(Prayer: This criminal appeal is filed under Section 378(1) and (3) of Cr.p.c praying to grant leave to appeal against the judgement and order of Acquital dated 30.07.2016 passed by the learned iii additional sessions judge, Mysuru, in s.c.no.155/2008 thereby acquitting the respondent/accused of the offences punishable under sections 120b, 364a, 396 and 201 of IPC.)

Oral Judgment:

H.P. Sandesh. j.

1.Heard the learned Additional SPP appearing for the appellant/State and the learned counsel for respondent Nos.1 to 3/accused. The appeal against respondent No.4 stands abated.

2. The factual matrix of the case of the prosecution before the Trial Court is that on 30.12.2006, the deceased by name Lakhan @ Lakshman left Mysuru to Bengaluru carrying cash of Rs.28,05,300/- belonging to his employer P.W.1 Sunil for the purpose of depositing the same in bank account in Bengaluru. His colleague P.W.2 Raghunath dropped him to Mysuru bus stand. The prosecution version is that, when the deceased Lakhan was sitting in the bus, accused No.1 who was the driver employed by P.W.1 Sunil, asked him to get down from the bus saying that he is going to take him to Bengaluru in his own vehicle and on the way, accused Nos.2 to 4 abducted the deceased and forced him to drink water containing cyanide, which led to the death of said Lakhan and thereafter, they threw his body near a ditch in Ankihalli Village within the limits of Arehalli Police Station, Hassan District. Then they threw the suitcase and key from a bridge into the water and burnt his clothes at another place and distributed the cash of Rs.28,05,300/- and the jewels and other valuables stolen from said Lakhan amongst themselves. The body of Lakhan was found by the villagers of Ankihalli on 04.01.2007 and at that time, UDR No.1/2007 was registered by Arehalli Police. After subjecting the said dead body to post mortem, since nobody came forward to claim the body, it was buried. In the meantime, on 31.12.2006, P.W.1 Sunil, the employer of the deceased andto whom the  said cash of Rs.28,05,300/- belonged to and on whose behalf the deceased was taking the money to Bengaluru, filed complaint to the Lashkar Police, who registered FIR for the offence punishable under Section 406 of IPC. After said P.W.1 Sunil had lodged the complaint, on the same day after noon at 01:38 p.m., he got a phone call from an unknown number saying that Lakhan is with them and demanding Rs.20,00,000/- ransom and saying he will call back at 05:00 p.m. The said Sunil informed the same to the Lashkar Police on 02.01.2007 and on that basis, the offence under Section 364A of IPC was included in the FIR. The investigation did not progress further till 03.03.2008, on which date accused Nos.1 to 4 herein were arrested by the CCB Police, to whom the investigation had been transferred in the meantime, on the basis of suspicion because they were spending excess amounts of money in one Lakshmi Bar and Restaurant.

3.     It is the prosecution version that, after the arrest of accused Nos.1 to 4, on the basis of the voluntary statement of accused Nos.1 to 4, the police have made recoveries, which proved the complicity of accused Nos.1 to 4 in the offence. The above prosecution version regarding the manner in which the offence was committed is based purely on the voluntary statement made by accused Nos.1 to 4. It is the prosecution case that, after the place where the dead body of Lakhan was thrown in Ankihalli village was shown by accused Nos.2 to 4 to the CCB     police,the CCB police made enquiry with the jurisdiction police whether any dead body had been found there and only thereafter, it was discovered that the dead body on the basis of which UDR No.1/2007 was registered and which had been buried after subjecting the same to post mortem, was the body of deceased Lakhan. After accused Nos.2 to 4 showed the place where they had thrown the dead body, the Investigating Officer took permission of the Assistant Commissioner to exhume the dead body and the skeletal remains of the dead body which were exhumed were subjected to second post mortem to ascertain whether the death was caused due to cyanide poisoning and thereafter, certain parts of the skull was sent to FSL, Bengaluru. In the meantime, the blood sample was taken from the mother of the deceased Lakhan and that was also sent to FSL and so also the skull of the skeleton, which was exhumed and a photograph of Lakhan. The expert opinion is rendered showing that the DNA of the skeletal remains and that of Lakhan’s mother match with each other and expert’s opinion is also rendered on the basis of the Super Imposition Technique that the skull which was exhumed matches with the photograph of Lakhan. On this basis, the Investigating Officer has ascertained that the dead body which was found on 04.01.2007 in respect of which UDR No.1/2007 was registered and which was subsequently buried, was indeed the dead body of deceased Lakhan. The CCB police after completion of the investigation have filed the charge-sheet.

4. The case was committed to the Sessions Court for the offences punishable under Sections 120B, 364A, 396 and 201 of IPC against accused Nos.1 to 4. All the accused persons were on bail and all the accused persons were represented through their counsel and they appeared and did not plead guilty and claims the trial. Hence, the prosecution examined P.W.1 to P.W.19 and got marked the documents at Exs.P.1 to 112 and M.O.1 to M.O.21 are marked. After the closure of the prosecution evidence, 313 statement of the accused was recorded and accused did not lead any defence evidence. The Trial Court having considered both oral and documentary evidence with regard to the offence under Sections 120B, 364A, 396 and 201 of IPC, answered all the points in the negative in coming to the conclusion that there is no chain link between each of the circumstances to establish the case, since the same is based on circumstantial evidence. The Trial Judge having considered both oral and documentary evidence placed on record, discussed the same in paragraph Nos.10 to 48 and also analysed the evidence from paragraph Nos.49 to 62 and particularly discussed the same from paragraph No.51 onwards and all the circumstances were taken note of whether the guilt of the accused was proved. The Trial Court also discussed in paragraph No.58 with regard to the plastic box said to contain cyanide, recovery of various amounts of cash from the house of the accused, personal articles of the deceased and discovery of xerox copy of invoice of Abhinandan Jewellers from the house of accused No.2 and comes to the conclusion that benefit of doubt goes in favour of the accused, since each chain link was not proved and recovery of gold ring and chain is not sufficient to prove the case against the accused and acquitted all the accused persons.

5.     Being aggrieved by the judgment of acquittal, the present appeal is filed by the State challenging the acquittal order.

6. The main contention of the learned Additional SPP appearing for the appellant/State before this Court is that the order of acquittal is against the material available on record. The very approach of the Trial Court is erroneous. The judgment of the Trial Court acquitting the accused holding that on the analysis of the evidence led by the prosecution, it has failed to prove the guilt of the accused levelled against them beyond all reasonable doubt is not justifiable in law. It is also contended that investigation has been conducted in the case on the basis of voluntary statements given by the accused and the discovery        made  on thesaid information is admissible in evidence and the same has not been considered by the Trial Court. The evidence of P.W.39, who deposed regarding the mahazar held in the shop in which accused No.1 has stolen cyanide to kill the victim is very important circumstance which goes against the accused. The evidence of P.W.37 doctor also supports the case of the prosecution. The recoveries made from the accused based on their voluntary statements is also a serious circumstance which establishes the guilt of the accused. The learned counsel also vehemently contend that the evidence of P.W.1 and P.W.2 is very clear that P.W.1 is the owner of the said shop, who handed over an amount of Rs.28,05,300/- to the deceased and also he deputed P.W.2 to drop the deceased to the bus stand. It is also the specific evidence of P.W.2 that when he went to drop the deceased to the bus stop, he found accused No.1 in the bus stand. The learned counsel contend that accused No.1 showed the place where they took the deceased and committed the murder by administering cyanide in water and strangulated him. Though P.W.37 and P.W.38 partly turned hostile, their evidence ought to have been discussed in detail by the Trial Court.

7. It is also the case of the prosecution that cyanide was taken from the shop of Mohan Jewellers, which is located by the side of the jewellery shop of P.W.1 and accused No.1 took the same and utilized it for committing the murder. The learned counsel would submit that body was found on 04.01.2007 and it was decomposed and at the first instance, UDR was registered. P.W.28 P.C. found the accused persons are lavishly spending amount and then only came to know on arrest that these accused persons are involved in committing the murder. The learned counsel also would submit that when the mahazar was drawn in terms of Ex.P.14 in the house of accused No.1, 6 to 7 mobiles were seized and an amount of Rs.45,000/- was seized. While drawing the mahazar in terms of Ex.P.15, ring of the deceased was recovered at the instance of accused No.1 and recovery was also made at the instance of accused No.2 i.e., chain and locket. P.W.10 speaks about Ex.P.5 recovery in respect of accused No.2 is concerned. P.W.12 is also a recovery witness of accused No.2 and mahazar was drawn in terms of Ex.P.20. The same was mortgaged with Meera Jewellers and apart from that, xerox copy of invoice is also seized and all the circumstances were not taken note of by the Trial Court while acquitting the accused and ought to have convicted the accused persons. It is a case of wrongful gain and murder.

8. Per contra, the learned counsel for respondent Nos.1 to 3 would submit that incident was taken place on 30.12.2006 and the evidence of P.W.1 and P.W.2 is nothing but an improvement and that too subsequent to the arrest of the accused and that arrest is also based on suspicion of the evidence of P.W.28. The learned counsel would also submit that there is no any material that it was a case of homicide. The learned counsel submits that when the body was found on 04.01.2007, UDR case was registered and body was also subjected to post mortem and no cause of death was ascertained even at the first instance. The learned counsel submits that the body was exhumed after long period of 1 year 3 months and one more post mortem was conducted and in both the post mortem reports also, no cause of death is ascertained. The recovery is also not proved and the recovery is after almost 1 year 3 months and though the witnesses deposes with   regardto the  recovery is concerned, their evidence is also not credible. The learned counsel would submit that though the prosecution relies upon the personal belongings of the deceased, nothing is placed on record that the same belongs to the deceased only. The learned counsel submits that the Trial Court having taken note of all these materials available on record, comes to the conclusion that it is not a case for convicting the accused and no chain link is established. Hence, the same does not require any interference of this Court.

9.     Having heard the learned Additional SPP for the appellant/State and the learned counsel for respondent Nos.1 to 3/accused and on analysing the evidence available on record, the points that would arise for our consideration are:

                  (i) Whether the Trial Court committed an error in acquitting the accused and whether it requires interference of this Court reversing the same?

                  (ii)      What order?

Point No.(i):

10.    Having heard the respective learned counsel and also on perusal of both oral and documentary evidence available on record, it is the specific case of the prosecution that P.W.1 entrusted an amount of Rs.28,05,300/- to the deceased to deposit the amount in the bank account of the jeweller, who had given the jewels on credit basis. It is also the case of the prosecution that P.W.2 dropped the deceased to the bus stand. It is not in dispute that when the amount was not handed over to the jeweller, who gave the jewels on credit basis, case was registered at the first instance invoking Section 406 of IPC against the deceased. It is important to note that when the deceased was missing, the complaint was given on 02.01.2007. It is also important to note that it is the case of P.W.1 that on the very same day at around 01:30 p.m., he had received a phone call for ransom for an amount         of Rs.20,00,000/- and the said call was made from public booth. It is also important to note that P.W.1 had not lodged the complaint on the same day or on the next day and complaint was given on 02.01.2007. The Trial Court taken note of in paragraph No.51 that when the jewels was purchased on credit basis, in order to prove that on 30.12.2006, P.W.1 was having an amount of Rs.28,05,300/- with him, nothing is placed on record and for having carried an amount of Rs.28,05,300/-, is not established. It is also important to note that P.W.2 though says before the Court that he only dropped the deceased to the bus stand and found accused No.1 in the bus stand, the said statement was not made immediately after the incident. All the materials which the prosecution relies upon is only subsequent to the arrest of accused Nos.1 to 4, that too based on the statement of P.W.28 after lapse of 1 year 3 months. It is also important to note that P.W.28 deposes with regard to the behaviour of the accused persons were doubtful and they were spending the amount lavishly. The Court has to take note of the fact that the incident was taken place on 30.12.2006 and found the accused persons in the year 2008 spending the amount lavishly. No doubt, there is a recovery at the instance of accused persons and the witnesses deposes with regard to the recovery is concerned i.e., the claim made by the prosecution that chain and ring belongs to the deceased. It is also the evidence of P.W.1 and P.W.2 that they had seen the deceased wearing the chain and gold ornaments and so also P.W.40 also deposes that the same belongs to her. But nothing is collected by the Investigating Officer that the gold ring and the chain belongs to the deceased only. It is also important to note that immediately after the missing of deceased, no statements are recorded regarding gold ornaments.

11.    The learned counsel for respondent Nos.1 to 3/accused brought to the notice of this Court that when the post mortem was conducted within a span of 5 days i.e., first post mortem, cause of death was not ascertained. It is also not in dispute that the body was buried having noticed the body on 04.01.2007, since no one claimed the body. Based on the voluntary statements of the accused persons only, the accused persons were implicated in the case. Though there was recovery at the instance of the accused persons with regard to the recovery of money, in order to prove that the said amount, which was recovered is that of P.W.1, no material is placed before the Court. P.W.1 also not says anything about the very same amount, which he had entrusted to the deceased and only recovery was made. It is also important to note that when the witnesses were examined before the Court with regard to the seizure of mobiles Ex.P.14 is concerned, in order to prove that in those mobiles only the accused persons have conspired with each other, no material is placed on record. No call details of accused Nos.1 to 4 is secured by the Investigating Officer. It is also the case of the prosecution that accused No.1 only took the deceased from the bus stand and thereafter, accused Nos.2 to 4 are intruders of the said car, ought to have collected the call details to show that they were in constant touch with each other to eliminate the deceased with an intention to make the wrongful gain. There is no chain link    between each circumstances though the prosecution relies upon Ex.P.15 mahazar for recovery from accused No.1 and Ex.P.10 for recovery from accused No.2 and witnesses P.W.10 and P.W.12 are relied upon and Ex.P.20 mortgaged with Heera Jewellers and in order to establish the chain link that the same belongs to the deceased also, nothing is placed on record and hence, the very recovery cannot be a ground to convict the accused and the same was taken note of by the Trial Court while acquitting the accused.

12.    The prosecution relies upon Ex.P.108 DNA report with regard to the skull belongs to the deceased after collecting the blood samples from the mother of the deceased and the same tallies and merely because DNA report shows that the skull belongs to the deceased, the alleged recovery cannot be a ground to connect the accused in a case of circumstantial evidence. Each circumstance must be established and each link must be established by the prosecution and nothing is found in the case on hand to establish the chain link. The Trial Court in detail discussed each and every circumstances from paragraph No.51 onwards with regard to the crucial fact of recovery of money and that the money was out of the said amount of Rs.28,05,300/-, no substantive piece of evidence is available and also recovery of personal belongings of the deceased also nothing is placed on record to connect the accused. There is no report that cause of death is on account of consumption of cyanide and also no material that it was a case of homicide. In the absence of all these chain links, the Trial Court rightly appreciated the same from paragraph Nos.51 to 62 and spending of money by the accused cannot be termed to be unnatural or unduly excessive and that too after lapse of 1 year 3 months. It     is not  the case of the prosecution  that immediately after the deceased was missing, P.W.1 and P.W.2 made the statement that he was wearing the gold ornaments i.e., chain and ring and so also the wife’s statement was not recorded. All efforts are made by the Investigating Officer subsequent to the arrest of accused Nos.1 to 4. When such being the case, we do not find any error on the part of the Trial Court in appreciation of evidence. Hence, it is not a case for reversing the finding of the Trial Court and there is no merit in the appeal to come to a other conclusion and benefit of doubt goes in favour of the accused and the same is extended by the Trial Court. There is no any positive evidence to connect the accused persons and hence, the appeal filed by the State is devoid of merits as there is no sound circumstances to connect the accused based on circumstantial evidence.

Point No.(ii):

13. In view of the discussions made above, we pass the following:

                  ORDER

                  (i) The appeal is dismissed.

                  (ii) The bail bond, if any, executed by the accused persons before the Trial Court consequent upon admission of this case, stands cancelled.