1.Heard the learned counsel for the parties.
2. The appellant herein was convicted by Trial Court under Section 302 of the Indian Penal Code and sentenced to imprisonment for life. He was further convicted under Sections 25 and 30 of the Arms Act, 1959, and sentenced to undergo rigorous imprisonment for a period of three years and six moths respectively. The sentences, however, were ordered to run concurrently. On appeal being preferred, the High Court of Karnataka upheld the convictions and sentences. Hence, this appeal by special leave.
3. Undisputedly, present case is not a case of direct evidence, but it is a case of circumstantial evidence and in order to convict the accused, the prosecution has relied upon the following circumstances:-
(a) Prior to the date of occurrence, there was a partition between the accused and the deceased, who were full brothers, but inspite of partition, dispute was going on between them over the allocation of shares in the said partition which led to the commission of the present crime at the instance of the appellant;
(b) The accused was found present in the house at the time of occurrence wherein the accused and his mother were residing;
(c) Extra-judicial confession of the accused said to have been made by him before P.W.9, who is maternal uncle of the accused as well as deceased;
(d) According to the report of the ballistic expert, firing was resorted to from the gun, which was seized from the house in which the accused and his mother were residing and the said gun belonged to the father of the accused as well as the deceased; and
(e) Hand wash was taken from the accused and the same was sent to the chemical examiner, who reported that the same contained gun shot reside.
4. So far the motive is concerned, in our view the prosecution has absolutely failed to prove the same. The prosecution case that there was a previous partition has been attempted to be proved by the document dated 2nd April, 1996, Exhibit P.46, wherein there is a recital that partition had already been effected by deed dated 31st March, 1975, where has not been brought on record. It is not known whether 1975 deed was a deed of partition or memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or un-registered. If it was un-registered, the same could not be taken into consideration to prove partition between the parties as it was inadmissible in evidence. It was pointed out that Exhibit P.46 further shows that apart from the partition effected by deed dated 31st March, 1975, parties partitioned their properties at least by the deed at 2nd April, 1996, Exhibit P. 46. Learned counsel very fairly could not contend that the said deed was a memorandum of partition. The document being not a registered one was inadmissible in evidence and, therefore, it cannot be of any avail to the prosecution to prove partition amongst the two brothers. As the prosecution failed to prove the case of previous partition, the motive that in the previous partition shares were not properly allocated resulting into commission of the present crime, has not been proved by the prosecution.
5. The next circumstances is that the accused was found present in the house in which he was residing with his mother. The house being a joint family property, the accused had every right to go there and, therefore, his presence in the house cannot in any manner be taken to be a circumstance against him to show his complicity with the crime.
6. So far as the extra judicial confession said to have been made by the accused before P.W. 9 is concerned, the same has already been disbelieved by the Trial Court as well as High Court. Therefore, it cannot be used against the accused especially in view of the fact that nothing could be pointed out to show that the High Court and Trial Court committed error in refusing to place reliance on the extra-judicial confession.
7. The next circumstance was that the gun was found in the house in which the appellant was residing with his mother and according to the ballistic expert report firing was resorted to from the same gun. Gun belonged to father of the parties and there is nothing to show that it was made over by father to the appellant. The gun was recovered from joint family house in which the appellant and his mother both were residing. Merely because the shot was fired by the said gun, it cannot show complicity of the appellant with the crime. Thus, we are of the view that the prosecution has failed to prove this circumstance by credible evidence.
8. Last circumstance against the accused was that his hand wash was taken and the same contained gun shot residue according to the report of the ballistic expert. It is true that this circumstance has been proved, but the same alone cannot form basis for conviction of the accused as in a case of circumstantial evidence it is well settled that there must be chain of circumstances and this solitary circumstance cannot be said to form a chain so as to fasten guilt upon the accused and on the basis of same, irresistible conclusion, which is incompatible with the innocence of the accused cannot be drawn. In view of the foregoing discussions, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubts and the High Court was not justified in upholding conviction of the appellant.
9. Accordingly, the appeal is allowed, the convictions and sentences of the appellant are set aside and he is acquitted of the charge. The appellant, who is in custody, is directed to be released forthwith, if not required in connection with any other case.