Karnataka High Court
A R Chandra (Edapathya Ramachandra) vs State Of Karnataka on 6 November, 2014
Author: N. Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER 2014
PRESENT
THE HON'BLE MR.JUSTICE N. ANANDA
AND
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL APPEAL NO.478 OF 2010
BETWEEN:
1. A R CHANDRA (EDAPATHYA RAMACHANDRA)
S/O SHIVARAMAYYA, 42 YEARS
2. SMT. VEENA R CHANDRA
W/O A R CHANDRA, 40 YEARS
BOTH ARE R/O
EDAPATHYA MANE
KALAMADAKA, SULLIA TALUK
DAKSHINA KANNADA DISTRICT. ... APPELLANTS
(BY SRI C V NAGESH, SENIOR ADVOCATE FOR SRI K
RAGHAVENDRA, ADV.)
AND:
1. STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
SUBRAMANYA POLICE STATION
DAKSHINA KANNADA DISTRICT
2. DEPUTY SUPERINTENDENT OF POLICE
H & B SQUAD, C O D CARLTON HOUSE
PALACE ROAD, BANGALORE. ... RESPONDENTS
(BY SRI B T VENKATESH, SPP-II)
2
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
27.03.2010 PASSED IN S.C.NO.33/2002, ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT AT PUTTUR,
D.K., CONVICTING THE APPELLANTS/ACCUSED NO.1 & 2
FOR OFFENCES PUNISHABLE UNDER SECTIONS 302 AND
201 R/W 34 IPC & ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.10.2014, THIS DAY, PRADEEP D.
WAINGANKAR J., PRONOUNCED THE FOLLOWING:
JUDGMENT
The appellants (hereinafter referred to as 'accused Nos.1 and 2') were tried and convicted for offences punishable under Sections 302, 201 r/w 34 IPC in S.C.No.33/2002 on the file of Fast Track Court, Puttur in Dakshina Kannada District.
2. The case of the prosecution in brief is as follows:-
Accused No.2 is the wife of accused No.1. Deceased Harish Rai and accused No.2 Smt. Veena were college-mates and friends when they were studying in Government College, Uppinangadi. Their friendship continued even after marriage of accused No.2 with accused No.1. Deceased used to talk to accused No.2 quite often over telephone with which accused 3 No.1 was not happy. There used to be quarrels between accused No.1 and accused No.2. The deceased was in financial problem. He had come to Bangalore few days prior to 18.05.2007. The deceased was in Kenchamba Lodge at Bangalore. On 18.05.1997, accused No.2 contacted deceased through her landline number and invited deceased to come to her house. Again on 19.05.1997 she talked to the deceased and called upon the deceased to come to her house at Mangalore. She also told the deceased that she was in deep trouble. In response to the telephone call from accused No.2, deceased along with one Diwakar Rai boarded Bangalore-Mangalore Bus at about 11.30 p.m. on 19.5.1997. On way, Divakar Rai, who had accompanied deceased from Bangalore got down from the bus at Uppinangadi (his native place). The deceased came to Mangalore KSRTC Bus stand from where he was picked up by accused Nos.1 and 2 in Maruthi Esteem car bearing No.KA-21-M-1304 belonging to accused No.1 and on way deceased was murdered and his dead-body was burnt by accused Nos.1 and 2 at a place near to the house of the father of accused No.1 in Kalmadka Village of Sullia Taluk and the mortal remains were buried in 4 a garbage pit at a distance of 100ft away from the house of the father of accused No.1 near a hillock.
3. As the deceased did not come to his house even after a week and his whereabouts were not known, his mother Sundari Rai-PW1 lodged a missing complaint before Uppinangadi police station on 29.5.1997. Since no much headway was made by Uppinangadi Police, further investigation was handed over to PW-29 Dy.S.P., C.O.D. On 31.7.1997, the mother of the deceased received an anonymous letter (Ex P-1) through post containing information regarding the murder of deceased, the place of murder, the place where the dead body was burnt and mortal remains were buried. She handed over the said letter to PW-29. On 1.8.1997, on the basis of information contained in the anonymous letter, PW-29 alongwith panchas went to the place where the mortal remains of the deceased were buried. They excavated that place and found pieces of bones, wrist watch and mud mixed with ashes. They seized the same (M.Os 1 to 3) under a panchanama Ex- P3. On 6.8.1997, PSI of Uppinangadi Police Station produced 5 Esteem car belonging to accused No.1 before PW-29, wherein he noticed blood stains and hairs on the seat of the car. They were collected and sent for Scientific examination which revealed the blood stains found in the car were of 'B' group blood. The deceased had donated blood to one Smt. Khatijamma at Dhanvantri clinic, Puttur. PW-29 secured certificate in that regard from Dhanvantri clinic wherein it was certified that the blood group of the deceased as 'B' positive. He also secured report from a Scientific Officer with regard to M.O.No.1-bones that were seized were of a human being. Upon completion of other formalities of investigation, charge sheet was filed against both the accused for offences punishable under Sections 302, 201 r/w 34 IPC to which they pleaded not guilty and claimed trial.
4. In order to prove charges, the prosecution examined as many as 37 witnesses as PW-1 to PW-37, marked Exs-P1 to P60 apart from M.Os.1 to 3. On behalf of the defence, portion of the statement of PW-1 was marked as Ex-D1. The learned Sessions Judge on appreciation of evidence recorded a finding that prosecution has proved the charges against 6 both the accused beyond reasonable doubt and convicted and sentenced accused 1 and 2 for aforestated offences.
We have heard Sri. C.V. Nagesh, learned Senior Counsel for appellants-accused and Sri.B.T.Venkatesh, SPP-II for State.
5. Undoubtedly, in this case, there is no direct evidence of the crime. The prosecution case has relied on circumstantial evidence. At this juncture, it would be useful to refer to a decision reported in AIR 1952 SC 343 (in the case of Hanumant Govind Nargundkar Vs. State of M.P.), wherein the Supreme Court has held;
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must 7 be such as to show that within all human probability the act must have been done by the accused".
It is in this background we proceed to appreciate evidence in proof of circumstances relied upon by the prosecution. The prosecution has relied upon the following circumstances:-
I. Motive
i) Friendship between deceased and accused
No.2;
ii) Telephonic conversation between accused
No.2 and deceased;
iii) Deceased travelling from Bangalore to
Mangalore.
iv) Anonymous letter received by mother of
the deceased through post.
II. Recovery of Incriminating articles M.O. No. 1 to 3.
III. Recovery of bloodstains and hairs from the Esteem car
belonging to accused No.1.
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I. Motive
i) Friendship between deceased and accused No.2:-
The case of the prosecution is that deceased and accused No.2 were college-mates when they were studying in Uppinangadi Government College and even after the marriage of accused No.2 with accused No.1, friendship continued between deceased and accused No.2. Accused No.1-husband of accused No.2 was not happy with the friendship between his wife and deceased. In order to establish friendship between accused No.2 and deceased, the prosecution has examined PW-23 Chitra-cousin-sister of deceased, who in her evidence has deposed that while she was residing at Puttur alongwith her husband, deceased her cousin-brother used to come to her house and he used to talk to accused No.2 over phone and sometimes even accused No.2 came to her house and both of them were talking to each other. Her evidence would also go to show that deceased used to go to nearby liquor bar, at that time also, accused No.2 used to talk to him over telephone. PW-16-Uday Kumar, the owner of bar has given complete 9 go-bye to the prosecution case. He has deposed that deceased had never come to his bar nor accused No.2 had contacted deceased over telephone from his bar. Thus evidence of PW-23 and that of PW-16 are conflicting each other. Though other witnesses have also spoken about friendship between deceased and accused No.2, their evidence is hearsay evidence, which is not admissible. Even if it is assumed that accused No.2 and deceased had friendship as they were college-mates, it cannot be termed as an affair so as to disturb the mind of accused No.1. Moreover, another sister of the deceased Chitra PW-23 has stated in her cross examination that deceased her brother completed his studies in Mangalore. The prosecution has not adduced documentary evidence to prove that deceased was studying in Government college at Uppinangadi. The evidence placed on record by the prosecution that deceased studied in Uppinangadi Government College and that deceased and accused No.2 Veena were friends and college mates is rather difficult to accept.10
ii) Conversation between deceased and accused No.2 over phone:-
It is further case of the prosecution that deceased was doing finance business from Kenchamba lodge, Bangalore where he was staying. That on 18.5.1997, accused No.2 had conversation with deceased through her landline No.222066 and again on 19.5.1997, she contacted deceased twice through her landline to Kenchamaba Lodge, Bangalore bearing No.2254131. It is further case of the prosecution that while accused No.2 had conversation with deceased on 19.5.1997, two persons viz., PW-5 Smt. Shanthi Geetha Naronha and one Salina from Mangalore were there in the room, wherein deceased was staying and they heard conversation wherein accused No.2 was compelling deceased to come to Mangalore to meet her as she was in deep problem. From the evidence of PW-5, we find that at the relevant time, she had gone to Bangalore to meet deceased in connection with a site transaction, PW5 has pleaded total ignorance about the receipt of phone call by the deceased from accused No.2. Added to it, the room boys of 11 Kenchamba lodge viz., PW-11 Virupaksha and PW-12-
Girisha in their evidence have stated that they had not seen deceased Harish in room No.112 of Kenchamba lodge at any point of time. Ex P-48 is letter written by Post and Telegraph Department containing call details of land line phone number 22206 of accused No.1. Ex.P49 display billing report reveals some outgoing calls from phone number 22206 on 18.5.1997 and 19.5.1997. But there is no cogent and convincing evidence to show that from said landline (telephone), accused No.2 had contacted the deceased. The prosecution has failed to adduce satisfactory evidence to prove the second circumstance.
iii) Deceased travelled from Bangalore to Mangalore and thereafter he was missing It is the case of the prosecution that after receipt of telephone call from accused No.2, deceased boarded KSRTC bus at Bangalore at about 11.30 p.m. on 19.5.1997, alongwith one of his friends by name Divakar Rai and on way, Divakar Rai got down from the bus at Uppinangadi (his native place) and deceased continued his journey, 12 got down from the bus at Mangalore and thereafter he was missing.
In order to establish the same, prosecution examined PW-33 Vijaya Rai who has deposed that on 19.5.1997, he bought two tickets for deceased and Divakar Rao and handed over the same to deceased and thereafter both of them left by KSRTC bus at about 11.45 p.m. and that as soon as deceased reached Mangalore, he was suppose to make a call to PW-33. Since he did not receive a call, he (PW-33) tried to contact him but he could not as his mobile was switched off. So he informed four of the friends of deceased at Mangalore and enquired them about deceased, who had travelled to Mangalore, but, there was no response from the friends of deceased PW.25-Shyamala (the sister of the deceased) has deposed that deceased (her elder brother) used to come to his native place Puttur once in fortnight. He was to come for the birthday of her son on 16.5.1997, but he expressed his inability to come on that day and that on 19.5.1997, one Ashraf PW-7 informed her that deceased had left from 13 Bangalore to come to Puttur alongwith one Divakar Rai. The other witnesses examined by the prosecution is PW-15 Sundar Shetty conductor of KSRTC bus wherein deceased and Divakar Rai said to have travelled from Bangalore to Mangalore. PW15 has turned hostile by stating that he does not know anything about the case. Moreover, Divakar Rai who would have been the best person to speak about the fact that deceased had boarded KSRTC bus alongwith him to go to Mangalore has not been examined. Though it is stated that he is no more, no death certificate or acceptable evidence has been produced to substantiate his death. Therefore, in the absence of examination of Divakar Rai and from the nature of evidence brought on record, it cannot be said that deceased boarded KSRTC bus at Bangalore on 19.5.1997 at 11.30 p.m. alongwith Divakar Rai in order to go to Mangalore and thereby prosecution has failed to establish this circumstance.
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iv) Receipt of anonymous letter through post by the mother of the deceased.
Another circumstance put forth by the prosecution is that two months after the date of missing of the deceased, the mother of the deceased PW-1 Sundari Rai received an anonymous letter Ex P-1 by post from Mulki containing information regarding murder of the deceased, place of murder, place where the dead-body was burnt and place where mortal remains were buried, she handed over the same to PW-29 Investigating Officer and based on the information contained in Ex-P1, the Investigation Officer PW-29 proceeded to the place shown in Ex-P1 alongwith panchas and recovered M.Os.1 to 3 -pieces of bones, dial of the titan wrist watch and mud mixed with ash under panchanama Ex-P3, in the presence of panchas PW-7 Ashraf and others. In order to establish the said circumstance, the prosecution has examined PW-1-mother of the deceased, who has deposed that she received anonymous letter Ex-P1 through post which contained information regarding murder of her son, place where the dead-body was burnt and mortal 15 remains were buried, she produced anonymous letter Ex-P1 before the Police. Admittedly, the letter is not signed. It is not known who had written the said letter or in whose handwriting it is written. In-fact it is an inadmissible document in evidence. Even then it has been marked and its contents have been relied upon as if it is disclosure statement made by the accused. Needless to say that the letter and the contents therein ought to have been ignored by the trial court .
II. Recovery of incriminating articles M.Os.1 to 3:-
PW-29 Investigation Officer and PW-7 one of the panchas to Ex-P3 have deposed about recovery of M.Os.1 to 3 based on the information contained in letter Ex-P1. Merely because PW-29 and PW-7 one of the panchas by name Ashraf has spoken about the recovery of M.Os.1 to 3 from a pit on a hillock nearby the house of Shivaramaiah-the father of accused No.1 in Kalmadka in Sullia Taluk, it cannot be said that recovery is at the instance of accused or for that matter on the strength of voluntary statement made by the accused. On the date of recovery of M.Os.1 to 3, accused 16 Nos.1 and 2 were not even arrested as such, even if M.Os.1 to 3 are recovered on the basis of information contained in Ex-P1, that will not help the prosecution in any way to prove its case. Thus, neither anonymous letter Ex-P1 nor recovery of M.Os.1 to 3 on the basis of information contained in the letter will have any evidentiary value so as to bring home the guilt of accused. Moreover, though bone pieces M.O.1 were sent for DNA test at Hyderabad so as to find out as to whether they are bones of a human being, they were returned back as not fit for DNA test as deposed by PW-30 Jayanth Shetty, Investigation Officer who partly investigated the case. Thus there is no evidence to show that bones M.O.1 that were recovered under Ex-P3 are human bones.
Regarding M.O.2 - a wrist watch recovered under Ex-P3. It is the case of the prosecution that deceased had purchased two watches, one watch was given to PW.22- Sadashiva Rai (brother of deceased) and the deceased was wearing one watch which was recovered under Ex-P3. The prosecution has produced bill and guarantee cards in respect of two titan wrist watches said to be purchased by deceased from Proprietor of Watch Palace, Mangalore. In this regard, 17 prosecution has examined PW.24-James Gilbert, Proprietor of Watch Palace. He has admitted that from the bill and guarantee cards produced (Ex-P4 to P6) issued by him, he cannot say that the bill and guarantee cards were issued either in the name of deceased or they were issued to deceased for having purchased watches. The fact remains that the name of the deceased does not find place either in Exs-P4, P5 or P6- bills or guarantee cards issued by PW-24. Thus there is no cogent evidence to show that watch i.e., M.O.2 that was recovered under Ex-P3 was the watch belonging to deceased. Though the mud mixed with ash M.O.3 said to have been recovered under Ex-P3, there is no evidence to connect the same. Be that as it may, the recovery of M.Os. 1 to 3 was not at the instance of accused Nos.1 and 2. They were not even arrested on the date of recovery of M.Os.1 to 3. Thus the prosecution failed to establish that M.Os.1-3 recovered under Ex-P3 panchanama belonged to the deceased.
18III. Recovery of blood-stains and hairs from the esteem car belonging to accused No.1:-
Yet another circumstance on which prosecution relies is the recovery of blood stains and hair belonging to the deceased from the car of accused No.1. The case of the prosecution is that the deceased was picked up by accused Nos.1 and 2 in Esteem car No.KA-21-M-1304 from Mangalore KSRTC bus stand and on way to Puttur, he was killed in the car. The prosecution has placed on record the relevant documents to show that accused No.1 was the owner of the car, which was seized while it was in the garage for repairs of damage caused to the car. Accused No.2 had dashed against a cement platform of one K.K. Narayan on
20.5.1997 at 9.00 p.m. at Kalmadka, Sullia. The Investigating Officer noticed the blood-stains on the seat of the car and also hair which were seized under a mahazar Ex-P39 and sent to Regional Forensic Science Laboratory, Mangalore. On examination, it was opined by B. Nanjundappa-PW-31 Deputy Director, RFSL, Mangalore, that the blood stains were of 'B' group blood and accordingly 19 he issued report as per Ex-P58. In order to establish that blood group of deceased was also 'B' group, prosecution has produced Ex-P37, certificate issued by Dhanvantri Clinic & Nursing Home, Main Road, Darbe, Puttur dated 8.8.1997, wherein it is certified that one Khateejamma, W/o.Ummar of Belthangady had undergone surgery in the Nursing Home on 16.5.1996 and one Harish Rai had donated blood for this patient and as per the records maintained in the Nursing Home, the blood group of the patient was 'B' Rh +ve and that the donor was also 'B' Rh +ve. The certificate bears signature of Dr. K. Chandrashekar of Dhanvantri Clinic. But in the said certificate, name of the father of Harish Rai and his address are not shown. In the absence of full particulars, it is not proper to place reliance on said certificate to draw an inference that the blood group of deceased Harish was also 'B' +ve. Moreover, the author of said certificate has not been examined before the trial court. Sofar as hair said to have been collected, no report has been produced by the prosecution as to whether they are human hair. Thus the prosecution has failed to establish that the 20 blood stains and hair that were recovered from the esteem car of accused No.1 were of the deceased.
6. The prosecution has failed to prove any one of the circumstances beyond reasonable doubt. The deceased was not seen alive in the company of accused Nos.1 and 2. The identity of the deceased is not established as deadbody was not traced. The learned Sessions Judge without appreciating evidence in its proper perspective and by relying upon inadmissible evidence, convicted both the accused. On re- appreciation of the evidence, we are of the considered opinion that the learned Sessions Judge is not justified in convicting accused Nos.1 and 2. Therefore, the conviction and order of sentence of both accused Nos.1 and 2 are liable to be set-aside.
7. Consequently, we pass the following ORDER The appeal is allowed. The judgment of conviction and order of sentence dated 27.3.2010 passed in S.C.No.33/2002 against accused Nos.1 and 2 by the Fast Track Court, Puttur, Dakshina Kannada are hereby set- 21 aside. Accused Nos.1 and 2 are acquitted of offences punishable under sections 302, 201 r/w 34 IPC. Their bail bonds are cancelled.
Sd/-
JUDGE Sd/-
JUDGE *mn/-