have gone to that parking area and when he was about to move

the vehicle, he was apprehended by the Mandi police and thereafter law has been set into motion on the allegation that he had committed the

murder of the deceased Murthy in order to grab his maruthi van and cash and valuables found in his possession.

The learned counsel has further contended that the recovery mahazar had been conducted by the Investigating Officer but the witnesses have

not supported the case of the prosecution to any extent in so far as the recovery, and moreover, there is no eye-witness account to the alleged

incident. The case of the prosecution wholly rests upon circumstantial evidence. It is a well-established principle of law that in case of circumstantial

evidence, even if one chain link is not proved, then the Trial Court need not come to the conclusion that the prosecution has proved the guilt of the

accused. But in the instant case, the prosecution was not able to establish the case relating to the chain of circumstances, despite of which

conviction has been held against the accused. Moreover, the relatives of the deceased only have identified MO-1 Maruthi van vehicle belonging to

the deceased Murthy. It is based upon the colour of the said vehicle. But, none of them knew the registration number of the said vehicle. That itself

is enough for the impugned order to be set aside. PW-7 - N. Balakrishna who was the previous driver of the aforesaid Maruthi van which

belonged to the deceased who has been examined in this case, in order to escape from the prosecution, had colluded with the respondent - police

and had implicated the accused in the alleged crime. Hence the prosecution version ought not to have been believed by the Trial Court. In so far as

the motive is concerned, the prosecution did not place any acceptable evidence and also the chain of circumstances has not been clearly

established by the prosecution. Despite of which, the Trial Court has come to the conclusion that the prosecution has proved the guilt of the

accused beyond all reasonable doubt and held conviction against the accused.

In support of his contentions, the learned counsel for the appellant has placed reliance on the following decisions:

Ravinder Parkash and Another vs. State of Haryana (2002) 8 SCC 426

Mohibur Rahman and Another vs. State of Assam (AIR 2002 Supreme Court 3064)

Roopsena Khatun vs. State of W.B. (AIR 2011 Supreme Court 2256)

Bikash Koiri vs. State of Tripura (2014 CRI. L.J. 186)

Karvendan vs. State, Represented by the Inspector of Police (2014 CRI. L.J. 1865)

Ram Kumar vs. State of Chattisgarh (2014 CRI. L.J. 2679)

State of Himachal Pradesh vs. Raj Kumar (2014 CRI. L.J. 2480)

Ramesh and Another vs. State, Munirabad Police ((2015) 4 KCCR 3236))

State of Karnataka vs. M.V. Mahesh ((2003) SCC (Cri) 795)

The learned counsel hence submits that the Trial Court has erred in having misdirected the evidence of the prosecution and so also having misread

the evidence which has been placed by the prosecution. Therefore, the learned counsel for the appellant prays this court to consider the grounds

which have been urged in this appeal and prays for acquittal of the accused by setting aside the impugned judgment of conviction and sentence held

against the accused in S.C.No.208 of 2005 dated 13.04.2012.

Contrary to the arguments advanced by the learned counsel for the appellant, the learned Additional State Public Prosecutor has stoutly argued

the case by supporting the impugned judgment of conviction and sentence held by the Trial Court against the accused for the offences under

Sections 302 and 201 of IPC. He has taken this court to the concept of corpus delicti to support his view that the facts and circumstances of the

case proved that the accused had committed the murder. He has further urged the court to look into the voluntary statement of the accused,

recorded by PW-27, the Investigating Officer who had stated that the accused had led him to his house and had shown him the place where the

mobile and suitcase of the deceased Murthy was kept in his house, which were seized under Exhibit P-16, the seizure mahazar. PW-27 had made

an endeavour to trace the dead body of Murthy in the Hemavathi river where the same was thrown, but however it could not be traced. The same

is reflected in his evidence that from 1.4.2005 to 31.05.2005 the water was released from Hemavathi river, which is evidenced from the letter at

Exhibit P-34 issued by the Executive Engineer and so also the report at Exhibit P-35. Subsequently also, the Investigating Officer had made efforts

to trace the dead body of the deceased from 5.6.2005 by giving information to the K.R. Nagar Police Station, Kikkeri Police Station,

Channarayapatna Police Station, the places through which the river Hemavathi flows. But he had received reports from the aforestated police

stations that no dead body had been traced. Hence, he submits that the entire case rests upon circumstantial evidence where the prosecution has

proved the guilt of the accused. Further, PW-1 - PSI in his evidence had stated that he had apprehended the accused in the Mission Hospital

campus when the accused was about to move the Maruthi van from the said campus. Moreover, MO-1 - Maruthi van which belonged to the

deceased Murthy was seized by the Investigating Officer during the course of his investigation based on the voluntary statement given by the

accused. The same has been identified by the relatives of the deceased as well by PW-7 Balakrishna who was the previous driver of the said

vehicle. Hence, he vehemently contends that merely because the dead body of Murthy had not been traced, it cannot be said that the prosecution

has not established the guilt of the accused. Taking into consideration the concept of corpus delicti, the learned Additional State Public Prosecutor

prays for dismissal of the appeal by confirming the impugned judgment of conviction and sentence.

Having regard to the strenuous contentions taken by the learned counsel for the appellant and so also the learned Additional SPP for the State

are concerned, it is relevant to state that in the instant case, there is no dispute about the death of deceased Murthy. But, the dispute is whether the

accused has committed the murder of the deceased with an intention to grab his belongings including cash, valuables, cellphone and maruthi van

and threw the dead body into Hemavathi river?. Exhibit P2 - the complaint bears the signature of PW-1 and so also the signature of PW-27, but

his evidence is contrary to the statement of PW-26 at Exhibit P-6 and so also Exhibit P-6(a). Exhibit P-9 is the seizure mahazar said to be

conducted in the presence of PW-5, which bears his signature. The same has been conducted by PW-27. Exhibit P-11 said to be another seizure

panchanama which bears the signature of PW-27 and so also the signature of PW-23 and Exhibit P-11(c) is the mahazar conducted by PW-27

the Investigating Officer. Exhibit P-12 is another seizure panchanama which bears the signature of PW-8 and PW-22 as per Exhibits P- 12(a) and

P-12(b). Exhibit P-16 is another seizure panchanama said to be conducted by PW-27 in the presence of PW-20 and PW-23 which bears their

signatures at Exhibit P-16 and P-16(b). The Investigating Officer PW- 27, during the course of his investigation, conducted several seizure

mahazars namely, Exhibit P-18 in the presence of the panch witness PW-22, Exhibits P-21, P-22 and P-23 in the presence of the panch witness

PW-23. But at a cursory glance of the evidence of these panch witnesses, it is seen that the same have not been supported with any independent

witnesses for the prosecution to prove the guilt of the accused. PW-27 had recorded the voluntary statements of the accused as per Exhibit P-30

and based upon his voluntary statement, he conducted seizure spot mahazar as per Exhibit P-22 in the presence of PW-23, which bears his

signature. The evidence of PW-4 as per Exhibit D1 and D1(a), evidence of PW-7 as per Exhibit D2 and the evidence of PW-15 as per Exhibits

D3 and D3(a) run contrary to the evidence of PW-27 Investigating Officer which has been recorded as per Exhibit D4 by conducting the seizure

mahazar as per Exhibits P-9, P-11, P-12, P-16, P-18, P-21, P-22 and P-23. Though the mahazar has been conducted by him in the presence of

panch witnesses and so also recording the statement of the witnesses, but the dead body of the deceased Murthy has not been traced during the

course of investigation. Also, he had not made an endeavour to trace even the skeleton of the dead body of Murthy. Therefore, the evidence which

has been placed by the prosecution in order to prove the guilt of the accused does not repose confidence in the mind of this court.

The case of the prosecution rests upon the circumstances relating to the disclosure of the accused having committed the murder of the

deceased with an intention to grab his valuables as well as the Maruthi van. In so far as the plea of corpus delicti is concerned, the prosecution is

required to prove the guilt of the accused by placing strong circumstances as a proof against the accused, on the basis of the evidence of the

witnesses.

Though evidence relating to the last seen theory, namely the accused seen along with the deceased has been set up by the prosecution, but no

acceptable evidence has been adduced to prove the same in order to establish the guilt of the accused.

a) This view is supported by the Apex Court in the case of Ravinder Parkash and Another vs. State of Haryana (2002) 8 SCC 426. The relevant

paragraph reads as under:

For the reasons stated above, we find that the prosecution case, which is purely based on circumstantial evidence, has not been

established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of ""last seen

together"", identification of the dead body, and filing of the complaint on 17.04.1993, the links in the chain of circumstances get

broken, hence, the chain of circumstances will not be complete. Then assuming for the sake of argument that the prosecution has

been able to establish the recovery of the weapon, which in any case had no bloodstains on it, and the motorcycle, by themselves

would not complete that chain so as to be consistent with no other hypothesis, except the guilt of the accused. Therefore, we find it

unsafe to rely upon the prosecution case.

b) This view is also supported by the Apex Court in the case of Mohibur Rahman and another vs. State of Assam (AIR 2002 SC 3064), wherein

the relevant paragraph reads thus:

The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who

committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be

cases where on account of close proximity of place and time between the event of the accused having been last seen with the

deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should

explain how and in what circumstances the victim suffered the death or should own he liability for the homicide. In the present case

there is no such proximity of time and place. As already noted the death body has been recovered about 14 days after the date on

which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 kms. The

event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW6) does

not bear such close proximity with the death of victim by reference to time or place. According to Dr. Ratan Ch. Das the death

occurred 5 to 10 days before 9.2.1991. The medical evidence does not establish, and there is no other evidence available to hold,

that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular

piece of circumstantial evidence available against him. We have already discussed evidence as to recovery and held that he cannot be

connected with any recovery. Merely because he was last seen with the deceased a few unascertainable numbers of days before his

death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201

IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal.

c) This view is further supported by the decision of the Apex Court in the case of Roopsena Khatun vs. State of W.B. (AIR 2011 SC 2256),

wherein the relevant paragraph reads thus:

The last circumstance ""last seen"" if at all can be used against the accused as a circumstance should have been connected with the

time of death. Here is the case when the deceased was seen following the accused at about 10 a.m. on the earlier day whereas the

body was found on the next day at about 2.30 p.m. The prosecution has not fixed the time of the death also. Therefore, there is no

proximity between the time when the deceased and the accused were last seen together and the time of the death of the deceased. At

least, the prosecution has not been able to establish the same. Therefore, even if that circumstance is viewed as an incriminating

evidence, it would be of no significance.

d) Further, the Apex Court in the case of Bikash Koiri vs. State of Tripura (2014 Cri.L.J. 186), had held that it could not be ruled out that when

accused and his family members were out of their house, some other persons might have committed murder of deceased and kept dead body in

courtyard of accused and blood stained earth as well as lathi seized by IO not sent for forensic examination, it would be difficult to connect the

accused with those materials and that complete chain of circumstantial evidence was not established and hence the accused was acquitted by giving

benefit of doubt.

e) In a case of the Madras High Court in Karvendan vs. State, represented by The Inspector of Police (2014 Cri. L.J. 1865), which was a case

based on circumstantial evidence, it was held that motive could not be proved as no witness stated anything about intimacy and financial dealings

between deceased and accused and that last seen theory could not be established merely on the statement that accused was found locked could

not prove his abscondance, ornaments recovered from accused not proved to be belonging to the deceased and hence, prosecution case was not

proved beyond reasonable doubt and hence the accused was acquitted.

It is seen that this view is supported by an umpteen number of cases.

These are all circumstances where the Trial Judge has not appreciated the evidence on record in a proper perspective. We find that this is also one

such case where the Trial Court has misdirected the evidence and misread the entire evidence placed by the prosecution and erroneously come to

the conclusion that the prosecution has proved the guilt of the accused. Therefore, the impugned judgment requires to be re-visited by setting aside

the conviction and sentence held against the accused and thereby acquit the accused for the alleged offences.

In the instant case, the dead body of Murthy has not been traced. Even no endeavour has been made by the Investigating Officer to search the

skeleton of the dead body which was said to have been thrown into the Hemavathi river. But in this case we have considered the prosecution

evidence independently as adduced by the prosecution in order to prove the guilt of the accused. But the case revolves around the evidence of

PW-7 Balakrishna being the earlier driver of the vehicle of the deceased, as he was the one who had introduced the appellant - accused to the

deceased Murthy and got him an employment as a driver. But the evidence of PW-7 has not supported the case of the prosecution. The entire

case is based upon circumstantial evidence. The same has not been established by the prosecution beyond all reasonable doubt. Once the

evidence of the prosecution has been discarded, the prosecution ought to have appreciated the evidence on record relating to its theory of last seen

together such as the accused and the deceased Murthy. Identification of the dead body and person of the dead body is very much required in the

present case. The links in the chain of circumstances has not been established by the prosecution by putting forth positive evidence. Hence, the

chain of circumstances are not complete.

Though the prosecution has examined several witnesses and also got marked several documents, it has not been able to prove the guilt of the

accused beyond all reasonable doubt. Except for the voluntary statement of the accused, there are no eye-witnesses to the incident and the

documents produced during the course of examination do not constitute conclusive proof of the fact that the accused had committed the murder.

The chain of circumstances do not unerringly point the fingers towards the guilt of the accused. Hence, this is a case where benefit of doubt

requires to be extended to the accused.

For the aforesaid reasons and findings, we proceed to pass the following order:

The point framed by this court is answered in the negative and the appeal filed by the appellant/accused under Section 374(2) of the Code of

Criminal Procedure is hereby allowed.

Consequently, the judgment of conviction and sentence passed by the Fast Track Court-V, Mysuru, in S.C.No.208 of 2005 dated 13.04.2012

for the offences punishable under Sections 302 and 201 of the IPC is hereby set-aside. The appellant - accused is hereby acquitted of the charges

leveled against him. He shall be set at liberty, if he is not required in any other case.