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failures of Appellate court = the Appellate Court was required to deal with each and every question raised on behalf of the appellants. Though the aforesaid questions were raised before the trial court as well as the High Court, we find that the High Court failed to discuss and decide the questions raised by the appellants -Apex court remanded for fresh disposal = the Division Bench held that the accused persons have failed to explain the circumstances under which they had come in possession of the motor cycle belonging to PW-1 which had been used by the deceased and, therefore, the presumption would arise against the accused under Section 106 of the Evidence Act.= High court (i) The prosecution failed to prove the recovery of motor cycle from the possession of the appellant as the witnesses, who were the Panch had not stood to the test of cross-examination. (ii) PW-40 was examined to prove the alleged seizure of motor cycle (MO5). But the said witness deposed that he reached the place after the seizure. PW-40 could not state the date and time when seizure was made and he signed in Mahazar (Ex.P.23). According to PW.40 he had signed the Mahazar at the cross of Nelagadahalli Village but according to Seizure Mahazar (Ex.P.23), the place of seizure was NITF Cross. In the cross-examination he admitted that he did not remember MO5 vehicle was seized by the police. (iii) PW-2 in his deposition stated that the deceased had informed him that the motor cycle was seized for violation of Traffic Rules. This clearly shows that the motor cycle had already been seized by the Police. (iv) The prosecution also failed to prove the recovery of Wrist Watch (MO6) of the deceased. To prove the said aspect prosecution examined PW-8 and PW-9. The case of the prosecution was that Wrist Watch (MO6) was seized from PW-8, the brother of accused No.1. But PW-8 turned hostile and stated that nothing has been seized from him. Another witness was PW-9, who in his evidence stated that he had not seen any seizure and also turned hostile. In Ex.P.1, the complainant, PW-17 (mother of the deceased) has not stated anything regarding Wrist Watch of the deceased. Therefore, it is clear that the story of Wrist Watch was subsequently inserted to create evidence against the accused, but the prosecution failed to establish. (v) The prosecution failed to establish beyond reasonable doubt the allegation that the exhumation of dead body was at the instance of the accused. The Investigation Officer (PW-45) in his cross-examination deposed that he knew the place of burial of dead body prior to the recording of the voluntary statement of the accused. Therefore, it can be said that the dead body has been recovered at the instance of the accused. (vi) The prosecution also failed to prove the last seen theory. The Poojari who performed the Pooja of motor cycle has categorically stated that he cannot identify the persons who visited the temple, as thousands of people used to visit the temple in a day. (vii) Once the prosecution has failed to prove the main offence under Section 302 of the IPC, offence under 201 IPC also does not survive for consideration. The evidence of PWs-2, 10, 11, 14 and 45, not at all stood the test of the cross-examination. the High Court being the Appellate Court was required to deal with each and every question raised on behalf of the appellants. Though the aforesaid questions were raised before the trial court as well as the High Court, we find that the High Court failed to discuss and decide the questions raised by the appellants. 8. In view of the finding recorded above, we are of the view that the case should be remitted to the High Court for fresh disposal in accordance with law. The impugned judgment dated 19th January, 2010 passed by the Division Bench of the High Court of Karnataka, Bangalore in Criminal Appeal No.968 of 2006 is, accordingly, set aside. The case is remitted back to the High Court for fresh disposal of the appeal in accordance with law. It will be open to the appellants to raise all the questions and objections as raised in this appeal or as taken before the High Court. The respondents may also contest the case in support of the judgment passed by the trial court. The appeal stands disposed of with the aforesaid observation.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40539    

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 887 OF 2013
(arising out of SLP(Crl.)No.1937 of 2013)
P. NAGESH AND ANOTHER … APPELLANTS

VERUS

STATE OF KARNATAKA … RESPONDENT

 

J U D G M E N T

 

SUDHANSU JYOTI MUKHOPADHAYA, J.

 

This petition has been preferred by the appellants against the
judgment dated 19th January, 2010 passed by the Division Bench of the High
Court of Karnataka at Bangalore in Criminal Appeal No.968 of 2006. By the
impugned judgment, the Division Bench upheld the order of conviction
recorded by the trial court based on the circumstantial evidence.

The Presiding Officer, the Fast Track Court-IX, Bangalore City by
its judgment dated 10th April, 2006, relying on circumstantial evidence
held the appellants (accused Nos. 1 and 2) guilty and convicted them for
the offence punishable under Sections 364, 302, 379, 201 read with Section
34 of the IPC and sentenced them to undergo imprisonment for life and a
fine of Rs.2,000/-, in default, simple imprisonment for six months for the
offence punishable under Section 302 of the IPC; rigorous imprisonment for
seven years and a fine of Rs.2,000/-, in default, simple imprisonment for
three months for the offence punishable under Section 364 of the IPC; five
years imprisonment and a fine of Rs.1,000/-, in default, simple
imprisonment for three months for the offence punishable under Section 201
of the IPC and imprisonment for two years for the offence punishable under
Section 379 of the IPC and ordered that above sentences shall run
concurrently.

2. The Division Bench noticed the circumstances relied on by the
prosecution to prove the guilt of the accused and after much discussion on
the relevance of the evidence produced and on the questions raised on
behalf of the appellants dismissed the appeal. For the said reason, on 1st
March, 2013, the case was taken up by this Court and a notice was issued to
the respondent limited to the question as to whether the matter can be
remitted back to the High Court for a fresh disposal in accordance with
law.

3. We have heard learned counsel for the parties and on the facts and
circumstances of the case, delay of 974 days in filing and 29 days in re-
filing the SLP is condoned. Leave is granted.

4. The Division Bench recorded in paragraphs 3 and 4 of the impugned
judgment, the circumstances which prosecution relied on to prove the guilt
of the accused and the submission on behalf of the appellants. The same is
quoted hereunder:

“3. The prosecution has relied upon the following
circumstances to prove the guilt:

i) Motive- causing death for robbing motor cycle.

 
ii) The accused being found in possession of the motor cycle. The number
plate of the said motor cycle, although displayed a different
registration number, but, the engine and chasis number of the seized
vehicle tallies with the motor cycle of the accused bearing N RX KA 02
EF 3103.

 
iii) The discovery of the dead body at the voluntary instance of the
accused persons. The dead body was buried in a land at Bhaktharahlli
village, Kunigal Taluk.

 
iv) In the exhumation proceedings conducted by the TEM in presence of the
I.O. and Doctor would lead to discovery of the buried dead body.

 
v) The identity of the dead body (corpus delecti) is established by the
evidence of PW-10 – father of the deceased. PW-11 – brother of the
deceased, who identified the dead body on the basis of the clothing
found on it.

 
vi) The dead body, although fully decomposed, the post mortem report and
the evidence of the Doctor would show that death is possible by
strangulation by rope.

 
4. Smt. N. Padmavathi, counsel for the appellant submitted
the following discrepant circumstances to assail the order of
conviction:

 
1) The theory of recovery of motor cycle from the accused by the police
is false and concocted.

 
2) The recovery of the dead body at the voluntary instance of the accused
is false and concocted.

 
3) The evidence of PW-4 discloses that the police had visited the place
earlier to the exhumation.

 
4) The medical evidence does not disclose the cause of death.

 
5) The doctor has given opinion only on the basis of the attending
circumstances.”

 
5. After hearing the counsel for the parties, the Division Bench held
that the accused persons have failed to explain the circumstances under
which they had come in possession of the motor cycle belonging to PW-1
which had been used by the deceased and, therefore, the presumption would
arise against the accused under Section 106 of the Evidence Act.

6. Learned counsel for the appellants submitted as follows:

(i) The prosecution failed to prove the recovery of motor cycle from
the possession of the appellant as the witnesses, who were the Panch
had not stood to the test of cross-examination.

(ii) PW-40 was examined to prove the alleged seizure of motor cycle
(MO5). But the said witness deposed that he reached the place after
the seizure. PW-40 could not state the date and time when seizure was
made and he signed in Mahazar (Ex.P.23). According to PW.40 he had
signed the Mahazar at the cross of Nelagadahalli Village but according
to Seizure Mahazar (Ex.P.23), the place of seizure was NITF Cross. In
the cross-examination he admitted that he did not remember MO5 vehicle
was seized by the police.

(iii) PW-2 in his deposition stated that the deceased had informed him
that the motor cycle was seized for violation of Traffic Rules. This
clearly shows that the motor cycle had already been seized by the
Police.

(iv) The prosecution also failed to prove the recovery of Wrist Watch
(MO6) of the deceased. To prove the said aspect prosecution examined
PW-8 and PW-9. The case of the prosecution was that Wrist Watch (MO6)
was seized from PW-8, the brother of accused No.1. But PW-8 turned
hostile and stated that nothing has been seized from him. Another
witness was PW-9, who in his evidence stated that he had not seen any
seizure and also turned hostile. In Ex.P.1, the complainant, PW-17
(mother of the deceased) has not stated anything regarding Wrist Watch
of the deceased. Therefore, it is clear that the story of Wrist Watch
was subsequently inserted to create evidence against the accused, but
the prosecution failed to establish.

(v) The prosecution failed to establish beyond reasonable doubt the
allegation that the exhumation of dead body was at the instance of the
accused. The Investigation Officer (PW-45) in his cross-examination
deposed that he knew the place of burial of dead body prior to the
recording of the voluntary statement of the accused. Therefore, it can
be said that the dead body has been recovered at the instance of the
accused.

(vi) The prosecution also failed to prove the last seen theory. The
Poojari who performed the Pooja of motor cycle has categorically
stated that he cannot identify the persons who visited the temple, as
thousands of people used to visit the temple in a day.

(vii) Once the prosecution has failed to prove the main offence under
Section 302 of the IPC, offence under 201 IPC also does not survive
for consideration. The evidence of PWs-2, 10, 11, 14 and 45, not at
all stood the test of the cross-examination.

 
7. Having heard the learned counsel for the parties, we are of the
opinion that the High Court being the Appellate Court was required to deal
with each and every question raised on behalf of the appellants. Though the
aforesaid questions were raised before the trial court as well as the High
Court, we find that the High Court failed to discuss and decide the
questions raised by the appellants.

8. In view of the finding recorded above, we are of the view that the
case should be remitted to the High Court for fresh disposal in accordance
with law. The impugned judgment dated 19th January, 2010 passed by the
Division Bench of the High Court of Karnataka, Bangalore in Criminal Appeal
No.968 of 2006 is, accordingly, set aside.
The case is remitted back to the
High Court for fresh disposal of the appeal in accordance with law. It will
be open to the appellants to raise all the questions and objections as
raised in this appeal or as taken before the High Court. The respondents
may also contest the case in support of the judgment passed by the trial
court. The appeal stands disposed of with the aforesaid observation.

……………………………………………….J.
(T.S. THAKUR)

 

 
……………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 9, 2013.

 

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