Karnataka High Court
Sadiq Ali S/O Late Abdul Haq vs Mohammed Jeelan @ Jeelan on 21 April, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.100274/2017
BETWEEN
SADIQ ALI S/O. LATE ABDUL HAQ,
AGED ABOUT 50 YEARS,
OCC-BUSINESS,
R/O.PATEL NAGAR, BAHIND BJP OFFICE,
HOSAPETE, DIST-BALLARI
...APPELLANT
(BY SRI SANTOSH B. MALAGOUDAR, ADVOCATE)
AND
1. MOHAMMED JEELAN @ JEELAN,
S/O.MEHABOOB SAB,
AGED ABOUT 37 YEARS, OCC:SCRAP BUSINESS,
VIJAYALAKSHMI
M KANKUPPI 2. SMT. MAHABUNNISA BEGUM @ MABUNNI,
High Court of
Karnataka,
Dharwad
W/O.MOHAMMED JEELAN @ JEELAN,
AGED ABOUT 35 YEARS, OCC-HOUSEWIFE,
(BOTH ARE R/O.BEHIND BJP OFFICE,
PATEL NAGAR, HOSAPETE, DIST-BALLARI).
3. THE STATE OF KARNATAKA
REPRESENTED BY ITS SPP,
SPP OFFICE, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
.....RESPONDENTS
(BY SRI M.B.GUNDAWADE, ADV. FOR RESP. NOS.1 AND 2)
(BY SRI V.M.BANAKAR, ADDL. SPP FOR RESPONDENT NO.3)
2
Crl.A.No.100274/2017
THIS CRIMINAL APPEAL IS FILED U/S. 378 (4) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 07.11.2016
PASSED BY THE 3RD ADDL. DISTRICT AND SESSIONS JUDGE,
BALLARI SITTING AT HOSAPETE IN SESSIONS CASE NO.30/2013
AND CONSEQUENTLY ALLOW THE APPEAL FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 109 AND 302 READ WITH
SECTION 34 OF IPC IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.03.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, SHRI T.G.SHIVASHANKARE
GOWDA, J, PRONOUNCED THE FOLLOWING:
JUDGMENT
The defacto complainant has challenged the Judgment dated 07.11.2016 passed in Sessions Case No.30/2013 by the learned III Additional District and Sessions Judge, Ballari sitting at Hosapete (for short, 'the Trial Court') in acquitting the respondent Nos.1 and 2 (accused Nos.1 and 2 before the Trial Court) for the offences punishable under Sections 109 and 302 read with Section 34 of IPC.
2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
3. The brief case of the prosecution is that, accused No.2-Smt. Mahabunnisa Begum @ Mabunni is the younger sister of defacto complainant/P.W.1-Sadiq Ali. The accused No.1-Mahammed Jeelan @ Jeelan is the husband of accused 3 Crl.A.No.100274/2017 No.2. P.W-1 and the accused are the residents of Patel Nagar of Hosapete town. P.W.1 was working in Dubai and sending his earnings to the family. Out of the said earnings, his father built up the house bearing door No.57. The accused Nos.1 and 2 are residing in the ground floor of said house and complainant after return from Dubai residing in the first floor of said house. The accused No.2 without the knowledge of P.W.1 got the house transferred in her name. She has also utilized the money sent by P.W.1. On his return, P.W.1 demanded the 2nd accused to pay back money that he has sent from Dubai. In this regard enmity developed between P.W.1 and accused No.2. The father of P.W.1 had advanced the loan of Rs.1,50,000/- to P.W.21- Rahim Mulla, who was serving in Telephone Exchange (B.S.N.L.), Hosapete. As he did not repay, father of P.W.1 had filed cheque bounce case against him. After the death of their father, settlement took place between P.W.1 and P.W.21. He has deposited amount in the Court.
4. Dispute started among the family members regarding settlement and they sought share in the said 4 Crl.A.No.100274/2017 amount. P.W.1 came to know that the 2nd accused has filed objections before the Court for releasing the amount deposited by P.W.21. On 17.09.2012, in the evening P.W.1 asked the accused No.2 as to why she has objected and sought the share in the amount deposited by P.W.21. In this regard, there was a quarrel between them, pacified by P.W.13-Madarsab. Thereafter, accused Nos.1 and 2 conspired to commit murder of son of P.W.1, Mohammed Sacqlain, aged about 2 and half years. The accused No.2 abetted her husband/accused No.1 to commit murder of Mohammed Sacqlain (the deceased). On 17.09.2012 at about 7.30 p.m., P.W.1 and the accused have gone to the house of C.W.18-Sri S.M.Satish, Advocate to clarify that accused No.2 has not objected for the settlement. Where the wife and children of P.W.1 also came. After seeing the deceased, in prosecution of such abetment accused No.1 kidnapped the deceased, carried in his motorcycle near to power canal of Nagenahalli. Near Railway Bridge thrown the deceased to the canal water and thereby committed the murder.
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5. On 17.09.2012, the deceased did not return back to the home, P.W.1 searched here and there and on 18.09.2012 at 10.00 p.m. filed a missing complaint to the police. P.W.26-Sri Nagaraj, the P.S.I. made efforts to trace out the deceased. On 19.09.2012 at 1.15 p.m. second complaint was filed suspecting the accused Nos.1 and 2 might have kidnapped the child. On the very day, dead body of the deceased was traced in the canal, therefore an UDR No.24/2012 came to be registered. Thereafter, through P.W.10-Krishna Murthy and P.W.11-Ghouse Basha, P.W.1 came to know that on the date of missing the accused No.1 carrying the deceased in his motorcycle. Suspecting the hands of accused in death of the deceased on 17.10.2012 third complaint was filed to the Police by P.W.1. Hence, Crime No.152/2012 came to be registered. During investigation, the accused No.1 was arrested and subjected to judicial custody on 18.12.2012. On 19.06.2013, accused No.1 was released on bail. Accused No.2 was also on bail. P.W.24-K.P.Ravi Kumar and P.W.27-R.M.Honnur, the Police 6 Crl.A.No.100274/2017 Inspectors have investigated the case and filed the charge sheet.
6. Learned Senior Civil Judge and JMFC, Hosapete on receipt of charge sheet, registered the case in Criminal Case No.3/2013 and on compliance of Section 207 of Cr.P.C. committed the case to the Court of Sessions. On receipt of Court records, the learned Principal District and Sessions Judge, Ballari registered the case and assigned to the Court of Fast Track Court, Hosapete. After abolition of Fast Track Court, it was reassigned to the Trial Court. The accused pleaded not guilty of the charges under Sections 109 and 302 read with Section 34 of IPC. Prosecution has examined 27 witnesses as P.W.1 to 27, relied upon 29 documents at Ex.P.1 to 29 and one mobile phone as M.O.1. The accused were questioned under Section 313 of Cr.P.C., though they denied the incriminating circumstances, they did not choose to lead defence evidence. On consideration of material records and arguments of the parties by impugned Judgment, the Trial court has acquitted the accused. 7 Crl.A.No.100274/2017 Aggrieved by the order of acquittal, P.W.1/the defacto complainant has preferred this appeal on various grounds.
7. We have heard the arguments of learned counsel Sri Santosh B. Malagoudar, appearing for appellant/P.W.1/defacto complainant, learned counsel Sri M.B.Gundawade, appearing for respondent Nos.1 and 2/accused Nos.1 and 2 and Sri V.M.Banakar, the learned Additional S.P.P. appearing for respondent No.3/State and perused the records.
8. It is the contention of learned counsel for the appellant that P.W.1 was working at Dubai, his entire earnings were sent to the 2nd accused. She built up the house and also she lent money to other persons. The father of complainant lent Rs.1,50,000/- to P.W.21, since he did not return it, a cheque bounce case was filed under Section 138 of the Negotiable Instruments Act. In the meantime, father of P.W.1 died. P.W.21 is ready to give the money in the said case. For which, P.W.1 was agreed for settlement, but the 2nd accused not ready for settlement and filed objection. In this regard, P.W.1 questioned the accused No.1 8 Crl.A.No.100274/2017 about conduct of his sister, whereas accused No.1 stated that his wife is not opposing the compromise and asked him to come along with him to their Advocate C.W.18-Sri S.M.Satish. Accused No.1 and P.W.1 when visited the house of CW-18-Advocate Sri S.M.Satish, the wife of P.W.1 came along with children including the deceased. After return from the house of advocate the deceased was found missing and thereafter P.W.10 and 11 have observed the accused No.1 carrying the child in the motorcycle. On 19.09.2012 the dead body of child was found in power canal of Hosapete. In this regard, the prosecution has placed sufficient evidence, but the Trial Court misinterpreted the evidence that it is not consistent, the evidence of P.W.10 and 11 has been thrown to winds and the background of dispute resulting in the death of child has not been properly considered sensitively and prosecution evidence has been doubted. He has sought for reversal of the judgment.
9. On the contrary, learned counsel for the accused has contended that there is a misconception in the mind of P.W.1 that the accused No.2 has opposed the settlement. 9 Crl.A.No.100274/2017 Since the father is dead, accused No.2 is also entitled to share in the money due from P.W.21. Because of this misunderstanding, P.W.1 quarreled with accused No.1 and to get clarified, P.W.1 went to CW-18/Advocate, where he was clarified that accused No.2 has not opposed for the compromise. Thereafter, they returned home. For the reason of deceased found missing, a missing complaint was filed, there was no allegation against the accused. On 19.09.2012, the dead body of child was traced in the canal; an UDR complaint was also filed. There also there is no allegation against the accused. Only after lapse of one month, a new case has been invented by presenting a complaint to the Police that P.W.10 and 11 have last seen the deceased child in the accompany of accused No.1 on the evening of 18.09.2012. On the next day, dead body of child was traced in the canal. The purpose of filing the complaint was to prevent the accused from claiming their share in the money due from P.W.21 and for which, P.W.1 has planted his friends P.W.10 and 11, got arrested the accused No.1 and sent him to judicial custody and made allegation against 10 Crl.A.No.100274/2017 accused No.2 that she has abetted her husband to commit murder of deceased boy and dragged both accused Nos.1 and 2 before the Court to face trial.
10. It is also contended that, there is an inordinate delay in filing the complaint, P.W.1 under wrong impression that accused No.2 swallowed his money and he was insisted to return the house in which she was residing with her family members. On 17.09.2012 even 20 minutes after accused left the spot, the child was at spot and therefore, there is no evidence which explain the accused No.1 carried away the child. P.W.10 is the friend of P.W.1. P.W.11 is the friend of P.W.10. One month after the incident, they were planted that they have lastly seen the deceased with accused No.1. The Trial Court rightly observed that evidence is not inspiring confidence of Court. Testimonies of the prosecution witnesses cannot be relied, there was no chain of events established, rightly extended the benefit of doubt in favour of accused and acquitted them for all charges and he supported the impugned Judgment.
11Crl.A.No.100274/2017
11. It is the contention of learned Addl. S.P.P. that though there is a delay of one month in filing the FIR, the presence of P.W.10 and 11 during missing complaint and also in UDR complaint has not been forthcoming. The Trial Court recorded that since the case rest on the circumstantial evidence, motive was not established, the chain of events having a missing links, there are contradictions, omissions forthcoming from the version of witnesses and extended the benefit of doubt and for this reason, the State has not preferred the appeal. However, learned Addl. SPP stand supported the argument addressed on behalf of the defacto complainant.
12. Having heard the arguments of both sides, we have perused the evidence. Let us examine the weight of evidence that the prosecution has relied upon.
13. P.W.1 is the complainant, P.W.2 and 3 are the spot panchas, P.W.15 and 16 are the seizure panchas, P.W.6 and 14 are the inquest panchas, P.W.4, 5, 7, 8 and 9 are the witnesses present at the time of inquest panchnama. P.W.10 to 13 and 18 are eyewitnesses. P.W.21 is the chance 12 Crl.A.No.100274/2017 witness. P.W.20 is the PWD Assistant Engineer, who prepared the spot sketch. P.W.19 is the Revenue Officer, who issued extract of house in which the P.W.1 and the accused are residing. P.W.17 Doctor, who conducted autopsy of dead body. P.W.22 the Police Constable, who apprehended the accused No.1. P.W.23 is the Head Constable, who carried the FIR. P.W.26 is the Sub-Inspector, who has registered the FIR. P.W.24 the Police Inspector, who arrested accused No.1 and 2 and partly investigated the case. P.W.25 is the Scientific Officer of FSL, Davanagere, who issued report. P.W.27 is the Police Inspector, who completed the investigation and filed the charge sheet.
14. The testimony of P.W.1-Sadiq Ali shows that he is the elder son of his father. His father had three daughters and two sons. While he was working at Dubai, he used to send money to the accused No.2 and also his father. Out of the said money, a house was built, behind his back the accused No.2 got transferred the said house in her name from his father. During the lifetime of his father, has lent Rs.1,50,000/- to P.W.21-Mulla Rahim. Regarding recovery of 13 Crl.A.No.100274/2017 said money, there was a quarrel between him and P.W.21 and a cheque bounce case was also registered through CW- 18/Advocate. P.W.21 offered to settle the matter, accused No.2 objected for the same. Hence, they went to the house of CW-18 along with his wife and children at 6.30 p.m. met the Advocate. After briefing him, he requested his wife to go back home along with children. They did not find deceased at the spot. At that time, accused No.1 called one Imran and asked about whereabouts of the deceased. Hence, they made a search here and there and on the next day, he gave Ex.P.1-missing complaint. Later, P.W.10 and 11 informed him that the accused No.1 was carrying the deceased on his scooty at Nagenahalli road and according to him it is accused No.1, who thrown the child into canal water. He saw the dead body of his child on the next day in the Kamalapur canal. One month later, he gave a complaint to the Police against the accused as per Ex.P.3 that they have committed the murder of the deceased.
15. P.W.2-P.Hussain and P.W.3-Fayaz are the panch witnesses to the spot. P.W.2 supports the prosecution that 14 Crl.A.No.100274/2017 spot mahazar drawn under Ex.P.8 in connection with the accused No.1 thrown the deceased to the canal. Whereas, P.W.3-Fayaz did not support, but he stated that he has seen inquest panchanama conducted by the Police under Ex.P.8 near the canal.
16. P.W.15-Khasimsab and P.W.16-Shameed are the panch witnesses to the seizure of M.O.1-mobile under Ex.P.17 from the possession of the accused, but they have not supported the prosecution.
17. P.W.6 Ankali and P.W.14 Sachidand are the panch witnesses to inquest panchanam under Ex.P.12. Their testimony shows that they saw the dead body of deceased near canal and drawing of mahazar by the Police under Ex.P.12. P.W.14 did not support the prosecution further. P.W.6 supported the prosecution that he gave the statement to the Police in connection with the property dispute between P.W.1 and accused No.2.
18. P.W.7-Khajabi is the sister of P.W.1 and accused No.2. Her testimony shows that after coming to know about 15 Crl.A.No.100274/2017 the incident, she visited near canal and saw the dead body of the child. She did not support further and resiled from her previous statement as per Ex.P.13.
19. P.W.4-Chandra Babu, P.W.5-Noor Basha, P.W.8- Nasir, P.W.9-Parashuram are inquest panchas. Their testimonies show about their visit to the canal and witnessing the dead body of the deceased. P.W.4, 8 and 9 did not support the prosecution. P.W.5 states that he came to know that the child was killed by throwing into the canal water and the child was carried in a Scooty a day before the death of child in connection with the family quarrel.
20. P.W.10-Krishna Murthy and P.W.11-Ghouse Basha are the star witnesses to the case. The testimony of P.W.10 shows that he is friend of P.W.1. Three years ago, at 7.30 p.m. along with P.W.11-Gouse Basha, while he was going to railway station to meet his friend Younis, saw the accused No.1 carrying the deceased in his scooty. Thereafter, they came to knew from P.W.1 and 12 that child was missing. They came to know about the tracing of dead body in the canal. They informed P.W.1 and his wife that they have seen 16 Crl.A.No.100274/2017 the deceased in the company of the accused No.1. P.W.11 Gouse Basha supported the prosecution inline with P.W.10.
21. P.W.12-Parveen is the wife of P.W.1, her testimony is in line with her husband-P.W.1 about her husband while working in Dubai sending money to accused, the accused No.2 constructed house out of the said money, later she got house property transferred in her name from her father. After the death of her father-in-law in connection with money due from P.W.21 there was a Court case, accused have objected for taking the money from Court, for which quarrel had taken place. They went to CW-18/Advocate to get the clarification, after returning from his home, they found the deceased was missing. They searched for 3 days, they did not trace him and they gave missing complaint to police. Later dead body of the deceased was found in the canal. In connection with money dispute, the accused have thrown child to the canal.
22. P.W.13-Madarsab is the person known to P.W.1 and the accused Nos.1 and 2. In connection with quarrel between P.W.1 and accused in sharing money, he 17 Crl.A.No.100274/2017 accompanied them to the house of advocate. At that time, P.W.12 also came along with her children. Thereafter, deceased was found missing and P.W.1 gone to the Police Station to file complaint, three days later he went and saw the dead body of deceased in the canal.
23. P.W.18-Imran who is also the person accompanied the accused and P.W.1 to the house of CW-18-advocate, but before the Court he did not support the prosecution and resiled from his previous statement as per Ex.P.19.
24. P.W.21 Sri Mulla Rahim against whom father of P.W.1 has filed the cheque bounce case. His testimony shows that he has borrowed the loan from father of P.W.1 and same was deposited by him in the Court. He was not aware of the alleged quarrel and he has not given any statement before the Police as per Ex.P.22. He did not support the prosecution.
25. P.W.26-Nagaraj M.G., the PSI. His testimony shows that on 18.09.2012 at about 1.00 p.m. he received Ex.P.1 missing complaint from P.W.1 and registered FIR in Crime 18 Crl.A.No.100274/2017 No.124/2012 under Ex.P.26. On 19.09.2012, he received Ex.P.3-complaint from P.W.1 at 1.15 p.m. that the dead body of child was traced at H.B.C. canal at Kamalapur and registered it in UDR No.24/2012 under Ex.P.27. He has visited the spot and conducted the inquest mahazar on the dead body of the deceased under Ex.P.12 and forwarded the dead body to the Hospital for autopsy. Again on 17.10.2012 P.W.1 gave Ex.P.2-complaint same was registered under Ex.P.23-FIR in Crime No.152/2012.
26. The testimony of P.W.23 the Head Constable shows that on 17.10.2012 he carried FIR to the Magistrate.
27. The testimony of P.W.20-K.Veerappa, the PWD Engineer shows that at the request of Police he has drawn the sketch at Ex.P.21 in the place shown to him by the Police on 09.12.2012 at Patel Nagar of Hosapete.
28. P.W.19 Ajith Singh is the Revenue Officer of Town Municipal Council, Hospete, he has issued Ex.P.20-khata extract pertains to House No.57 situated in Ward No.3 of Hosapete.
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29. The testimony of P.W.17 Dr. Saleem, the Medical Officer of Government Hospital, Hosapete shows that on 19.09.2012 between 6.00 p.m. to 7.00 p.m., he has conducted the autopsy on dead body of the deceased, noticed the rigor mortis and distended abdomen, protruded tongue, peeling seen at both right and left angle of mouth, sloughing of skin and muscles of left dorsal forearm and external part of left hand. Reddish brown final swelling fluid is coming out of angle of mouth and nose. No external injuries seen and on dissection, he noticed the congested organs and both lungs were voluminous and on section baffling frothy blood stain fluid. He gave his autopsy report under Ex.P.18 along with opinion that the death was due to cardio respiratory failure due to drowning occurred 24 to 48 hours prior to autopsy.
30. P.W.22-Sri Anand Reddy, the Police Constable was entrusted to trace out the accused. On 18.10.2012, he went to the Patel Nagar and traced the accused No.1 and brought him and produced before the Investigating Officer. Accused No.1 was arrested by the Investigating Officer, who took 20 Crl.A.No.100274/2017 him, panchas and Investigating Officer to canal at Nagenahalli village, where the scooty was found. Where Ex.P.8 mahazar was drawn and Ex.P.6 photo was taken. Later, he has taken P.W.20 to the spot and shown the place for preparation of sketch.
31. The testimony of P.W.24 K.P.Ravikumar, the Police Inspector shows that on 18.10.2012 he has arrested the accused No.1, recorded his voluntary statement and seized the scooty under Ex.P.8-mahazar at the place of incident and subjected the accused No.1 to judicial custody.
32. P.W.25 Dr.P.M.Nagaraj, Scientific Officer, FSL Davanager, has examination of viscera samples and issued Ex.P.25-report that there was no poisonous substance in the viscera samples.
33. The testimony of P.W.27-Ramappa Mudukappa Hunnur, Police Inspector shows that on 28.10.2012, he has visited the spot and recorded the statement of CW-18- advocate, collected the CDR of mobile phone of accused No.1 as per Ex.P.28, received PWD sketch as per Ex.P.21. 21 Crl.A.No.100274/2017 He arrested and released the accused No.2, who came with anticipatory bail, recorded the statement of witnesses and collected FSL report and RC book at Ex.P.29 pertains to the motorcycle and seized the M.O.1-mobile under Ex.P.17 from the possession of accused No.2 and on completion of the investigation filed the charge sheet.
34. This is the weight of evidence that the prosecution has placed before the Trial Court.
35. We gave our anxious consideration to the arguments addressed by the parties, perused the entire original records including the evidence.
36. The points that would arise for our consideration is,
(i) Whether the prosecution is able to explain the offence against accused No.2 under Section 109 of IPC and an offence against accused Nos.1 and 2 under Section 302 read with Section 34 of IPC?
(ii) Whether the impugned Judgment of acquittal passed by the Trial Court is erroneous, perverse and illegal?
37. It is an unfortunate case, we are dealing with death of a two and half years old child, who lost his life due 22 Crl.A.No.100274/2017 to drowning in H.P.C. canal, Hosapete. The allegation of abetment to commit murder and also the murder charges being laid against the accused, who are none other than the close relatives of deceased. The background is the dispute regarding sharing of the money. It is alleged that the accused No.2 has objected for settlement between P.W.1 and PW-21 before the Court. This has irked P.W.1 that the accused are the hindrance for receiving the money of his father. Accused No.2 being the sister of P.W.1 want share in it. P.W.1 prosecuting illness against accused No.2 for the reason that money that he has sent from Dubai has been utilized for construction of House No.57 and accused No.2 got it transferred in her name. Keeping this background of the dispute, let us appreciate the evidence.
38. Whether the charge against the accused No.2 that she has abetted her husband to murder of the deceased is the first point for consideration. In this regard, we have perused the evidence of P.W.1, 5, 7, 8 and 9, these witnesses are close relatives. So also eyewitnesses P.W.10, 11, 12, 13 and 18 and also debtor P.W.21. Nowhere in their 23 Crl.A.No.100274/2017 statement we found any whisper that accused No.2 having any ill will against P.W.1. As we found from the explanation from the witnesses that it is P.W.1 who questioned the accused No.1 that his wife is objecting for settlement. The accused No.1 has clarified that they are not opposing and he may get clarification from CW.18-Sri S.M.Satish, Advocate. In the house of CW.18, it was clarified to P.W.1 that accused were not the hindrance for the settlement. Unfortunately, C.W.18 is not brought before the Court as witness. Hence, the motive of sharing of money has not been explained.
39. Coming to the aspect of role of accused No.2, we do not found any iota of evidence that for the reason of sharing of money, the accused No.2 has abetted the accused No.1 to kidnap the deceased and to commit his murder. Hence, safely we can infer that the prosecution is not able to explain the ingredients of offence under Section 109 of IPC against the accused No.2. Hence, the finding recorded by the Trial Court that the prosecution has not established the charge against the accused No.2 is proper. 24 Crl.A.No.100274/2017
40. As we examined the medical evidence through P.W.17 that the cause of death of child was due to drowning and this has not been disputed. The time since death has been assessed by P.W.17 as 24 to 48 hours prior to autopsy. Autopsy was conducted between 6.00 p.m. to 7.00 p.m. on 19.09.2012. If that is taken into consideration, the probable time of death of deceased was between 6.00 p.m. to 7.00 p.m. on 19.09.2012, which may probabolise the alleged time of missing of the child as it 6.30 p.m. P.W.1 saw the deceased along with his mother near the house of CW.18.
41. Adverting to Section 302 read with Section 34 of IPC is concerned, as found from the evidence of P.W.1 and 2, the child was near the house of CW.18 when accused accompanied them to get clarification. According to P.W.13- Madarsab, it was PW.1, 12, he and accused together visited CW.18. After coming to know about missing of the deceased, accused No.1 was very well present there, who called one Imran to search whereabouts of the child. According to P.W.1, the child was missing for about two days and thereafter they filed missing complaint. But we noticed, 25 Crl.A.No.100274/2017 Ex.P.1-missing complaint was filed on 18.09.2012 at 1.00 p.m. that the child was missing since 7.30 p.m. of 17.09.2012. We see from the evidence of P.W.11 that on 17.09.2012 evening he had seen the child in the company of the accused No.1, informed it to P.W.1, accompanied P.W.1 to file missing complaint. Even for about 4-5 days repeatedly he had gone to the police station till dead body was traced. There is inconsistency in the evidence of PW.11 as to whether the child was missing on 17.09.2012 or prior to it. Ex.P.1-complaint came to be filed on 18.09.2012 without there being any reference to the quarrel between P.W.1 and the accused. The recitals of missing complaint says that on 17.09.2012 at 7.30 p.m. when PW.1 was talking with CW.18-Advocate the child was with them, thereafter it was found missing. The child found missing from near the house of CW-18, presence of accused No.1 at the said place was very well prominent. First time in Ex.P.3-UDR complaint, quarrel between P.W.1 and accused is referred. It says 20 minutes after accused No.1 left the spot, the child was found missing. This shows child was present near the house of CW- 26 Crl.A.No.100274/2017 18 when the accused No.1 left, only after 20 minutes thereafter the child was found missing. Hence, it is clear that accused No.1 left alone and the deceased was not in his company. From near the house of CW-18 till PW.10 and P.W.11 saw the deceased accompanying the accused No.1 in the scooty, there are no persons who have seen the child in the accompany of accused No.1 and for this reason, the Police have registered the Ex.P.3 as UDR No.24/2012 under Section 174(C) of Cr.P.C.
42. The testimony of P.W.10 and P.W.11 is crucial as entire case of the prosecution is rest upon them. As we observed above, the evidence of P.W.11 that he was accompanied P.W.1 for filing missing complaint on 18.09.2012. Even Ex.P.3 did not point out the accused No.1 accompanying the deceased on the evening of 17.09.2012. Interesting to note that Ex.P.2 came to be filed on 17.10.2012 one month after the alleged incident. The basis for the complaint was the statement of P.W.10 and P.W.11 that they have furnished the information of last seen theory of the deceased and accused No.1 at 8.00 p.m. on 27 Crl.A.No.100274/2017 17.09.2012. Hence, the delay in filing the FIR was 30 days. Whether the prosecution has explained the said delay is to be looked into.
43. The Hon'ble Apex Court laid down in Nizam and Another vs. State of Rajasthan, reported in (2016) 1 SCC 550 held that when time gap is long, it would be unsafe to base conviction on last seen theory and corroboration from other circumstances has to be looked into. At paragraph No.14, 15, 18 and 19 it is held as under:
"14. The courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23.01.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.28 Crl.A.No.100274/2017
15. Elaborating the principle of "last seen alive"
in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:-
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re.
The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319.29 Crl.A.No.100274/2017
18. In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the "last seen theory"; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory.
19. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links:-(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants;
(iv) Non-identification of the dead body and (v) Non- 30 Crl.A.No.100274/2017
explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution."
44. The Hon'ble Apex Court in the case of Nand Lal vs. State of Chattisgarh, reported in AIRONLINE 2023 SC 181, held that in the case of proving a previous enmity a possibility of false implication cannot be ruled out. The immediate lodging of FIR removes suspicion with regard to every implication of number of persons, particularly when the case is involved in between two groups. When the parties are logger heads, the immediate lodging of FIR provides credence to the prosecution case. In this regard at paragraph No.31, 32 and 35 it has been held as under:
"31. We may gainfully refer to the following observations of this Court in the case of Ramesh Baburao Devaskar and Others v. State of Maharashtra:31 Crl.A.No.100274/2017
"19. In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the first information report was ante- timed or not also requires serious consideration. First information report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting on lodging of first information report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a first information report is always considered to be vital."
As held by this Court, the FIR is a valuable piece of evidence, although it may not be substantial evidence. The immediate lodging of an FIR removes suspicion with regard to over implication of number of persons, particularly when the case involved a fight between two groups. When the parties are at loggerheads, the immediate lodging of the FIR provides credence to the prosecution case.
32. Undisputedly, the present case rests on the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in the case of Vadivelu Thevar v. The State of Madras, has observed thus:
"11. ......Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for 32 Crl.A.No.100274/2017 proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly
unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation.
In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial......"
35. xxx...xxxx...xxx...xxx.... Taking into consideration the delay in lodging the FIR, with the circumstance of their names not being mentioned in the contemporaneous documents, the possibility of the said accused being falsely implicated cannot be ruled out. In our view, the conviction of these accused purely on the basis of oral testimony of the interested witnesses, without sufficient corroboration, would not be sustainable."
45. The Hon'ble Apex Court also in Ravi Sharma vs. State (Government of NCT of Delhi) and Another, reported in (2022) 8 SCC 536 has held that while dealing 33 Crl.A.No.100274/2017 with the circumstantial evidence motive assume significance in this regard it is held at paragraph No.14 as follows :
"14. When we deal with a case of circumstantial evidence, as aforesaid, motive assumes significance. Though, the motive may pale into insignificance in a case involving eyewitnesses, it may not be so when an accused is implicated based upon the circumstantial evidence. This position of law has been dealt with by this Court in Tarseem Kumar v. Delhi Admn. 1994 Supp (3) SCC 376 in the following terms: (SCC p. 371, para 8) "8. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate 34 Crl.A.No.100274/2017 impelling motive on the part of the accused which led him to commit the crime in question."
46. In spite of P.Ws.10 and 11 informing P.W.1 about the deceased was in the company of accused No.1 at 8.00 p.m. on 17.09.2012 near the canal, he did not act at all. The information so furnished by PW.10 and PW.11 has taken one month time for P.W.1 to realize that on 17.09.2012 at 8.00 p.m., his son was in the company of accused No.1. Hence, there is inordinate delay and this delay found no explanation from the prosecution evidence and it is fatal to the version of the prosecution.
47. The circumstances that the prosecution proposed that P.W.1, PW.12 and the deceased were present near the house of CW.18 on 17.09.2012 at 6.30 p.m. Thereafter the child was missing. The evidence explains that accused No.1 was present at the time, called one Imran to enquire and trace the whereabouts of the child and thereafter only he went from the spot. That shows when accused No.1 when left the house of CW-18, the child was not in his accompany and thereafter only on 17.10.2012 after 30 days P.W.1 came 35 Crl.A.No.100274/2017 to know from P.W.10 and P.W.11 that the deceased was in the accompany of accused No.1 at 8.00 p.m. on 17.09.2012. Contrary evidence from P.W.10 and P.W.11 that they have informed the said aspect to P.W.1 on 18.09.2012 itself. Then introducing last seen theory one month thereafter without divulging the said information to anybody creating the doubt in the mind of Court whether such a theory is set up is natural and positive. If the evidence of P.W.10 and P.W.11 to be relied we cannot trust the evidence of P.W.1. P.W.13 is the person who accompanied P.W.1 to the house of CW-18 did not point out anything about the accused No.1 carrying the child with him or child accompanying the accused No.1. Hence, the entire prosecution evidence rest on the evidence of P.W-10, P.W.11 and P.W.13, but their evidence controvert the evidence of P.W.1.
48. Interesting to note that P.W.10 and 11 are close friends of P.W.1. We have also analyzed the evidence of Investigating Officer, who registered the Ex.P.3 (UDR No.24/2012), his evidence did not point out anything to doubt the conduct of accused Nos.1 and 2 on 19.09.2012. 36 Crl.A.No.100274/2017 All of a sudden, on 17.10.2012 Ex.P.2-complaint came to be filed directly against the accused and the background is money that has been deposited by P.W.21 in settlement of cheque bounce case before the Court. All these aspects would have been found clearance if C.W.18 has been brought before the Court.
49. As we analyzed the cause of death of the deceased, it is not disputed. As we seen from the evidence, when the dead body of the child was traced, the accused were present along with the family members, that they were not absconding, even the circumstances shows since there was no allegation, there is no scope for the accused to abscond from the village. On this background, if evidence of prosecution considered, the chain of circumstances that has been proposed by the prosecution is not convincing and it has not pointing out against the accused and draw any inference of criminal act against the accused. We found many loopholes in the case of prosecution and also the evidence relied upon to prove it.
37Crl.A.No.100274/2017
50. For establishing the guilt of the accused on the basis of circumstantial evidence, the circumstances must be firmly established and the chain of circumstance must be completed from the facts as well as evidence. We found that the chain of links relied upon by the prosecution cannot be said to be concluded in the manner required. Hence, we are satisfied with the reason assigned by the Trial Court in recording acquittal by extending the benefit of doubt. Hence, we are not persuaded to accept the version of prosecution. Hence, charge against the accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of IPC is not explained.
51. We have perused the impugned Judgment. The Trial Court has rightly held that the circumstantial evidence is weak, delay in filing the FIR has collapsed the prosecution case and it will not inspire the confidence of the Court. Hence, We do not find any error or illegality committed by the Trial Court in acquitting the accused. Accordingly we answer the points raised in this appeal in the negative. 38 Crl.A.No.100274/2017 Hence, the appeal being devoid of merits is liable to be dismissed. In the result, we proceed to pass the following :
ORDER
(i) The appeal is dismissed.
(ii) The impugned Judgment dated 07.11.2016 passed in Sessions Case No.30/2013 by the III Additional District and Sessions Judge, Ballari is confirmed.
SD/-
JUDGE SD/-
JUDGE ckk