Karnataka High Court
State Of Karnataka vs K. Jayaraja Shetty on 14 March, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
CRL.A No.1267/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.1267/2016
BETWEEN:
STATE OF KARNATAKA
BY THE CIRCLE INSPECTOR OF POLICE
PUTTUR RURAL CIRCLE
DAKSHINA KANNADA
(PUTTUR RURAL P.S.)
REPTD. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 574 201 ...APPELLANT
(BY SRI SHANKAR H S, HCGP)
AND:
1. K.JAYARAJA SHETTY
AGED ABOUT 40 YEARS
S/O RAMANATHA SHETTY
ANILE HOUSE
BADAGANNUR VILLAGE
Digitally signed by
A K CHANDRIKA PUTTUR TALUK
Location: High DAKSHINA KANNADA - 574 201
Court of
Karnataka 2. AMMANANNA RAI
S/O LATE THIMMANNA RAI
AGED ABOUT 64 YEARS
BOLPU HOUSE, PAPEMAJALU
ARIYADKA VILLAGE
PUTTUR TALUK - 574 201
3. K RAMACHANDRA NAIK
AGED ABOUT 35 YEARS
S/O LATE KRISHNA NAIK
MOODIKE HOUSE
BADAGANNUR VILLAGE
PUTTUR TALUK - 574 201
[
-2-
CRL.A No.1267/2016
4. K RAMAKRISHNA NAIK
AGED ABOUT 27 YEARS
S/O LATE KRISHNA NAIK
KUMERADIKA HOUSE
MOODIKE AMBATEMOOLE
PADUVANNUR VILLAGE
PUTTUR TALUK - 574 201 ...RESPONDENTS
BY SRI.HARISH H V, ADVOCATE FOR R1;
SRI.B.S.PRASAD, ADVOCATE FOR R2;
SRI.DEENA BANDHU RAI, ADVOCATE FOR R3 & R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1)
& (3) CR.P.C PRYING TO GRANT LEAVE TO APPEAL AND SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
30.01.2016 PASSED BY THE V ADDL. DIST. AND S.J., D.K.,
MANGALORE, SITTING AT PUTTUR, D.K. IN S.C.NO.82/2011 -
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 109,120(B),302,201 R/W 34 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, K S MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the order of acquittal passed in SC No.82/2011 by V Addl. District and Sessions Judge, D.K. Mangaluru sitting at Puttur, Dakshina Kannada, the State has preferred this appeal.
2. Respondent Nos.1 to 4 were accused Nos.1 to 4 in SC No.82/2011 before the trial Court. Accused Nos.1 to 4 were prosecuted in SC No.82/2011 for the charges for the offences punishable under Section 109, 120(B), 302, 201 read with Section 34 of IPC on the basis of the charge sheet -3- CRL.A No.1267/2016 filed by Puttur Rural Police in Crime No.36/2010 of their Police Station.
3. The case of the prosecution in brief is as follows:
i) Deceased Umesh Rai and the accused were friends. Deceased and accused were associated with the underworld Don Muthappa Rai. Later Umesh Rai started to work against Muthappa Rai and was trying to defame him.
Deceased was passing the information of Muthappa Rai to his rival gang. Therefore, the accused conspired to commit murder of Umesh Rai. In execution of such conspiracy accused No.2 funded accused Nos.1, 3 and 4 to commit the murder of Umesh Rai and abetted them to commit his murder. On the night of 26.03.2010 Umesh Rai came to the house of accused No.1 and stayed in his house. Accused No.1 informed the same to accused Nos.2 to 4 and secured accused Nos.3 and 4 to his house. When Umesh Rai was relaxing in the sit-out of the house of accused No.1, accused No.1 assaulted him with M.O.1 the hammer, accused Nos.3 and 4 assaulted him with clubs M.Os.2 and 3 on his head and waist and committed his murder.
-4-CRL.A No.1267/2016
ii) To screen the evidence of offence, accused covered the dead body of Umesh Rai in a gunny bag and dumped that in the water pit of Areca garden of accused No.1, dropped a stone on that and cleaned the area where the murder was committed. Again on the same night accused No.1 took out the dead body from the pit and buried that near a water stream situated in the land of wife of accused No.2. The accused abandoned the car of Umesh Rai in secluded area near the house of accused No.3. Accused No.4 carried the mobile phone of Umesh Rai along with him and smashed that near Ashwini Hotel and handed over sim cards to accused No.2. Accused No.2 burnt 2 sim cards of the deceased.
iii) On 31.03.2010 PW.1 the wife of the deceased filed a missing complaint as per Ex.P1 before PW.9 Anand PSI of Puttur Rural Police Station, Sampya. On 23.09.2010 during the course of enquiry PW.9 arrested accused No.1. The interrogation of accused No.1 revealed the commission of offence. Therefore, PW.9 submitted the report Ex.P9 to include the offences under Sections 120(B), 109, 302, 201 read with Section 34 IPC and the accused in the case. On the same day, CW.1 arrested accused No.2 to 4 and -5- CRL.A No.1267/2016 produced them before CW.22. Then he handed over investigation to PW.19.
iv) Accused Nos.1 to 4 on interrogation confessed to show the places where the dead body was disposed, where the clothes, shoes and watch of the deceased were burnt and to produce the weapons of offence. Then PW.19 on requisition secured the Sub-divisional Magistrate, Puttur and the Medical Officer. The dead body was exhumed under the mahazar Ex.P5. The incriminating materials were recovered. The Investigating Officer got the DNA test done to ascertain the identity of the deceased by taking samples from the mother and children of the deceased. Accused had pledged the jewellery of the deceased with PW.10 the owner of City Jewels. They led the Police to PW.10. By that time P.W.10 had melted the jewelleries and they were in the form of gold ingots. PW.19 seized the same under the mahazar Ex.P4 in the presence of PWs.4 and 5. On completing the investigation he filed the charge sheet.
4. The trial court on framing the charges tried the accused for the aforesaid offences. In support of its case the prosecution examined PWs.1 to 20 and got marked Exs.P1 to -6- CRL.A No.1267/2016 P33 and MOs.1 to 8. The accused filed their defence statement and on their behalf Exs.D1 to D3 were marked.
5. The trial Court on hearing the parties by the impugned judgment and order acquitted the accused on the ground that the prosecution has failed to prove the charges beyond reasonable doubt. It was held that the circumstances relied on by the prosecution were not proved by the cogent and consistent evidence.
Submissions of Sri H.S.Shankar, learned HCGP:
6. The trial Court has failed to appreciate the oral and documentary evidence in proper perspective. The trial Court has failed to appreciate the evidence of PW.10 the receiver of robbed property. The trial Court has failed to appreciate the evidence of PWs.6, 14, 16, 19 and 20 and Exs.P1 to P31 in proper perspective. The trial Court failed to note that the dead body was recovered at the instance of the accused and DNA test report was positive regarding the identity of the deceased. The accused failed to explain how they were aware of the place where the dead body was buried. There was no reason to disbelieve the evidence of -7- CRL.A No.1267/2016 PWs.1 to 3, 6 and 7. The impugned order of acquittal suffers perversity leading to injustice.
Submissions of Sri H.V.Harish, learned counsel for respondent No.1, Sri B.S.Prasad, learned counsel for respondent No.2 and Sri Deena Bandhu, learned counsel for respondent Nos.3 and 4:
7. There were no eye witnesses to the incident. The case was based on circumstantial evidence. In such case, the prosecution has the burden to prove all the circumstances by cogent and consistent evidence. There should not be any break in the chain of circumstances. The dead body was traced after six months of the missing of the deceased. The place where the dead body was allegedly exhumed as per the prosecution's evidence itself did not belong to the accused. The circumstances of discovery of dead body and the belongings of the deceased were not proved by acceptable evidence. Therefore, the impugned order of acquittal does not warrant any interference.
8. Having regard to the submissions of both side and considering the material on record, the question that arises for consideration is:
"In acquitting the accused whether the trial Court committed patent illegality or perversity leading to injustice ?".-8- CRL.A No.1267/2016
Analysis
9. Admittedly, there were no eye witnesses to the incident. The case of the prosecution was based only on the circumstantial evidence. The prosecution relied on the following circumstances:
i) Accused No.1 and deceased were last seen together.
ii) Motive i.e., rivalry between the accused and the deceased.
iii) The discovery of dead body at the instance of the accused.
iv) The recovery of the belongings of the deceased at the instance of the accused.
v) The medical evidence.
vi) the evidence of official witnesses.
Reg. Last seen together theory:
10. According to the prosecution, the deceased
before he went missing was found in the house of accused No.1. To prove this circumstance, the prosecution relies on the evidence of PWs.1 to 3 and Ex.P1. PWs.1 and 2 are the first and second wife and PW.3 is the mother of the deceased. None of these witnesses state that they saw the accused and the deceased together before the deceased went missing.-9- CRL.A No.1267/2016
11. As per the evidence of PW.3 herself, the deceased was living separately with his wives and she was residing separately from the deceased. She says that PW.1 told her that the deceased left the house saying that he is going to the house of Jayaraja and did not return. Therefore her evidence with regard to last seen circumstance was hearsay one.
12. Even according to PWs.1 and 2, they had not seen actually the deceased being in the company of the accused before he went missing or found dead. The evidence of PWs.1 and 2 about the deceased and accused No.1 being together was based on the information allegedly given by the deceased to them over phone. Even as per the prosecution the deceased was last found alive by PWs.1 and 2 on 26.03.2010. His dead body was allegedly exhumated on 26.09.2010 i.e. after six months. Whether the identity of the dead body was proved is another question which will be discussed in the later part of this order.
13. It was contended that on 31.03.2010 itself, at the time of filing missing complaint Ex.P1, PW.1 had stated about the deceased being found in the company of accused
- 10 -
CRL.A No.1267/2016No.1. In the complaint Ex.P1, PW.1 has purportedly stated that her husband Umesh Rai left the house on 26.03.2010 at 5.00 p.m. in the Alto car of his friend saying that he is proceeding to the house of Jayaraja of Eshwaramangala. It is further stated in the complaint that on 27.03.2010 in the morning her husband called her from his mobile phone and informed that he is in the house of Jayaraja and from there he is going for discussion in some matter. Thereafter she did not receive any call from her husband and after enquiring with the people known to her, friends, relatives of her husband, she decided to file complaint. She has further stated that her husband is missing from Eshwaramangala and she suspects that somebody has kidnapped him.
14. Another important thing is that in the very complaint PW1 states that on 29.03.2010 at 11.30 p.m. a person calling himself to be Khasim Thingaladi phoned from cell phone No.9741669314 to her Cell number 9740946783 stating that in Madikeri an abandoned car and dead body are found and she should go there and disconnected the call. She has also stated that on 30.03.2010 Jayaraja of Eshwaramangala phoned her saying that Belgaum Police
- 11 -
CRL.A No.1267/2016have picked up her husband for enquiry in connection with a case and he will return within 15 days.
15. Whether whatever is stated in Ex.P1 was the version of PW.1 is the question. According to the accused, PW.11 Ashraf was ill-disposed against the accused and they are implicated in the case at his behest. PW.1 in her chief examination itself states that she got prepared the complaint through Ashraf (PW.11). But his name is not forthcoming in Ex.P1 as the scribe of the complaint. Further in para 10 of her cross-examination, PW.1 admits that, Ashraf is her husband's friend, she does not know what all is typed by Ashraf in Ex.P1 and she did not read the contents of Ex.P1. Therefore PW.1 implicating accused No.1 in the complaint Ex.P1 at the earliest point of time for the last seen theory falls to the ground.
16. If at all the deceased Umesh Rai informed PWs.1 and 2 making cell phone calls, the Investigating Officer should have collected the call detail records of the deceased and PWs.1 and 2. In the complaint, PW.1 claims to have stated that one Khasim Thingaladi informed PW.1 through cell phone call on 29.03.2010 at 11.30 p.m. itself, that
- 12 -
CRL.A No.1267/2016abandoned car and dead body are lying in Madikere and she should go there immediately and he disconnected the call. In the complaint itself, the cell phone number of PW.1 and the alleged caller Khasim Thingaladi was given. Despite that no investigation was conducted in that direction and call details were collected. The Investigating Officer has no explanation for such lapses. Such missing link also creates doubt about last seen theory set up by the prosecution.
17. The other aspect is that even assuming that PWs.1 and 2 had received the information of the deceased being in the house of accused No.1 from the deceased, whether that was acceptable. In this context, the antecedents of the deceased Umesh Rai are also material. The evidence of PWs.1 to 3 and the other material on record show that during subsistence of his marriage with PW.1, Umesh Rai married PW.2. Not only that without the knowledge and consent of PW.1, he brought PW.2 to the conjugal house of himself and PW.1.
18. PWs.1 in her evidence admits that after her marriage with Umesh Rai, he was in jail for four months in murder case. There was an attempt of his murder and in that
- 13 -
CRL.A No.1267/2016attempt he had suffered leg injury. PWs.1 and 2 in their evidence admit that their husband Umesh Rai was a rowdy sheeter and was jailed in criminal case of kidnapping of one Kavu Bushra Aziz. They also admit that he was facing several cases of extortion.
19. PW.1 in para 9 of her cross-examination admits that, about 10 days prior to her husband went missing, he was apprehending that the police are likely to arrest him and therefore he was moving stealthily. She also admits that during the said 10 days, he was not in contact with her, nor on phone he was informing about his whereabouts. PW.1 in para 12 of her cross-examination admits that she does not know how and why her husband died and who killed him and if the accused have no connection with the death of her husband. To crown such evidence of PW.1, PW.2 in her cross-examination admits that since the police were searching her husband, he never used to truthfully disclose his whereabouts. She also admits that she had not gone to file the complaint, she does not know who has scribed Ex.P1 and the contents of the same.
- 14 -
CRL.A No.1267/2016
20. The above facts and circumstances show that the evidence of the prosecution with regard to the last seen theory was self destructive. Moreover there was no proximity of time between the alleged last seen period and the death of Umesh Rai. Therefore the trial Court was justified in holding that the last seen theory was not proved. Reg. Motive:
21. According to the prosecution, accused Nos.1 & 2 were the relatives of Underworld Don Muthappa Rai and the deceased Umesh Rai started showing hostility to Muthappa Rai and passing on information to the rival gangster of Muthappa Rai. Therefore accused Nos.1 and 2 hiring accused Nos.3 and 4 conspired to commit murder of Umesh Rai and accordingly executed the conspiracy. If that was the case, the first person to know about such hostility of Umesh Rai against Muthappa Rai and the accused against the deceased Umesh Rai should be PWs.1 to 3 who are his family members. As rightly pointed out by the trial Court, PWs.1 to 3 did not whisper anything about such ill-will between the accused and the deceased. In Ex.P1 the complaint there is no whisper of any motive against the accused. As already pointed out, PW.1 admits that she does not know who killed
- 15 -
CRL.A No.1267/2016her husband, how he died and what is the nexus between the accused and the death of her husband.
22. PW.19 the Investigating Officer himself in the cross-examination admits that his investigation did not reveal any enmity between the deceased and accused No.1, but revealed that accused No.1 and the deceased were friends. He states that the confessional statement of accused No.2 revealed such motive. The evidence of PWs.9 and 19 regarding motive was based on the alleged confessional statements of accused Nos.1 to 4. As rightly pointed out by the trial Court, such statements are inadmissible under law. Apart from the evidence of PWs.1 and 2, the evidence of PWs.9 and 19 also shows that Umesh Rai was a rowdy sheeter, extortionist, involved in murder cases. Thus he had several enemies. The trial Court taking note of all the aforesaid facts and circumstances rightly held that the circumstance of motive was not proved by acceptable evidence.
Reg. Discovery of the dead body:
23. According to the prosecution, on arrest of accused Nos.1, 3 and 4 on interrogation, confessed before
- 16 -
CRL.A No.1267/2016PW.19 the Investigating Officer to show the place where the dead body of Umesh Rai was buried. Accordingly, he issued requisition to PW.6 the Sub Divisional Magistrate of Puttur for exhumation of the body and PW.7 the Medical Officer of Primary Health Centre, Eshwaramangala for conducting the postmortem examination. PW.6 in the presence of PWs.1 to 3 and the panchas PWs.11 and 12 exhumed the corpse in the land of mother-in-law of accused No.2. During exhumation only MOs.5 to 8 the bone pieces were found and the same were seized under Ex.P5 in the presence of PWs.11 and 12 the panchas. Regarding the same, PW.7 the medical officer, Primary Health Centre, Eshwaramangala issued the report Ex.P6.
24. The alleged exhumation was after six months of missing of Umesh Rai. As per the evidence of PW.6, he summoned PWs.1 to 3, PW.7 the medical Officer, four persons as panchas and two labours to exhumation site for exhumation of the body. In Ex.P5 only PW.11 to 13 are shown as panchas. PW.6 says that on 26.09.2010 in the morning they all assembled near the house of accused No.1, by that time PW.9 and 19 had brought accused Nos.1, 3 and 4 there. According to him, they started exhumation at 9.15
- 17 -
CRL.A No.1267/2016a.m. and regarding exhumation, report was prepared. Whereas PW.7 says that on the requisition of PW.6 dated 25.09.2010 on the next day morning he went to Anganawadi of Anile village. By that time, the Police were present there, PW.6 and some other people also came there. He was not aware of the exhumation site, therefore he followed them, he was led to the Court yard of the house said to be belonging to one Ramanathashetty and Jayaraj Shetty, there accused Nos.1, 3 and 4 were in the custody of the Police under the handcuffs, they dug the land in the spot shown by the said accused.
25. It is material to note that PW.11 and 12 are the mahazar witnesses to almost all mahazars. In the cross examination, PW.6 admits that he was aware that for such mahazar/exhumation he has to secure the respectable persons of the same locality as panchas. He also admits that PW.11 to 13 are not from that place and they are from Eshwaramangala. He says that he is not aware if they have acted as panchas to other mahazars also in the case. PW.7 in his cross examination states that by the time he went to the place, several people had assembled there and he does
- 18 -
CRL.A No.1267/2016not know who were the panchas and he did not speak to PW.6.
26. According to the evidence of PWs.9 and 19 accused Nos.1 3 and 4 were arrested on 23.09.2010 itself. PW.19 claims that he arrested accused No.2 on 23.09.2010, after effecting the other recoveries at the instance of accused Nos.1, 3 and 4 under the mahazar Ex.P11, the mortal remains of the deceased were recovered on 26.09.2010. Though he claims to have recorded the voluntary statement of accused No.2 regarding the place where the sim cards of the deceased were disposed and burying of the dead body in the land of mother in law of accused No.2, but his voluntary statement was not marked in the evidence.
27. According to the prosecution, accused Nos.1,3 and 4 led PW.19, PW.6, 7, 11 and 12 to the land of accused No.2, showed the place where the dead body was buried, on exhumation only M.Os.5 to 8 bones were found. But as per the evidence of PWs.1 to 3 even before going to the site of exhumation, Police told them in the Police station that the bones of hands, legs and mandible of the deceased are
- 19 -
CRL.A No.1267/2016traced and they have to go to collect the same. PW.1 in her chief examination para 5 states that after six months of missing of her husband, Police told her that he is in the house of accused No.1 and accused No.1 has committed his murder. In para 11 of her cross examination she states that after six months of the missing of her husband police summoned PWs.2 and 3 to the Police Station then they went to the house of accused No.1 and while travelling in the jeep Police told that the bones of her husband are traced.
28. Similarly PW.2 in para 4 and 5 of her chief examination states that after six months of missing of her husband, police summoned herself, PW.1 and PW.3, the police on showing them accused No.1 to 4 in the Police station asked them to come on the next day to go to the house of accused No.1. She further deposes that next day from the police station they were taken to the house of accused No.1 by that time the Assistant Commissioner, Doctor, Police and other people had gathered there, Police took accused No.1, 3 and 4 to the farm land, dug in the corner of the farm land where the bones of hands, legs and mandible were found. She says that accused No.1 told that they are the bones of hand of her husband. Again in para 15
- 20 -
CRL.A No.1267/2016of her cross examination she states that after six months of missing of her husband Police informed her over phone that the bones of hands, legs and mandible of her husband are traced and they have to go to collect the same. She further states that on she going to the Police Station Police took her to the spot by that time lot of villagers had assembled there. Significantly she states that on they alighting from the jeep the Police showed them the bones which were already collected.
29. Similarly PW.3 in para 4 of her chief examination states that after six months she was summoned to the Police Station, by that time PWs.1, 2, accused Nos.1 to 4 were present in the Police station. She further states that the Police on recording her statement asked her to come on the next day to go to Eshwaramangala. In para 8 of her cross examination she states that after two days of summoning to the Police station the Police told her that the bones of the hand, leg and mandible of her son are traced and they have to go to collect the same. She further states that by the time they alighted from the jeep at the spot, Assistant
- 21 -
CRL.A No.1267/2016Commissioner, Superintendent of Police, doctor, Police, press and media and other people had assembled there.
30. To call the discovery of a fact as contemplated under Section 27 of the Indian Evidence Act, 1872 such facts shall be discovered at the instance of the accused for the first time. The above evidence of PWs.1 to 3 goes to show that even before they going to the spot for exhumation Police had informed that M.O.5 to 8 are traced and PWs.1 to 3 have to accompany them to collect the same. Therefore the theory of discovery of the mortal remains of the deceased as alleged falls to the ground.
31. The other aspects which create doubt about the accused disposing the dead body, burying the same in the place shown in Exs.P5 and P6 are about non tracing of the other parts of the body. PW.7 the doctor who was allegedly present during the exhumation and examined M.Os.5 to 8 in his cross examination admits that the scalp hair and the skull do not dissolve in the soil as they will be there for years together in the soil. If as alleged by the prosecution the accused had buried the dead body of Umesh Rai in that
- 22 -
CRL.A No.1267/2016place, the skull, hair and other bones of the deceased should also have been found there.
32. The impugned judgment shows that an attempt was made before the trial Court during final arguments that the accused might have beheaded the deceased and disposed of the head in some other place. That was not the case of the prosecution in the trial. If that was so, the Investigating Officer should have further probed the matter to discover the skull and hair.
33. Out of PWs.11 to 13, witnesses to mahazar Ex.P5, PWs.12 and 13 did not support the proceedings under the said mahazar. PWs.11 to 13 were not the residents of Anile village where MOs.5 to 8 were allegedly recovered. The Investigating Officer has no explanation why he did not take the local people as panchas to Ex.P5. PWs.11 though supported the proceedings under Ex.P5, the above discussion goes to show that he was inimical against the accused and he was a common witness to several mahazars. PW.11 states that he does not know who had given his phone number to PW.6. He says PWs.1 to 3 did not accompany them and they came subsequently in another
- 23 -
CRL.A No.1267/2016vehicle. He further says that PW.6 did not summon him to be the witness. The evidence of PW.1 shows that it was PW.11 who orchestrated the complaint. Under the aforesaid circumstances, his evidence was in no way helpful in proving Ex.P5.
34. Though the prosecution contended that the place where the dead body was buried belonged to the mother-in-law of accused No.2, as per the evidence of PW.20 the surveyor of the site of exhumation was a kumki land. He has issued Ex.P31 the survey report accordingly. That also goes against the case of the prosecution that the accused buried the dead body in the land of the mother-in-law of accused No.2.
35. Considering all the aforesaid aspects the trial Court was justified in holding that the circumstance of discovery of the part of the dead body at the instance of the accused was not proved beyond reasonable doubt. Reg. Recovery of jewellery of the deceased:
36. According to the prosecution, after committing the murder of Umesh Rai, accused No.4 collected victim's jewellery and sold them to PW.10 who in turn melted them
- 24 -
CRL.A No.1267/2016into three gold ingots. It is the further case of the prosecution that on the basis of the confession statement of accused No.4, they were seized from the shop of PW.10 under the mahazar Ex.P4 in the presence of panchas PWs.4 and 5.
37. To prove this circumstance, the prosecution relied on the evidence of PWs.1, 2, 4, 5, 10 and 19. First of all the jewellery allegedly seized were not connectable to the deceased as they were not in the form of the jewelleries allegedly worn by him. There was no consistency in the evidence with regard to the jewellery worn by the deceased when he went missing. In the complaint Ex.P1, PW.1 stated that while going outside the deceased was wearing two gold neck chains, 8 finger rings and one bangle. But PW.1 in her evidence states that her husband was carrying two mobile phones and was wearing neck chain, 4 finger rings, one bracelet in all weighing 13 soveran. As against that PW.2 states that her husband was wearing neck chain, six finger rings and one bangle.
38. PW.10 the receiver of the said properties was examined before the Court on 13.12.2012. He says that two
- 25 -
CRL.A No.1267/2016years back accused No.4 sold him eight gold finger rings and two chains weighing 60 grams. He further says that accused No.4 showed him brass bangle, but he did not purchase that and he melted the jewellery so purchased into three gold ingots. He further deposes that after five months of such sale, accused No.4 came to the shop along with the police and the police seized the same. He admits that he has not taken the signature of accused No.4 in the stock register for having purchased the said jewellery and he did not ask accused No.4 to produce the documents in proof of ownership of the jewelleries. In addition to that PWs.4 and 5 the panchas to the mahazar Ex.P4 did not support the said recovery proceedings. They say that police showed accused Nos.3 and 4 and the gold ingots in the police station and took their signatures in the police station. Under the circumstances the trial Court rightly held that the theory of the deceased wearing gold jewelleries weighing 60 grams, accused No.4 selling the same to PW.10 and the recovery of the same was not proved.
Reg. Recovery of the car:
39. According to the prosecution, after committing the murder of Umesh Rai accused No.4 took the Alto car of
- 26 -
CRL.A No.1267/2016Umesh Rai and abandoned the same within the limits of Badiyadka Police station and the accused showed the said place to the Investigating Officer. It is the further contention of the prosecution that during the investigation PW.19 came to know about Badiyadka Police registering Crime No.136/2010 regarding the said car and seizing the same. Therefore, he collected Exs.P23 and 24 seizure mahazar and FIR in Crime No.136/2010.
40. To connect the said car to the crime much less to the accused, the prosecution had the burden to prove that the deceased owned/was using the car which was the subject matter of Crime No.136/2010. First of all the said car was not discovered at the instance of the accused. Secondly according to the prosecution itself the car was purchased availing loan in the name of PW.14. Ex.P24 the FIR was registered and Ex.P23 the seizure mahazar was drawn by Badiyadka Police on 11.04.2010. PW.19 said to have collected Exs.P23 and 24 on 11.12.2010. The missing complaint Ex.P1 was filed on 31.03.2010. In Ex.P1 the complainant said that her husband left the house in the Alto car of his friend. She did not say that the car belonged to her husband. PW.19 despite such reference to the car in the
- 27 -
CRL.A No.1267/2016complaint did not conduct any investigation regarding the car for about more than 8 months till he collected Exs.P23 and P.24 on 11.12.2010.
41. PW.14 claims to be recovery agent in Praveen Finance and an acquaint of Umesh Rai. According to him on the security of his lands Umesh Rai purchased the Alto car borrowing the loan from Mahindra and Mahindra Finance. Again he says that the car was purchased by the deceased in his name. But, he does not say when the said car was purchased. No documents relating to the said car was produced to show that the car was standing in the name of PW.14 except the contention that in Crime No.136/2010 of Badiyadka Police Station the car was given to his interim custody. PW.14 admits that he had not obtained any GPA, delivery note, form Nos.29 and 30 and there were no documents between him and Umesh Rai regarding the car transaction. Absolutely there was no material to show that the accused had taken the said car and abandoned that within the limits of Badiyadka Police station. Therefore the prosecution miserably failed to prove that the said alto car in any way related to the accused or the deceased and the
- 28 -
CRL.A No.1267/2016circumstance of discovery of the car at the instance of the accused.
Reg. Cause of death:
42. Since the post mortem examination of the dead body could not be conducted, except the alleged voluntary statements of the accused which are inadmissible with regard to the cause of death, there was nothing to show that the death of Umesh Rai was homicidal one. Under such circumstances, the DNA profiling connecting MOs.5 to 8 to the mother and children of Umesh Rai in no way advance the case of the prosecution to connect the accused to the death of Umesh Rai or that the death was a homicidal one. Reg. Discovery of incriminating evidence under the mahazars Ex.P12, 13, 14, 15 and 16:
43. As per the prosecution on the basis of voluntary statement of accused Nos.1 and 4 near the house of accused No.4 the place where they burnt the clothes, shoe and watch of the deceased after committing his murder was discovered under the mahazar Ex.P12 in the presence of PWs.11, 13 and 18.
44. Similarly on the basis of the voluntary statement of accused Nos.1 and 4 two clubs used in the commission of
- 29 -
CRL.A No.1267/2016offence were allegedly recovered near the house of accused No.4 and they were seized under the mahazar Ex.P13 in the presence of PWs.11, 13 and 18.
45. As per the prosecution on the basis of the voluntary statement of accused No.4 the motor cycle of accused No.4 allegedly used in the commission of offence was recovered under the mahazar Ex.P14 in the presence of PWs.11, 13 and 18.
46. Similarly at the instance of accused Nos.1 and 4 the place where they destroyed the cell phone of the deceased was allegedly discovered under the mahazar Ex.P15 in the presence of PWs.11, 13 and 18.
47. Similarly at the instance of accused No.2 the place where he destroyed the sim cards of the mobile phone of the deceased was allegedly discovered in house of accused No.2 under the mahazar Ex.P16 in the presence of PWs.11, 13 and 18.
48. Under Ex.P12, Ex.P15 and Ex.P16 no material objects were recovered. PWs.13 and 18 did not support the proceedings under the aforesaid mahazars. They stated that they subscribed their signatures to the said mahazars in
- 30 -
CRL.A No.1267/2016the Police Station. So far as PW.11, it is already observed that he was the author of the complaint Ex.P1, therefore he was an interested witness. He has participated in all the mahazar proceedings including the body exhumation mahazar and spot mahazar. The evidence on record clearly shows that he had some blameworthy role against the accused. Therefore, his evidence was of no avail in proof of Ex.P12 to 16. Therefore, the trial Court rightly disbelieved the theory of discovery of incriminating evidence under the aforesaid mahazars.
Conclusion
49. It is the settled principle of law that in an appeal against the order of acquittal the appellate Court cannot interfere unless the impugned judgment and order suffers patent illegality and perversity. It is also settled principle of law that in a case based on circumstantial evidence the prosecution has to prove all the circumstances by cogent and consistent evidence. Unless the chain of circumstances is so complete leading to the only hypothesis of the guilt of the accused and nothing else, the accused cannot be convicted in such cases.
- 31 -
CRL.A No.1267/2016
50. In the present case, right from the discovery of the dead body all the circumstances relied on by the prosecution were not proved beyond reasonable doubt. Considering such aspects the trial Court rightly acquitted the accused. The impugned judgment and order of acquittal do not suffer any illegality or perversity warranting interference of this Court. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE AKC List No.: 1 Sl No.: 3