JUDGMENT

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 NRX 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