Karnataka High Court
State By Ashokapuram Police Station vs Mahadeva S/O Late Ningappa on 19 April, 2013
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF APRIL 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE V. SURI APPA RAO
CRL. A.NO. 548/2008
Between:
State by Ashokapuram
Police Station. ...Appellant
(By Sri. G.M. Srinivasa Reddy, HCGP)
And:
Mahadeva S/o Late Ningappa,
30 years, working in
Nirmithi Kendra,
Bogadi I Stage, Mysore,
R/at No.2378/B,
New Kantharaja Urs Road,
Jayanagar, Mysore. ...Respondent
(By Sri Chandrashekar, Adv. appearing for
Sri. C.H. Hanumantharaya, Adv.)
This Criminal Appeal is filed under Section 378(1) &
(3) of Cr.P.C. praying to grant leave to appeal against the
Judgment and order of acquittal dated 20.12.2007 passed in
Sessions Case No.351/2003 on the file of the learned
Presiding Officer, Fast Track Court-I, Mysore, thereby,
acquitting the accused/respondent for the offences
punishable under Sections 302 and 201 of IPC; set aside the
aforesaid Judgment and order of acquittal dated 20.12.2007
passed in Sessions Case No.351/2003 on the file of the
2
learned Presiding Officer, Fast Track Court-I, Mysore, by
allowing this Criminal Appeal; and convict and sentence the
accused/respondent for the offences with which he has been
charged in accordance with law.
This Criminal Appeal coming on for final hearing this
day, Mohan .M. Shantanagoudar. J, delivered the
following:-
JUDGMENT
The Judgment and order of acquittal passed by the Fast Track Court-I, Mysore in Sessions Case No.351/2003 is appealed by the State. The accused was charged, tried and acquitted for the offences under Sections 302 and 201 I.P.C.
2. The case of the prosecution is that, the accused used to employ the services of the deceased for iron bar bending work; the accused did not pay the requisite wages to the deceased; on the date of the incident also i.e. on 13.07.2003 the accused told the deceased to go for bar bending work of one Mr. Gowda; the deceased refused to go for bar bending work since he had not paid the earlier wages; the deceased abused said Gowda 3 also in his absence; in the night of 13.07.2003 the deceased along with PWs 2, 3 and 10 went to Thunder Bar situated at Saraswathipuram area of Mysore City for consumption of alcohol and at that point of time, the accused was also sitting in the very Bar and was consuming alcohol; PWs 2, 3 and 10 did not know about the accused at all; the accused called the deceased for consumption of alcohol and accordingly, the deceased went and tried to sit on the chair kept in front of the table of accused; the accused kicked the chair consequent upon which the deceased fell down to the ground; quarrel took place between the accused and the deceased; they slapped each other; the friends of the deceased tried to rescue the accused; thereafter, accused himself pacified the deceased and his friends by telling that they just like brothers and that they can settle the dispute amicably; the accused thereafter went from the spot on his motorcycle and waited near Shasta Garage; the deceased and his friends also went in 4 Autorickshaw of PW-10. While they were proceeding near Shasta garage, the accused stopped the Autorickshaw, consequent upon which the deceased and his friends also got down from the Autorickshaw; again there was quarrel between the accused and the deceased at that point of time in front of Shasta garage; after some time the said quarrel was also pacified by the friends of the deceased; the accused took the deceased inside the Shasta garage for private talks; the accused requested the friends of the deceased PWs 2, 3 and 10 not to accompany them inside the Shasta garage and told them to wait outside Shasta garage; PWs 2, 3 and 10 waited near Shasta garage upto 11.30 p.m. but they did not find the accused and the deceased coming out from the Shasta garage; PWs 2, 3 and 10 went inside the garage to find out the whereabouts of the accused and the deceased, but they could not meet the accused and the deceased; thereafter they came back and slept in their respective houses. On the next day morning, 5 the mother of the deceased came to the house of PW-2, 3 and 10 and asked about the whereabouts of her son/deceased Kumaraswamy; PWs 2, 3 and 10 narrated as to what has happened on the last night between the accused and deceased; on 14.07.2003, the mother of the deceased and PWs 2, 3 and 10 searched for the deceased elsewhere, but they could not get any clues of the deceased; having felt that the deceased must have gone elsewhere for work they kept quite; on 15.07.2003 PWs 2, 3 and 10 along with others again went to Shasta garage and searched for the deceased. They could able to find the chappals of the deceased; watch of the accused and blood stained stone (MOs 1 to 3) in Shasta garage. After seeing the aforementioned material objects they suspected foul play and went to the house of PW-4 (brother of deceased) and told him about the incident. Thereafter, PW-4 lodged the missing complaint before the Saraswathipuram Police Station at about 2.30 P.M. on 15.07.2003 and in the very 6 complaint he has suspected the accused. Thereafter, the investigation started, the Police after completion of investigation laid the charge sheet against the accused.
3. In order to prove its case, the prosecution in all examined 16 witnesses and got marked 18 exhibits and 5 material objects. On behalf of the defence, 3 exhibits were marked from the statement of the prosecution witnesses. The Trial Court on evaluation of material on record and after hearing, acquitted the accused.
4. PW-1 is the witness for scene of panchanama - Ex.P1. MO-1 - watch, MO-2 - stone, MO-3 - chappal, MO-4 - bloodstained stone and MO-5 - sample mud were seized from the spot. He has also deposed that the accused put the dead body hidden behind the bush.
PWs 2 and 3 are the friends of the deceased. They were supposed to depose about last seen circumstance and previous quarrel at the Bar. However, they have turned hostile during their cross-examination. 7
PW-4 is the brother of the deceased. He is an hearsay witness. He came to know that the accused and deceased left inside the Shasta garage from PWs 2, 3 and 10. He lodged missing complaint before the Saraswathipuram Police Station as per Ex.P15.
PW-5 is the Doctor who conducted post-mortem examination. Post-mortem report is at Ex.P4. The Doctor has opined that the death is due to injury sustained to head and neck consequent upon blunt force impact like that of a stone on the back of head on lying position.
PW-6 is a witness for seizure mahazar - Ex.P5 under which the motorcycle said to have been used by accused for going to Nala for throwing the blood stained clothes of the deceased, who has turned hostile. Same is the evidence of PW-7. He has also turned hostile.
PW-8 is the friend of the deceased. He also went along with the Police and PWs 2, 3 and 10 on 15.07.2003, wherein MOs 1 to 3 were recovered as also 8 where the accused showed the dead body which was hidden behind the bush. According to PW-8, the accused answers negative when asked whereabouts of the deceased.
PW-9 is the witness for inquest panchanama - Ex.P6. PW-10 is the friend of the deceased. He has deposed about the last seen circumstance, previous quarrel in front of Thunder Bar and Shasta garage. He has also spoken about the accused showed the dead body of the deceased to Police and panchas.
PW-11 is the Inspector of Police who registered Crime No.27/2003 after the receipt of investigation records from Saraswathipuram Police Station. It is relevant to note that since the dead body was found within the jurisdiction of Ashokapuram Police Station, the investigation stood transferred from Saraswathipuram Police Station to Ashokapuram Police Station. He has sent the FIR as per Ex.P8 to the jurisdictional Magistrate. He laid the charge sheet. 9
PW-12 is the Sub-Inspector of Police attached to Saraswathipuram Police Station. He registered the missing complaint lodged by PW-4 as per Ex.P14 in crime No.73/2003, he had sent FIR as per Ex.P15 relating to missing of the deceased. He has also recorded the voluntary statement of the accused as per Ex.P12. Pursuant to which MOs 1 to 3 and the dead body were recovered.
PW-13 is the Junior Engineer, who drew the sketch of the scene of offence as per Ex.P9.
PW-14 is the Police Constable, who showed the scene of offence to the Engineer - PW-13.
PW-15 is the panch witness for panchanama Ex.P16 which discloses that accused showed the Nala to the Police and panchas wherein the blood stained clothes of the accused and deceased were thrown.
PW-16 is the Manager of the Thunder Bar wherein quarrel took place between the accused and deceased. He has turned hostile.
10
5. The case of the prosecution rests on circumstantial evidence. The circumstances are as under :
a) Last seen circumstance;
b) Circumstance relating to quarrels between accused and deceased prior to the incident in front of Thunder Bar as well as in front of Shasta garage during night of 13.07.2003;
c) Recovery of dead body as well as MOs 1 to 3 based on the voluntary statement (Ex.P12) of the accused;
d) Accused showed the place where the blood stained clothes of the accused and the deceased were thrown;
6. So far as circumstance No.4 relating to showing of the place by accused wherein he had allegedly thrown the blood stained clothes of the accused and the deceased after committing the murder is rightly not believed by the Court below. PW-15 is the witness to testify the said circumstance. According to the case of prosecution, the blood stained clothes of the accused 11 and the deceased were thrown in the flowing Nala. The panchanama - Ex.P16 is merely relating to Nala. Recovery of clothes is not made in the matter. Since there is no recovery made and as it is very easy to the Investigating Officer to draw panchanama in respect of Nala, the Trial Court has disbelieved the same more particularly having regard to all the other circumstances.
7. So far as the recovery of MOs 1 to 3 and dead body is concerned, we are of the clear opinion that the Trial Court has justified in disbelieving the case of the prosecution in respect of the said circumstance also. According to the case of the prosecution, MO-1 - watch of the accused, MO-2 - blood stained stone, MO-3 - chapple of the deceased which are incriminating material objects were seized from the scene of offence. Nobody has deposed and identified that MO-1 - watch belongs to accused. Admittedly, PWs 2, 3 and 10 were 12 the witnesses who went along with the deceased, they saw quarrel took place between accused and deceased and thereafter, they saw accused and deceased going inside the Shasta garage. These three witnesses have deposed that they are neither friends of accused nor had acquaintance with them. They did not know about the accused at all. If it is so, they would not be knowing that watch which was fallen at the spot belongs to accused. In spite of the same, all these three witnesses i.e. PWs 2, 3 and 10 went to the house of PW-4 and told PW-4 that the watch of the accused had fallen on the spot. Based on this, missing complaint was lodged by PW-4 suspecting the accused. Since none of the prosecution witnesses knew about the ownership of the watch, the Trial Court is justified in observing that the prosecution wants to make out a new case in favour of the prosecution.
That apart, MOs 1, 2 and 3 were recovered from the spot at the behest of the accused, we fail to 13 understand as to how the police recovered these articles at the behest of the accused, when those articles were already seen by PWs 2, 3 and 10. There cannot be any recovery of any article which was already seen by the witnesses. In this matter, the prosecution witnesses had already seen MOs 1, 2 and 3 on the spot and thereafter, the complaint came to be lodged by PW-4, the Investigation Officer starts investigation based on the missing complaint. During the course of investigation, those articles i.e. MOs 1, 2 and 3 were allegedly recovered at the instance of the accused. Since the said articles were already seen by PWs 2, 3 and 10 on the spot even prior to lodging of the complaint there is no question of recovery of such seen articles.
8. So far as recovery of dead body is concerned at the behest of the accused, the prosecution has utterly failed to prove the said circumstance also. According to the 14 Investigating Officer, the dead body was lying about 150 feet away from Shasta garage near the bush. However, according to the panchanama, the dead body was lying 100 yards away from Shasta garage. Admittedly, number of houses are in existence in Shasta garage. Number of agriculturists grow vegetables near the place where the dead body had fallen, number of persons attend calls of nature near the said place. Thus, it cannot be said the place in question is an isolated place where the dead body was lying. Under such circumstances, it will not be possible to conclude that the dead body remained unnoticed by anybody for a period of two days i.e. from 13.07.2003 to 15.,07.2003. Even according to the case of the prosecution, the offence has taken place during the midnight intervening night between 13.07.2003 and 14.07.2003, the dead body was found during the night of 15.07.2003 that too allegedly at the instance of the accused No.1. Thus, it is clear that the dead body was found after two days of the 15 incident. Within that period of two days, the dead body must have already been deteriorated atleast to certain extent and foul smell would have emanated. It is also deposed by PW-10 that in the intervening night of 15.07.2003 himself and PWs 2 and 3 searched for the dead body for three hours in and around Shasta garage. According to the Investigating Officer, the dead body was lying 150 feet away from Shasta garage, it may not be impossible to see the dead body in Shasta garage more particularly when three persons searched for the dead body for three hours in the very place.
As aforementioned, the dead body must have been smelling with foul smell. Looking to all these facts and circumstances, the Trial Court justified in disbelieving the case of the prosecution relating to recovery of the dead body at the behest of the accused.
9. Thus, the only other circumstance remains to be considered is that the quarrels took place between the 16 accused and the deceased and last seen theory. These circumstances are being spoken to by PWs 2, 3 and 10. PWs 2 and 3 have turned hostile in their cross- examination.
10. Thus the evidence which remains to be considered is the evidence of PW-10. The Trial Court has assigned detailed reasons for disbelieving the version of the last seen theory as spoken to by PW-10. The trial Court has taken into consideration each and every minute detail of the case of the prosecution and the evidence of PW10 to arrive at the conclusion. According to the case of the prosecution, PWs.2, 3 and 10 did not know about the accused at all. However, the deceased was knowing the accused. The accused invited the deceased for consumption of alcohol in the bar. Accordingly, deceased went there and quarrel ensued between the two. The quarrel was not minor in nature. There was not only wordy quarrel, but also physical assaults by 17 each other. Thereafter, deceased as well as accused came out of the bar. Deceased, PWs-2, 3 and 10 were proceeding in the autorickshaw of PW-10 and whereas the accused went on his motorcycle towards shastha garage and he was waiting for the autorickshaw to come. On seeing the autorickshaw, accused stopped the autorickshaw, from which, deceased and his friends got down. Again there was quarrel between the deceased and accused. It is relevant to note that the deceased was very much aggrieved by the inaction on the part of the accused in not paying him the wages. Having regard to these circumstances, the Trial Court has observed that it may not be possible for any ordinary prudent man to accompany his rival to an isolated place, that too alone, during night time. PWs-2, 3 and 10 being close friends of deceased, could not have failed to accompany the deceased while deceased was proceeding to go with the accused. Merely because the accused requested them not to accompany them inside Shastha 18 garage, the conduct of those witnesses may not be natural in not accompanying the deceased or leaving the deceased alone in the company of the accused, more particularly, having regard to the earlier incident of quarrel. Even according to PW-10, he alongwith PWs-2 and 3 waited in front of shastha garage upto 11.30 p.m. without entering the shastha garage. Again this is an unnatural conduct. After 11.30 p.m., PWs-2, 3 and 10 entered the garage to find out the whereabouts of the deceased and accused, but those persons were not found. There is nothing on record to show as to how accused escaped from the scene and as to how the deadbody was lifted for about 150 ft from Shastha garage to the place wherein it was allegedly dumped by the accused.
11. It is the case of the prosecution that the accused alone came to the bar for consumption of alcohol and he sat in a different table. PWs-2, 3 and 10 did not know 19 about the accused at all. Having seen the quarrel between the accused and deceased, any prudent man should have adviced the deceased not to go with the accused alone, that too, during night to an isolated place. None of these witnesses have deposed so before the Court. Admittedly, the place is surrounded by number of houses and number of houses are situated within sastha garage itself. Even the watchman of the garage as well as none of the residents of these houses were examined before the Court to depose as to what actually happened in the shastha garage during the relevant period. It is not that independent witnesses was not available to prove the case of the prosecution. On the other hand, as aforementioned, the place is a public place.
12. PWs-2, 3 and 10 having went inside the garage to find out the deceased and accused and having not found either of them, coolly went to their houses and 20 slept without informing any of the family members of the deceased. It is only when the mother of the deceased asked about the whereabouts of the deceased, these persons told her about previous day's incident. It is strange that none of the witnesses including the family members of the deceased did not choose to find out the whereabouts of the deceased within shastha garage or nearby area on 14.7.2003. They waited for two days. They did not even lodge missing complaint to the police. Looking to the totality of the facts and circumstances, the Trial Court has justly disbelieved the entire case of the prosecution.
13. The learned counsel for respondent is justified in relying upon the judgment of the Apex Court in the case of State of Goa Vs. Sanjay Thakran and another with Subhas Chandra Nanda Vs. Sanjay Thankran and another reported in (2007) 3 SCC 755 wherein it is observed thus:-
21
"From the principle laid down by this court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, 22 that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider line gap would not affect the prosecution case."
(emphasis supplied) 23
14. From the aforementioned facts, it is clear that last seen theory comes to play where the time tap between the point of time when the deceased and the accused were seen last alive and when the deceased is found dead is so small that possibility of any person other than accused being the author of the crime becomes impossible. In the matter on hand, according to PW-10, deceased and the accused were last seen on the night of 13.7.2003. The deadbody was found during the night of 15.7.2003. The post-mortem report does not anywhere reveal as to the time of death. Under such circumstances, the defence is justified in arguing that the time gap between the last seen circumstance and the death of the deceased is so wide that possibility of any person other than accused being the author of the crime becomes possible. In addition to the same, the deadbody was naked. According to the prosecution, accused after murdering the deceased took away the clothes of the deceased and dumped in a nala. It is most 24 unnatural for accused to strip off the deadbody after murdering him. There is no reason as to why the accused should remove the clothes of the deceased after commission of the murder. This circumstance is not explained by the prosecution.
15. Be that as it may, having regard to the totality of the facts and circumstances, we find that the judgment and order of acquittal passed by the Trial Court is just and proper. No interference is called for. Appeal fails and the same stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE.
1-15 - Rbv/ 16-24 - Mn/-