Karnataka High Court
Sridhara @ Sripathi And Anr. vs State Of Karnataka By Siddapura Police on 9 December, 2004
Equivalent citations: 2005CRILJ3014, ILR2005KAR2576, 2005 CRI. L. J. 3014, 2005 AIR - KANT. H. C. R. 1515, (2005) ILR (KANT) 2576, (2005) 3 KCCR 1794, (2005) 3 ALLCRILR 688
Author: S.R. Bannurmath
Bench: S.R. Bannurmath, A.C. Kabbin
ORDER OF CONVICTION-Appealed against-Appreciation of circumstantial evidence ON FACTS-Held- Theory of the prosecution that the accused had some ire or ill-will towards the deceased few days prior to the incident, would not lead to an irresistable conclusion that the accused had committed the crime in question, unless there is some concrete evidence-The evidence regarding indication given by the police dog and the evidence regarding recovery of incriminating articles is quite insufficient to substantiate the prosecution case unless further corroborative evidence is available.-In the absence of incriminating materials like dog actually catching hold of the accused and mere recovery of articles with no definite indication to the accused No. 1, 2 or 3 would not itself indicate that it was the accused and accused alone who are the perpetrators of the crime-Though the evidence may point out the possibility of the accused being culprits, that does not unerringly point out to their guilt with certanity-Hence accused are entitled to the benefit of doubt. (B) INDIAN EVIDENCE ACT, 1872-SECTION 27-Discovery of bloodstained clothes of the accused and the weapons discovered on the voluntary information furnished by the accused during interrogation-Whether such seizure articles enough so as to fix the liability of incriminating on the accused-Held- There is no report of the chemical examiner to state that the clothes found with human blood is the blood of accused Nos. 1,2 or 3 and there is no mention or the bloodstains or spots, except saying that few blood stains were few scattered. The bloodstains on other articles, namely the other shirt and nikker and the weapon, sickle are found to be disintegrated and hence grouping or even as to whether the same was the human blood is not ascertained scattered. Mere recovery of articles with no definete indication to the accused Nos. 1, 2 or 3, would not itself indicate that it was accused and the accused alone who are the prepetrators of the crime. There is no evidence led by the prosecution as to the movements of the accused prior to or after the incident which would have given some indication as to the accused being last seen together near or with the deceased in the night of 18-8-96. Though the evidence may point out the possibility of the accused being culprits, that does not unerringly point out their guilt with certanity. Therefore accused entitled to benefit of doubt. Allowing the appeal, setting aside the findings of the Trial Court as well as conviction, the Court, Held: Even if the Court accept this prosecution theory that the accused had some ire or ill-will towards the deceased few days prior to the incident, it would not lead to an irresistible conclusion that it is these accused who had committed the crime in question. Possibility of the accused resorting to such crime is not sufficient to hold them guilty of the crime. Some concrete evidence is required. It is to be noted here itself that as per the dog handler, P.W. 14, after the smelt the dead body and materials at the scene of offence, it led them to the house of the accused No. 1 and scratched the ground and barked. Thereafter it went to the house of the accused No. 2 and stopped near the door of the house and scratched. This evidence is not sufficient to show that there was any positive smelling/ identification of the criminal by the police dog. As the house of the accused No. 1 is next to the house of the deceased, possibility of the dog stopping in front of the house of the accused No. 1 cannot be ruled out. In the absence of incriminating materials like dog actually catching hold of the accused, this material in Court's view is insufficient to hold that the dog had pointed out the accused as culprits. Moreover what is surprising to us is the admission of the Investigating Officer and the mahazar witnesses that no article belonging to the accused was found lying near the dead body. If that is so, it is rather improbable for the sniffer dog to catch the smell of the accused and track them down. It is not as if the body of the deceased was handled in any way by both the accused and because of that, the dog could smell their body odour leading to the tracking them down as claimed by the prosecution. Hence on re-appreciation of the entire evidence, the court finds that this evidence of the prosecution is very weak. There is no evidence led by the prosecution as to the movements of the accused prior to or after the incident which would have given some indication as to the accused being last seen together near or with the deceased in the night of 18-8-1996. But since there is absolutely no evidence in this regard, after giving our anxious consideration to the entire evidence, in this regard, the court finds that though the evidence may point out the possibility of the accused being culprits, that does not unerringly point out to their guilt with certainity. Hence, the court finds that the accused are entitled to the benefit of doubt. JUDGMENT S.R. Bannurmath, J.
1. This appeal is by the convicted accused Nos. 1 and 2 challenging the judgment of conviction dated 7-5-2002 passed by the learned Sessions Judge, Uttara Kannada District, Karwar, in Sessions Case No. 23/1997 holding both the appellants guilty of the offence under Section 302 of the IPC and sentencing them to undergo imprisonment for life. It is reported by the learned Counsel for the appellants that the accused No. 2, Kariya @ Jogi, expired on 6-12-2003, which fact has been confirmed by the learned Additional State Public Prosecutor. Hence appeal abated so far as accused No. 2 is concerned.
2. The brief facts giving rise to the present appeal, as per the prosecution case, are as follows:
The deceased Abdul Rahim Mohammad Khan Khaji and his two daughters, P.W.I. Sameenabanu and P.W.3 Bibijainabbi were the residents of Herur village. The accused No. 1 has his residence in the neighbour-hood of the house of the deceased. His arrack shop also is near his house. The accused No. 2 and the acquitted accused No. 3 are stated to be the customers of accused No. 1. About six days prior to the incident in question, namely on 12-8-1996 there was some quarrel between the deceased Abdul Rahim Mohammad Khan Khaji and the accused No. 1 regarding latter's act of erecting a TV antena pillar on the open land between their two respective houses. As both these accused and the acquitted accused threatened the deceased, the deceased was forced to lodge a complaint with the police against them and the police warned these accused in this regard, The accused No. 1 executed a bond for well behaviour in this regard. That is the reason for enmity between the accused No. 1 and the deceased and motive for the murder of the said Abdul Rahim Mohammad Khan Khaji. Even after execution of a bond for good behaviour, the accused threatened the deceased not only with dire consequence, but also that he would outrage the modesty of the daughters of the deceased. In view of that threat, the deceased sent both his daughters to Sirsi and as on the date of the incident he was staying alone in the house. On 19-8-1996, Abdul Rahim Mohammad Khan Khaji was found dead in the courtyard of his house. It was noticed that there were certain injuries on his body. On receipt of the information, the police went to the spot, P.W.2 Jamalsab Alisab, an acquaintance of the deceased gave information and a statement, which has been treated as first information and on the basis of the same, a case in Crime No. 263/1996 for an offence punishable under Section 302 read with Section 34 of the IPC came to be registered against all the three accused and investigation was taken up. During the investigation, dog squad was pressed into service and the police dog indicated the presence of the accused Nos. 1 and 2 at the scene of offence. Hence a search was launched for tracing accused Nos. 1 and 2. The accused were arrested on 20-8-1996. On interrogation, they gave voluntary statement leading to the discovery of murder weapon i.e. a sickle as well as bloodstained clothes of the assailants which were seized under mahazar. Apart from this, the usual procedure like holding spot mahazar, inquest proceedings, etc., were conducted in the presence of independent mahazar witnesses. The bloodstained articles were sent to FSL for examination and statement of various witnesses were recorded. The body was subjected to autopsy. On completion of the investigation and after receipt of all the reports including the autopsy report, the FSL report, charge sheet came to be filed against these three accused for an offence punushable under Section 302 read with Section 34 of the IPC.
3. On committal and after going through the charge sheet materials, a charge was framed against all the three accused for an offence punishable under Section 302 read with Section 34 of the IPC. As the accused pleaded not guilty and claimed to be tried, the learned Sessions Judge, Karwar tried them in S.C. No. 23/1997. On appreciation of the entire evidence, though the Trial Court gave benefit of doubt to the accused No. 3, it found the materials against the accused Nos. 1 and 2 (the appellants herein) sufficient to indicate that they were the authors of the crime and consequently proceeded to record a finding of guilt against these appellants for an offence punishable under Section 302 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life. Hence this appeal.
4. Sri P.N. Hegde, learned Counsel appearing for the appellants vehemently challenged the judgment of conviction inter-alia contending that the appreciation of evidence by the Trial Court was perfunctory and based on no materials at all. It is submitted by him that the entire case of the prosecution revolves on circumstantial evidence and none of the circumstances alleged by the prosecution was incriminating and pointing definitely towards the guilt of the accused. So far as the suspicion entertained against the appellants on the basis of the indication by dog squad, he submits that there is absolutely no material to substantiate the claim of the prosecution. He argues that on the other hand, as admitted by the prosecution witnesses, there were no articles of the accused found lying near the scene of offence and as such there was no possibility of the dog leading the police to the house of the appellants. Moreover as the evidence of the police dog is not a substantive piece of evidence, it has been rightly disbelieved by the Trial Court. He further argues that it leaves only the motive aspect which is too remote and quite insufficient to zero on the accused. According to the learned Counsel for the appellants as the alleged quarrel between the accused and the deceased took place six days prior to the incident and there being no further material to show that the ill-will or enmity between the accused No. 1 and the deceased was so strong as to make him to resort to a heinous crime of murdering Adbul Rahim Mohammad Khan Khaji, the Trial Court was in error in holding that the motive is the strongest piece of evidence. The learned Counsel also contended that the only piece of evidence connecting the accused with the crime as per the investigation agency is the so called recovery of incriminating articles including the sickle alleged to be the murder weapon and the bloodstained clothes of the accused Nos. 1 and 2. It is submitted that the evidence of the mahazar witnesses in this regard is again shaky and hence this circumstance alone could not have been relied upon by the Trial Court. On these among other grounds it is submitted that the Trial Court committed an illegality in coming to a finding of guilt against the accused on erroneous appreciation of evidence and hence the same is liable to be interfered with and the accused be acquitted giving benefit of doubt.
5. Replying to this line of argument, Sri. M. Marigowda, learned Additional State Public Prosecutor appearing for the respondent- State argued in support of the prosecution evidence and the finding arrived at by the Trial Court. He submits that the prosecution evidence conclusively indicated the role played by each accused and that therefore, the appeal deserves to be dismissed.
6. We have heard the learned Counsel for the appellants and the learned Additional State Public Prosecutor for the State at length and have perused in detail the entire evidence.
7. Out of twenty-two prosecution witnesses, P.Ws. 1 and 3 are the daughters of the deceased. They speak about the motive aspect, namely the quarrel between the accused No. 1 and the deceased and the police complaint given by the deceased with regard to that incident, P.W. 2 is an acquaintance of the deceased who also speaks about the earlier quarrel between the accused and the deceased and the deceased lodging the complaint. He is the first informant in this case and it is his complaint that set the criminal investigation on motion. P.Ws.4 and 5 are also acquaintance of the deceased. They and P.W.6, President of the local mosque support the prosecution evidence as to the earlier quarrel between the accused No. 1 and the deceased. The more important witnesses for the prosecution are P.Ws. 7, 9 and 10 who allegedly had heard the utterances of the accused making their intention to commit the murder of the deceased, but unfortunately for the prosecution they have not supported the prosecution version. It is to be noted here itself that inspite of searching cross examination, nothing helpful to the prosecution has been brought out in their evidence. P.Ws. 11, 12 and 13 are mahazar witnesses. P.W. 14, Sudhakar is the police dog handler who speaks about the police dog leading them to the house of the accused Nos. 1 and 2. P.W. 21, Dr. Veerappa Rudrappa Kori is the medical officer who performed autopsy over the dead body of Abdul Rahim Mohammad Khan Khaji. Remaining witnesses were the members of the investigating team.
8. There is no dispute about the death of Abdul Rahim Mohammad Khan Khaji being homicidal amounting to murder. Even otherwise the evidence of the acquaintance of the deceased show that on 18-8-1996 the deceased was seen alive and on the next day morning his dead body bearing bleeding injuries was noticed lying in the courtyard of his house. More specifically the evidence of the autopsy doctor, P.W.21 shows that when autopsy was conducted, the Doctor noticed contused lacerated wounds over the left shoulder, on the left side of the neck and on the right side of the chest as well as on left scapular region. According to the doctor those injuries were ante mortem in nature. On dissection, the doctor noticed that the injuries to the vessels in the neck were severed. As such, according to the doctor, the cause of the death was due to shock and hemorrhage, as a result of the injury to the neck. His post mortem report, Ex.P-19 is in conformity with his testimony in Court. Hence we have no hesitation to hold that Abdul Rahim Mohammad Khan Khaji met with homicidal death on the intervening night of 18-8-1996 and 19-8-1996. But the question before us is as to who caused it and more particularly whether the prosecution has succeeded in showing that it is these accused who could have committed it.
9. As the entire case of the prosecution revolves around the circumstances, it has to be seen whether that circumstantied evidence unerringly points out to the guilt of the accused. In this regard we have to keep in mind the guidelines laid down by the Hon'ble Supreme Court governing the method of appreciation of the evidence of such nature. In the case of Bakshish Singh v. State of Punjab, AIR 1971 SC 2016 the Hon'ble Supreme Court has observed that in a case resting on circumstantial evidence, the circumstances put forth by the prosecution must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused, which should be of conclusive nature and tendency and they should be of such quality as to exclude every hypothesis but the one proposed to be proved. In other words, chain of evidence shall be complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. Similar is the dicta of the Supreme Court in the case of Udaipal Singh v. The State of U.P., AIR 1972 SC 54 In the case of Gambhir v. State of Maharashtra, AIR 1982 SC 1157 the Apex Court evolved and laid down a test for the Courts to consider while appreciating the circumstantial evidence. These are:
(1) The circumstances from which an inference of guilt is sought, to be drawn, must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) The circumstances, taken cumulatively, should form a chain so complete that there is now escape from the conclusion that within all human probability the crime was committed by the accused and none else.
Keeping in view these guidelines and the principles, we now proceed to consider the case on hand.
10. As already noted the circumstances relied upon by the prosecution to prove the guilt of the accused are:
a) The accused No. 1 and the deceased were neighbours;
b) There was ill-will/enmity between the accused No. 1 and the deceased regarding putting up of a TV antenna pillar on the land which is stated to be belonging to the deceased. The accused Nos. 2 and 3 supported the accused No. 1 in this regard.
c) Subsequent conduct of the accused No. 1 in threatening the deceased and his two teenage daughters;
d) The deceased was found on the morning of 19-8-1996 in the frontyard of his house having been murdered.
e) The dog squad leading the police to the house of the accused Nos. 1 and 2; and lastly
f) Recovery of bloodstained clothes and the sickle on the information furnished by the accused during the interrogation.
11. So far as the earlier quarrel between the accused No. 1 and the deceased regarding the alleged act of the accused No. 1 erecting of TV antenna pillar, there is no much dispute, because this had led to the lodging of a complaint by the deceased himself about six days prior to the incident itself. This may be the basis to hold that some bad blood was flowing between the accused No. 1 and the deceased. The accused Nos. 2 and 3 are stated to be the customers of the accused No. 1 and hence his henchman assisting him in the crime. So far as this aspect is concerned, there is no clinching evidence against accused nos. 2 and 3. Nevertheless even if it is taken for granted that as the accused No. 1 was owning arrack shop and accused Nos. 2 and 3 being his customers were obliged to him for free liquor, that possibility itself would not show that the accused Nos. 2 and 3 would risk their life in assisting accused No. 1 in committing murder.
12. There is also no much dispute as to the alleged threat given by the accused No. 1 to the deceased especially regarding his threat to molest the daughters of the deceased. Witness after witness, who are independent in the sense who neither hold any special affinity or affection towards the deceased nor have any ill-will or grudge against the accused have deposed cogently and consistently in this regard.
13. But even if we accept this prosecution theory that the accused had some ire or ill-will towards the deceased few days prior to the incident, it would not lead to an irresistible conclusion that it is these accused who had committed the crime in question. Possibility of the accused resorting to such crime is not sufficient to hold them guilty of the crime. Some concrete evidence is required. In this regard the next two circumstances relied upon by the prosecution are material, namely evidence regarding indication given by the police dog and the evidence regarding recovery of incriminating articles on the information stated to have been furnished by the accused (admissible under Section 27 of the Indian Evidence Act).
14. About reliability of tracking of an accused by a police dog, the Supreme Court, as long back in the year 1970, in the case of Abdul Razak Murtaza Dafadar v. State of Maharashtra, AIR 1970 SC 283 has observed thus:
The tracker dog's evidence cannot be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli, because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever there are thought processes there is always the risk or error, deception and even self-deception."
15. Similarly in the case of Gade Lakshmi Mangaraju v. State of Andhra Pradesh, AIR 2001 SC 2677. The Apex Court observed thus:
The uncanning smelling power of canine species has been profitably tapped by investing agencies to track the culprits. Trained dogs can pick up scent from the scene of any object and trace out the routes through which the culprits would have gone to reach their hideouts. Developing countries have utilized such sniffer dogs in a large measure. In India also the utilization of such tracker dogs is on the increase. Though such dogs may be useful to the investigating officers, can their movements be of any help to the Court in evaluating the evidence in criminal cases? The weakness of the evidence based on tracker dogs are: possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close on its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. The last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable Police dogs to track and identify criminals."
16. Keeping in view these guidelines when we peruse the evidence of dog handler and the mahazar witnesses for Ex.P-8 in this regard, we find that evidence at the most indicating to the accused as 'may be' they are involved. As there is vast difference between 'may be' and 'must be' unless further corroborative evidence is available, this evidence is quite insufficient to substantiate the prosecution case. It is to be noted here itself that as per the dog handler, P.W. 14, after the dog smelt the dead body and materials at the scene of offence, it led them to the house of the accused No. 1 and scratched the ground and barked. Thereafter it. went to the house of the accused No. 2 and stopped near the door of the house and scratched. This evidence is not sufficient to show that there was any positive smelling/identification of the criminal by the police dog. As the house of the accused No. 1 is next to the house of the deceased, possibility of the dog stopping in front of the house of the accused No. 1 cannot be ruled out. In the absence of incriminating materials like dog actually catching hold of the accused, this material in our view is insufficient to hold that the dogs had pointed out the accused as culprits. Moreover what is surprising to us is the admission of the Investigating Officer and the mahazar witnesses that no article belonging to the accused was found lying near the dead body If that is so, it is rather improbable for the sniffer dog to catch the smell of the accused and track them down. It is not as if the body of the deceased was handled in any way by both the accused and because of that, the dog could smell their body odour leading to the tracking them down as claimed by the prosecution. Hence on re-appreciation of the entire evidence, we find that this evidence of the prosecution is very weak.
17. This leaves only the last circumstance, namely the discovery and of seizure of the bloodstained clothes of the accused and a sickle said to be the murder weapon discovered on the voluntary information furnished by the accused during interrogation. Such evidence is admissible and relevant under Section 27 of the Indian Evidence Act on the principle that it is the accused who is the only person knowing about the concealment of incriminating articles and the place when they had been hidden. However in the present case, there is again some doubt arising in our mind as to whether these are the incriminating articles themselves. It is to be noted that recovered clothes and the weapon are stated to be bloodstained and recovered just within forty-eight hours of the incident and if they had been subjected to scientific scrutiny, the FSL report and more specifically the chemical analysis report would have thrown definite light. Unfortunately from the C.E. report though we noted that one of the clothes (not possible to find out whether it is of accused Nos. 1, 2 or 3) is found to be strained with human blood, there is no mention of demension of the bloodstains or spots, except saying that few blood stains were few scattered. The bloodstains on other articles, namely the other shirt and nikker and the weapon, sickle are found to be disintegrated and hence grouping or even as to whether the same was the human blood is not ascertained. As stated, mere recovery of articles with no definite indication to the accused Nos. 1, 2 or 3, would not itself indicate that it was the accused and the accused alone who are the perpetrators of the crime. There is no evidence led by the prosecution as to the movements of the accused prior to or after the incident which would have given some indication as to the accused being last seen together near or with the deceased in the night of 18-8-1996. But since there is absolutely no evidence in this regard, after giving our anxious consideration to the entire evidence, we find that though the evidence may point out the possibility of the accused being culprits, that does not unerringly point out to their guilt with certainty. Hence, we find that the accused are entitled to the benefit of doubt. The Trial Court without considering all these aspects, has proceeded to hold the accused guilty, merely on surmises and conjectures. Hence in our view the findings of the Trial Court as well as conviction are liable to be set aside.
In the result and for the reasons stated above, the appeal is allowed. The judgment of conviction and the sentence dated 7-5-2002 passed by the learned Session Judge, Uttara Kannada, Karwar, in Sessions Case No. 23/1997 are hereby set aside and the accused are acquitted of the offence giving them, benefit of doubt. As the accused No. 1 is stated to be in custody, he shall be released forthwith, if not required in any other case.