Holding

The conviction under Sections 302, 364 and 201 IPC is set aside because the prosecution did not establish guilt beyond reasonable doubt and the burden of proof cannot be shifted to the accused.

Summary

The appellant, Malleshippa, was convicted of murder, kidnapping and concealment of dead body under Sections 302, 364 and 201 IPC based on the testimony of the deceased's mother and wife and police officers. The body was highly decomposed, headless and handless, and its identification relied solely on underwear and a waist‑thread, with the medical officer unable to confirm sex. The High Court shifted the burden of proof onto the appellant, holding that he must explain what happened to the victim after being last seen together. The Supreme Court found the prosecution’s evidence unreliable, the identification of the body untrustworthy, no motive proved, and the circumstantial chain incomplete, thereby concluding that the burden of proof could not be shifted to the accused. Consequently, the conviction was set aside and the appellant acquitted.

Issues considered

The prosecution failed to prove the appellant's guilt beyond reasonable doubt under Sections 302, 364 and 201 IPC.
Whether the burden of proof can be shifted to the accused to explain the fate of the deceased.
Whether the identification of the highly decomposed body as that of the deceased is reliable.
Whether the circumstantial evidence presented is sufficient to sustain a murder conviction.
Whether a motive (illicit relationship) was established.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 149, s. 201, s. 302, s. 34, s. 364

Subjects

murdercircumstantial evidenceburden of proofidentification of bodyacquittalreasonable doubtIPCcriminal law

Judgment

MALLESHAPPA A
v.
STATE OF KARNATAKA

SEPTEMBER 21, 2007
B
[R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.]

Penal Code, 1860-ss. 302, 364 and 201-Murder-
'r Circumstantial evidence-Appellant with two of the accused taking
away the deceased-A highly decomposed dead body without head and C
hands found by police after 9 day since the deceased was missing-
Medical Officer not able to make out whether the body was that of a
male or female-Identification thereof by mother of the deceased-
FIR lodged against the accused, before finding ofthe body-Attribution
of motive of illicit relationship between deceased and wife of the D
appellant-During trial majority of witnesses turning hostile-Trial
....h Court convicting the appellant and two ofthe accused on the basis of
evidence ofmother and wife ofdeceased and Police Officers-Rest of
the accused acquitted-High Court acquitting the two accused, and-· ·
convicting the appellant shifting the burden to prove on him as to what E
happened to the deceased-Concluding that appellant committed
murder with some other persons-On appeal, held: Prosecution failed
to prove the charge against the appellant-Evidence of mother and
wife of the deceased are not reliable, being contradictory and at
variance with the FIR and evidence of the investigating Officer-Jn F
the facts of the case, the dead body cannot be said to have been
identified-No convincing evidence to prove the motive-Burden to
show as to what happened to the deceased was wrongly shifted on the
appellant-The circumstances oflast seen together, by itselfwould not
lead to inference that it was appellant who committed the crime-As G
benefit of doubt was given to other accused, High Court, in absence
of evidence could not have propounded new theory that appellant
committed the crime with the help ofsome other persons-Burden of
proof
153 H
154 SUPREME COURT REPORTS [2007] 10 S.C.R.

A Appellant-accused along with. 6 other accused, was tried for
·~
having caused death of a person. Prosecution case was that the
deceased was employed with the appellant as tractor driver. He had
illicit intimacy with the wife of the appellant (PW 19) and had left
the job about 3 months prior to the incident due to'misunderstanding
B between the appellant and the deceased. Appellant and accused Nos.
6 and 7 went to the house of deceased on 12.7.2001. As deceased
was not at home, they told mother of the deceased (PW 10) that they
required services of the deceased. When the deceased returned
home after half an hour, he was immediately taken by the accused ~

c with them. Since the deceased did not return home, PW 10 made
queries from the appellant and accused Nos. 6 and 7. She ultimately
alongwith PW 18 lodged a complaint (Exbt P6) on 22. 7.2001 about
her missing son and apprehending that the appellant could cause
· harm to him as the appellant had taken him forcibly. Inspector from
D some other Police Station, got an information about a dead body
floating in river on 21. 7.2001. Head and hands of the body were
severed. Legs were tied with a rope. The body was so decomposed _-L
that the Medical Officer could not confirm as to whether the body
was that of a male or female. However, an underwear was found on
the body. When the body was shown toPW-lOandPW 1 (wife of the
E
deceased) PW-10 identified the same as that of her son. Appellant
and other 6 accused were arrested. At the behest of the accused,
the places where the accused had been taken by them and from
where the dead body had been thrown ·had been shown. Weapons of
{
offence were also recovered on that basis. Trial Court convicted the -~
F
appellant and accused Nos. 6 and 7 u/ss. 302, 364 and 201 IPC. High
Court further acquitted accused nos. 6 and 7 and convicted the
appellant holding that the burden shifted on the appellant to show
as to what happened to the deceased after he took the deceased with
him; and that the appellant committed the murder of the deceased
G with the help of some other persons and not the acquitted accused.
Hence the present appeal. 'r

Allowing the appeal, the Court

HELD: 1. There is no reliable and trustworthy evidence in the
H
I-
MALLESHAPPA v. STATE OF KARNA I AKA 155

'-/
present case. It is highly dangerous to convict any accused on the A
basis of which the High Court has chosen to do so. The prosecution
miserably failed to establish the charge against the appellant. Most
of the witnesses had turned hostile and did not support the
prosecution case. The whole case of the prosecution rests on the
evidence of the mother and wife of the deceased (PW Nos.10 and B
11) and the police officers (PW Nos. 28 and 29).
[Paras 10, 11 and 25) [162-F-G; 169-G-H; 170-B)
2. The evidence of PW-10 and PW-11 are not reliable. They are
not trustworthy witnesses. The evidence of PW-10 is full of
contradictions apart from being at variance with exhibit P-6 (FIR) c
lodged by her before the Kaladgi police station and the evidence of
the Investigating Officer (PW-29). It is doubtful as to how and in what
cill$umstances exhibit P-6 came into existence. If PW-10 had seen
the dead body and identified it as that of her son there is no reason
why she could not have stated about it in exhibit P-6. If one goes by D
the contents of exhibit P-6 it becomes clear that she knew nothing
about the dead body found in the river. The question of identifying
the dead body as that of her son does not arise. PW-29, in his
evidence, stated that PW-10 to 12 identified the body as that of
deceased only on the basis of M.O. 1 (underwear) and M.O. 6 (Waist E
thread) and some photos on 24. 7.2001. No photographs are marked
as material objects. It is difficult to believe that one could identify
the highly decomposed and mutilated dead body as that of deceased
j
~-
when the Medical Officer (PW-21) was not even in a position to say
whether the dead body was that of a male or female. It is only the F
Forensic Expert (PW-22) who stated the body as that of a male after
examining the bones. PW-10 and 11 assert that dead body was
identified by PW-10 even on 21st July, 2001 but PW-29 says that
dead body was buried immediately after the post mortem
examination. Exhibit P-6 obviously got into existence may be after G
--( prolonged consultation with the police. The dead body remained
unidentified. [Paras 17and18] [165-C-D; 166-A-D]
3. The version given by PW-11 is also highly artificial and
cannot be accepted. It is difficult to believe that she did not go to
the spot where the body was found. It is difficult to reconcile the H
156 SUPREME COURT REPORTS [2007] 10 S.C.R.

A statements of PW-10 and PW-29. It is doubtful that PW-10 at all had
seen the dead body of her son. PW-29, in his evidence, stated that ~·
he could not trace the relatives of the dead person since it was highly
decomposed and had therefore got buried the body on 21.7.2001
itself. Thus in effect no one identified the body buried on 21. 7.2001
B as that of the deceased. [Para 19] [166-F-H; 167-A]
4. There is also no explanation as to why no complaint has been
made ever since 12th July, 2001 when the deceased was forcibly
taken away till lodging the first information report on 22nd July, 2001
at 1900 hours. [Para 20] [167-A-B]
c
5. There is no convincing evidence placed by the prosecution
to show that there was motive and that the deceased had illicit
relationship with (PW-19) wife of the appellant. PW-19 also turned
hostile and did not support the prosecution case. In this regard, the
evidence of PW-11 gains some significance wherein she admitted
D
that the complaint was filed only after they were informed by the
police about the illicit relationship of the deceased and (PW-19). No
witness has spoken about the alleged illicit relationship between the ~
deceased and PW-19 except PW-10 and 11 who got the information
from the police. [Para 21] [167-B-DJ
E
6. According to evidence of PW 21, who conducted the post
mor:tem examination, the body was highly decomposed, head was
missing, both legs were flexed and tied with rope over the abdomen.
Hands were missing. Survival bone was exposed, external genitalia
I
F was highly decomposed and unable to make out sex organs. He could ....!.
not make out as to whether the body was of a male or female, age
and cause of death, time of death, he accordingly preserved the
samples and sent to the Forensic Expert. The Forensic Expert stated
that the samples of bones sent for examination were that of a male
body. He admitted that by examining the bones, exact age of the
G
deceased cannot be given. Even the time of death cannot be given
exactly. [Para 22] [167-D-G] r
7. In the light of the evidence available on record, it cannot be
said that the circumstances of last seen together by itself and
H necessarily lead to the inference that it was the appellant who
MALLESHAPPAv. STATEOFKARNATAKA 157

committed the crime. (Para 23] (167-G] A
8. High Court committed serious error in arriving at the
conclusion 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. The prosecution B
has failed to establish as to when the death of the deceased took
place, it could be at any time between 12th July, 2001to21st July,
2001. There is nothing on record to show as to what transpired
between 12th July, 2001to21st July, 2001. Mere non-explanation
on the part of the appellant, by itself cannot lead to proof of guilt C
against the appellant. (Para 23] (168-A-D]
Mohibur Rahman and Anr. v. State ofAssam, (2002] 6 SCC 715,
relied on.
9. The dead body, even if it is to be accepted, was that of the D
deceased, 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 E
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] (169-C-E]

Lakshmi and Ors. v. State of UP., [2002] 7 SCC 198, relied on.
F
10. It is not an inflexible rule that the identification of the body,
cause of death and recovery of weapon with which the injury may
have been inflicted on the deceased though are factors to be
established by the prosecution but it cannot be held as a general rule
and broad proposition of law that where these aspects are not G
established, it would be fatal to the case of the prosecution and in
all eventualities, it ought to result in acquittal of those who may be
charged with the offence of murder provided the charges against the
accused otherwise can be established on the basis of the other
reliable and trustworthy evidence. [Para 24] [169-E-G] H
158 SUPREME COURT REPORTS [2007] 10 S.C.R:

A 11. It is not the case of the prosecution that the appellant
together with some unidentified persons kidnapped the deceased and
killed him. The specific case of the prosecution is that the appellant
along with accused Nos. 2 to 7 committed the crime of kidnapping
and murder of the deceased. The trial court as well as the High Court
B gave the benefit of doubt to the rest of the accused. The High Court
in the circumstances could not have propounded a new theory that
the appellant with the help of some others may have committed the
murder of the deceased. Neither there are any circumstances nor
any evidence available on record to take such a view in the matter
c in order to convict the appellant. [Para 26] [170-B-D]
Khujji@Surendra Tiwari v. State ofMadhya Pradesh, [1991] 3
sec 627, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
D 101of2006.
From the Judgment and Order dated 19.I 0.2005 of the High Court
ofKamataka at Bangalore in Crl. Appeal No. 1337/2005.
Sushil Kumar, Girish Ananthamurthy, Vaijayanthi Girish, Jagdish Patil
E and P.P. Singh for the Appellant.
Anil Mishra ( for Sanjay R. Hedge) for the Respondent.
The Judgment of the Court was delivered by
B. SUDERSHAN REDDY, J. 1. The appellant along with six
F others was tried by the Court of Sessions for the offence punishable under
Section 302 of the Indian Penal Code (hereinaft~r referred to as 'IPC')
and sentenced to undergo life imprisonment and to pay a fine of Rs.
2,000/-. He was also convicted for the offence punishable under Section
364 IPC and sentenced to undergo rigorous imprisonment for 5 years
G and to pay a fine of Rs. 1,000/- and in default of payment of fine, to
undergo rigorous imprisonment for 3 months. Further, he was convicted
for the offence punishable under Section 201 IPC and sentenced to
undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 1,000/
- and in default of payment, to undergo rigorous imprisonment for 3
H months. All sentences were directed to run concurrently. The Sessions
f·
MALLESHAPPA v. STATEOFKARNATAKA[REDDY,J.] 159

Court acquitted accused Nos. 2, 3, 4 and 5. The appeal of the appellal).t A
was dismissed by the High Court of Karnataka by the impugned judgmem,
however, accused Nos. 6 and 7 were acquitted by the High Court of all
the charges leveled against them. In this case we are concerned with the
sole appellant (Accused No. 1).
2. The conviction of the appellant is based on circumstantial B
evidence.
3. In brief, the case of the prosecution is that the deceased-Yankanna
Balakannavar had illicit intimacy with the wife of the appellant Smt.
Hanamawwa (PW-19). Deceased was working as the driver of the tractor c
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 D
not at home. The appellant and accused Nos.6 and 7 told deceased
-~ Yankanna' smother 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.
E
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 Yai1kanna 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,
F
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 Yankamm and in the process, made inquiries in nearby
villages namely Dadanatti, Rugi, Chabbi etc. but could not find him.
G
-f 4. On 21.7.2001, Inspector of Bilagi Police Station (PW-29)
received information that there was a dead body found floating in the
Ghataprabha river. Immediately, he rushed to the place and found the dead
body of a person near the pump house. The dead body was taken out
from the river. It was found that the head and rest of the portion of the H .
160 SUPREME COURT REPORTS [2007] 10 S.C.R.

A body had been severed. The body was highly decomposed and the bones
were exposed. The legs of the dead body were found folded and tied ~
with a rope. The body was tied by another rope at the place of neck
also. Inspector of police (PW-29) lodged information with regard to the
same and the same was registered as Crime No. 9112001 ofBilagi Police
B Station for the offences punishable under Section 302 and 201 of the IPC.
The First Information Report is exhibit P-23 dated 21.7.2001. Thereafter,
PW-29 conducted inquest in the presence of PW-1and2 and sent for
the medical officer to conduct the post mortem examination. Dr. Sabu
Satihal, Medical Officer, KIMS, Hubli (PW-21) conducted the post
C mortem examination. The Medical Officer could not confirm as to whether
a
the body was that of male or female since ,the genital portion had been
highly decomposed. However, there was underwear found on the body
which was taken out and the body was preserved for two days for
identification.
D 5. In the meanwhile, PW-10 along with PW-18 had gone to Kaladgi
police station and lodged a complaint on 22.7.2001 inter alia alleging
that her son was working as a tractor driver for about 3-4 years with the
appellant and about 3 months back, her deceased son left the job on
account of some disputes between them. She suspected that there was
E some dispute between her son and the appellant, accused Nos. 6 and 7
since they were frequently roaming around her house, making inquiries
about her son. She made inquiries with her deceased son in that regard
who did not respond. She apprehended that the appellant may cause harm
to her son. It is further alleged that about 11 days back i.e. on 12.7.2001,
F herself, the deceased and Lacchavva-wife of the deceased (PW-11) were
sitting in their house and at that time the appellant, accused Nos. 6 and 7
came to her and stated that they required her son in connection with
digging of a borewell in the land of the appellant. The deceased refused
to go but they took her son forcibly and the same was noticed by her
G neighbours. It was about 8.00 p.m. Thereafter, her son did not return to
home. She made inquiries with the appellant who stated that he had
dropped her son in the village at 11.00 p.m. Other accused also did not
give any satisfactory explanation. She suspected that the said three persons
might have killed her son. On the basis of the said information a case was
H registered by sub-Inspector (PW-28), Kaladgi Police Station as Crime
I
~
MALLESHAPPA v. STATEOFKARNATAKA[REDDY,J.] 161

no. 50/01 for the offence under Section 364 read with 34 IPC. Intimation A
x
of detection of dead body in Ghataprabha river was flashed to the
neighbouring police stations and the same was received by Kaladgi police
station and in furtherance of the same, PW-10 and PW-11 were tak~n
to the place. PW-10 identified the body as that of her son Yankanna 0n
the basis of the underwear found on the body. On 26. 7.2001, appellant B
and accused Nos. 2 and 3 were arrested. In furtherance of the voluntary
information given by the appellant, PW -29 could ascertain the places
where the deceased had been taken by the appellant and other accused,
who were involved in the incident as well as the place where the dead
body ofYankanna had been thrown into river. Weapons of offence we~ c
also recovered on the basis of the voluntary information furnished by the
appellant. As it was revealed that the incident occurred within Kaladgi
limits, PW-29 submitted the entire papers on 8.8.2001 to Kaladgi Police ·
Station for further investigation. Police Inspector of Bagalkot police station
(PW-26) took up further investigation on 9.8.2001 and filed charge sheet D
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.

6. The accused pleaded not guilty of the charges and claimed to be
tried. The prosecution, in order to establish the case, examined in all 30
E
witnesses. No witness was examined on behalf of the accused. The ·
learned Sessions Judge fow1d 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 nan1ely appellant
'
,.._
and Accused Nos. 6 and 7 were convicted for the offences punishable
under Section 302, 364, and 201 cf the IPC. On appeal, the High Court
F

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 inlposed as against the appellant.

7. We have elaborately heard the learned counsel appearing for the G
appellant as well as for the State.

8. Shri Sushil Kumar, learned senior counsel for the appellant
contended that the High Court committed a serious error in holding that
the burden shifted to the appellant to show what happened to the deceased H
~
162 SUPREME COURT REPORTS [2007] 10 S.C.R.

A in view of the evidence of PW-10 and PW-11 that he took the deceased
-~
and this amounts to requiring the accused to prove his innocence. He
pointed out another error committed by the High Court in coming to the
conclusion that the appellant with the help of some others (not the other
accused who had been acquitted) were responsible for committing the
B murder of the deceased-Yankanna. The learned counsel submitted that
the chain of circumstances is not complete and, therefore, the conviction
of the appellant cannot be sustained. Further contention of the learned
counsel was that assuming that the prosecution has been able to establish __,.,

the circumstance of being last seen together, namely, the deceased having
c left with th~ appellant on 12th July, 2001, that by itself, could not connect
the appellant with the commission of crime in the circumstances of the
case.

9. On the other hand, the learned counsel for the State submitted
D
that the evidence of PW-10 and 11 which is consistent and the
circumstances in which the dead body was found in the river clearly
indicated that the dead body had been thrown into Ghataprabha river after
committing murder of the person and the identification by PW-10 that
the dead body was that ofYankanna, the chain of events is complete and
in the absence of any explanation by the appellant, only conclusion to be
E
arrived at is that the appellant was responsible and liable for the murder
of the deceased-Yankanna.

10. Having heard learned counsel for the parties and on perusal of
I
the record, we find that the prosecution miserably failed to establish the .l.
F charge against the appellant.

11. It is required to notice that most of the witnesses namely, PW
Nos. 1 to 9, 13, 14, 15, 6, 17, 19, 23 and 30 had turned hostile and did
not support the prosecution case. The whole case of the prosecution rests
G on the evidence of the mother and wife of the deceased (PW Nos. 10
and 11) and the police officers (PW Nos. 28 and 29). We may proceed
now to consider the evidence of PW Nos. 10 and 11 in somewhat detail.

12. PW-10, in her evidence, stated that the appellant along with
accused Nos. 6 and 7 came to her house at about 8.00 p.m. and took
H
MALLESHAPPAv. STATEOFKARNATAKA[REDDY,J.] 163

her son Yankanna as his assistance was required in connection with digging A
of a borewell in the land of the appellant. Thereafter, her son has not
returned. She had searched for her son in neighbouring villages but could
not find him. The appellant and accused No. 6 came along with her and
also searched for the deceased-Yankanna Thereafter she and her relatives
demanded the appellant to produce the deceased-Yankanna. Having B
waited for about 5-6 days, she filed a written complaint, written through
PW-18 addressed to Kaladagi Police Station marked as exhibit P-6. The
police traced the dead body of Yankanna. It was found in Anagwadi river.
She specifically states that "I saw the body and his head was chopped
off and hands and legs were cut-off and the rope was tied to the body. I C
saw and identified the underwear (M.0.1) and identified the body as it
belongs to my son." she suspected the appellant had committed the murder
of her son. She further stated that when she insisted the appellant to
produce her son, the appellant told her deceased Yankanna had illicit
connection with his wife - Hanamawwa (PW-19) - "because of that he D
killed my son".
13. In the cross-examination, she stated in categorical terms that at
the time of arrival_ of the appellant at her house, her son Yankanna was
not present at home and only half an hour later he returned home and
immediately the appellant took him away. Prior to the arrival of the E
deceased, she and the appellant and PW-11 were present in the house.
The appellant took the deceased and went away. She accepted that on
receipt of information about floating of a dead body in the Ghataprabha
j river, she went there and identified the dead body as that of her son. She
>
did not file any complaint to the Bilagi Police Station: Bilagi Police Station F
took her to Kaladgi Police Station in the police jeep where she lodged
Exhibit P-6.
14. In Exhibit P-6 (FIR), it is stated by PW-10 that her deceased
son Yankanna left his job about 3 months prior to the date of the incident. G
It is further stated in the Exhibit P-6 that on 12.7.2001 in the evening she
was sitting in her house along with the deceased and his wife-Lacchavva
(PW-11) and that time the appellant, accused nos. 6 and 7 came to her
house and she invited them inside. She did not state that her son was not
present when the appellant along with other accused came to her house H

r
164 SUPREME COURT REPORTS [2007] 10 S.C.R.

A and her son returned home only after half an hour. In exhibit P-6 there is
no mention of her coming to the Ghataprabha river and anything about
the identification of the dead body of her soil. Had she really identified
the dead body of her son on 21. 7.2001 nothing prevented her from
referring to it in exhibit P-6. In her evidence, she stated that she did not
B claim the dead body of her son nor the police told her to take away the
body of the deceased. She did not attend the funeral of her son.
15. PW-11 is none other than the wife of the deceased. She stated
in her evidence that about 3 years ago at 8.00 p.m., appellant with two
others came to her house and took away her husband with them.
C Thereafter, her husband did not return home. That after 7-8 days having
received the information about a dead body floating in the Ghataprabha
river, PW-10 and herself went and saw the dead body and found it to be
of her husband. PW-10 filed the complaint to the police. According to
her, appellant suspected that her deceased husband had illicit intimacy with
D his wife because of that, appellant and accused No.2 took her husband
and committed the murder. Looking at M.0.1 first time in the court, she
identified the same as underwear of her husband. It is admitted by her in
the cross-examination while she was waiting in Bilagi police station, her
mother-in-law (PW-10) went and saw the dead body of her husband and
E she came and told her that it was the dead body of her husband Yankanna.
On the next day, she along with PW-10 went to Kaladagi police station
where PW-10 filed the complaint Exhibit P-6. She did not see the body
of her husband. She did not perform the funeral. She further stated in her
evidence, it is the police who told her that there was illicit relationship
F between deceased and Hanamawwa, wife of the appellant.
16. PW-29, Inspector of Police, Bilagi police station stated in his
evidence that on receiving information on 21st July, 2001 about floating a
dead body at the Northern bank of Ghataprabha river near the pump
G house, went there and found one unknown dead body was floating in the
Ghataprabha river near the pump house. He returned to.the Bilagi police
station and lodged infonnation exhibit P-22. On that basis he registered
the case as Crime No. 91101 for the offence under Section 302 & 201
IPC and dispatched the first information report to the court at 1430 hours
H and again proceeded to the spot where the dead body was found. The
1-
MALLESHAPPA v. STATEOFKARNATAKA[REDDY,J.] 165

dead body was taken out of the river. It was in a highly decomposed A
'I condition. He summoned the Medical Officer (PW-21) to conduct post
mortem examination at the spot and thereafter buried the body there itself
He also says that he got the photos of the body taken prior to 'cremation'.
Post mortem examination was conducted at the spot itself by PW-21
between 4.45 p.m. to 6.15 p.m. It is on 24th July, 2001, PW-10 to 12 B
came to the police station Bilagi and he had shown M.O. 1 (underwear),
M.O. 6 (Waist thread) and photos to PW-10 to 12 based on which they
identified the dead body as that.of Yankanna. He undertook further
investigation and arrested the accused. He claims to have made certain
recoveries. It is on 8th August, 2001 he made over the case for further c
investigation to the C.P.I ofBagalkot, Rural Circle through Kaladgi police
station.
17. The evidence of PW-10 is full of contradictions apart from being
at variance with exhibit P-6 (FIR) lodged by her before the Kaladgi police
st,ation and the evidence of the Investigating Officer (PW-29). In Exhibit D
P-6 she stated that her deceased son was taken away forcibly by the
--t appellant, accused nos. 6 and 7. In the FIR, PW-10 does not say that
the deceased-Yankanna was working with the appellant as tractor driver
but in her evidence she stated that deceased-Yankanna was working with
the appellant. In the first information report she does not say anything about E
the illicit relationship of deceased-Yankanna and appellant's wife-
Hanamawwa (PW-19). She merely stated that there was some dispute
between the appellant and the deceased but in evidence, she stated that
t the appellant told her that deceused-Yanakanna had illicit connection with
;._
his wife-Hanamawwa (PW-19) because of that he killed her son. PW- F
11, Lacchawa-wife of the deceased admitted in her cross-examination
that she learnt that there was illicit relationship between the deceased and
the wife of the appellant only when the police told her. She asserted that
PW-10 filed a complaint to the police "as we came to know about the
illicit relationship between the deceased and Hanamawwa-wife of the G
-( appellant through police."
18. On an analysis of the evidence referred to herein above, we find
it very difficult to believe the evidence of PW-10 and PW-11. They are
not trustworthy witnesses. It is doubtful as to how and in what
H
166 SUPREME COURT REPORTS [2007] 10 S.C.R.

A circumstances exhibit P-6 came into existence. If PW- I 0 had seen the
~,
dead body and identified it as that of her son there is no reason why she
could not have stated about it in exhibit P-6. If one goes by the contents
of exhibit P-6 it becomes clear that she knew nothing about the dead body
found in the Ghataprabha river. The question of identifying the dead body
B as that of her son does not arise. PW-29, in his evidence, stated that PW-
10 to 12 identified the body as that of deceased-Yankanna only on the
basis ofM.O. 1 (underwear) and M.O. 6 (Waist thread) and some photos
on 24.7.2001. No photographs are marked as material objects. It is
difficult to believe that one could identify the highly decomposed and -t'
c mutilated dead body as that of deceased-Yankanna when the Medical
Officer (PW-21) was not even in a position to say whether the dead body
was that of a male or female. It is only the Forensic Expert (PW-22) who
stated the body as that of a male after examining the bones. PW-10 and
11 assert that dead body was identified by PW-10 even on 21st July,
D 2001 but PW-29 says that dead body was buried immediately after the
post mortem examination. Exhibit P-6 is obviously got into existence may
be after prolonged consultation with the police. The dead body remained J._
unidentified.
19. PW-11 's evidence is also not trustworthy. She states, in her
E evidence, that Bilagi police came in a jeep and informed her and PW-10
that a dead body was found in the river and thereafter, she and PW-10
went to Bilagi police station but she did not see the dead body of her
husband. She was waiting in Bilagi police station but PW-10 and her
father-in-law went to saw the dead body of her husband. But her father- i
_,I,
F in-law (PW-12) does not say that he saw the body of his son. Next day
they went in police jeep to Kaladagi police station where PW-I 0 lodged
first information report (exhibit P-6). The version given by PW-11 is also
highly artificial and cannot be accepted. It is difficult to believe that she
did not go to the spot where the body was found. It is difficult to reconcile
G the statements of PW-10 and PW-29. It is doubtful that PW-10 at all
had seen the dead body of her son. PW-29, in his evidence, stated that
he could not trace the relatives of the dead person since it was highly
decomposed and had therefore got buried the body on 21. 7.200 I itself.
Thus in effect no one identified the body buried on 21.7.2001 as that of
H Yankanna.
y
MALLESHAPPAv. STATEOFKARNATAKA[REDDY,J.] 167

20. Yet another aspect of the matter is that there is no explanation A
as to why no complaint has been made ever since 12th July, 2001 when
Yankanna 'Yas forcibly taken away till lodging the first information report
on 22nd July, 200 I at 1900 hours.
21. There is no convincing evidence placed by the prosecution to
B
show that there was motive and that the deceased Yankanna had illicit
relationship with Hanamawwa (PW-19) wife of the appellant. Be it noted,
PW-19 also turned hostile and did not support the prosecution case. In
.....
this regard, the evidence of PW-11 gains some significance wherein she.
admitted that the complaint was filed only after they were informed by
the police about the illicit relationship of the deceased-Yankam1a and
c
Hanamawwa (PW-19). No witness has spoken about the alleged illicit
relationship between the deceased and PW-19 except PW- I 0 and 11
who got the information from the police.
22. Next, we shall refer to the evidence of PW-21 who conducted D
the post mortem examination. It is in his evidence that the body was highly
-' decomposed, head was missing, both legs were flexed and tied with rope
over the abdomen. Hands were missing. Survival bone was exposed,
external genitalia was highly decomposed and unable to make out sex
organs. He could not make out as to whether the body was of a male or E
female, age and cause of death, time of death, he accordingly preserved
the samples and sent to the Forensic Expert. The Forensic Expert
examined as PW-22 stated that he received a sealed box containing bones
r from PW-21 and on opening the box, he found 8 human bones as
>-
mentioned in his report. They were of male body. He admitted that by F
examining the bones, exact age of the deceased cannot be given. Even
the time of death cannot be given exactly.
23. In the light of the evidence available on record, can it be said
that the circumstances oflast seen together by itself and necessarily lead
G
-I to the inference that it was the appellant who committed the crime? The
High Court took the view that accused Nos. 6 and 7 are entitled to the
benefit of doubt though, PW-10 stated in her evidence that the appellant,
accused Nos. 6 and 7 took her son Yankanna on the fateful day. No
motive was shown with regard to accused Nos. 6 and 7 for their H
168 SUPREME COURT REPORTS [2007] 10 S.C.R.

A involvement in the crime. It is under those circumstances, the High Court ~
said that the burden shifts to the appellant to show as to what happened
to the deceased-Yankanna. In our considered opinion, the High Court
committed serious error in arriving at such conclusion. The first information
report lodged by PW-10 itself is highly doubtful. PW-10's evidence itself
B does not reveal any circumstances to hold that the prosecution has
established the charge against the appellant. 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. The prosecution has
+
failed to establish as to when the death of Yankanna took place, it could
c be at any time between 12th July, 2001 to 21st July, 2001. There is
nothing on record to show as to what transpired between 12th July, 2001
to 21st July, 2001. Mere non-explanation on the part of the appellant, in
our considered opinion, by itself cannot lead to proof of guilt against the
appellant. Learned counsel for the State relied upon the decision in
D Mohibur Rahman & Anr. v. State ofAssam, [2002] 6 SCC 715 which
in fact is in support of the defence and nor the prosecution.
_J.
"The circumstance of last seen together does not by itself and
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more establishing
E
connectivity between the accused and the crime. There may be
cases where on account of close proximity of place and time
between the event of the accused having been last seen with the
deceased and the factum of death a rational mind may be
_j.
persuaded to reach an irresistible conclusion that either the accused
F
should explain how and in what circumstances the victim suffered
the death or should own the liability for the homicide. In the present
case there is no such proximity of time and place. As already noted
the death body has been recovered about 14 days after the date
on which the deceased was last seen in the company of the
G
accused. The distance between the two places is about 30-40 kms. 'r-
The event of the two accused persons having departed with the
deceased and thus last seen together (by Lilima Rajbongshi, PW6)
does not bear such close proximity with the death of victim by
reference to time or place. According to Dr. Ratan Ch. Das the
H
MALLESHAPPAv. STATEOFKARNATAKA[REDDY,J.] 169

death occurred 5 to 10 days before 9.2.1991. The medical A
evidence does not establish, and there is no other evidence available
to hold, that the deceased had died on 24.1.1991 or soon
thereafter. So far as the accused Mohibur Rahman is concerned
this is the singular piece of circumstantial evidence available against
him. We have already discussed the evidence as to recovery and B
held that he cannot be connected with any recovery. Merely
because he was last seen with the deceased a few unascertainable
number of days before his death, he cannot be held liable for the
offence of having caused the death of the deceased. So far as the
offence under Section 20 I IPC is concerned there is no evidence C
worth the name available against him. He is entitled to an acquittal."
24. In the present case also, there is no proximity of time and place.
We have already noted that the dead body, even if it is to be accepted,
was that of the deceased-Yankanna, had been recovered after 10 days
after the date of which the deceased was last seen in the company of the D
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. It is true as has E
been held by this Court in Lakshmi & Ors. v. State of UP., [2002] 7
sec 198 that it is not an inflexible rule that the identification of the body'
cause of death and recovery of weapon with which the injury may have
been inflicted on the deceased though are factors to be established by
the prosecution but it cannot be held as a general rule and broad F
proposition of law that where these aspects are not established, it would
be fatal to the case of the prosecution and in all eventualities, it ought to
result in acquittal of those who may be charged with the offence of murder
provided the charges against the accused otherwise can be established
on the basis of the other reliable and trustworthy evidence. G
-{
25. There is no reliable and trustworthy evidence in the present case.
The High Court in the present case took the view that as to what happened
to the deceased-Yankanna was within the knowledge of the appellant and
he having failed to explain, and mutilated body of Yankanna having been H
170 SUPREME COURT REPORTS [2007] 10 S.C.R.

A found, having shown that Yankanna had been murdered, the only
conclusion one can arrive at is that the appellant with the help of some ~
others committed the murder ofYank:anna, cut off head and some part
of the body and threw the body in Ghataprabha river. Too many surmises
and conjectures! it is highly dangerous to convict any accused on the basis
B of which the High Court has chosen to do so.
26. It is not the case of the prosecution that the appellant together
with some unidentified persons kidnapped the deceased-Yankanna and
killed him. The specific case of the prosecution is that the appellant along
with accused Nos. 2 to 7 committed the crime of kidnapping and murder
+
c of the deceased. The trial court as well as the High Court gave the benefit
of doubt to the rest of the accused. The High Court in the circumstances
could not have propounded a new theory that the appellant with the help
of some others may have committed the murder of Yankanna. Neither
there are any circumstances nor any evidence available on record to take
D such a view in the matter in order to convict the appellant. The decision
of this Court in Khujji @ Surendra Tiwari v. State ofMadhya Pradesh,
[1991] 3 sec 627 upon which, the reliance has been placed by the J.
learned counsel for the State to sustain the conviction of the appellant has
no application whatsoever to the facts and situation in the present case.
E It w:is the case where this Court on an independent appreciation of the
evidence of the three eye-witnesses came to the conclusion that several
persons had participated in the commission of the crime including the
appellant but for some reasons all other accused except the appellant
therein were acquitted of the charge under Section 302 read with 149 ;
___.,
F IPC. This Court took the view that in the absence of the State appeal, it
is not possible to interfere with their acquittal but this Court was not bound
by the facts found proved on the appreciation of evidence by the courts
below and is, in law, entitled to reach its own conclusion different from
the one recorded by the courts below on a review of the evidence. It is
G under those circumstances, this Court sustained the conviction of the
appellant under Section 302 IPC with the aid of Section 34 and 149 IPC )--
and maintained the sentence awarded to him. In the present case, there
is no evidence available on record to arrive at any conclusion that accused
Nos. 2 to 7 were also involved in the commission of the crime though
H
MALLESHAPPAv. STATEOFKARNATAKA[REDDY,J.] 171

they were acquitted by the trial court. We, accordingly, hold that the A
judgment have no application to the present case in hand.
27. For all the aforesaid reasons, we hold that the prosecution did
not establish the charges framed against the appellant under Sections 302,
364 and 201 IPC. The conviction and sentence awarded against the B
appellant is, accordingly, set aside and he is acquitted of all the charges.
He is ordered to be released forthwith unless required in any other case.

28. The appeal is, accordingly, allowed.
K.KT. Appeal allowed.
c