Karnataka High Court
State By Gangammagudi Police Station vs Deenu @ Dinesh Kumar Avasthi on 14 August, 2014
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF AUGUST, 2014
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO. 848/2010
C/W
CRIMINAL APPEAL NO. 581/2010
CRIMINAL APPEAL NO. 848/2010
BETWEEN :
State by Gangammagudi Police Station
Bangalore
..Appellant
(By Sri B.T. Venkatesh, SPP.,)
AND :
1. Deenu @ Dinesh Kumar Avasthi
S/o Krupashankaar Avashti
Aged about 29 years
R/a Sir Soval Grama and Post
Kanpur District
Uttar Pradesh State.
2. Smt. Reeta Thiwari
W/o Ananda Kumar Thiwari
Aged About 25 years
R/at Indian Air Force Quarters
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No. T-182/1, Jalahalli West
Bangalore-15
..Respondents
(By Sri Hashmath Pasha, Adv., for R-1.,
Sri C.V.Nagesh, Senior Counsel., for
Sri C.V.Nagesh and Associates, Adv., for R-2.,)
This Appeal is filed under Section 378(1) & (3)
Cr.P.C praying to grant leave to file an appeal against the
Judgment of acquittal dated 03.04.2010 passed by the
Presiding Officer Fast Track Court - V, Bangalore in
S.C.No.52/2003 acquitting the respondents/accused for
the offence punishable under Section 302 R/w 34 of Indian
Penal Code.
CRIMINAL APPEAL NO. 581/2010
BETWEEN :
Rajesh Kumar Tiwari
Aged about 42 years
S/o Ramkumar Tiwari
Residing at No.211/15
New Shyam Nagar
Naubasta
Kanpur Town & District
Uttarpradesh State
..Appellant
(By Sri H.L. Jayaramu, Adv.,)
AND :
1. State of Karnataka
By Gangammanagudi P.S.
By State Public Prosecutor
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High Court Buildings
Bangalore-560001
2. Deenu @ Dinesh Kumar Avasthi
Aged about 37 years
S/o Krupashankar Avashti
R/a Sir Soval Grama and Post
Kanpur District
Uttar Pradesh State
3. Smt. Reeta Thiwari
Aged about 33 years
W/o Late Anandakumar Thiwari
Residing at No.182/1
I.A.F. Quarters
Jalahalli West
Bangalore-560015
..Respondents
(By Sri B.T. Venkatesh, SPP., for R-1.,
Sri Hashmath Pasha, Adv., for R-2.,
Sri C.V.Nagesh, Senior Counsel., for
Sri C.V.Nagesh and Associates, Adv., for R-3.,)
These Appeals are filed under Section 372 Cr.P.C
praying to set aside the Judgment of Acquittal dated
03.04.2010 passed by the Presiding Officer, Fast Track
Court-V, Bangalore in S.C.No.52/2003 acquitting the
respondents/accused for the offence punishable under
Section 302 R/w 34 of Indian Penal Code.
These Appeals coming on for hearing, this day,
MOHAN .M. SHANTANAGOUDAR, J., delivered the
following:-
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JUDGMENT
The judgment and order of acquittal dated 3.4.2010, passed by the Fast Track Court-V, Bangalore City, in SC.No.52/2003 is the subject matter of these two appeals.
2. Accused were charged and tried for the offence punishable under Section 302 r/w. Section 34 of IPC and are acquitted by the impugned judgment and order.
3. Crl.A.No.848/2010 is filed by the State, whereas Crl.A.No.581/2010 is filed by the brother of the deceased, namely, Rajesh Kumar Tiwari (PW.11). Since both the appeals arise out of the very judgment dated 3.4.2010, which is the subject of these appeals, they are heard together and decided by this common judgment.
4. Case of the prosecution in brief is that accused No.2 is the wife of the deceased Anandkumar -5- Tiwari; a child was born out of the wedlock; the deceased was working as Corporal in Airforce; during the relevant time, he was working at Bangalore; deceased and accused No.2 were residing in Service Quarters, Jalahalli West, Bangalore; deceased was suspecting illicit intimacy between accused Nos.1 and 2; since deceased had knowledge about the said illicit intimacy and he was opposing the same, accused Nos.1 and 2 conspired together to do away with the life of the deceased, consequent upon which both accused committed murder of the deceased in his Service Quarters during the mid night intervening between 9.9.2002 and 10.9.2002.
5. On the early hours of 10.9.2002, the neighbouring officials of Air Force came to know about the death of the deceased; thereafter PW.1-Officer of Indian Air Force lodged the first information as per Ex.P1 before Gangammagudi Police Station, Bangalore at 12.30 p.m., which came to be registered in Crime -6- No.118/2002 by PW.27, the Inspector of Police for the offence punishable under Section 302 of IPC. It is relevant to note that even prior to lodging of first information, police had the knowledge of death of the deceased and arrived at the scene and consequently commenced the investigation. Ultimately, PW.27- Inspector of Police laid the charge sheet after completion of the investigation.
6. In order to prove its case, the prosecution in all examined 27 witnesses and marked 46 Exhibits and 13 Material objects. On behalf of the defence, one witness was examined and 17 Exhibits were marked. The trial Court on evaluation of the material on record, acquitted the accused persons by giving benefit of doubt in their favour.
7. Sri Venkatesh, learned SPP-II appearing on behalf of the State taking us through the material on record, contended that the trial Court has not properly appreciated the material on record; all the -7- circumstances relied upon by the prosecution are proved; prosecution has proved that there was illicit relationship between accused Nos.1 and 2; blood stained clothes of the accused and blood stained knife used for commission of the offence are recovered at the behest of accused No.1; since the prosecution has proved the complete chain of circumstances beyond reasonable doubt, the trial Court ought to have convicted the accused.
8. Per contra, Sri C.V.Nagesh, learned Senior Advocate, Sri Hasmath Pasha, learned counsel appearing on behalf of the accused argued in support of the judgment of the Court below.
9. PW.1 is Officer of Indian Air Force, who gave first information to the Inspector of Police of Gangammagudi Police Station as per Ex.P1 at about 12.30 p.m. on 10.9.2002, based on which Crime No.118/2002 came to be registered. He is also -8- witness for inquest panchanama at Ex.P2 and scene of offence panchanama at Ex.P3.
10. PW.2 is an autorikshaw driver, who allegedly took accused No.1 to Airport after the incident at 5.00 p.m. on 10.9.2002; PW.3 is the neighbour of accused No.2 and deceased. She has partly supported the case of prosecution; PW.4 is the Security Sergeant of Indian Air Force. He is the witness for scene of offence panchanama at Ex.P3; PW.5 is another autorikshaw driver who allegedly took accused No.1 from Airport to Jalahalli on the previous day of incident i.e., on 9.9.2002 at 7.30 p.m. He has turned hostile; PW.6 is another neighbour of accused No.2 and deceased. She heard the cries of accused No.2 and informed the same to PW.7 who in turn after hearing the cries of accused No.2 went to the spot and opened the door which was locked from outside. She entered the home and saw the dead body of the deceased. She also saw accused No.2 in the bed -9- room which was latched from outside. She opened the latch consequent upon which accused No.2 came out of the bed room and fell unconscious.
11. PW.8 the husband of PW.7. He came to the spot later after being informed by PW.7 about the incident; PW.9 is the doctor who gave treatment to accused No.2 after the incident; PW.10 is the witness for mahazar at Ex.P9 under which clothes of accused No.1 (MO.Nos.4 and 5) and knife (MO.No.6) were recovered. He was another pancha for recovery of the weapon as well as clothes of PW.21; PW.11 is the elder brother of deceased, who identified the dead body. He has deposed that accused Nos.1 and 2 had illicit relationship and the same was informed to the parents of accused No.2.
12. PW.12 is the Head Constable who arrested accused No.1 at Kanpur, U.P. State; PW.13 translated the statements from Hindi to Kannada; PW.14 is the woman Police Constable who arrested accused No.2
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from her residence; PWs.15 and 16 are the Police Constables, who have taken part in investigation process.
13. PW.17 knew accused No.2 and deceased. He has also deposed that he had a landline phone in his residence; frequent calls were being received by deceased and accused No.2 from their relatives including accused No.1. In effect PW.17 has deposed that accused No.2 had acquaintance with accused No.1. She used to call accused No.2 over landline phone; PW.18 is one more neighbour. He called Airforce Police and informed about the incident; PW.19 is the wife of PW.17. She has also deposed about acquaintance of accused No.2 with accused No.1. She has further deposed that accused No.2 was getting calls from accused No.1 to the landline of PW.19; PW.20 is the Reservation Manager of Indian Airlines, Bangalore. He has deposed that one Mr.Misra Raju travelled from Delhi to Bangalore at
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about 4.00 p.m. On 9.9.2002 and thereafter from Bangalore to Delhi in the morning on 10.9.2002; PW.21 is the witness for panchanama at Ex.P9 under which MO.Nos.4 to 6 were recovered. He was co- pancha with PW.10; PW.22 is the doctor who conducted postmortem examination. Postmortem report is at Ex.P15; PW.23 has furnished opinion as per Ex.P17 by examining MO.No.6-knife; PW.24 is the Director of Forensic Science Laboratory who examined certain articles and found certain chemical in the body of the deceased. His report is at Ex.P18 to the effect that deceased was drugged before being killed; PW.25 is the Junior Engineer who drew sketch of scene of offence at Ex.P20; PW.26 is Serology Expert of Forensic Science Laboratory. He has given his opinion as per Ex.P21 after examining MO.Nos.4 to 6 and other material sent to him; PW.27 is the Investigating Officer, who registered the crime based on the first information given by PW.1 and he completed the investigation and laid the charge sheet.
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14. On behalf of the defence, father of accused No.1 is examined as DW.1.
15. There are no eye witnesses to the incident in question. The case completely rests on circumstantial evidence. Five circumstances relied upon by the prosecution are as under:-
16. First Circumstance is illicit Relationship between accused No.1 and 2. The said circumstance is deposed to by PWs.7, 11, 17 and 19.
17. Second circumstance is the conduct of accused No.1 in confining accused No.2 in the room and latched from outside with a view to destroy the evidence against accused No.2. PW.7 is the witness for the said circumstance.
18. Third circumstance is that accused No.1 had come from Delhi to Bangalore on the previous day evening and had gone back to Delhi from Bangalore in
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the morning of 10.9.2002, i.e., immediately after the incident. PW.2 and PW.5 are the witnesses for this circumstance who have not supported the prosecution.
19. Fourth circumstance is recovery of blood stained clothes and knife (MO.Nos.4 to 6). PWs.10 and 21 are the witnesses for the said circumstance.
20. Fifth circumstance is the injuries on the dead body which can be caused with the help of knife
-MO.No.6. The doctor-PW.23 is the witness for the same.
21. Even if the evidence of PWs.7, 11, 17, and 19 is believed in toto with regard to relationship between accused Nos.1 and 2, it can only be said that accused No.2 had acquaintance with accused No.1. Accused No.2 used to call frequently accused No.1 over phone so also accused No.1 used to call accused No.2 over phone. Accused No.1 is none other than
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the maternal uncle's son of accused No.2. It has also come on record that deceased used to talk with accused No.1 since he was related to accused No.2. Thus, the evidence of PWs.7,11, 17 and 19 does not disclose illicit relationship between accused Nos.1 and
2.
22. PWs.17 and 19 are the husband and wife inter se. They are the neighbours of accused No.2 and the deceased. They were having landline phone in their residence. They had permitted accused No.2 and the deceased to receive landline calls whenever they received accused No.2 used to receive number of calls from her relatives including calls from accused No.1. However, PWs.17 and 19 had admitted in their cross-examination that at no point of time accused No.2 used to tell PWs.17 and 19 that she had acquaintance with accused No.1 or that frequently she used to receive phone calls from accused No.1.
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23. However, the evidence of PW.11 who is the brother of deceased discloses that there was illicit relationship between accused Nos.1 and 2. He has gone further to depose that child born to accused No.2 prior to the incident in question was as a result of illicit relationship of accused Nos.1 and 2 and in that regard panchayat was held in their native place. In the cross-examination, PW.11 has admitted that if the deceased had knowledge about the illicit relationship between accused Nos.1 and 2, he would not have allowed accused No.2 to stay with them. So also the relatives of the deceased would not have permitted accused No.1 to live with the deceased. It is also admitted by PW.11 that deceased and accused No.2 were living under the same roof. So also the evidence of PWs.7, 17, and 19 would reveal that deceased and accused No.2 were living amicably. There is nothing on record to show that the child born to accused No.2 was as a result of illicit relationship between accused Nos.1 and 2. There are no medical records to that
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effect. But the fact remains is that child was born during the converture between the deceased and accused No.2 and in law it is presumed that the child is born during the said wedlock. The prosecution has failed to prove its case that the child does not born to deceased. Since there is no material on that aspect of the matter, this Court cannot accept the contention of the prosecution that there was illicit relationship between accused Nos.1 and 2. But the fact remains that accused No.2 had acquaintance with accused No.1 more particularly when both are close relatives inter se.
24. In so far as second circumstance is concerned. PW.7 has deposed that after hearing the cries, she went in front of the house of the deceased; she found that house of the deceased was latched from outside; she went inside the house and found the dead body of the deceased; thereafter she heard the cries of accused No.2 from the bed room which was
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latched from outside; the said latch was opened by PW.7 and accused No.2 was seen in the bed room. From the evidence of PW.7 it is clear that accused No.2 was confined in the room by latching from outside. There is nothing on record to show that who latched accused No.2 in the bedroom. The evidence of PW.7 clearly goes to show that accused No.2 is not responsible for the incident inasmuch she was inside the room when the incident has taken place. If really accused No.2 had committed crime, she would have been in the Hall itself, wherein the incident had taken place. It is also relevant to note that when accused No.2 came out from the room she fell unconscious after seeing the dead body of her husband. She was taken to hospital and was treated by doctor. Looking to the subsequent conduct of accused No.2 it is amply clear that she may not be party to the incident in question.
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25. The third circumstance is relating to accused No.1 who came from Delhi to Bangalore on the previous day and went back to Delhi immediately after the incident. The said circumstance is deposed by PWs.20, 2 and 5. Out of them, PWs.2 and 5 are the autorikshaw drivers. PW.2 is said to have taken accused No.1 to Airport at 5.00 p.m. on 10.9.2002, i.e., immediately after the incident and PW.5, another autorikshaw driver who is said to have brought accused No.1 from Air port to Jalahalli on the previous day of the incident. Both of them have turned hostile. Despite cross-examination by the public prosecutor nothing is brought out in their cross-examination.
26. PW.20 is the Reservation Officer of the Indian Airlines, Bangalore. He has deposed that one Mr.Misra Raju travelled from Delhi to Bangalore and from Bangalore to Delhi, during relevant days. It is relevant to note that name of the accused No.1 is Dinu @ Dinesh Kumar. Since there is nothing on
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record to show that accused No.1 had travelled from Delhi to Bangalore or vice versa in the name of Mr.Mishra Raju, the evidence of PW.20 is of no use. Therefore, the third circumstance also fails.
27. Coming to 4th circumstance, i.e. regarding blood-stained cloths and knife is concerned, we have got the evidence of PWs. 10 and 21. Both these witnesses have deposed that they went to police station at the request of the police, from where, Accused No.1 took both the panchas and the police officers to the spot, wherein a bag containing blood- stained clothes and a knife was hidden under the bush behind Kendriya Vidyalaya. The case of the prosecution is that Accused No.1, after the incident in question, removed his clothes and carried them in a bag along with a knife allegedly used for commission of the offence and threw it under the bush and the same were recovered at the instance of the accused. It is no doubt true that PWs. 10 and 21-panch
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witnesses to the incident have supported the case of the prosecution by deposing that Accused No.1 voluntarily led them to the spot and shown the spot, wherein the bag containing blood-stained clothes and knife was thrown. But, there is no connecting link between the aspect of recovery and the crime. There is no serology report on record. Consequently, there is nothing on record to show that the blood-stains found on the clothes as well as the knife were human blood much less the group blood of the deceased. Since there is nothing on record to show that the blood-stains found on the clothes of the accused as well as on the knife are of human blood, it cannot be said that the prosecution has come-out with the full- fledged believable case, based on recovery. The Officer of the Forensic Science Laboratory (PW.24) has also deposed that blood appears to be smeared on MOs. 4 & 5 (the clothes of Accused No.1) The FSL report -Ex.P1 in no way reveals that the blood-stains are of human origin. Thus, 4th circumstance also fails.
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28. The last circumstance is that the seized knife (MO.6) cause the injuries found on the dead body. PW.23 is the Doctor. He deposed that the injuries in question could be caused by a knife. However, PW.22, who conducted post-mortem examination, in para-8 of his report has admitted that Injury No.1 found on the dead body cannot be caused by a sharp-edged weapon like knife as the wound is gaping. Be that as it may, even assuming that the wounds found on the dead body could be caused by a knife in question, the said circumstance alone is not sufficient to bring home the guilt against the accused.
29. In our considered opinion, the Trial Court by assigning valid reasons has correctly come to the conclusion that the benefit of doubt should go in favour of the accused. The suspicion however strong, cannot not take the place of proof. There cannot be any dispute that the accused can be convicted based on the circumstantial evidence only if the
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circumstances are inconsistent with the innocence of the accused.
30. We find that the Trial Court has assigned proper reasons for coming to the conclusion. Even on re-appreciation of the materials on record, we do not find any ground to interfere in the judgment of acquittal passed by the Trial Court. We find that the view taken by the Trial Court is one of the possible views under the facts and circumstances of the case. Hence no interference is called for. The appeals stand dismissed.
SD/-
JUDGE SD/-
JUDGE *ck/KGR*