Karnataka High Court
State Of Karnataka vs Ramappa Aparai Ghasti on 6 July, 1999
Equivalent citations: 2000CRILJ599
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT M.F. Saldanha, J.
1. The State of Karnataka has assailed the acquittal of the respondent who was the accused in Sessions Case No. 125/94 in the Court of the III Additional Sessions Judge, Belgaum. The charge against the accused was that on 23-12-1993 at about 19.30 hours that he had assaulted the deceased-Shantabai with an axe and inflicted fatal injuries on her as a result of which she died. The background to the case as alleged by the prosecution was that Shantabai's husband had died about twelve years earlier and that the accused had been carrying on an illicit affair with her for several years. This was objected to by the sons and later on by Shantabai herself, who insisted that the accused should stop coming to their house. It is alleged that despite this he kept coming there and that about one month earlier he had been finally told not to come to that place any more. According to the son - P.W. 1 - Anil, he is working in a brick kiln and that his mother used to bring his food to him. He states that on the afternoon of the day of the incident Shantabai told him that the accused had come to the house that he had fought with her and stated that he would come in the evening and see who stops him. She asked Anil to come home a little early in view of this threat. According to Anil, when he was about 20 feet away from the house at about 7.30 p.m. he heard a cry of his mother from inside the house and he also saw the accused coming out with an axe in his hand had blood stains on his clothes. He rushed inside and found his mother slouching against the wall with serious injuries on her head and neck. He raised an alarm whereupon P.Ws. 2,3and other persons from the area came running there. They tried to give some assistance to the mother but they found her dead. The case was reported to the police and it is alleged that in the course of the investigation, pursuant to the statement made by the accused, the police recovered a blood stained axe. The clothes of the accused and the axe were sent for Chemical Analyses. The accused was charge-sheeted and put on trial and the learned Sessions Judge after considering the evidence recorded an order of acquittal. It is against this order of acquittal that the present appeal has been directed.
2. Since the accused was not represented, this Court has appointed Sri. P. M. Nawaz as Amicus Curiae to represent the respondent-accused.
3. At the hearing of the appeal, the learned Additional State Public Prosecutor has taken us through the entire record of the case. His principal contention is that the son is the most natural witness and that he has deposed to the fact that even though he was not an eye witness to the incident that he saw the accused leaving the house with a blood stained axe and blood stained clothes and that he had identified him as there was a tube light burning there. He has also deposed about the background and the fact that the accused was furious because he had been stopped from coming to the house. In the cross-examination his evidence had hardly been shaken and the learned Additional State Public Prosecutor submitted that the learned trial Judge was in error in having held that merely because there is a reference in the complaint to the effect, that Anil used to stay at his place of work, that it is doubtful as to whether at all he could have been present. It is further pointed out to us from the evidence of P.W. 2 - Babu that he is a neighbour, that he rushed to the spot on hearing an alarm sounded by P.W. 1 and that he also saw the accused leaving the place with blood stained clothes and the blood stained axe. Again, as far as this witness is concerned, despite the detailed cross-examination, his evidence remained unshaken and the learned Additional State Public Prosecutor submitted that this evidence fully corroborates the evidence of P.W. 1. The learned Additional State Public Prosecutor has also placed heavy reliance on the evidence of P.W. 3 - Adappa, who is the neighboring shop-keeper and who states that he had heard the accused and the deceased quarrelling and immediately thereafter he saw the accused running out with an axe and blood stained clothes. The submission is that the evidence of these witnesses is more than sufficient to bring home the charge and that the rejection of this evidence was incorrect.
4. On behalf of the respondent-accused, his learned advocate submitted that if one were to test, the version of these three witnesses, it will be seen that they do not tally with each other in so far as there is a inter-se discrepancy with regard to the time factor. Secondly, he submits that as far as P.Ws. 2 and 3 are concerned, that it is extremely doubtful as to whether they were at all in the vicinity even if P.W. 1 was around there. He also submits that the direction in which the accused is supposed to have run away which is something material does not tally. We have examined the rival submissions and in our considered view, the rejection of this evidence was not justified in so far as even though some very minor discrepancies may be there, the evidence does establish the substratum of a case and it does indicate that these witnesses could have seen the accused leaving the place immediately after the incident. The fact that the accused was seen around that place does appear to emerge from the evidence of these witnesses.
5. Normally we would have looked for some supportive evidence if the prosecution were to press for reversal of the order of acquittal. In doing so, we have looked at the evidence relating to the recovery and we find that two witnesses i.e., P.Ws. 7 and 8 have turned hostile but at the same time we find that in keeping with the law on the point as enunciated by the Supreme Court in Modan Singh v. State of Rajasthan AIR 1978 SC 1511 : 1978 Cri LJ 1531 even if the seizure witnesses evidence fails, the recovery can be established through the evidence of the Investigating Officer which has been done in this case.
6. What has really disturbed us is the fact that even if we accept that the axe was recovered at the instance of the accused and even if we accept the seizure of two items of clothes that were alleged to have been blood stained, we find that the most important piece of forensic evidence in this case viz., Chemical Analysts report has not been produced by the prosecution. The learned Additional State Public Prosecutor drew our attention to the evidence of the I.O. who has tried to get away by stating that that Chemical Analysis report was not received. We find it difficult to accept the statement and we need to record in no uncertain terms our displeasure at what has happened in this trial because murder trials are serious judicial proceedings and we expect the investigating authorities and those who guide them as also those who present the case before the Court to be aware of their very deep and serious responsibility and to produce before the Court all the essential evidence. In this case, we are constrained to point out that it was the bounden duty of the investigating agency namely the I.O. to have ensured that the Chemical Analysis report was received and to have produced it at the time when the charge-sheet was filed. Even if for any reason it had not been received up to that point of time it should have been produced at the time of the trial. Case after case has been failing only because of either non-production of the medical evidence, or forensic Analysis. The police do not take due care and caution to ensure that the samples or incriminating articles are properly preserved and sent in good time. There is an equal responsibility on the part of the experts at the laboratories to whom the weapons, clothes or other samples are forwarded to ensure that they are duly analysed with the minimum loss of time and that the Analysis reports are forwarded. This is the crucial evidence which connects an accused with the offence and it is equally important because if the evidence indicates that it does not connect the accused with the offence then it is equally valuable to the defence. We therefore take a serious view of what has happened and cannot condone a situation of this type.
7. The most important aspect that has arisen in this case is as to what is the consequence of the non-production of the Chemical Analysis report. The learned Additional State Public Prosecutor submitted that the Court must rely on the oral evidence to the effect that the axe and the clothes were blood stained and that even if the Chemical Analysis report was not produced then it should not affect the prosecution to a large extent. In this regard, the learned Addl. State Public Prosecutor has drawn our attention to the decision of the Supreme Court reported in Ganga Sahai v. State of U.P. . It is true that in that case the Supreme Court took the view that the non forwarding of the blood samples etc., to the C .A. need not be repeated as being fatal to the prosecution case, but what the Supreme Court took note of was that there was sufficient and other reliable evidence on the basis of which the conviction can be sustained on its own merits. That precisely is the distinguishing factor, because in the present case, the crucial question is as to whether the clothes of the accused were stained with blood, whether that blood was human blood and lastly whether that human blood matched the blood group of the deceased. These are the three aspects that would vitally link him with the murder. What we need to notice is that the accused was in the habit of visiting the deceased, the accused was a villager and was carrying an axe which itself is not necessarily an incriminating circumstance. But the entire complexion of the case would have changed if the prosecution had established that the axe and the clothes were blood stained, that the blood was human and that it was of the blood group of the deceased. We are emphasising this point because this is really the missing link in the entire case and what we wish to presently point out is that it is only on this ground and on a strict application of the law relating to circumstantial evidence that this Court is required to give the benefit of doubt to the accused. We need to refer to a decision of the Supreme Court reported in 1999 SCC (Cri) 12 wherein the Supreme Court was dealing with a set of facts somewhat similar to this case. In the present case, on the question of recovery the Supreme Court ultimately held that even though the weapon and the clothes had been recovered, that the nexus with the crime was not established and that consequently the accused was entitled to benefit of doubt. It is undoubtedly a fine distinction but we need to apply the law very correctly and very strictly because this would make all the difference between an order of acquittal and a conviction even in the present case. On the totality of the material before us, even though we accept that the background of the case strongly suggests hostility between the accused and the deceased, that he did meet the deceased on that morning and pursuant to that, that he had given threat about the evening. Dehors this, with regard to the assault and the incident we need unimpeachable evidence that the accused and the accused alone was responsible for the murder. The law with regard to circumstantial evidence is more than well settled and the law very clearly postulates that the chain of circumstance must point to one and only irresistible conclusion that is in consonance with nothing other than the guilt of the accused. Applying the test we take note of the fact that one strong link or even two or three of them would not suffice to justify a conviction if the most crucial link is missing. That in our considered view of the result of the Chemical Analysis report not having been produced in this case because we are unable to hold that either the clothes or the axe was blood stained. On a strict and proper application of the law therefore accepting the remaining evidence the accused would still be entitled to the benefit of doubt.
7A. The most unusual feature of this appeal is the most clinching evidence, that of P.W. 3 Adappa, who has stated that he overheard a loud altercation between the accused and the deceased shortly before the deceased was attacked. The special feature of this case is that it involves the aspect of voice identification. The Courts have invariably attached a relatively low value to such evidence for the principal reason that as has happened in this case, there is no audio recording which could be scientifically compared by an expert. The possibility of an error cannot normally be ruled out and it is therefore, in very rare cases that a Court would rely heavily on voice identification evidence. This case presents a situation wherein all the requisite ingredients that are necessary to inspire absolute confidence in the mind of the Court are present. First of all, Adappa has known the accused and the deceased over several years and he has stated that he was absolutely familiar with the voices and that he could not have made any mistake. Secondly, we find from the location of his shop and the house of the deceased that they are-within close proximity of each other and that the situation is such that the voices would normally carry perfectly. Thirdly, there was nobody else around nor was there any form of disturbance from any other quarter. In addition to this, what is pointed out is that he did not only hear a few stray sounds but that he overheard the altercation for quite some (sic) which could facilitate proper identification. We emphasise this aspect because the context of the altercation would unmistakably establish a virtual 100% clue to the persons who were involved in it as the nature of the conversation completes the picture of identification by establishing what the conversation was about.
8. The fact that the voices were heard from the house of the deceased would lend support to the fact that it was Shantabai's voice and since it was common knowledge that the accused was a regular visitor there, it lends credibility to the identification that the voice belonged to him.
9. Adappa states that the accused had a special characteristic habit of using the word "houdu" in virtually every sentence which unmistakably indicated that he was the one and no one else. In addition, he points out that the tone and pitch of the voice of the accused was very characteristic and clearly distinguishable.
10. It is on a combination of these factors that we have applied the tests that would normally be used for purpose of voice identification outside a laboratory. Voice identification is a very important form of identification though it is rarely that this science is pressed into operation but this is one of the few cases in which the identification fully passes the tests of scrutiny. Despite this very strong evidence, we are unable to hold that a conviction is sustainable because the most vital piece of material which would have clearly clinched the guilt of the accused viz., the chemical analysis report on the blood stained clothes and the blood stained axe is not forthcoming and consequently, the benefit of doubt would still have to be extended to the accused.
11. In the light of the aforesaid findings, we confirm the order of acquittal recorded by the trial Court in favour of the accused though for different reasons. The appeal accordingly, fails and stands dismissed. If the accused is in custody as the record appears to indicate, it is directed that he be set at liberty forthwith if not required in connection with any other offence.
12. The office is directed to pay a sum of Rs. 1000/- as fees to the learned advocate Sri. P.M. Nawaz who has represented the accused-respondent as Amicus Curiae.