P. NAGESH AND ANOTHERversusSTATE OF KARNATAKA

                        [2013] 8 S.C.R. 66


A                  P. NAGESH AND ANOTHER
                                  V.
                     STATE OF KARNATAKA
                (Criminal Appeal No. 887 of 2013)
                           JULY 9, 2013
B
             [T.S. THAKUR AND SUDHANSU JYOTI
                     MUKHOPADHAYA, JJ.]

       Penal Code, 1860 - ss. 302, 364, 379, 201 rlw s.34 -
C Murder case - Conviction of accused-appellants by trial court
  - Upheld by High Court in appeal - Held: The High Court
  being the Appellate Court was required to deal with each and
  evety question raised on behalf of the appellants - Though
  such questions were raised before the trial court as well as
D the High Court, the High Court failed to discuss and decide
  the questions raised by the appellants - Matt~r therefore
  remitted to the High Court for fresh disposal in accordance
  with law - Appellants permitted to raise all the questions and
  objection__s as raised in this appeal or as taken before the High
E Court - Respondents may also contest the case in support of
  the judgment passed by the trial court - Practice & Procedure.

        In a case relating to muruer of a person, the trial court,
  relying on circumstantial evidence held the appellants
F (accused Nos. 1 and 2) guilty and convicted them under
  Sections 364, 302, 379, 201 read with Section 34 of the
  IPC and sentenced them to undergo imprisonment for
  life. By the impugned judgment, the Division Bench held
  that the accused persons had failed to explain the
G 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, and accordingly, upheld
H                                 66
            P. NAGESH v. STATE OF KARNATAKA                   67


     the order of conviction recorded by the trial court based      A
     on the circumstantial evidence.

         This Court issued notice to the respondent limited to
     the question as to whether the matter can be remitted
     back to the High Court for fresh disposal in accordance        B
     with law.

         Disposing of the appeal, the Court

          HELD: 1. The High Court being the Appellate Court
     was required to deal with each and every question raised       c
     on behalf of the appellants. Though such questions were
     raised before the trial court as well as the High Cou~ it
     is found that the High Court failed to discuss and decide
     the questions raised by the appellants. [Para 7] [72-E-F]
                                                                    D
          2. In view of the finding recorded above, the C'ase
     should be remitted to the High Court for fresh disposal
     in accordance with law. The impugned judgment passed
     by the Division Bench of the High Court is, accordingly,
     set aside. The case is remitted back to the High Court for     E
     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. [Para    F
     8] [72-F-H; 73-A]

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No. 887 of 2013.

         From the Judgment and Order dated 19.01.2010 of the        G
     High Court of Karnataka at Bangalore in Crl. A. No. 968 of
     2006.

         C.S. Rajan, P. Rajesh, Tejaswi Kumar Pradhan for the
..   Appellants.                                                    H
    68       SUPREME COURT REPORTS             [2013) 8 S.C.R.


A        V.N. Raghupathy for the Respondent.

         The Judgment of the Court was delivered by

        SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This
B 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.
c
       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
D 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/
E    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     '
F offence punishable under Section 379 of the !PC 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
G 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
H
       P. NAGESH v. STATE OF KARNATAKA                     69
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
matter can be remitted back to the High Court for a fresh        A
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    B
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:
                                                                 c
     "3. The prosecution has relied upon the following
          circumstances to prove the guilt:

     i)     Motive- causing death for robbing motor cycle.       D

     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     E
            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,       F
            Kunigal Taluk.

     iv)    In the exhumation proceedings conducted by the
            TEM in presence of the 1.0. and Doctor would lead
            to discovery of the buried dead body.                G

     v)     The identity of the dead body (corpus defecti) 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     H
    70         SUF1REME COURT REPORTS             [2013] 8 S.C.R.


A               clothing found on it.

         vi)    The dead body, although fully decomposed, the
                pos;t mortem report and the evidence of the Doctor
                would show that death is possible by strangulation
B               by rope.

         4.     Sn.it. N. Padmavathi, counsel for the appellant
                submitted the following discrepant circumstances
                to assail the order of conviction:

c                (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
D                       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.
E
                 (4)    The medical evidence does not disclose the
                        cause of death.

                 (5)    The doctor has given opinion only on the
F                       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 undeJr which they had come in possession of the
G 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:

H        (i) The prosecution failed to prove the recovery of motor
  P. NAGESH v. STATE OF KARNATAKA                           71
 [SUDHANSU JYOTI MUKHOPADHAYA, J.] .
cycle from the possession of the appellant as the                 A
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 (M05). But the said witness deposed that he           8
reached the place after the seizure. PW-40 could not ~tate
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              C
seizure was NITF Cross. In the cross-examination he
admitted that he did not remember M05 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        D
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 (M06) of the deceased. To prove the said              E
aspect prosecution examined PW-8 and PW-9. The case
of the prosecution was that Wrist Watch (M06) 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              F
that he had not seen any seizure and also tumed 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                G
against the accused, but the prosecution failed to
establish.

(v) The prosecution failed to establish beyond reasonable
                                                                  H
    72       SUPREME COURT REPORTS               [2013] 8 S.C.R.


A        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
8        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
c        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
D        IPC also does not survive for consideration. The evidence
         of PWs-2, 1O, 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
E 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
F 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. The impugned judgment
G 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
H questions and objections as raised in this appeal or as taken
           P. NAGESH v. STATE OF KARNATAKA                 73
         [SUDHANSU JYOTI MUKHOPADHAYA, J.]
before the High Court. The respondents may also contest the      A
case in support of the judgment passed by the trial court. The
appeal stands disposed of with the aforesaid observation.

B.B.B.                                  Appeal disposed of.
                                                                 B