Challenge against the modification of conviction
2. This appeal challenges the judgement dated 14th July, 2021, passed by the Division Bench of the High Court of Karnataka at Bengaluru in Criminal Appeal No. 1389 of 2019, thereby partly allowing the appeal filed by the appellants, namely, Raghunatha (Accused No. 1) and Manjunatha (Accused No. 2) and modifying the order of conviction and sentence awarded to them by the Court of III Additional District & Sessions Judge, Kolar (sitting at K.G.F.) (hereinafter referred to as “trial court”) in S.C. No. 276 of 2014 on 17th June, 2019.
Prosecution case under section 302 IPC against unknown persons
3.1. On 7th July 2014, upon complaint being lodged by Sri R. Lokanathan (PW-1), Kaamasamudram police registered Crime No. 44/2014 for offence punishable under section 302 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) against unknown persons.
3.2. The prosecution case, in a nutshell, is that complainant and his father-Ramu (hereinafter referred to as ‘deceased’) were running a fertilizer shop and were also involved in agriculture and money lending business. There were misunderstandings in the business run by complainant and accused No.1 on account of which the accused No. 1 bore enmity with the complainant due to loss suffered in the business. Following which, the appellants hatched a conspiracy to murder the deceased. On 7th July 2014, deceased left the house at about 6:45 am on a ‘TVS Moped’ to go to Tholampalli for recovery of loan amount from Ahmed (PW-12). The appellants were waiting on Bisanathamm Tholampalli road and attempted to assault the deceased with a chopper from backside. When the deceased tried to escape, he fell down, after which accused No.1 caught hold of the deceased while accused No.2 assaulted him on the head with the chopper and murdered him.
3.3. At about 8 am, complainant’s uncle-Babu (PW-6) came and informed the complainant that a TVS Moped was found lying between Bisanathamm-Tholampalli road and took the complainant to the said spot. Complainant identified the Moped and found the deceased lying in prone position in the mud with bleeding injuries on his head. Deceased was not conscious; however, he was alive and his hands were shaking. Thereafter, the complainant and Babu (PW-6) took the deceased to KGF Hospital, where the doctor declared him dead.
3.4. The appellants came to be arrested on 23rd July, 2014. On completion of investigation, charge-sheet was filed against the appellants for offences punishable under Sections 120-B and 302 read with Section 34 of IPC. Since the case was exclusively triable by the Sessions Judge, the same was committed to the Sessions Judge vide order dated 10th December, 2014.
Charges framed under section 302, 120B r/w 34 IPC
3.5. On 6th May 2015, charges were framed against the appellants for offences punishable under Sections 120-B and 302 of IPC. Thereafter, on 11th June 2019, altered charges were framed under Sections 120-B and 302 read with 34 of IPC.
Conclusion of trial convicting the appellants for murder and awarded life imprisonment
3.7. At the conclusion of trial, the learned trial court found that the prosecution had succeeded in proving that the appellants had committed the murder of the deceased. Therefore, the learned trial court convicted the appellants for offences punishable under Sections 120-B and 302 read with 34 of the IPC and were awarded a sentence of life imprisonment. Further, a fine of Rs. 7,500/- for each offence was imposed on both the appellants and out of the said fine amount, Rs. 25,000/- was to be paid as compensation to the complainant.
Hon’ble High Court modified the conviction into section 304 Part-I IPC
3.8. Being aggrieved thereby, the appellants preferred Criminal Appeal No. 1389 of 2019 before the High Court. The High Court, vide impugned judgment, partly allowed the appeal and modified the conviction to Section 304 Part-I of IPC and sentenced them to undergo imprisonment for 10 years. Further, the High Court imposed a fine of Rs. 75,000/- on each of the appellants and directed a sum of Rs. 1,40,000/- of the fine amount to be paid to PW-7-Sarla, wife of deceased.
Prosecution case rests on circumstantial evidence
7. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 INSC 121], wherein this Court held thus:
“paras. 153 to 155”
Facts must establish the accused is guilty and not create any hypothesis
8. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court held that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused.
General principles regarding the innocence of accused
9. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
Circumstance relied on by the prosecution
11. The circumstances on which the prosecution relies are as follows:
(i) Last seen theory;
(ii) Motive; and
(iii) Recovery of the chopper used in the crime.
Hon’ble High Court analysis to modify the conviction
12. Insofar as the ‘last seen’ circumstance is concerned, the learned Judges of the High Court have relied on the testimonies of Sarla (PW-7) and Shivaraj (PW-8). The testimonies of Sarla (PW-7) and Shivaraj (PW-8) would reveal that they had seen accused Nos. 1 and 2 nearby the place of incident before the incident had occurred. They further stated that they had seen accused No. 1 holding chopper in his hand. The High Court further relied on the evidence of Babu (PW-6) who had noticed the unattended two-wheeler belonging to the deceased and informed about the same to Sri R. Lokanathan (PW-1) and Murthy (PW-5) i.e. son and brother of the deceased. Thereafter, the said witnesses started searching for the deceased and the deceased was found lying injured in the close vicinity. The learned Judges of the High Court found the said evidence to be sufficient to establish the last seen theory.
Merely appellants were seen nearby the place where the crime occurred holding chopper is not last seen
13. No doubt that where the prosecution proves that the deceased was last seen in the company of the appellants and the death of the deceased has occurred soon thereafter, the burden would shift upon the appellants. However, for that, initially the prosecution will have to discharge the burden. Merely because the appellants were seen nearby the place where the crime occurred and the accused No. 1 was holding the chopper, it cannot be said that the deceased was last seen in the company of the appellants. In our view, this will be nothing but basing the finding of conviction on conjectures and surmises.
Witness did not say that the accused were seen nearby the dead body
14. Further, the perusal of evidence of PW-7 would reveal that she has not deposed that the appellants were seen nearby the place where the dead body of the deceased was found.
Recovery is from open place accessible to one and all
16. Now, what is left, is only the third circumstance with regard to recovery. The recovery is from an open place accessible to one and all. In any case, only on the basis of the circumstance of recovery, it cannot be said that the prosecution has proved the case beyond reasonable doubt.
Party
RAGHUNATHA AND ANOTHER VERSUS THE STATE OF KARNATAKA – CRIMINAL APPEAL NO. OF 2024 (Arising out of SLP(Criminal) No. 6112 of 2022) – 2024 INSC 238 – MARCH 21, 2024.
https://main.sci.gov.in/supremecourt/2022/10829/10829_2022_3_1502_51604_Judgement_21-Mar-2024.pdf
Raghunatha and another vs. The State of Karnataka 10829_2022_3_1502_51604_Judgement_21-Mar-2024
