Raghunatha vs The State Of Karnataka

2024 INSC 238 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024 (Arising out of SLP(Criminal) No. 6112 of 2022)

RAGHUNATHA AND ANOTHER …APPELLANT(S) VERSUS THE STATE OF KARNATAKA …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

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 Signature Not Verified Digitally signed by Narendra Prasad as “trial court”) in S.C. No. 276 of 2014 on 17th June, 2019. Date: 2024.03.21 12:54:27 IST Reason:

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3. Shorn of details, brief facts leading to present appeal

are as under:

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,

2 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.

3 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.

3.6. The appellants denied the charges and claimed to be

tried. Prosecution examined 23 witnesses and 20 exhibits to

bring home the guilt of the appellants.

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.

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

4 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.

3.9. Being aggrieved thereby, the present appeal.

4. We have heard Shri Shekhar G. Devasa, learned

counsel appearing for the appellants, Shri Aman Panwar,

learned Additional Advocate General (AAG) appearing for the

respondent-State.

5. Shri Devasa, learned counsel appearing for the

appellants submits that the trial court and the High Court

have grossly erred in convicting the appellants. He submits

that the present case is a case based on circumstantial

evidence. It is submitted that the prosecution has failed to

prove any of the incriminating circumstances. Further, the

prosecution has not been in a position to prove the chain of

circumstances which leads to no other conclusion than the

guilt of the accused. He therefore submits that the appeal

5 deserves to be allowed and the appellants are to be acquitted

of the charges charged with.

6. Shri Panwar, learned AAG appearing for the

respondent-State submits that both the courts have

concurrently held that the prosecution has proved the chain

of circumstances which leads to no other conclusion than the

guilt of the accused. He therefore submits that no

interference is warranted in the present appeal.

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 Maharashtra1,

wherein this Court held thus:

“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969)

1 (1984) 4 SCC 116 : 1984 INSC 121

6 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v.

State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

153. 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 Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the

7 observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “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 circumstances should be of a conclusive nature 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.

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

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

8 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.

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.

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10. In the light of these guiding principles, we will have to

examine the present case.

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.

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

10 of the High Court found the said evidence to be sufficient to

establish the last seen theory.

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.

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.

15. The trial court found that the prosecution has proved

the motive behind the crime. However, the High Court has

reversed the finding on the said issue. It will be relevant to

refer to the following observations of the High Court:

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“21. …….But what exactly is the financial loss and whether that loss and intervention of deceased resulted in sufficient enmity between the deceased and accused No.1 and the same being nurtured from the date of closure of business till the date of death is not deposed to by prosecution witnesses. Therefore, the case of the prosecution that accused No.1 possessed and nurtured enmity resulting in taking away the life of the deceased by accused No.1 is not established by the prosecution with cogent and convincing evidence on record. Prosecution did not examine none else to establish misunderstanding especially when PW.6 in his cross examination has admitted that there was a panchayath convened in that regard. Investigating agency did not cite the panchaythdar as witness to establish the question of motive. Therefore, the finding recorded by the trial Judge that prosecution has established motive for the incident cannot be countenanced in law and to that extent, the reasoning assigned by the learned trial Judge needs interference at the ends of this Court.”

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.

17. It is further to be noted that though the High Court has

concurred with the trial court that it is the appellants, who

have committed the crime but has altered the conviction to

Part-I of Section 304 of IPC from Section 302 of IPC. No

12 discussion for the same has been offered in the impugned

judgment.

18. In that view of the matter, we find that the impugned

judgment is not sustainable.

19. In the result, we pass the following order:

(i) The appeal is allowed;

(ii) The impugned judgment dated 14th July 2021

passed by the High Court of Karnataka at

Bengaluru in Criminal Appeal No. 1389 of 2019

and the judgment dated 17th June 2019 passed by

the trial court in S.C. No. 276 of 2014 are quashed

and set aside;

(iii) The appellants are acquitted of all the charges

charged with and are directed to be released

forthwith, if not required in any other case.

20. Pending application(s), if any, shall stand disposed of.

….........................J. (B.R. GAVAI)

….........................J. (SANDEEP MEHTA) NEW DELHI;

MARCH 21, 2024.

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