failures of Appellate court = 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 by the appellants -Apex court remanded for fresh disposal = the Division Bench held that the accused persons have failed to explain the 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.= High court (i) The prosecution failed to prove the recovery of motor cycle from the possession of the appellant as the 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 (MO5). But the said witness deposed that he reached the place after the seizure. PW-40 could not state 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 seizure was NITF Cross. In the cross-examination he admitted that he did not remember MO5 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 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 (MO6) of the deceased. To prove the said aspect prosecution examined PW-8 and PW-9. The case of the prosecution was that Wrist Watch (MO6) 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 that he had not seen any seizure and also turned 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 against the accused, but the prosecution failed to establish. (v) The prosecution failed to establish beyond reasonable 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 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 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 IPC also does not survive for consideration. The evidence of PWs-2, 10, 11, 14 and 45, not at all stood the test of the cross-examination. 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 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 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 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. The appeal stands disposed of with the aforesaid observation.

                   published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40539                                         

  REPORTABLE

                    IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.     887      OF 2013
                  (arising out of SLP(Crl.)No.1937 of 2013)


P. NAGESH AND ANOTHER                         … APPELLANTS

                             VERUS

STATE OF KARNATAKA                                   … RESPONDENT



                               J U D G M E N T



SUDHANSU JYOTI MUKHOPADHAYA, J.



      This 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.

       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 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/-, 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 offence  punishable  under
Section  379  of  the  IPC  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 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  matter  can  be
remitted back to the High Court for a  fresh  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 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:

           “3.    The   prosecution   has   relied   upon   the   following
           circumstances to prove the guilt:

   i) Motive- causing death for robbing motor cycle.




  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  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, Kunigal Taluk.




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




   v) The identity of the dead body (corpus delecti) 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  clothing
      found on it.




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




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




   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 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.




   4) The medical evidence does not disclose the cause of death.




   5) The doctor has given opinion  only  on  the  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  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.

6.    Learned counsel for the appellants submitted as follows:

      (i)   The prosecution failed to prove the recovery of motor cycle from
      the possession of the appellant as the 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
      (MO5). But the said witness deposed that he reached  the  place  after
      the seizure. PW-40 could not state 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 seizure was NITF Cross.  In
      the cross-examination he admitted that he did not remember MO5 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 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
      (MO6) of the deceased. To prove the said aspect  prosecution  examined
      PW-8 and PW-9. The case of the prosecution was that Wrist Watch  (MO6)
      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 that he had not seen  any
      seizure and also turned 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 against the accused,  but
      the prosecution failed to establish.

      (v)   The prosecution failed to establish beyond reasonable 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
      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 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 IPC also  does  not  survive
      for consideration. The evidence of PWs-2, 10, 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  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 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 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  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. The appeal stands disposed of with the aforesaid observation.

                                                       ……………………………………………….J.
                                         (T.S. THAKUR)






                                                       ……………………………………………….J.
                                  (SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 9,  2013.