(Prayer: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C praying to call for records and examine the records in S.C.No.48/2016 and set aside the judgment and sentence passed by the learned Ii Addl. Dist & Sessions Judge, Raichur for convicting the appellant by its judgment dated 29.01.2020 and 31.01.2020 passed in S.C.No.48/2016, in the interest of justice and equity.)

CAV Judgment

Chillakur Sumalatha, J.

1. Assailing with the judgment that is rendered by the Court of II Additional District and Sessions Judge, Raichur in S.C.No.48/2016 dated 29.01.2020, accused therein preferred this appeal.

2. Heard Sri Rajesh G. Doddamani, learned counsel for the appellant as well as Sri Siddaling P. Patil, learned Additional State Public Prosecutor who represents the respondent - State.

3. The case of the prosecution if narrated in narrow compass is that deceased - Bheemakka (hereinafter referred to as 'deceased' for brevity) is the wife of PW.5. PW.5, deceased and their children were residing at Masdoddi village. The deceased used to leave the village in the morning for attending coolie work and used to return in the evening. On one day she left the house as usual to attend coolie work but she did not return. Her husband - PW.5 and PW.7 searched for her but in vain. PW.5 went to the house of PW.6 who is the elder brother of the deceased and enquired about whereabouts of the deceased. PW.6 informed PW.5 that deceased did not approach his house. PW.5 thereafter came to know that PW.1 lodged a complaint stating that a woman was raped and murdered in his area. On that PW.5 went to RIMS Hospital, Raichur and found that the woman found dead is none other than his wife. PW.1 informed PW.5 that the appellant raped the deceased and killed her. Basing on the complaint given by PW.1 a case was registered and was investigated into. Appellant was arrested and was sent to judicial custody.

4. Charges were framed against the appellant for the offences punishable under Sections 376 and 302 of IPC and trial was held. On subjecting the evidence of PW.1 to PW.18, Exs.P1 to P22 and MOs.1 to 5 to scrutiny, Trial Court came to a conclusion that the prosecution failed to establish the guilt of the appellant beyond all reasonable doubt for the offence punishable under Section 376 of IPC and thereby acquitted him of the said charge. Having found the appellant guilty of the offence punishable under Section 302 of IPC, he was sentenced to imprisonment for life and to pay fine of Rs.50,000/-, in default of payment of fine, to undergo simple imprisonment for six months.

5. Projecting that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 302 of IPC and that the appellant is innocent, learned counsel for the appellant submitted that there is no evidence whatsoever on record to show that the appellant was seen with the deceased at any time soon before the incident or for that matter at any other time whatsoever. The case of the prosecution is that bite marks were found on the dead body of the deceased and that those bite marks were through the acts of the appellant. Though prosecution contended that dental impression of the appellant was taken, no proof was produced to show that said dental impression established that resultant bite marks were due to the acts of the appellant. There are number of inconsistencies and contradictions in the evidence of the prosecution witnesses which were ignored by the Trial Court. The case totally rests on circumstantial evidence and therefore prosecution is required to establish each and every fact of the case so as to connect each link of the chain, but prosecution failed in its attempt in doing so. Learned counsel thereby sought to allow the appeal and to acquit the appellant.

6. Per contra, learned Additional State Public Prosecutor contended that it is the appellant who took the deceased to his house with a request to attend coolie work at his house and on taking her to his house, he sent out the inmates of the house, assaulted her and when she resisted the acts of the appellant, he tied her hands, filled her mouth with a cloth so that neighbours will not hear the cries, thereafter brutally raped her and ultimately killed her by throttling her neck. Learned Additional State Public Prosecutor submitted that basing on the evidence produced, Trial Court rightly convicted the appellant for the offence of murder and thus the judgment of the Trial Court which is well reasoned needs no interference.

7. As per the version of the prosecution dead body was found at the house of the appellant. Said house as per the version of the prosecution is bearing No.8-10-56. The evidence of PW.14 in this regard is that he is working as Assistant Engineer in PWD Sub Division, Raichur and basing on the letter addressed by CPI West Circle, Raichur, he prepared rough sketch of the spot when it was shown to him by a constable by name Bheemaraya. Rough sketch prepared is marked as Ex.P19. PW.14 during the course of cross-examination admitted that the house number in Ex.P19 is mentioned as '9-10-56'. PW.16 who issued Ex.P21 house extract stated that House No.8-10-56 (new) is in the name of Maremma W/o. Basayya and House No.8-10-56 (old) is in the name of Maremma and Narassappa S/o. Narasappa. Both houses are located at Harijanawada, Raichur. During the course of cross- examination he stated that police did not specifically ask the extract of House No.8-10-56 (N) or House No.8-10-56 (O). He further sated that the House No.9-10-56 comes in Maddipet area.

8. Now coming to the evidence of PW.1 who set the law into motion by presenting Ex.P1 complaint, he stated that a lady was found dead at their street. He did not say that the dead body was found in the house of appellant or atleast at a house. PW.1 during the course of cross-examination admitted that the appellant is not having house in their street and that his house is at Medar Oni. Thus prosecution miserably failed to establish where exactly the incident occurred and from where the dead body was shifted to hospital by police. Though PW.3 stated that Ex.P7 photograph was obtained from the house of the appellant, he who was cited as a panch witness deposed that he was called to police station for panchanama and he does not remember the purpose of the said panchanama. During the course of cross- examination, he stated that he do not know the contents of said panchanama. The evidence of PW.4 is also to the same effect. As per the evidence of PW.5 who is the husband of the deceased PW.6 who is the elder brother of the deceased and PW.7, they were informed by PW.1 that the appellant herein took the deceased for attending coolie work and that she was then raped and killed. But PW.1 gave evidence that he does not know the woman who died and the cause for her death.

9. The version of the prosecution is that PW.10 saw the appellant taking the deceased to his house. Prosecution tried to establish the last seen theory through the evidence of PW.10. But PW.10 stated that she has not seen the appellant taking a lady to his house. After PW.10 was declared as hostile, she was subjected to cross- examination by learned Public Prosecutor. PW.10 denied the suggestion of learned Public Prosecutor that on 26.02.2016 at 10.00 a.m. appellant brought 30 years old lady to his house on the ground that his house needs to be cleaned, sent his younger brother and sister to coolie work forcibly and that she saw the said incident.

10. Prosecution tried to connect the injuries found on the dead body of the deceased to the acts of the appellant herein more particularly, the bite marks. PW.12 who conducted postmortem examination stated that he found bite marks over face and external genitalia. During the course of cross-examination he deposed that he cannot say how many teeth bite marks were found on the dead body. He also sated that he did not mention the type of teeth appearing at the place of wound. The evidence of PW.15 is that he examined the appellant, prepared his dental impression and handed over the said impression to the Investigating Officer. He also sated that police brought photos of dead body and postmortem examination report and he verified them and opined that bite marks forthcoming from dead body of the deceased as per the postmortem examination report, are likely to be caused by the teeth of the appellant. PW.15 during the course of cross-examination admitted that method and material used to obtain teeth impression is not mentioned in the letter given by him. PW.15 admitted that Ex.P12 postmortem examination report discloses the word 'bite marks' but not the total number of bite marks and specific teeth which caused them. By the evidence of PW.15, it is clear that he without having the basic requirements of the measurement of the bite marks found over the dead body of the deceased and the measurements of the teeth as per dental impression, he simply stated that bite marks found on the dead body as per postmortem report are likely to be caused by the teeth of the appellant. PW.9 though stated that he can identify the tooth set seized by the police, in the deposition of PW.9 there is an endorsement that the tooth set of plaster of paris containing tooth impression of the appellant is misplaced and is not traced in the office. Thus absolutely there is no material on record to connect the appellant with the crime in question. Neither the scene of offence is established by the prosecution, the last scene theory was proved nor the injuries including bite marks found on the dead body of the deceased were connected to the appellant herein.

11. With a submission that fundamental and basic requirements to connect the appellant with the crime were not established and that the case which rests on circumstantial evidence should be established by the prosecution without leaving any room of doubt, learned counsel for the appellant relied upon the decision of the Hon'ble Apex Court in the case between Sharad Biridhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622, wherein Hon'ble Court referring to the decision in Hanumant vs. State of Madhya Pradesh (AIR 1952 SC 343) at paragraph Nos.152 and 153 of the judgment held as under:

          "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

          (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 Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 SC 2622) where the following observations were made:

          "certainly, it is a primary principle 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 circumstance should be of a conclusive 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.

          153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

12. With no second thought we say that the aforementioned five golden principles were not applied by the Trial Court to the facts of the case. On meticulous examination of the entire evidence that is brought on record, we infer that prosecution attempted to connect the appellant with the crime but could not do so. Establishing cause of death alone is not sufficient. It is for the prosecution to establish beyond all reasonable doubt that such death is resultant of the acts of the person charged of the said offence. Thus we ultimately hold that the Trial Court went wrong in placing reliance upon the evidence produced by the prosecution and convicting the appellant for the offence punishable under Section 302 of IPC. Therefore the appeal is disposed of with the following:

ORDER

          I) Appeal is allowed.

          II) The judgment that is rendered by the Court of II Additional District and Sessions Judge, Raichur in S.C.No.48/2016 dated 29.01.2020 is set aside.

          III) Appellant is found not guilty of the offence punishable under Section 302 of IPC and consequently he is acquitted of the said charge under Section 235(1) of Criminal Procedure Code.

          IV) Appellant shall be set at liberty forthwith insofar as this case is concerned.

          V) Amount if any paid towards fine shall be refunded to the appellant/accused.

          VI) Registry to communicate this judgment to the concerned Jail Authorities forthwith through approved electronic mode to facilitate immediate release of the appellant.