2007 Supreme(SC) 1231

2007(7) Supreme 102
Supreme Court of india
(From Karnataka High Court)
R.V. Raveendran & B. Sudershan Reddy, JJ.
Malleshappa — Petitioner
versus
State of Karnataka — Respondent
Appeal (crl.) 101 of 2006
Decided on : 21-09-2007

important points
Burden of proof lies on the prosecution.
No conviction can be based on surmises and conjectures.

Headnote:(a)Indian Penal Code, 1860 – Section 302 – In view of the evidence of witnesses being not trustworthy, and unexplained delay of ten days in lodging complaint, prosecution has not been able to prove its case.(Paras 17 and 20)

       (b)Indian Evidence Act, 1872 – Section 102 – High Court committed serious error in concluding that the burden shifts to the appellant to show as to what happened to the deceased – The appellant’s failure to offer any explanation in his statement under Section 313 Cr.P.C. is not a circumstance to hold appellant guilty of the charge. (Para 23)

       (2002) 6 SCC 715 – Distinguished.

       (c)Criminal Trial – Murder – In a case based on circumstantial evidence proximity of time and place assumes importance – The dead body, even if it is to be accepted, was that of the deceased, which had been recovered after 10 days after the date of which the deceased was last seen in the company of the appellant – This singular piece of circumstantial evidence available against the appellant, even if the version of PW-10 is to be accepted, is not enough – It is fairly well settled that the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.(Para 24)

       (2002) 7 SCC 198 – Relied upon.

       (d)Criminal Trial – Conviction – No conviction can be based on surmises and conjectures – High Court’s decision based on too many surmises and conjectures, not maintainable. (Para 27)

       (1991) 3 SCC 627 – Distinguished.

       Facts of the case:

       The deceased-Yankanna Balakannavar had illicit intimacy with the wife of the appellant Smt. Hanamawwa (PW19). Deceased was working as the driver of the tractor of the appellant during 2001. The appellant’s suspicion about the deceased having illicit intimacy with his wife led to serious misunderstanding between them because of which, deceased left his job as the tractor driver. On 12.7.2001 at about 8.00 p.m., the appellant and accused Nos. 6 and 7 went in the car of the appellant to the house of the deceased. He was not at home. The appellant and accused Nos.6 and 7 told deceased Yankanna’s mother Yallawwa (PW-10) that they required the services of her son in connection with digging of a borewell in the land of the appellant. When deceased Yankanna returned home within half an hour, he was immediately taken by the appellant and accused Nos. 6 and 7 with them. On that night, deceased-Yankanna did not return home. On the next day, Yallawwa (PW-10) went in search of her son but could not find him. On questioning, the appellant informed PW-10 that he had brought back deceased Yankanna at about 11.00 p.m. on the same night and had left him in the village. Not satisfied with the answer given by the appellant, PW-10 went to accused Nos. 6 and 7 and inquired about the whereabouts of her son but they also did not give any satisfactory answer. Thereafter, PW-10 and her nephew-Kamanna Parameshwar (PW-18) went in search of the deceased Yankanna and in the process, made inquiries in nearby villages namely Dadanatti, Rugi, Chabbi etc. but could not find him.

       Police Inspector of Bagalkot police station (PW-26) filed charge sheet against the appellant and accused Nos. 2 to 7 for offences punishable under Sections 143, 147, 148, 354, 302, 201 read with 149 of the IPC.

       The accused pleaded not guilty of the charges and claimed to be tried. The learned Sessions Judge found that the materials were not sufficient and no case was made out as against accused Nos. 2 to 5 and consequently, acquitted them of all the charges. The remaining accused namely appellant and Accused Nos. 6 and 7 were convicted for the offences punishable under Section 302, 364, and 201 of the IPC. On appeal, the High Court allowed the appeal of accused Nos. 6 and 7 and acquitted them. The High Court dismissed the appeal of the appellant and confirmed the conviction and sentences imposed as against the appellant.

       Findings of the Court:

        High Court’s decision based on too many surmises and conjectures is not maintainable.

       Result : Appeal allowed.