07 Oct 2020

It is settled position of law that the Court cannot convict on the accused on the basis of surmises and conjectures as every finding should be based on satisfactory and acceptable evidence - Karnataka High Court

Case : Bavuddin v. State of Kerala Criminal appeal No. 3565/2013

Court : Karnataka High Court

Bench : Justice B. A. Patil, Justice Hanchate Sanjeevkumar and Justice M. G. Uma

Decided on : 07 Oct 2020

Relevant Statutes

Section 374(2) of the Code of Criminal Procedure 1973

Sections 201, 302 and 376 of Indian Penal Code 1860.

Per Justice B. A. Patil 

Brief Facts and Procedural History

1. The deceased was playing near Panch Shahi Darga, and further, the appellant enticed her by saying that he will give biscuit and took her to his rented house with an intention to commit rape and committed rape on the victim in the kitchen room of his house at about 7.30 p.m. and committed the murder and also to defaced the identity of the deceased by pouring kerosene over the dead body of the deceased and then thrown it in an open public A complaint was registered. After completion of the investigation, the charge sheet was.The learned Sessions Court passed the judgment of conviction and holding that the appellant is guilty of the offence levelled against him. The appellant is before this Court. An appeal was filed against this order.

The Issue of the Case

Whether the judgment passed by the Session Judge is liable to be set aside?

The Observations of the Court

1. The Honourable Karnataka High Court examined the prosecution witness (PW.5) and held that it creates doubt and credibility and trustworthiness of the witness shakes the prosecution case and the other witness (PW.6) has not stated on which date, on what time, under what circumstances, where exactly he was there and what he was doing at that time and on the basis of this vague statement the said witness is not reliable. The Honourable High Court observed that the presumption cannot be drawn under Section 8 of the Indian Evidence Act and the benefit of the doubt goes to the accused.

2. The Honourable Karnataka High Court referred to one judgment i.e. Indra Datal vs. State of Haryana, 2015 (11) SCC 31, It was held that the information given by the accused must relate distinctly to the fact discovered.  The Honourable High Court held the information provided by the accused in the form of the confessional statements has not led to any discovery and as per the PW (23) held that the disclosure statement of the accused has not been proved in accordance with law and the recovery is not acceptable and referred Vijay Kumar vs. State of Rajasthan, 2014 (3) SCC 412.

3. The Honourable High Court also observed that the prosecution had also not explained how the deceased sustained injuries and fractures and also no articles have been seized. The plea that the deceased's death is due to fractures is not acceptable. The Honourable High Court observed that all the witnesses and evidence is wholly unacceptable and conviction cannot be held on this basis. The Honourable High Court referred to another judgment i.e. Kuna @ Sanjaya Behera vs. State of Odisha, 2018(1) SCC 296, It was held that the prosecution has to prove the existence of certain facts then the burden of proof shifts to the accused otherwise not. The plea of extra-judicial confession is not acceptable and also the motive is not established by the prosecution. It was held in the above case that the motive plays a vital role when the charge is brought on circumstantial evidence.

4. The Honourable Karnataka High Court observed that the accused had made the confession when he was brought to the place of the incident, he was in the police custody and therefore it is not admissible. The Honourable High Court observed that there is no link in the chains of events, the accused deserved to be acquitted. The Honourable High Court referred another judgment i.e. Muthuramalingam & Others vs State, Rep by Inspector of Police, AIR 2016 SC 3340, It was held by the Apex Court in case of series of murder sentences or the alleged incident has taken place in a single transaction cannot be directed to run consequently as per the Section 427 of the Code of Criminal Procedure 1973 without the court directions.

5. The Honourable Karnataka High Court observed that it is a settled position of law that the Court cannot convict the accused on the basis of surmises and conjectures as every finding should be based on satisfactory and acceptable evidence. (State of U.P. vs. Pheru Singh, AIR 1989 SC 1205).

The Decision Held by the Court

The Appeal is allowed and the judgement passed by the Additional Session Judge is set aside and the accused is acquitted.

 

Per Justice Hanchate Sanjeevkumar

Brief Facts and Procedural History

1. On 22.04.2008 The informant Nazir Ahmed filed the first information against that his daughter aged six years was found missing and afterwards, he received information that the dead body of a girl in half-burnt position is found in the open defecation land. The informant along with his wife and other relatives went to the spot and found the dead body of his daughter with burn injuries on her face and other parts of the body. The informant suspected that somebody might have caused her death with an intention to cause the disappearance of evidence of committing the crime, 

2. An FIR was registered by Talikote Police against an unknown person for the offences punishable under Sections 302 and 201 of Indian Penal Code 1860. During the investigation, it was found that the accused induced the victim girl by offering biscuits and taken her to his house and committed rape and also committed the murder by strangulating her neck, Subsequently, the half-burnt dead body was carried in a gunny bag and thrown in the open defecation land and thereby, committed the above said offences. Accordingly, the Investigating Officer filed the charge sheet against the accused of the offences punishable as stated above.

3. The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the above said offences and convicted and sentenced him. Aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused preferred this appeal on various grounds.

The Observations of the Court

1. The Honourable Karnataka High Court observed that there is no material evidence against the accused to prove that there is a chain of circumstances and the evidence is not sufficient to hold the accused guilty for the conviction. It was also observed by the Court that the persons have already seen the burnt body but after the four days the accused had shown the place, these circumstances cannot be taken into consideration and the entire prosecution is not believable.

2. The Honourable Karnataka High Court analyzed the evidence and held that the entire case is based upon circumstantial evidence, therefore the prosecution has to prove all the circumstances and shall also be linked to each other. The Honourable High Court referred to one judgment i.e. Reddy Sampath Kumar vs. State of A.P, 2005 (7) SCC 603, it was held that in order to hold the conviction the circumstantial evidence must be complete and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The Honourable High Court referred to another judgment Raja vs. State of Haryana, 2015 (11) SCC 43, It was held that motive plays a vital role in cases based on circumstantial evidence.

3. The Honourable Karnataka High Court stated the appreciation of the evidence must be based upon the analysis of evidence recorded in examination in chief and cross-examination, not on the basis of mathematical and arithmetical calculation and the trivial or minor matters shall be analyzed on the basis of background and living condition etc. The Honourable Apex Court observed that the evidence was approached in this case and analyzed all the witnesses.

4. The Honourable Karnataka High Court observed that all the witnesses who are formal in nature and held that they have performed their duty during their investigation means the prosecution is able to prove the guilt of the accused beyond reasonable doubt and due to some minor defects which were revealed in cross-examination cannot be made ground to reject the prosecution case (Sukhchain Singh vs. State of Haryana and Others (2002 SCC Cri 961).

Decision Held by the Court

The Appeal is dismissed.

Per Justice M. G. Uma

Brief Facts and Procedural History

1. The PW.2 who is the father of the deceased girl of age 6 years old who has been ravished brutally and murdered with burnt ashes it is stated that the complainant is doing peddler business of selling pen, battery etc in front of open space the victim was studying in 1st standard in the house. the complainant after attending the marriage returned to the house at Talikoti at night 10.30 p.m. and he came to know from his wife (PW.10) that his daughter six years old girl did not return to the house from evening 5.00 p.m. and thereafter the complainant and his relatives have searched and enquired in various places victim deceased are not traced out.

2. On the next day in the early morning heard the news that in a place, the dead body of a child which is half burnt is found and immediately the complainant, his wife and other relatives went there and saw the dead body of that girl child and identified the said dead body is his child and there were burnt injuries found on the face, backside and there were no clothes found on the dead body, the complainant had lodged a complaint before the police stating that somebody has kidnapped his daughter on 21.04.2008 after 5.00 p.m., and burnt the deceased thereby committed the murder and then thrown the dead body in the said open defecation ground committed the disappearance of evidence by burning the dead body of the deceased and in this way complaint is lodged.

3. A complaint is registered for the offences under Sections 376, 302 and 201 of Indian Penal Code 1860. The appellant/accused was arrested and accordingly by recording the plea the learned Sessions Judge has proceeded with the trial. After appreciating the evidence on record, the learned Sessions Judge has held the appellant/accused is guilty of the offences punishable under Sections 302, 376 and 201 of IPC. The appellant/accused has challenged the judgment of conviction 

The Observations of the Court

1. The Honourable Karnataka High Court observed that the deceased died a homicidal death due to head injuries and multiple factors but no intercourse was committed to the girl. The Honourable High Court observed that there is no satisfactory evidence to prove the circumstances that are connected to the offence. The Evidences which are adduced by the prosecution witnesses are not supportive. The Honourable High Court discrepancies which are found are not minor in nature but they are material discrepancies that go to the root of the case and the accused is liable to be acquitted.

Decision Held by the Court

The Appeal is allowed and sets aside the judgment of the Session Judge.

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