2025 INSC 108
SUPREME COURT OF INDIA
(HON’BLE
VIKRAM NATH, J., HON’BLE SANJAY KAROL AND HON’BLE SANDEEP MEHTA, JJ.)
THAMMARAYA
Petitioner
VERSUS
STATE OF KARNATAKA
Respondent
Criminal
Appeal No(S). 649 OF 2013- Decided on 22-01-2025
Criminal, Murder
Penal Code, 1860,
Section 302/34 and 201 – Evidence Act, 1872, Section 27 - Murder –
Circumstantial evidence –
Appreciation of evidence - Incriminating circumstances - Disclosure statement -
‘Recoveries’ - Only piece of circumstantial evidence available on record
against A-2 and A-3 is that of ‘recoveries’ - As per the prosecution, accused
(A-2) made a disclosure statement leading to the recovery of one gold chain, one
Jambia and a diary, which were all seized in the presence of panch witnesses
(PW-8) and ‘S’ - Accused (A-3) also made a similar disclosure statement, in
furtherance whereof, a ring studded with white stones was recovered - These
recovered articles were produced by the prosecution before the trial Court as
material object Nos. 1, 2, 8 and 9 - The prosecution claims that these were the
ornaments worn by the deceased at the time of the incident - Evidence of the
Investigating Officer(PW-27) would reveal that he did not depose the exact
words as narrated by the accused (A-2) and accused (A-3) in their disclosure
statements - He even did not care to exhibit the disclosure statements of which
he was the scribe in his deposition - He also did not depose in clear words
that the accused persons had led him to the place mentioned in the disclosure
statements and got the articles recovered - No connection between the accused
and the particular articles recovered is visible from the testimony of the
Investigating Officer(PW-27) - The Investigating Officer(PW-27) also failed to
exhibit the recovery memorandums - There is no indication in the deposition of
the Investigating Officer(PW-27) that he sealed the recovery articles or
got the same subjected to test identification at the hands of the relatives of
the deceased - Furthermore, another very
crucial missing link in the prosecution case that it failed to conduct the Test
Identification Parade(TIP) of the recovered articles, thereby, bringing the
identification of the material objects in Court for the first time, is under a
cloud of doubt - It is a case of sheer negligence and dereliction of duty on
the part of the Investigating Agency and the Public Prosecutor for not
conducting Test Identification Parade(TIP) - Neither the disclosure statements
of the accused persons were proved as per law, nor the prosecution was able to
establish the factum of recoveries of allegedly looted articles purported to
have been made on the behest of the accused persons by leading proper evidence
- No other evidence was led by the prosecution to bring home the guilt of the
accused persons (A-2) and (A-3) – Held that the chain of circumstantial
evidences in the present case cannot be held to be so complete, so as to lead
to the only hypothesis of the guilt of the accused which is totally
inconsistent with their innocence - Conviction of the accused (A-2) and accused
(A-3) recorded by the trial Court and affirmed by the High Court held unsustainable
in the eyes of law - The impugned judgments do not stand to scrutiny and are
hereby quashed and set aside and the appellant (A-2) and appellant (A-3)
acquitted of the charges.
(Para
21, 22, 26 to 29)
JUDGMENT
Mehta, J. :- This appeal takes
exception to the common judgment dated 3rd August, 2010 rendered by the
Division Bench of High Court of Karnataka(Circuit Bench, Gulbarga) [Hereinafter, referred to as the ‘High
Court’.] in Criminal Appeal No. 964 of 2006 filed by Manoj @ Manohar[Hereinafter, referred to as
‘Manoj(A-1)’(since deceased).] and Criminal Appeal No. 1157 of 2006 filed
by the appellants, Thammaraya [Hereinafter,
referred to as ‘Thammaraya(A-2)’] and Basappa @ Basavaraj. [Hereinafter, referred to as
‘Basappa(A-3)’.]
2.
The three accused persons, namely, Manoj(A-1), Thammaraya(A-2) and Basappa @
Basavaraj(A-3) were tried by the learned Fast Track Court-1, Bijapur[Hereinafter being referred to as the ‘trial
Court’] in Sessions Case No. 22 of
2002 for the offence punishable under Section 302 read with Section
34 of the Indian Penal Code, 1860.
[Hereinafter being referred to as the ‘IPC’] They were convicted and
sentenced in the following terms: -
|
Manoj(A-1)
(since deceased) |
i.
Under Section 302 IPC r/w Section 34
IPC: Life imprisonment with fine of
Rs. 1000/-. ii.
Under Section 201 IPC: 7 years R.I with a fine of Rs. 1000/-. |
|
Thammaraya(A-2) |
i.
Under Section 302 IPC r/w Section 34
IPC: Life imprisonment with fine of
Rs. 1000/-. ii.
Under Section 201 IPC: 7 years R.I with a fine of Rs. 1000/-. |
|
Basappa(A-3) |
i.
Under Section 302 IPC r/w Section 34
IPC: Life imprisonment with fine of Rs. 1000/-. ii.
Under Section 201 IPC: 7 years R.I
with a fine of Rs. 1000/-. |
3.
The appeal(s) preferred by the accused persons against the judgment of the
trial Court came to be dismissed by the High Court, vide common judgment dated
3rd August, 2010, which is a subject matter of challenge in this appeal by
special leave.
4.
Since accused Manoj(A-1) passed away during the pendency of this appeal,
Criminal Appeal No. 648 of 2013 filed by him has been dismissed as abated by
this Court vide order dated 9th January, 2025.
Brief
Facts: -
5.
As per the prosecution case, Manoj(A-1) was the nephew of Shrishail, a liquor
merchant. He had developed an immoral and illicit relation with the wife of
Shrishail. As a sequel to this illicit relationship, Manoj(A-1) hatched a plan
to eliminate Shrishail. For this purpose of carrying out the same, he contacted
Thammaraya(A-2) and Basappa(A-3).
6.
On 24th August, 2001, Manoj(A-1) took Shrishail in his Indica car bearing No.
MP-09/HB-7769 on the pretext of taking him to see an expert doctor at Sholapur,
Maharashtra. He also instructed Thammaraya(A-2) and Basappa(A-3) to meet them
on the way. All the accused persons thereafter committed murder of Shrishail by
strangulating him with a nylon rope and abandoned the dead body between Konnur
cross to Domnal cross of Bijapur on National Highway No. 13. Before abandoning
the dead body, the clothes worn by the deceased Shrishail were taken off and
his denuded body was thrown in the forest area near Tungabhadra dam at Hospet.
The clothes of deceased Shrishail were thrown away at some different location.
Accused Manoj(A-1) made a pretence of being a victim of dacoity and lodged
a complaint[Complaint No. 165 of 2001]
before the Solapur Police at Bijapur Naka for the offences punishable
under Sections 395, 363, 365, 323, 506(2) IPC
read with Section 3(25) of the Arms Act, 1959 and Section
135 of Bombay Police Act, 1951 which came to be registered as Crime No.
165 of 2001 dated 25th August, 2001. It was inter alia alleged in the said
complaint that when he was near Teramail R.T.O Check Post, some unknown persons,
with their faces hidden under a “Burka” and armed with weapons had come in two
Maruti vans, stopped their car and launched an attack on them. Eventually, the
assailants abducted Shrishail. He also alleged that the unknown persons dragged
him out of the car and pointed a revolver at him, thereby, looting away money
from both, accused Manoj(A-1) and Shrishail. Two of the unknown assailants
allegedly also looted the car driven by accused Manoj(A-1), abandoning him at a
distance of one furlong.
7.
Accused Manoj(A-1), thereafter, sent the information of Shrishail’s death at
the house of the deceased Shrishail and as a consequence, the wife of the
deceased Shrishail, further communicated it to his friends, who were the
members of the Wine Shop Merchants Association in Bijapur. The friends of
the deceased Shrishail proceeded to Bijapur Naka Police Station, where
accused Manoj(A-1) was present. Thereafter, accused Manoj(A-1) was taken to the
Commissioner of Police at Solapur.
8.
Looking at the suspicious conduct and the flimsy story concocted by the accused
Manoj(A-1), the police officers started interrogating him. During the course of
interrogation, accused Manoj(A-1) broke down and confessed to have murdered
Shrishail by strangulating him with a nylon rope while he was in the car with
the aid and assistance of co-accused Thammaraya(A-2) and co-accused
Basappa(A-3). He confessed that the dead body of Shrishail was thrown away,
after removing his clothes. G. Kandakumar P. Govindaswamy(PW-1), discovered the
dead body of the deceased at Smayar factory forest area and subsequently, gave
the information[Exh. P-1] of the same
to Bijapur Rural Police Station. After
the dead body was discovered, an
F.I.R. [FIR No. 105 of 2001] was
registered against the accused persons for the offences punishable
under Sections 302 and 201 IPC read with Section
34 IPC.
9.
The Bijapur police took over the investigation and recovered one gold chain
bearing “S” symbol (MO-8), a chocolate coloured diary (MO-2), a gold ring
studded with white stones (MO-9), clothes worn by the deceased(MO-4 & 5),
one Jambia(MO-1) and one nylon rope(MO-6), which was used for the commission of
the offence. All these recoveries were purportedly made in furtherance of the
disclosure statements given by the accused persons to the Investigating Officer
under Section 27 of the Indian Evidence Act, 1872. Charge sheet was
filed against the accused persons for the offences punishable
under Sections 302 and 201 IPC read with Section
34 IPC and the case was committed to the learned Fast Track Court-I,
Bijapur(trial Court). Upon committal, charges were framed against the accused
persons who denied the same and claimed to be innocent. During trial, the
prosecution examined 31 witnesses, exhibited 47 documents and 9 material
objects to prove its case.
10.
The accused persons were confronted with the circumstances appearing against
them in their statements recorded under Section 313 of Code of
Criminal Procedure, 1973[Hereinafter being
referred to as ‘CrPC’]. They denied the prosecution allegations and claimed
to be innocent. However, upon conclusion of the trial, the trial Court
proceeded to convict and sentenced all the three accused as noted above. [Refer Para 2 of this judgment.]
11.
Aggrieved by the conviction and sentence order, the accused persons filed
criminal appeals before the High Court, which came to be dismissed vide a
common judgment dated 3rd August, 2010, which is assailed in the present appeal
by special leave. Discussion and Conclusion: -
12.
We have heard and considered the submissions advanced by learned counsel for
the parties and have been taken through the impugned judgments and the evidence
available on record.
13.
The entire case of the prosecution hinges on circumstantial evidence. The law
with regard to the appreciation of evidence in a case based purely on
circumstantial evidence has been crystallized by this Court in a plethora of
decisions. The locus classicus on this issue is the case of Sharad
Birdhichand Sarda v. State of Maharashtra[(1984)
4 SCC 116.], wherein this Court formulated the five golden
principles(Panchsheel) for cases based on circumstantial evidence, which are as
follows:-
“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
legaldistinction 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 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.”
14.
It is a well-established principle of criminal jurisprudence that conviction on
a charge of murder may be based purely on circumstantial evidence, provided
that such evidence is deemed credible and trustworthy. In cases involving circumstantial
evidence, it is crucial to ensure that the facts leading to the conclusion of
guilt are fully established and that all the established facts point
irrefutably towards the accused person’s guilt. The chain of incriminating
circumstances must be conclusive and should exclude any hypothesis other than
the guilt of the accused.
15.
It is also a fundamental principle that a court can convict an accused only if
their guilt is established beyond reasonable doubt and not merely on the
possibility of guilt. The gap between “may be guilty” and “must be guilty” is
significant, separating uncertain speculations from definitive conclusions.
Thus, it is the duty of the prosecution to elevate its case from the realm of
‘may be true’ to ‘must be true’. [Shivaji
Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793.]
16.
After adverting to the settled principles on cases based on circumstantial
evidence, we shall now discuss the evidence in the present case. There is no
dispute that the cause of death of Shrishail was homicidal inasmuch as Ravi
Basavaraj Akki, the Medical Officer(PW-13) gave a categoric opinion in his
testimony, stating that the death of Shrishail was caused by asphyxia resulting
from strangulation.
17.
The case as against accused Manoj(A-1) was based on three incriminating
circumstances i.e., ‘motive’, ‘last seen’ and ‘recoveries’.
18.
So far as the surviving accused persons, Thammaraya(A-2) and Basappa(A-3) are
concerned, we find that the only piece of circumstantial evidence available on
record against them is that of ‘recoveries’. As per the prosecution, accused
Thammaraya(A-2) made a disclosure statement leading to the recovery of one gold
chain, one Jambia and a diary, which were all seized in the presence of panch
witnesses i.e. Ektarsab Hajisab @ Hayatsab Honnutagi(PW-8) and Srimant, son of
Khandu Hakke. Accused Basappa(A-3) also made a similar disclosure statement, in
furtherance whereof, a ring studded with white stones was recovered. These
recovered articles were produced by the prosecution before the trial Court as
material object Nos. 1, 2, 8 and 9. The prosecution claims that these were the
ornaments worn by the deceased Shrishail at the time of the incident.
19.
While analyzing the jurisprudence concerning the proving of disclosure
statements, this Court has held in Babu Sahebagouda Rudragoudar and Other
v. State of Karnataka[(2024) 8 SCC 149.],
as follows:
“64. The manner of
proving the disclosure statement under Section 27 of the Evidence Act
has been the subject-matter of consideration by this Court in various
judgments, some of which are being referred to below……..
66. Further,
in Subramanya v. State of Karnataka (2023) 11 SCC 255 , it was held
as under :
“76. Keeping in mind
the aforesaid evidence, we proceed to consider whether the prosecution has been
able to prove and establish the discoveries in accordance with
law. Section 27 of the Evidence Act reads thus:
‘27. How much of
information received from accused may be proved.— Provided that, when any fact
is deposed to as discovered in consequence of information received from a
person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.’
77. The first and the
basic infirmity in the evidence of all the aforesaid prosecution witnesses is
that none of them have deposed the exact statement said to have been made by
the appellant herein which ultimately led to the discovery of a fact relevant
under Section 27 of the Evidence Act.
78. If, it is say of
the investigating officer that the appellant-accused while in custody on his
own free will and volition made a statement that he would lead to the place
where he had hidden the weapon of offence, the site of burial of the dead body,
clothes, etc. then the first thing that the investigating officer should have
done was to call for two independent witnesses at the police station itself.
Once the two independent witnesses would arrive at the police station
thereafter in their presence the accused should be asked to make an appropriate
statement as he may desire in regard to pointing out the place where he is said
to have hidden the weapon of offence, etc. When the accused while in custody
makes such statement before the two independent witnesses (panch witnesses) the
exact statement or rather the exact words uttered by the accused should be
incorporated in the first part of the panchnama that the investigating officer
may draw in accordance with law. This first part of the panchnama for the
purpose of Section 27 of the Evidence Act is always drawn at the
police station in the presence of the independent witnesses so as to lend credence
that a particular statement was made by the accused expressing his
willingness on his own free will and volition to point out the place where
the weapon of offence or any other article used in the commission of the
offence had been hidden. Once the first part of the panchnama is completed
thereafter the police party along with the accused and the two independent
witnesses (panch witnesses) would proceed to the particular place as may be led
by the accused. If from that particular place anything like the weapon of
offence or bloodstained clothes or any other article is discovered then that
part of the entire process would form the second part of the panchnama. This is
how the law expects the investigating officer to draw the discovery panchnama
as contemplated under Section 27 of the Evidence Act. If we read the
entire oral evidence of the investigating officer then it is clear that the
same is deficient in all the aforesaid relevant aspects of the matter.”
(emphasis
supplied)
20.
On going through the evidence of Basanagouda, the Investigating Officer(PW-27),
who purportedly recorded the disclosure statements of accused persons
Thammaraya(A-2) and Basappa(A-3), which led to the recovery of the articles
allegedly looted from the person of the deceased Shrishail at the time of the
commission of the offence, we find that his testimony is woefully lacking on
the material aspects required to prove the disclosure statement followed by the
recovery. The relevant extract from the evidence of the Investigating
Officer(PW-27) is reproduced hereinbelow for the sake of ready reference: -
“…On 3.9.2001 I
arrested accused Tammaraya Biradar and Basavaraj @ Basappa Mallappa Hattaraki
both resident of Yelagi village, Indi taluka and interrogated them. They
accepted the commission of the murder of the Rudragouda. I recorded their
voluntary statement and also took their finger prints for verification. On the
basis of voluntary statement of Tammaraya Patil, I conducted the recovery
panchanama with the help of panchas. Ek tarsab Hayatsab Honnutagi and Shrimanth
s/o Khandu Hakke. I recovered one gold chain bearing ‘S’ symbol which was of a
disco model weighing of about 8 ½ grams, one chalklate colour diary written in
bold letters as “Sonni telephone Index”, Knife of about 15” long including
handle with one side sharpened. Secondly, I conducted the recovery panchanama
with the same panchas on the basis of voluntary statement given by Basavaraj @
Basappa Hattaraki. I recovered one white stone ring gold weighing about 8 grams
and a diary on which it was written as “personal memorandam”…..”
21.
A cautious appraisal of the above extract from the evidence of the
Investigating Officer(PW-27) would reveal that he did not depose the exact
words as narrated by the accused Thammaraya(A-2) and accused Basappa(A-3) in
their disclosure statements. In fact, he even did not care to exhibit the
disclosure statements of which he was the scribe in his deposition. He also did
not depose in clear words that the accused persons had led him to the place
mentioned in the disclosure statements and got the articles recovered. No
connection between the accused and the particular articles recovered is visible
from the testimony of the Investigating Officer(PW-27). The Investigating Officer(PW-27)
also failed to exhibit the recovery memorandums. There is no indication in the
deposition of the Investigating Officer(PW-27) that he sealed the recovery
articles or got the same subjected to test identification at the hands of the
relatives of the deceased Shrishail.
22.
Furthermore, another very crucial missing link in the prosecution case that it
failed to conduct the Test Identification Parade(TIP) of the recovered
articles, thereby, bringing the identification of the material objects in Court
for the first time, is under a cloud of doubt. It is a case of sheer negligence
and dereliction of duty on the part of the Investigating Agency and the Public
Prosecutor for not conducting Test Identification Parade(TIP). This Court shed
light on the purpose of Test Identification Parade(TIP) in Ramkishan
Mithanlal Sharma v. State of Bombay[(1954)
2 SCC 516], wherein it held as follows:
“20. … These parades
are held by the police in the course of their investigation for the purpose of
enabling witnesses to identify the properties which are the subject-matter of
the offence or to identify the persons who are concerned in the offence. …the
identifying witnesses are explained the purpose of holding these parades and
are asked to identify the properties which are the subject-matter of the
offence or the persons who are concerned in the offence.”
(emphasis
supplied)
23.
This Court has further noted the significance of Test Identification
Parade(TIP) in Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra
Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh[(2012) 6 SCC 174.], wherein it was
held:
“66. There was some
delay in holding the identification parade. But the delay per se cannot be
fatal to the validity of holding an identification parade, in all cases,
without exception. The purpose of the identification parade is to provide
corroborative evidence and is more confirmatory in its nature.” ………..
(emphasis
supplied)
24.
Therefore, this material omission on part of the Investigating Officer(PW-27)
in not conducting a Test Identification Parade(TIP) of the recovered articles,
more particularly when the case of prosecution is based solely upon recoveries
of these articles, has created holes in the fabric of the prosecution story, which
are impossible to mend.
25.
Every piece of relevant fact needs to be sewn via the golden thread of duly
proved circumstances, in order to ultimately formulate the fabric of guilt.
Sadly, in the present case, the facta probantia fails to sustain and support
the alleged factum probando, rendering the prosecution’s case miserably weak.
Hence, the evidence led by the prosecution against the accused person is
woefully short of the mandate to prove the case beyond reasonable doubt.
26.
Thus, we have no hesitation in arriving at a conclusion that neither the
disclosure statements of the accused persons were proved as per law, nor the
prosecution was able to establish the factum of recoveries of allegedly looted
articles purported to have been made on the behest of the accused persons by
leading proper evidence. No other evidence was led by the prosecution to bring
home the guilt of the accused persons Thammaraya(A-2) and Basappa(A-3).
27.
In wake of the above discussion, the chain of circumstantial evidences in the
present case cannot be held to be so complete, so as to lead to the only
hypothesis of the guilt of the accused which is totally inconsistent with their
innocence.
28.
Resultantly, the conviction of the accused Thammaraya(A-2) and accused
Basappa(A-3) recorded by the trial Court and affirmed by the High Court is
unsustainable in the eyes of law. The impugned judgments do not stand to
scrutiny and are hereby quashed and set aside.
29.
The appellant Thammaraya(A-2) and appellant Basappa(A-3) are acquitted of the
charges. They are on bail and need not surrender.
30.
The appeal is allowed, accordingly.
31.
Pending application(s), if any, shall stand disposed of.
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