Page 1

1

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

Page 2

2

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.

Page 3

3

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.

Page 4

4

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:

Page 5

5

(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.

Page 6

6

(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.

Page 7

7

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.