Bande Nawaz vs The State of Karnataka

K.N. Phaneendra, J—The appellant has called in question in this appeal the judgment of conviction and sentence passed against him in S.C. No. 24/2006 dated 22.01.2007 wherein the Prl. Sessions Judge, Raichur, has convicted the appellant accused for the offence punishable under section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 25,000/- in default to undergo simple imprisonment for three years.

The brief factual matrix that emanate from the records are that, a person by name Basha s/o. Mohammed Sab Eligar of Niradoddi Mudagal, lodged a first information report as per Ex. P1 before the PSI Mudgagal stating that himself and his three sons and one daughter were residing at Niradoddi Mudagal. There was talks of marriage of his daughter Reshma to be given to the accused and in that regard they had talk with the mother and father of the accused who are no other than the sister and her husband of the complainant. But the father and mother of the accused refused to take said Reshma in marriage to the accused and they directed the complainant and his wife to look for some other bridegroom for their daughter. In this background, it is alleged in the first information report that on 04.11.2005 on the Ramzan festival day the son of the complainant by name Mohammed gone out and he did not return on that day. Inspite of their best efforts they could not be able to search his whereabouts. On the next day the brother of the complainant Mohammed has informed them on previous day of the Ramzan festival the accused Bande Nawaz has taken the son of the complainant Mohammed along with him. Having received such information, the complainant and his wife had been to the house of the accused and enquired the father and mother of the accused. They also disclosed that the accused also did not return to the house since previous day. The complainant and others again made all their efforts to locate Mohammed and Bande Nawaz, but they could not be able to know their whereabouts. Again on 08.11.2005 in the morning the complainant along with his brother Mahiboob Sab and the some villagers by name Rasool Sab and Basha Sab all of them had been to the house of the accused and accused very much present in his house and they enquired about Mohammed the son of the complainant. Then he disclosed that he was not happy with the complainant and his wife because they did not give their daughter Reshma in marriage to the accused. Therefore, in order to take revenge against them he took the son of the complainant to his land and committed his murder by throttling his neck in the pumpset house. On receiving such information, the complainant had been to the police station and lodged a complaint. Thereafter, the police have registered a case in Crime No. 111/2005 investigated the matter and submitted the charge sheet before the Court.

The accused was arrested on 08.11.2005. As it is the case that the complainant and others have produced the accused before the police, the learned Sessions judge secured the presence of the accused framed charges against the accused under section 302 of IPC and tried the accused. The accused pleaded not guilty. The prosecution in order to prove the guilt of the accused examined 12 witnesses as PWs. 1 to 12 and got marked 16 documents Exs. P1 to P16 and also material objects MOs. 1 to 3. After the prosecution closed its evidence the Court also examined the accused under section 313 of Cr.P.C. and recorded the answers given by the accused to the incriminating materials available on record.

As could be seen from the 313 of Cr.P.C. statement of the accused there is no specific or special defense taken by the accused but it is general denial of the prosecution case. The learned Sessions Judge after appreciating the oral and documentary evidence on record has delivered the judgment of conviction and sentenced the accused accordingly. The appellant herein could not be able to engage a private counsel therefore, this Court has appointed Sri Shivashankar H. Manur, as Amicus Curie in order to assist the Court.

We have heard the arguments of the learned counsel for the appellant and also the learned Addl. SPP for the State.

We have carefully once again evaluated the material evidence on record both oral and documentary. After hearing the learned counsel for the appellant and the learned Addl. SPP the point that would arise for consideration of this Court is:

Whether the Trial Court has committed any error in convicting the appellant for the offence under section 302 of IPC and whether the Trial Court judgment calls for any interference at the hands of this Court?

The entire case of the prosecution is based on circumstantial evidence. The prosecution has projected the following circumstances and also attempted to prove all these circumstances. The circumstances can be broadly categorized in the following manner:

i) Motive

ii) Last seen the accused and the deceased together

iii) Extra judicial confession of the accused

iv) Dead body of the deceased shown by the accused and

v) Defense theory of the accused

In order to prove the above said circumstances, the prosecution has relied upon several witnesses. Before adverting to relevant evidence of the prosecution witnesses, it is just and necessary to have a brief information about the witnesses examined before the Trial Court.

PW. 1 Basha who is father of the deceased and he has spoken about the motive and extra judicial confession and accused showing the dead body and also lodgment of the first information report as per Ex. P1. He also identified the cloths of the deceased, which are marked at MOs. 1 to 3 i.e. Shirt, Baniyan, Pant of the deceased.

PW. 2 is no other than the wife of PW. 1 by name Ramajanbi. She speaks about the last seen theory and extra judicial confession made by the accused. PW. 3 is the panch witness to the inquest proceedings marked at Ex. P2. PW. 4 Mahiboobsab brother of PW. 1 is another important witness who spoke about the last seen theory as projected by the prosecution. PW. 5 one Bashasab examined to prove the circumstances of extra judicial confession but he turned hostile to the prosecution and portion of his statement is marked at Ex. P3. PW. 6 Husenbi and PW. 7 Ammsab are the mother and father of the accused respectively. They were also examined to show the conduct of the accused and also extra judicial confession but they have also not supported to the case of the prosecution, portion of the statements have been marked at Exs. P4 and P5. PW. 8 is another witness examined to prove the circumstance of last seen. He also not supported the case of the prosecution and portion of his statement is also marked at Ex. P6. PW. 9 Rasoolsab according to the prosecution he also went to the house of the accused with PWs. 1 and 2 and is a witness to extra judicial confession of the accused but he also turned hostile. Portion of his statement is marked at Ex. P7. PW. 10 Dr. Shanker N. Pawar, who conducted the post mortem examination on the dead body of the deceased Mohammed on 08.11.2005 and he issued a post mortem examination report as per Ex. P9 and he opined that the death of the deceased occurred due to Asphyxia which might be the result of throttling and he specifically stated death was about 4 to 6 days prior to the post mortem examination. PW. 11 Sanganna, CPI investigated the matter and submitted the charge sheet. PW. 12 K. Basavaraj, PSI who registered the case on the complaint lodged by PW. 1 marked at Ex. P1 dispatched first information report to the Court as per Ex. P16. The prosecution though examined 12 witnesses, but out of them PWs. 5 to 9 are of no use to the prosecution, as they never supported the case of the prosecution to any extent. Therefore, their evidence eschewed from consideration.

Main reliance is placed on the evidence of PWs. 1 to 4 and PWs. 10 and 11. In this background, the Court has to see whether the prosecution has proved the circumstances projected before the Court beyond all reasonable doubt and whether those circumstances proved before the Court constitute a complete chain, on order to unerringly point the guilt of the accused, in order to sustain the judgment of conviction and sentence recorded by the Trial Court.

Before we proceed to evaluate the evidence on record, we must remind ourselves the guidelines in catena of rulings as to how the Court has to deal with the case which is based on the circumstantial evidence. It is noted here the decision of the Hon''ble Apex Court reported in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 wherein the Hon''ble Apex Court has laid down certain guidelines as to how the circumstantial evidence has to be considered and it laid down five important golden principles which constitute the panchasheel of the proof of a case based on the circumstantial evidence. The five principles are as follows:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, AIR 1973 SC 2622 : (1973) CriLJ 1783 : (1973) 2 SCC 793 : (1973) SCC(Cri) 1033 : (1974) 1 SCR 489 where the following observations were made: "certainly, it is a primary principles that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In the light of the Golden principles of the Apex Court in the above said case the Court has to consider what are the circumstances which are projected by the prosecution has to be proved before the Court and whether such circumstances have been proved to the satisfaction of the Court beyond reasonable doubt, completing the chain, so as to draw an inference of guilt against the accused/appellant.

In order to bring home the guilt of the accused, it is also to be noted that the circumstances which are projected by the prosecution, need not be established in toto. But if the circumstances which are proved before the Court beyond reasonable doubt if sufficient to constitute or complete the chain in order to prove the guilt of the accused, then there is no difficulty for the Court to convict the accused. If for any reason circumstances projected by the prosecution have not been proved beyond reasonable doubt and even any proved circumstances are not sufficient to complete the chain, normally the Court should not venture upon to record the judgment of conviction. In this background, we will proceed to evaluate the evidence on record. We will take up the circumstances one by one.

MOTIVE:

The prosecution in fact has strongly relied upon the evidence of PWs. 1, 2 and 4 in this regard. We have already narrated while discussing Ex. P1, the case of the prosecution is that, PWs. 1 and 2 have requested the father and mother of the accused i.e. PWs. 6 and 7 to take their daughter Reshma in marriage to the accused and they refused and in fact they told PWs. 1 and 2 to look for some other bridegroom to their daughter. It is the case of the prosecution that the accused was not happy with that, and he was willing to marry the girl Reshma and therefore he was grinding axe against PWs. 1 and 2. Therefore, it is alleged he committed murder of the deceased in order to take revenge against PWs. 1 and 2. The evidence of PWs. 1 and 2 in this regard in fact, shows that they voluntarily went to the house of PWs. 6 and 7 and requested to take their daughter in marriage to the accused. It is not that they refused at any point of time to give their daughter in marriage to the accused. Except this evidence, nothing is there on record to show the willingness of the accused that inspite of the talks between PWs. 1, 2 and PWs. 6, 7 in the above said manner. He had at any point of time went to the house of PWs. 1 and 2 requested them to give their daughter in marriage to him and they refused to give their daughter to him. Therefore he had some grievance against PWs. 1 and 2.

On the contrary, the case of the prosecution is that PWs. 1 and 2 willing to give their daughter in marriage to the accused. Therefore, there cannot be any motive to the accused to commit the murder of the son of PWs. 1 and 2. On the other hand, if the motive is not established beyond reasonable doubt, to some extent it would cut the root of prosecution case, because PWs. 6 and 7 refused to take PWs. 1 and 2''s daughter to the accused this must have caused unhappiness in the mind of PWs. 1 and 2. Therefore, there is chance of falsely implicating the accused to the crime. Except this, there is nothing on record to show that any other transaction taken place between PWs. 1 and 2 and accused or between PWs. 6 and 7 father and mother and the accused to show that accused was having any grinding axe against the PWs. 1 and 2 in order to take revenge against them. Therefore, when motive projected by the prosecution if it is not proved beyond reasonable doubt, it will have its adverse impact on the totality of the prosecution case particularly in circumstantial evidence case to believe absolutely as true the other circumstances. Therefore, we are of the opinion the prosecution has not established this circumstance the ''motive'' in order to draw any inference against the accused that he had any grievance against PWs. 1 and 2 and in order to take revenge, he has committed the murder of the deceased.

ACCUSED LAST SEEN WITH THE DECEASED:

The main and important circumstances relied by the prosecution is that, the accused and the deceased were last seen together. It is the case of the prosecution that on the festival day of Ramzan on 04.11.2005 the accused had taken the deceased along with him and committed his murder. The prosecution has relied upon the evidence of PW. 2, PW. 4 as well as PW. 8 in this regard. But as we have narrated PW. 8 has not supported to the case of the prosecution to any extent who is an independent witness wherein PWs. 1 and 4 are the close relatives of the deceased. PW. 4 is no other than full blood brother of PW. 1. Therefore the Court has to scrutinize the evidence of these two witnesses along with PW. 2 whether the last seen theory has been established beyond reasonable doubt. PW. 1, in fact, has not stated anything about the last seen together but he says that he came to know about last seen of the deceased and accused, through his brother PW. 4 on the next day of Ramzan festival. Wherein PW. 2 is an important witness who has stated that on that particular day of the Ramzan festival at about 6:00 p.m. the accused had been to the house of PWs. 1 and 2 and took the deceased Mohammed along with him. PW. 2 felt that because he is their close relative, he would bring back Mohammed after some time. But even on the next day he did not return. They in fact made thorough search for their son and the accused, but they could not locate the whereabouts of the deceased as well as the accused. They also went to the house of the accused and came to know that the accused was also not in his house. So far as this last seen theory is concerned, in the course of cross-examination it is elicited that on that particular day she was alone in her house when the accused took the deceased along with him no other person have seen that accused taking the deceased along with him. She also deposed that she has informed the same on the same day to her husband that the accused taking the deceased along with him. She came to know about the death of her son about two days later. It is also suggested in the course of cross-examination that this particular portion of the evidence of last seen theory is a total improvement during the course of evidence before the Court and she has not stated the said factum of last seen theory before the police at any point of time. Though the suggestion has been denied by her, but the said suggestion has been categorically proved by the defense counsel by putting some questions to the Investigating Officer PW. 11. PW. 11 Sanganna, CPI, though in the examination-in-chief has not stated anything about this, but in the course of cross-examination it is suggested that PW. 2 never stated before him about the accused on the day of Ramzan festival at 6:00 p.m. took the deceased Mohammed along with him. The said contradictions had been admitted by the PW. 11 stating that PW. 1 has not given such statement. Therefore, the last seen theory projected by the prosecution proposed to be proved from the mouth of this witness is defeated by the contradictory statement of the witnesses. It is total improvement made during the course of the evidence before the Court. Therefore, such portion which is important to prove particular circumstances if such improvement go to the root of the case of the prosecution, such improved version of the witness before the Court should not be relied upon. In this background, now let us see another important witness PW. 4 so far as this last seen theory is concerned.

PW. 4 Mahiboobsab says that he is the brother of PW. 1 and they have been residing in different house separately. His house is situated at some distance from the house of PW. 1. On the day of Ramzan at about 5:00 p.m. the accused had gone to the house of this witness and took the deceased Mohammed along with him and he specifically states that not only himself but all others have also seen the accused taking the deceased along with him. He also says that thereafter the accused and the deceased did not return to the house and he informed the same to his brother on the next day. They made thorough search to locate the whereabouts of the deceased and as well as the accused. In the course of cross-examination he differed from the examination-in-chief to certain extent he has categorically stated that on that particular day in the afternoon he saw the deceased Mohammed in his house and at 5:00 p.m. he saw the said person on the road wherein the accused was taking to the deceased on the road. Therefore, he differs from his statement in the examination-in-chief that the accused coming to his house and taking the deceased along with but he admits that on that particular day not only this man but some other persons had also seen accused taking the deceased along with him at that particular time. He also specifically states that PW. 1 has also seen the accused and the deceased going together. So this clearly indicates that he was not only the person alleged to have seen the accused and the deceased going together. But PW. 1 also is the witness to the said circumstances. But the evidence of PW. 1 totally dehors this particular circumstances because he never stated anything about this particular circumstances. In the course of cross-examination again it is further elicited that, he has stated before the police in his statement that on that day at about 5:00 p.m. Mohammed was taken by the accused in the Bazar Old Peth, but not from his house. It is suggested to this witness that he has not stated before the police about the said last seen incident, he denied such suggestion. The evidence of this witness compared to the evidence of PW. 2, there are considerable contradictions the between the two, because PW. 2 has seen the accused taking the deceased from her house but this witness at one breath says that accused had taken the deceased from his house and another breath he says he saw the accused and the deceased going together on a road. Therefore, though the prosecution has placed some material to prove this particular circumstance but in view of this contradiction between two and particularly improvement made by PW. 2 in order to make out a case for the prosecution, it may not be safe to rely upon by such evidence of PWs. 2 and 4 so far as this particular last seen theory is concerned. Therefore, we are reluctant in to accept the above said circumstance, as proved beyond reasonable doubt.

EXTRA JUDICIAL CONFESSION:

So far as this extra judicial confession is concerned it is the case of the prosecution that after four days of the incident that on 08.11.2005 PWs. 1, 2 and 4 along with PW. 9 and others had been to the house of the accused and the accused was very much present and on force he stated that he has committed murder of the deceased and he took all the witnesses to his pump house and shown the dead body of the deceased in the pump house, which was in decomposed state. So far as this circumstance is concerned, the prosecution relied on the evidence of PWs. 1, 2, 4 and PW. 9. PW. 9 is an independent witness turned hostile has not supported to any extent. So far as this circumstance is concerned, PW. 1 in the first information report itself has stated that on 08.11.2005 they had been to the house of the accused and he stated that because PWs. 1 and 2 have not given their daughter in marriage to the accused therefore due to vengeance the accused has committed the murder of the deceased. Accused took all of them to his land and shown the dead body. In the course of evidence the same factum has been reiterated by him. In the Ex. P1 it is to be noted here that on that particular day PW. 1 Basha, PW. 4 Mahiboobsab, PW. 9 Rasoolsab and PW. 5 Bashasab all of them had been to the house of accused. Of course all of them have been examined before the Court. Out of them PW. 5 Bashasab and PW. 9 Rasoolsab who are the independent witnesses have not supported the case of the prosecution. PW. 1 has further deposed in one sentence that the accused has told them that he has committed the murder of the deceased. But, in the course of cross-examination it is elicited that the accused has stated so in presence of lot number of people by name Gulabsab, Walisab, Tailor Pasha, Mehboobsab and others. But except this man, none of the witnesses have supported the said circumstance.

It is further deposed by the PW. 1 that, after seeing the dead body, these witnesses have taken the accused to the Police Station, that is to say, after the accused showing the dead body, they took the accused to the Police Station and handed over the accused to the Police. He has nowhere stated that PW. 4 Mahiboobsab has informed him at any point of time that the accused took the deceased along with him. With reference to the marriage of Reshma his daughter and the accused, in the course of cross-examination he has deposed that no marriage talks took place between himself and father and mother of the accused. He had never talked with the father and mother of the accused in this regard. If that is so, why the accused has to commit the murder of the deceased. By this answer he is demonstrating the motive factor. Therefore, this extra judicial confession by itself is a weak piece of evidence and it has to be examined with great care and caution and it has to be corroborated by other prosecution evidence. It is very difficult to accept if the accused is alleged to have committed the murder of the son of PWs. 1 and 2, whether the accused would state the same before some persons who have grievance against him and they are not in a position to save the accused from the allegations.

Before adverting to the sanctity of this extra judicial confession, we proceed to scan the evidence of PW. 2 in this regard. She has stated that two days after the incident Mahiboobsab (PW. 4) came to her house and told that the accused has accepted that he has committed the murder of the deceased. This statement of this witness in our opinion goes to the root of this circumstance, because the accused was detected only after four days of the incident, but this witness says that after two days of the incident, Mahiboobsab has told that the accused has committed the murder of the deceased. It is highly inconceivable that Mahiboobsab coming to know after two days of the incident that the accused has committed the murder of the deceased. Therefore, the extra judicial confession made after four days is doubtful because according to PW. 2 even much prior to the said date that is to say two days immediately after the incident Mahiboobsab was having the knowledge that the accused has committed the murder of the deceased. Therefore, where is the question of accused again confessing before these witnesses in his house. In the course of cross-examination of PW. 11 who is the Investigating Officer, so far as this particular portion of the evidence of PW. 2 is concerned has stated that PW. 2 has not stated in her statement that two days after the incident, Mahiboobsab - PW. 4 stated before her that the accused has committed the murder of the deceased. Therefore, this portion of extra judicial confession alleged to have been made by the accused before PW. 4, as stated by PW. 2, shall also to be eschewed from consideration.

Another star witness to this circumstance is PW. 4. Of course as we have narrated earlier, PW. 4 is none other than the full blood brother of PW. 1 and he would certainly support the case of PW. 1. Therefore, his evidence has to be very carefully and meticulously scrutinized. He has deposed before the Court that on 8.11.2005, they all went to the house of the accused and the accused was there in his house and they questioned the accused. At the initial stages, the accused pleaded his ignorance about the incident and pretended innocence. Thereafter these witnesses secured the presence of the Police to the house of the accused and after the arrival of the Police, again when they forcibly questioned the accused, then the accused disclosed that he has committed the murder of Mohammed and kept the dead body in pump house of his land and in fact he took all these witnesses including the Police to his pump house and showed the dead body to them. It is to borne in mind that, according to PW. 2, PW. 4 was having the knowledge two days immediately after the incident that the accused has committed the murder of the deceased. But PW. 4 says that on 8.11.2005 only, he came to know about the murder committed by the accused. He never states at any point of time that two days after the incident, the accused had disclosed or confessed before him about the commission of the offence. The other witness PW. 1 has stated that they themselves had gone to the house of the accused and enquired the accused at the first instance itself the accused had admitted his guilt. But according to this witness, he has categorically stated, when the witnesses could not elicit anything from the mouth of the accused, they secured the assistance of the Police and after arrival of the Police, the accused confessed about the incident. When the Police makes their entry and in presence of the Police if the accused makes any confessional statement, nevertheless even before other witnesses, that portion should be eschewed from consideration because any confessional statement made before or in presence of the Police is hit by section 25 and 26 of the Indian Evidence Act. The force used by the Police is evident from the evidence of this witness. Therefore, such extra judicial confession, even if it is made before PWs. 1 and 4 and other witnesses, as narrated by the prosecution, cannot be taken into consideration as a proved circumstance. Therefore, in our opinion, even though some attempt has been made by the prosecution to prove this circumstance, it cannot be at any stretch of imagination be said that this circumstance is proved beyond reasonable doubt.

THE DEAD BODY SHOWN BY ACCUSED:

It is the case of the prosecution that after the accused made such extra judicial confession before PWs. 1, 4, 5 and 9, the accused took the witnesses and Police to his pump house and there the dead body was recovered by the Police. Of course, the dead body was recovered. But it cannot be said that it was at the instance of the accused. The exclusive knowledge of the accused with regard to the place of dead body has to be proved to the satisfaction of the Court. If there is any doubt with regard to this, the Court cannot rely upon such circumstance. It is the evidence of PWs. 1 and 4 that along with other witnesses, they went to the house of the accused. The accused made extra judicial confession before them and thereafter took them to the place where the dead body was kept. Even Ex. P1 also disclose that these witnesses first went to the pump house and saw the dead body and thereafter, brought the accused to the Police Station, produced him before the Court along with Ex. P1 the complaint. PW. 1 has never stated in Ex. P1 about the presence of the Police at the time when they saw the dead body. It is quite important to note the evidence of PW. 2 as she has stated that immediately after two days of the incident, the death of the deceased was known to her through PW. 4. If that being the case, it cannot be said that again after four days after the incident, they came to know about the death of the deceased and saw the dead body. Therefore, the recitals in Ex. P1 are not reconciling with the evidence.

PW. 4 in his evidence has stated about the presence of the Police. He has stated that the Police also went along with these persons to the spot. But the evidence of PW. 11 who is the investigating officer gives another different version contrary to the evidence of PWs. 1 and 4. He has stated that on 8.11.2005 in the morning at 8.30 a.m., he was in his office at Maski Police Station. The Police Sub-Inspector of Mudagal Police Station informed him over telephone with regard to the registration of the case in Crime No. 111/2005. Immediately, he went to Mudagal Police Station at about 9.00 a.m. By that time, the accused was already there in the Police Station. He enquired the accused and arrested him in the Police Station. He has further specifically stated that he kept the accused in the Police Station and went to the scene of offence with the complainant and saw the dead body of the deceased in the pump house of the accused. This clearly indicates that the Police though had the opportunity to arrest the accused in the house of the accused on that particular day in the morning itself, they never made any attempts to arrest the accused nor they recorded the voluntary statement of the accused and proceeded to recover the dead body at the instance of the accused, because if the evidence of PW. 4 is to be believed, he has stated that when the accused made extra judicial confession before the Police and all of them, the Police have not taken any statement of the accused. Very peculiarly, no explanation has been offered by the Investigating Officer so far as this aspect is concerned. Therefore, it cannot be said that the dead body being in the pump house of the accused was not known to anybody prior to 8.11.2005 because of the simple reason prior to filing of Ex. P1 itself, PW. 1 has spoken about the dead body being kept in the pump house shown by the accused, but according to the Police, though they had gone to the house of the accused, they have not arrested the accused and it is not their case that the accused had shown the dead body either to the Police or any of the witnesses. Therefore, in view of the above said contradictory evidence, it is not safe to accept the case of the prosecution so far as the circumstance that the dead body was recovered at the instance of the accused.

DEFENSE OF THE ACCUSED:

Last but not least, the defense theory taken by the accused. We went through the cross-examination of the witnesses. It is the case of the accused that the deceased died due to some electric shock and the PWs. 1, 2 and 4 knowing fully well that the deceased died due to electric shock, in order to lay false claim against him, have lodged a false complaint. But the defence of the accused is fully falsified from the evidence of the Doctor. PW. 10 - Dr. Shanker N. Pawar who was examined before the Court has stated in his evidence that on 8.11.2005, he conducted post mortem examination by going to the spot. He saw the dead body of Mohammed son of Bashasab of Mudgal identified by PC. No. 28. He specifically states that rigor mortis present over both upper and lower extremity. Whole body was swollen and became putrefied. There were millions of maggots over the neck and chest. Eyes were closed, pupils were dilated, face was swollen, tongue was protruded and partially bitten and swollen. After dissection of the body and completing the post mortem examination, he has stated that on throat region there was a fracture of lateral horn of hyoid bones. Right side lung tissues were liquefied. Left side lung tissues were liquefied. Valve of the lung was liquefied. Small intestine was liquefied. He was of the confirmed opinion that the cause of death was due to asphyxia as result of throttling. He has further stated that the time since death was four to six days from the time of examination. Though the defence of the accused is falsified by the evidence of the Doctor, but presence of rigor mortis in the body creates serious doubt which corroborates the evidence of PW. 2. The Doctor has admitted that normally the rigor mortis on the dead body will disappear within two days (48 hours), but sometimes, it will disappear after four days depending upon the environmental factor. PW. 2 has stated that they came to know about the death of the deceased after two days of the incident and that PW. 4 has informed her two days after the incident that the accused has confessed before him. Neither the Doctor nor the Investigating Officer or from the mouth of the witnesses it is elicited that what was the environmental factor or situation which caused the presence of rigor mortis in the body for a period of four to six days. Unless it is explained, the general principles have to be applied that the rigor mortis would vanish immediately after two days after the death of the deceased. Therefore, comparing the evidence of PWs. 2, 4 and Doctor whether the death had occurred four days prior to the post mortem or two days prior, is a mystery not explained. Therefore, though the defence theory is falsified, it is to be noted that the defence theory has to be taken into consideration by the Court, only if the prosecution stands on its legs and proves the case beyond reasonable doubt and if the prosecution fails in its attempt to prove the case beyond reasonable doubt, the Court need not even look into defence theory at all.

Looking from the above set of circumstances, we are of the opinion that none of the circumstances projected by the prosecution have been proved beyond all reasonable doubts, let apart they constitute a complete chain. Therefore, we are at loss if we accept the judgment of conviction and sentence passed by the Trial Court. The Trial Court has not properly applied its judicious mind and meticulously gone into the evidence of the prosecution witnesses nor tried to ascertain the intricacies and contradictions and omission in the evidence of the prosecution witnesses and not appreciated those factors in proper perspective. Hence, the judgment of conviction and sentence passed by the Trial Court deserves to be set-aside.

In view of the above discussions, we have no hesitation to proceed to pass the following order:

ORDER

The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the Principal Sessions Judge, Raichur in S.C. No. 24/2006 is hereby set-aside. The accused/(appellant) is acquitted of the charge levelled against him for the offence punishable under section 302 of IPC.

The accused shall be released forthwith, if he is not required in any other case. If the accused has deposited any fine amount before the Court below, the same shall be refunded to him.

Office is hereby directed to communicate the operative portion of this order to the concerned Jail Authority for release of the accused, if he is not required in any other case.

We also place it on record the valuable assistance given by Sri. Shivashankar H. Manur, Amicus Curie. Fee of Amicus Curie is fixed at Rs. 5,000/-.