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Manju @ Manjunath v/s State By Shivally Police Represented by SPP, High Court of Karnataka

    Criminal Appeal No. 1174 of 2013 (C)

    Decided On, 12 February 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA & THE HONOURABLE MR. JUSTICE K. NATARAJAN

    For the Appellant: C.N. Raju, Advocate. For the Respondent: Vijayakumar Majage, Addl. SPP.



Judgment Text

(Prayer: This Criminal Appeal is filed Under Section 374(2) Cr.P.C. praying to set aside the judgment of conviction dated 28.10.2013 passed by the I Addl. Dist. And S.J., Mandya in S.C.No.202/2012 – convicting the appellant/accused for the offence punishable under section 302 of IPC. The appellant/accused is sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- for the offence punishable under section 302 of IPC.)

1. The appellant, who is the sole accused in SC No.202/2012 on the file of the I Addl. District and Sessions Judge, Mandya, has challenged the judgment of conviction and sentence dated 28.10.2013. The learned Sessions Judge has convicted the appellant for the offence punishable under section for punishable under section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-.

2. The brief factual matrix of the case is that:

A person by name Puttaswamy Shetty father of deceased Mala, lodged a report before Shivalli Police as per Ex.P-11. It is alleged in the report that the said Mala was given in marriage to the accused Manju @ Manjunatha on 3.3.2006. After the marriage, the said Mala and Manju were residing together along with the mother and brother of the accused at Gorawale village. Subsequently, about one year prior to the incident, Mala and her husband were residing separately along with their two children in the house of one Hanumanthu S/o. Kalegowda in a tile roofed house. It is further stated that on 12.5.2012, when the 3rd son of the complainant, had been to Palahalli village, S.R. Patna Taluk to attend marriage of their relative the accused and deceased were also there in the marriage. At that time, the accused had shown a mobile conversation alleged to have taken place between Mala and some other person and made allegations against his wife. Then, the son of the complainant told the accused that, they can talk about the said matter later. On the same day, in the evening, when the complainant was working in the garden land of one Sathyappa near Gorawale village, he received a telephone call informing him that, the accused and deceased quarreled and in fact the deceased had sustained cut injury to her neck and hands and she succumbed to those injuries in her house. Immediately, the complainant came to the house of the accused and saw the dead body of his daughter Mala sustaining injury on her neck and hands. The accused was also found near the dead body. On inquiry, the accused told the complainant that he had committed the murder of his wife and also showed the sickle used for the commission of the offence. The accused also told before his that he was suspecting the fidelity and conduct of the deceased and therefore, he has committed her murder.

3. On the basis of the above said report, the Police registered a case in Crime No.50/2012 for the offence punishable under section 302 of IPC and initiated the investigation.

4. The accused was also arrested on the same day. After thorough investigation by the Police, they found that accused was the perpetrator of the crime and therefore, they laid charge sheet against the accused.

5. After securing the presence of the accused and after committal proceedings, the trial Court framed charges against him for the offence punishable under section 302 of IPC. As the accused pleaded not guilty, he was put on trial. The prosecution in order to bring home the guilt of the accused examined as many as 16 witnesses as PWs.1 to 16 and got marked Exhibits P-1 to P-31 and Material objects MOs.1 to 21. The accused was also examined u/s.313 of Cr.P.C. But he has not taken any specific defence except denying the total case of the prosecution. The accused also did not choose to lead evidence on his side. After hearing the counsel for the accused and the learned Additional State Public Prosecutor for the respondent – State, the trial Court after appreciating the oral and documentary evidence found that the prosecution has proved the case against the accused beyond reasonable doubt. Hence, it recorded the judgment of conviction and sentenced the accused accordingly as stated supra.

6. The learned counsel for the appellant strenuously contends before this court that none of the witnesses including the relatives of the accused and the deceased, except the Investigating Officers nobody have supported the case of the prosecution. The prosecution mainly relied upon the circumstance i.e., Extra-judicial Confession of the accused and recovery of incriminating articles at the instance of the accused as well as the telephonic conversation between the deceased with some other person and also the voice of the accused and deceased. The prosecution also relied upon the recovery of the incriminating a

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rticles at the scene of offence and as well as the blood stained clothes of the accused which tallied with the blood group of the deceased. But the learned counsel submitted that the so called recovery of mobiles and also the telephonic conversation has not been proved as the witnesses examined in order to establish this fact, have also turned hostile to the prosecution. The trial Court wrongly relying upon the contradicted portion of the statements of witnesses and using them as substantive piece of evidence and as well relying upon the sole testimony of the Investigating Officer with regard to the recovery of blood stained clothes at the instance of the accused arrived at a conclusion that the prosecution has proved its case which is not only illegal but also does not stand to the judicial scrutiny. Therefore, he pleaded for acquittal of the accused by allowing the appeal and consequently by setting aside of the judgment of the trial Court.

7. Per contra, the learned Additional State Public Prosecutor Sri Vijayakumar Majaje, strenuously contends before this court that, though the entire prosecution witnesses have turned hostile, there is not material established during the course of cross examination of the Investigating Officers, as to why their evidence should not be believed by the Court. He also contended looking at the sequence of events that, as soon as the FIR was submitted to the Police, swiftly the Police visited the spot, seized the articles at the spot and as well arrested the accused who was there on the spot itself. Immediately thereafter, the Investigating Officer recorded the voluntary statement of the accused, recovered the blood stained clothes of the accused which were on the body of the accused at the time of the incident. The Police also recovered the mobile phones of PWs.6 & 7 and also seized the mobile of the deceased, sent the same to the voice test to the Truth Lab at Hyderabad and a certificate was issued by the competent Scientific Officer holding that the said voice was tallied with the test voice. Therefore, the Investigating Officer without any blemish sequence-wise conducted the investigation properly and there is no room to disbelieve the Investigating Officer. Therefore, the sole evidence of Investigating Officer is sufficient to convict the accused.

8. Having heard the arguments of the learned counsel for the appellant and the learned Addl. State Public Prosecutor, before adverting to the appreciation of material evidence on record, we would like to have a brief cursory look at the evidence lead by the prosecution.

9. PW-1 Gowramma, is none other than the neighbor of the deceased and she has turned hostile to the prosecution and not supported to any extent. She was examined by the prosecution to establish that on the day of the incident in the evening at about 6.30 p.m., the deceased Mala screamed for help and this witness came outside along with another neighbor by name Eshwar and both of them went to the house of accused. Three children were there in the house and accused was holding sickle in his band and he told that his wife was talking with somebody over phone and he recorded the said conversation and he was pained with the said conversation. Therefore, he killed his wife by assaulting her with the sickle. It is also suggested to P.W.1 that Mala had sustained injuries to her neck and right elbow etc. To the extent of motive also it has been suggested that because the accused had heard some telephonic conversation of deceased with other person, he was not happy with the same and therefore, he committed the murder of is wife. So far as these suggestions made in the course of cross examination are concerned, to establish the above said facts, the witness has not supported the case and turned hostile and the statement alleged to have been made by her before police is marked at Exs.P-1 and P-2.

10. PW-2 Venkatesh is also resident of the same village in which the accused and the deceased were living. It is also the case of the prosecution that the accused on that particular day confessed before this witness with regard to the commission of the offence by him and that this witness went to the spot i.e., the house of the accused and saw the dead body. But, he also turned hostile and his contradicted portion in the statement is marked at Ex.P-8.

11. PW-3 Manju, the brother of the deceased very strangely enough examined before the court in order to establish the motive and also extra judicial confession made by the accused. He has also not supported the case of the prosecution. His statement made before police is marked at Ex.P-10.

12. PW-4 Puttaswamy shetty is the father of the deceased. In the same fashion he was examined to establish motive and also extra judicial confession. But he also turned hostile to the prosecution and he also went to the extent of denying that the had lodged any complaint before police and he denied having given any statement as per Exs.P-11 and P-12.

13. PW-5 G.K. Hanumanthegowda is examined to establish the motive factor that the accused was suspecting the conduct of his wife. This witness came to know about the offence being committed by the accused. In fact PW-5 denied the said statement being made before police and turned hostile to the case of the prosecution. His contradicted portion in the statement also marked at Ex.P-13.

14. PW-6 G.M. Hanumanthegowda and PW-7 Nagaraju G.S. @ Naga were examined to establish that these witnesses were freely talking with the deceased and these two persons were the suspected persons who had illicit intimacy with the deceased. They also turned hostile to the prosecution and denied that they were having any relationship with the deceased nor they were freely talking with the deceased at any point of time. They also denied that the police have taken any of their voice sample in the presence of any witnesses. However, they have admitted their signatures in Exs.P-14 and P-16. They denied with regard to the recording of their sample voice in a CD under Mahazar Ex.P-15. They also denied having given any statement before police as per Exs.P-16 and P-19. Therefore, so far as the motive factor is concerned, these witnesses have not supported the case of the prosecution.

15. PW-8 G.K. Ramlingu is a panch witness to Ex.P-21 spot Mahazar, but he has also not supported the case of the prosecution. However, he has admitted that, the police has taken the photographs as per Ex.P-22. It is suggested to him that, on 14.5.2012, in the presence of this witness, the police has drawn Mahazar as per Ex.P-21 and seized the blood stained sickle and blood stained mud and sample mud and a steal cap etc., from the spot.

16. PW-9 M.C. Gurudevappa is a witness to Ex.P-23 Mahazar, under which, the police are alleged to have recovered a shirt and pant from the accused. This witness has also turned hostile to the prosecution case and stated that the police in his presence have not recovered any articles from the accused.

17. PW-10 G.B. Krishna is a panch witness to Ex.P-8 Mahazar, under which the police are alleged to have recovered a mobile from the accused. He has also turned hostile to the case of prosecution.

18. PW-11 Hanumantha is another panch witness to Exs.P-14, 15 and 18. According to the prosecution, the police on 24.7.2012, have recovered a mobile phone from CW-9 under Mahazar Ex.P-14 and also recovered one more mobile from CW-10 and seized under Mahazar Ex.P-18 and also the police have recorded the sample voice of CWs.9 & 10 (PWs.6 and 7) and stored the same in a compact disc and seized the same under Mahazar Ex.P-15. However, this witness has turned hostile and the suggestion made to this witness during the course of cross examination about the above said recover and mahazars have not been accepted but denied by the witness.

19. PW-12 Dr. Puttaswamy had conducted the Post Mortem examination on the dead body of the deceased and has also given opinion about the sickle seized in this case. The Post Mortem report is marked at Ex.P-24 and opinion is marked at Ex.P-25. Of course, the doctor has stated that the deceased has sustained as many as 7 injuries on different parts of her body particularly on the had, neck, left elbow, right elbow and near left ear etc., After conducting Post Mortem examination, he has categorically stated that, the death was due to the hemorrhagic shock and due to the injuries sustained by the deceased. He has also given opinion that the injuries found on the dead body could be caused with a weapon like sickle marked t MO-1. Accordingly, he gave his opinion as per Ex.P-25.

20. PW-13 K.B. Chandrashekaragowda, is similarly placed as that of PWs.6, 7 and 11. He is also a panch witness to exhibits P-14, P-15 and P-18. He has also not supported the case of the prosecution and turned hostile. The suggestions made to him during the course of cross examination are of no worth because they are only mere suggestion.

21. PW-14 Rajashetty is the person who registered the case in Crime No.50/2012. On the basis of Ex.P-11 report, he dispatched the FIR Ex.P-26 to the court. There is not much cross examination so far as these aspects are concerned. He has also stated that CWs.37 and 38 Asst. Sub Inspector of Police and Police Constable produced the accused before him and he arrested the accused and kept his in custody.

22. PW-15 Suma Rani B. and PW-16 G Krishna Murthy are the Investigating Officers who have spoken as to how the investigation proceeded till the filling of the charge sheet. Therefore, we would like to discuss the evidence of these witnesses little later.

23. On the basis of the above evidence as rightly contended by the learned counsel for the appellant, none of the independent witnesses examined before the court including the father, brother and neighbours have supported the case of the prosecution. The only evidence available to the prosecution is the evidence of the Investigating Officers. Therefore, we would like to consider the judgment of the trial Court first as to on what basis the trial Court has convicted the accused and later we appreciate the evidence of the Investigating Officer with reference to other materials available on record.

24. On careful perusal of the judgment of the trial Court, it is seen that the trial Judge has relied upon various rulings of the Hon’ble Apex Court to draw an inference that even if a witness turns hostile, his statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) and the contradicted portion under the circumstances of the case can be believed and relied upon by the Court. The trial Court made an observation while discussing the evidence of the hostile witnesses mainly to draw an inference that the witnesses though turned hostile, The statement given by them before the Police is more reliable than the evidence given by them before the Court. It is specifically stated that suggestions made during the course of cross-examination by questioning the contents of the statement made by the witnesses under Section 161 of Cr.P.C. were observed to be more reliable. Therefore, it appears that, when the trial Court has relied upon the statement of the witnesses which are contradicted and marked by them, the same are relied by the trial Court as substantive evidence.

25. Though the rulings relied by the trial Judge also indicate that, such statements cannot be relied upon as substantive evidence, the trial Court, mainly relied upon the decision of the Hon’ble Apex Court in the case of AFTAB AHMAD ANASARI v. STATE OF UTTARANCHAL reported in 2010(2) SCC 583 and MANU SHARMA v. STATE reported in 2010 (6) SCC 1 and virtually relied upon the contradicted statement of the witnesses.

26. In this context, it is worth to refer the decision rendered by the Division Bench of this Court in the case of K.N.KIRAN KUMAR vs. STATE BY MANDYA RURAL POLICE REPRESTED BY SPP reported in ILR 2017 KAR 1605 wherein, this Court had an occasion to deal with the provisions of Sections 161 and 162 of Cr.P.C. as well as Sections 145 and 155 of the Indian Evidence Act. This Court has also referred and distinguished the decision relied upon by the trial Court in AFTAB’s case cited supra by relying upon the decision of the Hon’ble Apex Court in the case of TAHSILDAR SINGH AND ANOTHER vs. STATE OF UTTAR PRADESH reported in AIR 1959 SC 1012 rendered by a larger Bench comprising of six Judges of the Hon’ble Apex Court.

27. It is worth to refer the observation made at paragraph Nos.11 and 17 in Tahsildar’s case cited supra, which reads thus:-

“11. It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under Section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose, i.e., the interest of the accused.

17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police – officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.”

Relying upon the other decisions of the Hon’ble Apex Court, this Court has held at head note (A) (a) thus –

“(A) CRIMINAL PROCEDURE CODE, 1973 – SECTIONS 161 AND 162 – Previous statement of a witness made before the Police – Use of such statements in evidence – Contradictions and Omissions – Meaning of – HELD,

(a) Contradiction means the evidence before the Court by the witness is something against the one stated by him in his previous statement during the course of investigation.- That portion of the statement of the witness as stated by him before the Police and not stated in his evidence, amounts to contradiction.

(b) Omission means the witness has stated significant and relevant facts before the Court which was not stated in his previous statement, before the investigating agency during the course of investigation. The omission are also some times called as improvement by the witness during the course of evidence before the Court.

FURTHER HELD,

(a) The contradictions and omissions are to be duly proved as contemplated under Section 162 of Cr.P.C. – It is clear from Section 162 of Cr.P.C. and Sections 145 and 155 of the Indian Evidence Act, 1872 that if a person either the accused or the prosecutor wants to contradict the witnesses with reference to his previous statement, the said portion of the statement should be brought to the notice of the said witness in order to refresh his memory and give him an opportunity to explain and then such portion of the statement should be in fact, re-iterated in the evidence by means of recording sentence by sentence and the same portions shall be marked in the statement as Exhibits. This itself will not be sufficient to say that they are “duly proved” as stated in Section 162 of Cr.P.C. The said contradicted portions should be tested during the course of examination of the Investigating Officer or the person who is capable of giving evidence before the Court in respect of such previous statement of the witnesses. The marked contradicted portions should be brought to the notice of the Investigating Officer and it must be elicited in his evidence, whether the said witness had stated before him during the course of investigation, the portion marked in the statement of the witness. Then only it can be said that the said portion i.e., called as contradiction is said to have been ‘duly proved’.

(b) Likewise, if a witness has deposed to some facts in his evidence, which are not at all stated by him before the Investigating Officer, in his previous statement, but he gives such evidence before the Court which materially and significantly affect the case of the prosecution or the accused, such facts are called as omissions which inturn may amount to a material contradictions. This portion of the evidence also should be brought to the notice of the witness and elicited as to whether he has stated such portion of his evidence, before the investigating agency during the investigation. If he says no, then there is no question of proving it once again because of his admission. If he says that the witness has stated the same facts during the course of investigation, the said portion has to be put to the investigating Officer to elicit whether such evidence given by the witness before the Court had been stated during the course of investigation. If the answer is no, by the investigating Officer that will become an omission or an improvement before the Court. If this procedure is strictly followed in order to prove the contradictions and omissions, then only such portion will be available to the Court for appreciation in the case, to contradict or to test the veracity of such witness.

(b) CRIMINAL PROCEDURE CODE, 1973 – SECTION 162 – Contradictions and Omissions – How to appreciate contradictions and omissions – Contradictions and omissions assume importance for the purpose of not only contradicting the witness but also to test the veracity of the witness –

HELD

The purpose of contradicting a witness is only to contradict and attack the veracity of a witness. The duty of the Court is to find out if a witness, who had made a contradictory statement earlier is telling the truth before the Court or whether he is a trustworthy witness. However, it should be borne in mind that it is not the duty of the Court to find out whether the previous statement made by the witness was true or not. Where he previous statement and the evidence before the Court are so inconsistent and irreconcilable with each other that both the of them cannot co-exist, therefore, it can be said that the previous statement contradicts the witness with the evidence given by him before the Court.

FURTHER HELD,

(a) Section 145 of the Indian Evidence Act, 1872 makes it further abundantly clear as to how the said statement can be used by the Courts. If the previous statement and the evidence of the witnesses are intended to contradict the witness, it can only be used for the purpose of contradicting him and not for any other purpose. This in fact clearly indicates that, such previous statement though marked as an exhibit cannot be used as a substantive piece of evidence in view of the bar under proviso to Section 162 to Cr.P.C. Though the duly proved statement is admissible in evidence that can only be used for contradicting, discrediting or testing the veracity or for impeaching the witness, but should not be used as substantive piece of evidence.

(b) Section 155 of the Indian Evidence Act also clears the doubt that the contradicted portion in the statement and evidence can also be used either by the prosecution or by the defence for the purpose of impeaching the credit of witness. The words “impeaching the credit”, themselves disclose that such witness cannot be relied if he is not corroborated by other material evidence on record. This legal ground norm also goes without saying that the contradicted portion, even cannot be used for the purpose of corroborating the other evidence on record.

(c) Apart from the contradicted portion, if the other portion of the evidence given by the witness is corroborated and trustworthy for acceptance, then the Court has to examine whether such portion which is not contradicted can be relied upon by the Court and that portion can be used for the purpose of corroborating the other materials on record.”

Ultimately, this Court has come to the conclusion that the statement of the witnesses under Section 161 of Cr.P.C. If contradicted as per Sections 145 and 155 of the Evidence Act, then the contradicted portion cannot be used as substantive evidence nor it can be corroborated with the other evidence, except same witness, who has given the same statement.

28. We have re-looked into the evidence of these witnesses, who have turned hostile before the trial Court. Except putting the entire statement of the witness to the mouth of the witness, who alleged to have given statement before the Investigating Officer, nothing more has been elicited as to why those witnesses have turned hostile and what was the reason for the said witnesses to turn hostile, etc., in order to ascertain the veracity and credibility of such evidence. Therefore, the evidence of such witness neither support the case of the prosecution nor corroborate the evidence of any other witness on record.

29. It this context, it is also worth to refer a decision of the Hon’ble Apex Court in the case of PARAMJEET SINGH ALIAS PAMM v. STATE OF UTTARAKHAND reported in 2010 (10) SCC 439. At Head Note (C), the Hon’ble Apex Court has observed that:-

“C. Criminal Trial – Witnesses – Hostile witness – Testimony of _ When admissible – Duty of court – Held, evidence of witness does not become effected from record merely because he turned hostile – However, court has tobe very careful, as prima facie, a witness who makes different statements at different times, has no regard for truth – His evidence has to be read and considered as a whole to find out whether any weight should be attached to it – Court should be slow to act on testimony of such witness – Normally, it should look for corroboration of his testimony – His deposition must be examined more cautiously to find out as to what extent he supported case of prosecution and can be relied upon at least up to that extent.”

This decision also makes it abundantly clear that, apart from the contradicted portion, there must be some evidence on record to ascertain to what extent it supports the case of the prosecution and to rely upon such portion at least to that extent.

30. As we have observed, except putting the contents of the statement made by the witnesses to the mouth of the witnesses either in examination-in-chief or in cross-examination, they have not given any other evidence which supports the case of the prosecution. Therefore, in our opinion, the trial Court has committed a serious error in accepting the contradicted statement of the witnesses as substantive evidence to draw the inference on the guilt of the accused person. Therefore, we do not find any strong reasons to sustain such observation and opinion relied upon by the trial Court.

31. Now we will come to the evidence of the Investigating Officers. The Investigating Officers have stated that, for the purpose of establishing the motive, they have collected the call details of the telephone number of the deceased as well as telephone numbers of PWs.6 and 7. The Investigating Officer – PW-16 – G. Krishnamurthy, had deposed before the Court, that, the accused told him that he would produce the mobile belonging to his wife and also the recorded voice of his wife as well as PWs.6 and 7 to show that they were conversing with each other, which virtually amounts to illicit relationship to show the understanding between the deceased with PWs-6 and 7. The said statement of the accused was recorded as Ex.P-30. The relevant portion is marked as Ex.P30(a), (b) and (c). According to the voluntary statement, the accused has produced the mobile phone. The recorded voice of is wife in the said mobiles were to be heard by CWs.28 and 29 and it was got confirmed that the said voice was of PWs.6 and 7 and thereafter, the said voice was downloaded. The compact discs are marked as Mos.5 and 6 and mobile was marked as MO-4 and the same were seized under mahazar Ex-P15. In fact, CW-28, who was examined before the Court as PW-13 has turned hostile. No other witness is examined before the Court to identify the voice of the deceased as well as the voice of PWs.6 and 7. CW-29 was also examined before the Court as PW-11 and he has also turned hostile.

32. The particular compact discs and mobile have been sent to an expert at Truth Lab, Hyderabad and the opinion has been secured by the Investigating Officer. But no witnesses have been examined insofar this document is concerned. However, the Truth Lab report was made available as per Ex.P-38. The trial Court has relied upon the report and opinion of the expert from Truth Lab, even without examining the said person to prove the contents of the said document Ex.P-38, has come to the conclusion that the conversation recorded by the Investigating Officer stored in the compact disc MOs.5 and 6 and the contents of the recorded voice in the mobile of the deceased were that of the voice of the deceased and PWs.6 and 7. This, in our opinion is without support of any legal evidence on record. There is no person to identify the voice of the deceased. The test voice of the deceased was not available to the Investigating Agency to compare the same to come to a conclusion that the said voice was that of the deceased actually speaking with PWs.6 and 7. Further more the report of the expert can be used as evidence, only if it is brought on record in accordance with law. The general principle of evidence is that, if a person produces any document or report as evidence, the said person has to be examined before the Court by subjecting himself to the cross=examination of the defence counsel, unless it falls under any of the exceptions contained in any law for the time being in force. It is an admitted fact that the expert, who has sent the report – Ex.P38 is not a Government Scientific Officer or a Government Servant. In this regard, Sections 292 and 293 of Cr.P.C. refers to the Evidence of the Officers of the Mint and Reports of certain Government scientific experts. These two provisions deal with the report submitted by the experts recognized under Cr.P.C., and those reports can be treated as evidence even without examining its author.

33. It is an admitted fact that the above documents sought tobe proved are neither purported to be a report of any Gazetted Officer of the Mint nor it is a document purporting to be a report under the hand of any such scientific expert. If the report is submitted by the Officer recognized under Sections 292 and 293 of Cr.P.C., then under Section 294 of Cr.P.C., no formal proof of such documents are required. Where the documents filed before the Court by the prosecution are confronted to the accused and e is called upon to admit or deny the genuineness of each such document and where the genuineness of any document is not disputed, such document can be read in evidence in any enquiry, trial or other proceedings under the Code without any proof of the signature of the person, by whom it purports to have been signed. Even apart from second part under Sections 292 and 293 of Cr.P.C., if any documents are produced by way of evidence before the Court by the prosecution like the one Ex.P-38, though not issued by the Government Scientific Expert or the Mint Officer, the requirement of law is that, such document can be confronted to the accused and he must be called upon to admit or deny the genuineness of each such document and then only, the accused would get an opportunity either to accept the contents of the document or deny the contents of such document.

34. As could be seen from the evidence in the course of cross-examination of Investigating Officer as well as evidence of the witnesses, the sample voices of PWs.6 and 7 and voice contained in MO-4-mobile belonging to the deceased were all denied. Therefore, it virtually amounts to denial of the whole case of the prosecution by the accused. In such an event, the prosecution has to prove beyond reasonable doubt that the voice samples taken from that of PWs.6 and 7, were conclusively that of PWs.6 and 7 and the voice in MO-4 is that of the wife of the accused. Mere statement by the investigating Officer that he has received the report and the document containing the voice of the lady and the voice of PWs.6 and 7will not in any manner establish the motive factor as projected by the prosecution to establish that the deceased, PWs.6 and 7 had any illicit relationship with each other.

35. Therefore, the call details or the voice samples of these cell phones would not in any manner help the prosecution to prove the motive projected by the prosecution beyond reasonable doubt.

36. Of course, proving of the motive factor by itself will not help the prosecution to establish the case except with the help of the other circumstances. However, as we have observed in this case, no witness has supported with reference to conduct of the accused, conduct of the deceased or any extra judicial confession alleged to have been made by the accused before the witness nor the recovery of any incriminating materials at the instance of the accused. Therefore, now we deal with the evidence of the Investigating Officer insofar as the recovery and connection of the recovered materials with the crime.

37. It is the case of the prosecution that on 14.05.2012, after registration of the case, CWs.37 and 38 produced the accused before the Investigating Officer and he arrested the accused and kept him in custody.

38. PW-15 had deposed before the Court that after conducting the investigation, she did not visit the spot and collected the blood stains and unstained mud from the spot as per Mos.7 and 8, and a steel cap marked as MO-9. She has also deposed that when she had been to the spot, she had taken the custody of the accused and sent him to the police station. Thereafter, PW-16, the subsequent Investigating Officer has stated that, on 14.5.2012 itself, he recorded the voluntary statement of the accused. The said statement of the accused is marked at Ex.P-30. The relevant portion is marked as Ex.P30(a) (b) and (C), PW-16 recovered a mobile set from him. On 15.05.2012, he has recovered a blood stained T-shirt and a pant which were on the accused under Mahazar Ex.P-23. It is also stated that, the clothes of the deceased which were also seized and are marked at Mos.12, 13 and 14 and remaining Mos.15 to 21 are the articles belonging to the deceased which are seized in this particular case.

39. The above said articles were sent to the FSL for analysis and report. The FSL report shows that all these articles including the clothes of the accused and the sickle which were seized on the spot all contained ‘A’ group blood which was the blood group of the deceased. On the above said ground, the prosecution attempted to establish this particular case. This is the sole circumstance which is available to the prosecution. If the Court disbelieves the Investigating Officer with regard to the recovery and connection of the articles with that of the crime, then it is difficult for the Court to convict the accused for the alleged offence. But the Court very carefully in a meticulous way has to analyze the evidence of the Investigating Officer which has been seriously attacked by the defence during the course of cross-examination.

40. In this context is worth to refer a decision of the Hon’ble Apex Court in the case of GOVINDARAJU ALIAS GOVINDA v. STATE OF SRIRAMAPURAM POLICE STATION AND ANOTHER reported in 2012(4) SCC 722, wherein, the Hon’ble Court had an occasion to deal with the evidence of the Police Officer and laid down certain principles which are as follows:

“It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case which will always depend upon facts of a given case –If testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then statement of such witness cannot be discarded only on ground that he is a police officer and may have some interest in success of the case. Only when his interest in success of case is motivated by overzealousness to an extent of his involving innocent people, then no credibility can be attached to his statement – Presumption that a person acts honestly applies as much in favour of a police officer as in respect of other persons and it is not proper to distrust and suspect his without there being good grounds therefor.”

41. It is also worth to refer once again, the already cited Paramjeet Singh’s case, wherein the Hon’ble Apex Court has observed with reference to the circumstantial evidence and has laid down the principle with regard to the Standard of proof required for establishing the guilt of accused. The Court has to judge the evidence with the yardstick of probabilities, its intrinsic worth and animus of witnesses. In cases of serious offence of brutal nature, court should be wary of facts that it is human instinct to react adversely to the commission of offence and make effort to see that, such an instinctive reaction does not prejudice accused in any way. Law does not permit the court to punish the accused on the basis of moral evidence or suspicion alone. Where offence alleged to have been committed is a serious one, prosecution must provide greater assurance that its case has been proved beyond reasonable doubt. More serious the offence, stricter the degree of proof required, since a higher degree of assurance is required for conviction.

42. Therefore, in this background, we deal with the evidence of the Investigating Officer with regard to the recovery, which alone cannot be sole basis for conviction. In this context, it is also worth to re-refer the evidence of these witnesses.

43. It is the case of the prosecution that the accused was very much present at the spot when some of the witnesses went to the particular place including the father and brother of the deceased and it is not suggested to any of the witnesses who were present either at the time of inquest or at the time of spot mahazar or to any of the related witnesses who were present on that day at that time that the accused was wearing any blood stained clothes. Apart from that, the Investigating Officer particularly, PW-15 – Sumarani.B, who had been to the spot on 14.5.2012, who received the information about the incident about 8.00 a.m. went to the particular spot and she saw accused very much present at the spot along with other witnesses. She took him to her custody and sent him to the police Station. She has also never stated that when the accused was taken to her custody, he was wearing any blood stained clothes. PW-14-Rajashetty, has also stated that on that day i.e., on 14.5.2012, CWs.37 and 38, brought the accused to the police Station and produced him before this witness and he arrested the accused. He also never stated that at the time of arrest of the accused, he found any such blood stained clothes on the accused. CWs. 37 and 38 were actually not examined before the Court to establish that these two persons found accused wearing blood stained clothes while he was sent to the police Station. PW-16, infact who actually recorded the voluntary statement of the accused has stated that on 14.05.2012, he has recorded the voluntary statement of the accused, but he has not recovered the blood stained clothes of the accused on the same day. On the next day i.e., on 15.05.2012 at about 6.30 a.m., he secured the presence of the witnesses and recovered one T-shirt and pant from the accused under Mahazar – Ex.P23.

44. Therefore, looking to the above said evidence, some doubt arises as none of the witnesses have stated about the presence of blood stains on the clothes of the accused nor even it is the case projected by the prosecution by suggesting the same to any of the witnesses. The Police Officers who immediately took the accused to their custody also never stated about the presence of such blood stains on the clothes of the accused. In the matter of recovery of the blood stained clothes, non-examination of CWs.37 and 38, who brought the accused to the Police Station, in our opinion also creates serious doubt whether the recovery as stated by the Investigating Officer can be solely relied upon in the absence of any corroborative evidence from the other mahazar witnesses. When such doubt is created in the mind of the Court, the benefit of such doubt should be given in favour of the accused.

45. Apart from the above, it is also worth to refer a decision of the Hon’ble Apex Court, in the case of MATRU ALIAS GIRISH CHANDRA v. STATE OF UTTAR PRADESH reported in 1971 (2) SCC 75 wherein, the conduct of the accused has been dealt with and has observed thus:-

“(i) When the evidence is that the accused went to the police station along with the complainant to lodge a report about the incident, such behavior and conduct of the accused by normal standards is not suggestive of his involvement in a heinous crime like murder unless the was an experienced criminal (of which there is no suggestion) with extraordinary balance of mind and disciplined control over his senses and faculties. The subsequent conduct of the accused in absconding does not by itself necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime.”

46. The Court also observed with reference to this aspect at paragraph 20 by reiterating the same. The Hon’ble Apex Court also considered one of the circumstances of recovery of a blood stained clothes on the appellant and observed that-

“No stains were noticed in any of the appellant clothes even though he was with Ram Chandra right up to the lodging of the FIR and even accompanied him for that purpose. The Courts below seems to us to have failed to take into consideration all the relevant facts and circumstances of the case. As a proof of the appellant’s guilt depended solely on circumstantial evidence. It was incumbent on the courts below to properly consider and scrutinize all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant’s guilt. In our view, the cumulative effect of the circumstantial evidence of this case falls far short of the test required for sustaining conviction.”

47. Learned Additional SPP has also strenuously contended that the accused was residing with his wife, a brutal murder has been committed by him and Doctor’s evidence shows that she had sustained as many as 7 serious injuries i.e., on the neck, hand and other parts of the body. Therefore, he submits that looking to the brutal nature of death occurred in the house of the accused, the accused has to explain how the incident happened.

48. The Investigating Officer has also referred to the statement of one of the children of the accused and deceased by name – Ajay – CW-2, who was aged about 4 years. no attempt is made by the prosecution to examine the said child before the Court so that some evidence would have been placed before the Court. Therefore, the suppression of this material witness from examining, in our opinion also creates serious doubt and therefore, benefit of doubt also in our opinion should be given in favour of the accused.

49. It is not the case of the prosecution that the witnesses saw the accused with the deceased on that particular day. Moreover, it is the case of the prosecution that the accused, deceased and two children were residing ordinarily in the said house where the incident happened. It appears the children were very small so that the prosecution could not record their statements. Neverthelsess, the prosecution case is that the accused was present in the morning when the witnesses gathered there and he volunteered that he committed offence. The said factum of accused giving extra judicial confession has not been supported by any of the witnesses. Mere proving of a heinous offence is not sufficient to draw an inference of guilt against the accused on that sole ground. It is to be proved before the Court with all legal evidence as observed by the Hon’ble Apex Court which is based on the materials on record. But in the absence of legal evidence, the Court cannot convict the accused on moral grounds. Therefore, in this particular case, we are of the opinion that the evidence adduced by the prosecution is insufficient and in adequate to convict the accused, as he has also undergone more than six years of imprisonment during the trial of the appeal. Hence, we proceed to pass the following:-

ORDER

(i) The appeal is hereby allowed. Consequently, the Judgment of Conviction and Order of Sentence dated 28.10.2013 passed by the First Additional District and Sessions Judge at Mandya, in S.C.NO.202/2012 is hereby set aside.

(ii) Appellant – accused is acquitted of the charges leveled against him for the offence punishable under Section 302 of the Indian Penal Code.

(iii) Accused/appellant shall be set at liberty, forthwith if he is not required in any other case.

(iv) If the appellant/accused has deposited any fine amount, the same is ordered tobe refunded to him on proper identification and acknowledgement.

(v) The Registry is hereby directed to communicate this order to the concerned Jail Authority for release of the appellant-accused forthwith, if he is not required in any other case
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