Karnataka High Court
Chakravarthy vs State By Koramangala Police, Bangalore on 16 April, 2001
Equivalent citations: ILR2001KAR3203, 2001(6)KARLJ499, 2001 AIR - KANT. H. C. R. 1606
Bench: H.N. Narayan, Manjula Chellur
JUDGMENT
The Court
1. This appeal is directed against the judgment of conviction and sentence recorded by the IX Additional City Civil and Sessions Judge, Bangalore City, in S.C. No. 280 of 1995, convicting the accused for the offence punishable under Section 302 of the Indian Penal Code, and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 2,000/-, in default to pay the fine, he shall further undergo rigorous imprisonment for fifteen days.
2. Deceased is the father of the accused. Initially the appellant and his mother, C.W. 14 were charge-sheeted for the offence punishable under Sections 302 and 201 of the Indian Penal Code, respectively. But, the appellant's mother was discharged by the learned Sessions Judge on the ground of insufficient material to try her for an offence punishable under Section 201 of the Indian Penal Code.
3. It is the case of the prosecution that the deceased was a private medical practitioner at Koramangala extension, a prime residential locality in Bangalore. He married a girl outside his caste. His brothers and sisters, namely, P.Ws. 4, 6 and 7 were not happy with this marriage, but they reconciled to it, as time is the healing factor. Accused and C.W. 15-Chinnu, are the two sons born out of the wedlock. The deceased had a good residential bungalow at Koramangala just behind the residence of the then Inspector General of Police Mr. Srinivasan. P.W. 5-Nanjaiah was the servant. The house of the deceased consists of a ground floor and first floor where there is a bedroom with a veranda and a sit-out. There is also a door opening to the terrace. The deceased used to stay in the first floor. The deceased was a prosperous professional who had acquired both movable and immovable properties. It is also the case of the prosecution that the deceased was not happy with his wife, C.W. 14, and he was thinking of giving divorce to her. He was aged about SO years. He was also sad with the conduct of his eldest son, the accused, who after obtaining a B.B.M., was loitering here and there without any work. It is alleged that the deceased wanted to put him in some business. Therefore, he purchased seven acres of non-agricultural land and wanted his son to take up the construction. The accused was not happy with this conduct of the deceased. It appears he wanted only money and not the work. The deceased used to complain to" his brother, P.W. 4 and his sisters, P.Ws. 6 and 7 about his unhappy married life of late. This was the position in the family of the deceased.
4. It is alleged that on the fateful day, i.e., on 7/8-4-1995, at about 1.30 a.m., M.S. Sripadachar, Police Constable who was working as a driver in the residence of the then I.G.P. Mr. Srinivasan, overheard some noise from the house of the deceased. He, therefore, ran towards their house, found the door of the house closed, he knocked at the door. After some time, the door was opened and C.W.14-Meera Arya, came out. It was pitch-dark as there was no electricity and this was due to sudden burst of the transformer. P.W. 1 questioned the lady as to the cause of the noise and she told him that somebody assaulted her husband. He was taken to the first floor where he found that Dr. Rajagopal had head injuries and he was no more. He was in a sitting position, his head bending towards the mat. There was bleeding at the place where the dead body was found. P.W. 1, thereafter, tried to convey it to the Police. Since C.W. 14 engaged herself in telephoning somebody, he went back to his officer's house and conveyed the same to the jurisdictional Police through phone. The Sub-Inspector of Police, who received the information, registered a criminal case and he immediately visited the house of the deceased within ten minutes. He sent a request for a dog squad. As it was dark in the night, no further proceeding was taken by the Sub-Inspector of Police except deputing some constables to keep watch over the dead body. P.W. 11-Ratnakara Solunke, Circle Inspector of Police, who received the FIR, visited the place of incident at about 6.00 a.m. on 8th April, 1995. He made a careful examination of the scene of offence. He summoned P.W. 1 and another, held an inquest over the dead body, noticing the details of the injuries on the dead body. He thereafter, drew up a spot mahazar as in Ex. P. 3 in the presence of P.W. 1 and inquest report as per Ex. P. 2 in the presence of P.W, 2 and another. P.W. 5-Nanjaiah, was taken to the Police Station for questioning. In the meantime, P.W. 11 recorded the statement of P.W. 5 and others. None of the blood relatives came forward to assist the prosecution till the funeral was over. The Investigating Officer could record their statements only after 48 hours. The investigation so far made by the Investigating Officer pointed to the complicity of the accused-appellant. He, therefore, ordered the Sub-Inspector of Police to trace the accused and produce before him. The Sub-Inspector of Police on 11-4-1995, apprehended the accused and produced him before P.W. 11 on the same day. P.W. 11 arrested him and questioned him. The accused gave a voluntary statement as in Ex. P. 9. He, thereafter, collected the witnesses, P.W. 3 and another and that the accused led them to his house and produced M.O. 2-the iron rod and also M.Os. 3 and 4-bloodstained clothes. The Investigating Officer seized them under Ex. P. 4. In the meantime, dead body was subjected to the post-mortem examination by P.W. 8-Doctor. Accused was also produced before P.W. 10-Dr. P.K Sathyanarayana, Jayanagar General Hospital, who, after examining the accused, issued Wound Certificate, Ex. P. 8. After completing the formalities, the Investigating Officer laid a charge-sheet against the accused.
5. Aggrieved by the investigation made by P.W. 11, P.W. 4-Krishnan, brother of deceased, presented a complaint to the State Government and C.O.D. enquiry was made, who after fresh investigation, filed a fresh charge-sheet against C.W. 14 also, for the offence punishable under Section 201 of the Indian Penal Code only. The learned Sessions Judge, after hearing the prosecution and the defence, discharged C.W. 11 for want of prima facie material to frame charges against her. Thus, only the appellant was charged and tried for the offence of murdering his father.
6. Prosecution rests its case on circumstantial evidence. In proof of those circumstances, the prosecution examined 11 witnesses and got marked 11 documents and 4 material objects, and closed its case. The accused was examined under Section 313 of the Code of Criminal Procedure. The Trial Court examined as many as nine circumstances occurring against the accused and found the evidence let in by the prosecution in proof of those circumstances sufficient to conclude that it is only accused-appellant and none else, who is guilty of the offence of murder. The learned Sessions Judge has relied upon the judgment of the Apex Court insofar as the law regarding circumstantial evidence is concerned. Therefore, in his opinion, the circumstantial evidence placed by the prosecution is complete and is capable of explanation of no other hypothesis than that of guilt of the accused. Therefore, he recorded an order of conviction against the accused for offence of murder and sentenced him to undergo rigorous imprisonment for life, etc,
7. We have heard Sri M.V. Devaraj, learned Senior Counsel appearing along with Sri M.T. Nanaiah, Counsel for the appellant and Sri Mohan Shanthanagoudar, learned State Public Prosecutor, for respondent-State. We have scrutinised the entire evidence on record. Both the learned Counsels have taken us through both documentary and oral evidence let in by the prosecution in proof of the charges against the accused. We have given our anxious consideration to these contentions.
8. It is the contention of the learned Senior Counsel for the appellant that the prosecution has relied upon the circumstances which are not fully established and which are not conclusive and there are circumstances which can raise a suspicion regarding the involvement of some other person or agency in the murder of Dr. Rajagopal and, therefore, these circumstances are not consistent with the guilt of the accused and they are consistent with the innocence of the accused. These facts have not been considered by the learned Sessions Judge while holding the accused guilty of the offence of murder. Learned Senior Counsel drew my attention to the evidence of P.W. 5 and P.W. 1, particularly to some answers given by them in cross-examination and submitted that the learned Sessions Judge has heavily relied on the recitals of Ex. P. 3-spot mahazar, which is not proved in accordance with law. Therefore, a conclusion based on inadmissible piece of evidence cannot be the basis for conviction. Therefore, the judgment of conviction and sentence recorded by the Trial Judge is clearly not sustainable.
9. The learned State Public Prosecutor, justifying the judgment of conviction recorded by the learned Sessions Judge, has contended that the presence of the accused and his family members in the house on the said night and their silence regarding the commission of the offence coupled with the contents of Ex. P. 3-spot mahazar, and recovery of M.Os. 2 to 4 at the instance of the accused-appellant, and the injury found on his right thumb, which according to him was sustained by him on the night of the incident, are the circumstances which indicate conclusively the complicity of the accused in the commission of the crime. He has submitted that "Men may lie, but not the circumstances". Therefore, according to him, there are no good grounds calling for interference with the judgment of conviction and sentence recorded by the Trial Judge. We have given our anxious consideration to these submissions.
10. The two questions which arise for our consideration are:
1. Whether the circumstances placed by the prosecution are incapable of proving the guilt of the accused? If so,
2. Whether the judgment of conviction and sentence recorded by the learned Sessions Judge is not sustainable in law?
11. Since the learned Senior Counsel has heavily relied upon the law of the Apex Court laid down in a catena of decisions regarding circumstantial evidence, we propose to extract the substance of those decisions as under:
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 no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence.
12. The learned Sessions Judge has extracted nine circumstances projected by the prosecution in proof of the charge against the accused at para 11 of his judgment, which are as under:
1. That Rajagopal died a homicidal death on the intervening night of 7/8-4-1995 as a result of head injuries;
2. The deceased was residing with his wife, C.W. 14 and his two sons, accused and C.W. 15-Chinnu and P.W. 5-Nanjaiah, their servant;
3. P.W. 1-Sripadachar, who was on duty as Driver in the residence of the then I.G.P. Mr. Srinivasan, heard the galata from the house of Dr. Rajagopal at about 1.30 a.m., on the intervening night of 7/8-4-1995;
4. That the two dogs in the house of the deceased which were let loose, had not barked on that night until P.W. 1 went near the house of the deceased;
5. That the accused and his mother directed P.W. 5 not to go to the first floor;
6. That the Investigating Officer, P.W. 11, who arrested the accused, recorded his voluntary statement leading to the recovery of M.Os. 2 to 4;
7. That the failure on the part of the accused and his mother in informing the Police of the crime;
8. That nothing was missing from the house of the deceased; and
9. The relationship of the deceased with his wife and his first son-accused was not cordial.
13. It is not disputed before us that the death of Rajagopal was homicidal. The evidence of P.W. 8-Dr. S.B. Patil, who conducted postmortem examination on the dead body of the deceased on 8-4-1995, at 9.15 a.m., discloses three split lacerated injuries on different parts of the head, two lacerated injuries on the back, one lacerated injury on the forehead, another lacerated injury on the back of the right forearm, abrasion over the outer aspect of middle of left arm measuring 3 cms, x 1 cm. On dissection, the doctor found fissured fracture on the occipital bone on the left side and extra vasted blood at fracture site. All the internal organs of the body were intact and congested. In his opinion, death occurred within six to twelve hours prior to conducting the postmortem examination. In his opinion, death was due to coma as a result of head injury sustained and those injuries could be caused by a weapon like M.O. 2. Therefore, we have no doubt in our mind that Dr. Rajagopal died as a result of head injury sustained by him on the said day and it is a clear case of homicidal death. There is no dispute that it is culpable in nature.
14. It is vehemently submitted on behalf of the appellant that the very strong circumstances indicating the involvement of the accused and his mother in the murder of Dr. Rajagopal, are not sufficient to prove the guilt of the accused unless all the circumstances so relied upon by the prosecution are conclusive directing the guilty mind of the accused and accused alone and none else. In this background, we have to examine the evidence let in by the prosecution and again examine whether the conclusion reached by the learned Sessions Judge is sustainable in law?
15. P.W. 1, though treated as hostile by the prosecution for technical reason, as he has not spoken to the spot mahazar, Ex. P. 3, he has fully supported the case of the prosecution in examination-in-chief, but added something in cross-examination, perhaps to nullify the rigour of circumstances occurring against the accused. He was the first person to knock on the door of the house of the deceased at 1.30 a.m., on the said night. While he was in the residence of his officer, he heard sound or galata from the house, but not barking of the dogs. The knocking of door created barking of dogs and P.W. 1 was made to wait for a few minutes when C.W. 14 came and opened the door. It is an admitted fact that, at that particular hour there was no electricity due to the bursting of transformer and P.W. 1 had to be content with a lamp. In that light, he was led to the first floor where he was shown the dead body of Dr. Rajagopal in his bedroom. He was told that somebody had murdered him. He did not find any anxiety or sadness in the faces of family members of Dr. Rajagopal. There was no reason to suspect, as he could, not see their faces properly in the darkness. The lady did not enthuse herself to contact police. She was busy telephoning someone else. He, therefore, took the responsibility of informing the police. He came back to his Master's residence, from where he informed the jurisdictional police. The police were at the doors of the house of the accused within ten minutes. Unfortunately, in this case, the Sub-Inspector of police, who received the information and who came to the spot immediately thereafter, is not examined for the reasons not assigned by the prosecution. In our opinion, he is a very very important witness for prosecution, who would have thrown a lot of light upon the prosecution's case. Like many cases, this case may also end up for want of proper prosecution.
16. P.W. 1, in his cross-examination, has supported the defence that when he was taken to the first floor by C.W. 14, the lady of the house, the door leading to the terrace was open. To dislodge this theory of the defence, evidence of P.W. 5, recitals in Ex. P. 3-spot mahazar prepared by P.W. 11, are placed by the prosecution before the Court. We will take up this aspect at a later stage as it involves the question of law. We will now take up some other circumstances relied upon by the prosecution.
17. It is an admitted fact that five persons including the deceased occupied the house on that night. The door leading to the terrace was closed, which is spoken to by P.W. 6-Nanjaiah. He is not specific when he states that the door was closed by him on the said day. According to him, a maid servant was working in the house and she used to clean and close the door in the first floor, as she used to put the clothes for drying in the terrace. It is the theory of the defence that the door was open when P.W. 1 visited the house even at that night and possibility of someone entering the house through the said door leading to the terrace, from outside, and committing the murder, is not ruled out. Whether this defence can be accepted having regard to the circumstances placed by the prosecution, in fact, is the problem. The silence of the accused and his mother and his brother, is a strong incriminating circumstance against them. The evidence of P.W. 5 shows that accused is a vagabond, he was not doing any work after obtaining a degree in Business Management. On the day of the incident, when he was sleeping, he heard a loud sound from the first floor, he, therefore, got up and keeping quiet in the ground floor; accused went to the first floor, he came back with an injury on his thumb and asked for plaster; then he went to the bed as there was failure of electricity. Thereafter, C.W. 14 and accused went to the first floor with the help of a candle; C.W. 14 also instructed him and Chinnu, not to go to the first floor and not to open the main door even if anybody came there. Thereafter, P.W. 1 and some church people came there. It is also his say that he used to close all the doors in the house during night. However, this is an omission noticed at the trial, as this witness omitted to mention before the Investigating Officer that he was the person who used to close the doors during night times. There is no other evidence let in by the prosecution so far as this aspect is concerned.
18. P.W. 5 has also spoken to the fact that Dr. Rajagopal had two dogs and used to free them during night times and it is in the evidence of P.W. 1 that there was no barking of dogs on that day till he knocked on the door of the house of Dr. Rajagopal. The prosecution has relied upon the evidence of brother and sisters of Dr. Rajagopal, namely, P.Ws. 4, 6 and 7, who have spoken to the family affairs of the deceased person. According to P.W. 4, the deceased used to tell him that he was not happy with his wife Meera Arya and that he was thinking of giving her divorce. This evidence of P.W. 4, which remained unchallenged, goes to show the mind of the deceased and his relationship with his wife. The evidence of P.W. 4 further shows that the deceased was not a happy man, as he was not happy with the conduct of his son and wife. It is in this unhappy circumstance that Dr. Rajagopal was done to death.
19. The Investigating Officer projected a case before the Trial Court at the pre-trial stage that he drew up a spot panchanama, Ex. P. 3, noting the details of his investigation on the morning of 8-4-1995. P.W. 1 has not given the details of this spot panchanama, Ex. P. 3, except stating that he signed the mahazar, but not at the threat of Police Oificer or at the instance of his master, but, he does not know the contents of the said document and he signed it without reading the contents. P.W. 11, the Investigating Officer, who prepared the detailed panchanama has only spoken to the preparation of the panchanama. Now, the question for consideration is in the absence of contents of Ex. P. 3 before the Court, whether the Court can look into the contents of the said document?
20. Our attention is drawn to Section 61 of the Indian Evidence Act, 1872. We have examined the legal position as to what is the mode of bringing the document like a mahazar in evidence in a criminal case. Insofar as a civil case is concerned, the Apex Court in Salt Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors., held that mere marking of document as an exhibit does not dispense with its proof with reference to Section 61 of the Indian Evidence Act, 1872.
21. The Division Bench of this Court in State of Mysore v. Haji A.H. Contractor and Ors., held as follows:
"It did not occur to the prosecution that the proper method which should have been adopted when examining P.W. 10 was to put Ex. 11 to him and also to seek permission of the Magistrate to refresh his memory with the assistance of Ex. 11, so that, of the contents of Ex. 11, P.W. 10 could give evidence before the Magistrate after refreshing his memory in that way, when the witness stated that he did not remember anything. When the witness stated that he did not remember anything except that he noticed some blood stains and pieces of bones, the endeavour to pursue the matter further was abandoned and the prosecution was content with merely eliciting a worthless answer from P.W. 10 that the contents of a panchnama, whose identity was not established, were true.
When a panch witness like P.W. 10 is examined, he should be asked to give evidence before the Court about all the matters which were observed by him at the spot to which he was taken. If he is not able to remember the details he should be allowed to refresh his memory with the aid of the panchnama. After he refreshed his memory in that way the prosecution should elicit from him in Court what were the various matters and facts which he observed before the panchnama was prepared. Instead of eliciting the information in that way, it is not permissible for the prosecution to read out the panchnama to the witness and to make the witness say that the contents of the panchnama are true. Evidence to that effect has really no utility or usefulness. Every important fact or matter which was observed by the witness when the panchnama was written should be elicited from him in the course of his evidence before Court, and it is not enough for the prosecution to merely make the witness say that what was stated in the panchnama is true, since the panchnama itself has value only as a corroborative piece of evidence and is not substantive evidence".
22. This case is no better than the case in Haji A.H. Contractor, supra. In our opinion, this is still worse as the panch witness has not supported the prosecution and the Investigating Officer, P.W. 11 has not whispered the contents of Ex. P. 3. Neither the document, Ex. P. 3 nor its contents is admitted by the defence. Mere marking of Ex. P. 3-the panchanama, is no proof of its contents. The prosecution cannot avail the benefit of those contents, which remained unspoken by the panch witnesses and also by the Investigating Officer, the author of Ex. P. 3-panchnama. We have already noticed that this is a very important piece of material to draw conclusions as to the guilt of the accused. It is in this document that one can read the movement of the accused, the opening of the door leading to the terrace, the bloodstains at various places in house, etc. Therefore, the contents of Ex. P. 3-spot panchanama, are not brought in evidence before the Trial Court and in our opinion, the Court cannot examine the contents of such a document in the absence of evidence by the author of the document himself. It is these circumstances, which clearly go to the root of the prosecution's case and lend credence to the theory of the defence that the rare possibility of an outside agency creeping into the house at that midnight, is not ruled out.
23. One another circumstance which go to the benefit of the accused is that no conclusive inference can be drawn from the material on record that it was the accused-appellant and appellant only who killed his father. Discharge of C.W. 14 is not a ground to give all benefit to this accused also. The involvement of the mother of the appellant is also not ruled out in the circumstances. These are all genuine doubts, which arise in this case, having regard to the set of circumstances projected before the Court for our consideration. We have already extracted the law relating to evidence to remind ours of the law governing the case based on circumstantial evidence and the circumstances, which we have now referred supra. In our opinion, they do not conclusively establish the guilt of the accused. The circumstances so placed by the prosecution gives raise to a hypothesis, which is not consistent with the guilt of the accused. Under these circumstances, we find that the judgment of conviction recorded by the learned Sessions Judge is not sustainable in law. In our opinion, this appeal succeeds.
24. Accordingly, this criminal appeal is allowed. We set aside the impugned judgment of conviction and sentence passed by the learned IX Additional City Civil and Sessions Judge at Bangalore City. We acquit the appellant of the offence punishable under Section 302 of the Indian Penal Code, with which he stands charged. The accused is in custody. He is ordered to be set at liberty forthwith.