Karnataka High Court
Mahadevappa Parasappa Tali vs State Of Karnataka on 15 February, 2017
Bench: Anand Byrareddy, K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2730/2013 (C)
Between
Mahadevappa Parasappa Tali,
Age: 30 Years, Occ: Agriculture,
R/o.Belavanaki, Tq: Ron.
... Appellant
(By Shri K.L.Patil, Advocate)
And
State of Karnataka,
By State Public Prosecutor,
High Court of Karnataka,
Circuit Bench, Dharwad,
Through Circle Inspector, Ron
... Respondent
(By Shri V.M.Banakar, Additional
State Public Prosecutor)
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure seeking to set aside the judgment
of conviction and order of sentence dated 11.07.2013 passed by
the Additional District Sessions Judge, Gadag, in Sessions Case
:2:
No.100/2009 for the offences punishable under Sections 302,
201 read with Section 34 of the Indian Penal Code.
This Criminal Appeal coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant. The appellant was arrayed as accused No.2 before the Trial Court for offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity) and has been accordingly convicted and sentenced to life imprisonment, apart from a lesser sentence for the offence punishable under Section 201 of IPC and fine has also been imposed on the accused.
2. The facts of the case, as stated by the prosecution, were as follows:
Rudravva, who is arrayed as accused No.3, was said to be having an illicit relationship with one Atmanand and this relationship was said to be on for over two years prior to the complaint. It is alleged that on 04.08.2009, Rudravva was engaged as an agricultural labourer. While she was returning in :3: a bullock cart along with others, after her work, at about 05:30 p.m., it transpires that Atmanand came along on his bicycle and on seeing him, she stopped the bullock cart and alighted from the bullock cart. Atmanand in turn had handed over his bicycle to Sharanappa and had joined Rudravva and both of them had gone towards the bank of a stream through the land of one Kalakannavar along Balaganur road.
3. It is further alleged that at the same point of time, accused Nos.1 and 2 were said to have come along and P.W.4, who was going along on the road, had met accused Nos.1 and 2, who in turn had enquired, whether P.W.4 had seen accused No.3 along with Atmanand. On his information that they were going towards the area, as aforesaid, had followed them in that direction. It is thereafter that P.W.8 is said to have seen accused Nos.1 and 2, returning along with accused No.3 and accused No.3 was said to be naked and on seeing P.W.8, they had hidden themselves by the side of the road. Thereafter, accused No.1 had brought a saree for accused No.3 and after wearing the saree, all three had come back to the village. The dead body :4: of Atmanand was discovered on 12.08.2009 by P.W.5, who had in turn intimated P.W.2, the father of the deceased. He is said to have lodged a complaint at about 11:00 p.m., on 12.08.2009 and it is thereafter, a case had been registered against the accused. Accused No.1 was not found, but the accused Nos.2 and 3 were arrested and proceedings were initiated against them. On the case being committed, it was found that accused No.1 could not be traced at all and therefore the case was split up, as against accused No.1 and the trial proceeded insofar as accused Nos.2 and 3 are concerned. They had pleaded not guilty and claimed to be tried.
4. The prosecution had then examined 34 witnesses and got marked several exhibits and material objects. The Court below framed the following points for consideration:
"1) Whether the prosecution proves that on 04.08.2009 at about 05:00 p.m. the deceased Atmanand got down accused No.3 from bullock cart and went towards the bank of stream Via land of Kalakannavar as there was illicit relation of the deceased and :5: accused No.3, and accused No.1 and 2 came there and A3 and 2 caught hold the Atmanand and said accused No.1 to 3 with their common intention assaulted the deceased with a stone and caused the death beyond all reasonable doubts?
2) Whether prosecution further proves that on the said date, time and place in furtherance of their act after murdering the deceased, thrown deceased dead body in a pit where the water was storing in the land of C.W.28 with an intention to cause disappearance of evidence and causing death of Atmanand beyond all reasonable doubts?
3) What order?"
The Trial Court had answered the points in the affirmative and convicted both, accused Nos.2 and 3 as aforesaid. It is only accused No.2, who has preferred this appeal. There is no indication that accused No.3 has filed any appeal.
5. The learned counsel for the appellant would point out that there are no eyewitnesses to the incident and the entire :6: case of the prosecution rests on so called circumstantial evidence.
6. Secondly, insofar as the present appellant is concerned, there is no motive that can be established as against him. The motive according to the prosecution was that the illicit relationship between Rudravva and accused No.3 was frowned upon by their respective families. The father of accused No.3 had taken strong exception to Atmanand having an affair with her, as she was a married woman with children and therefore, had picked up a quarrel with the father of the deceased about two years prior to the incident about the affair. This was also endorsed by P.W.7, apart from the evidence of P.W.2, the complainant, the father of the deceased. Therefore, there is no indication as to how and why the present appellant could become a party to any criminal act, as alleged. There is no foundation laid by the prosecution to establish the connection that the present appellant would have had in the alleged commission of the offence. Assuming that there was any such abetment by the present appellant, it cannot be said that the :7: prosecution had established its case on the basis of the evidence that is available on record.
7. In this regard, the learned counsel for the appellant would draw attention to the reasoning of the Trial Court, while analyzing the evidence on record. The Trial Court having held that the motive was established by reference to the evidence of P.Ws.2 and 7 has not chosen to assign any reason, as to how the present appellant could have been involved. It might at best indicate a motive for accused No.1 to have committed the murder and not the present appellant. Therefore, the evidence of witnesses, who are said to have seen the accused No.1 and the present appellant along with accused No.3, have not indicated that they had seen the present appellant along with the deceased or that he was in any way involved in the commission of the alleged murder.
8. The learned counsel for the appellant would also point out that even the evidence of witnesses, who were said to have seen the present appellant in the company of accused :8: Nos.1 and 3, cannot be readily accepted. The Trial Court having found that P.W.7 in his evidence has stated that he had seen the present appellant along with the accused Nos.1 and 3 and that the accused No.3 was naked and on seeing him, all three of the accused had hidden themselves and thereafter had gone away from the spot, is an incorrect finding, as the said witness has nowhere in his testimony stated so and this is an incorrect finding of the Trial Court. In this regard, the learned counsel would draw attention to the testimony of P.W.7 to demonstrate that the finding of the Trial Court is incorrect, insofar as the said witness having spoken, as above.
9. Further, the other witness who has stated as to the present appellant going along with accused No.1 towards the direction in which accused No.3 and Atmanand had proceeded, the learned counsel would seek to demonstrate that the very presence of the said witness at the time and place is doubtful and the manner in which the witness has claimed that he had seen this appellant along with accused No.1 proceeding in a particular direction was also illogical. In this regard, attention is :9: drawn to a sketch produced and marked as Ex.P-13 and wherein the spot at which the said witness had met the accused No.1 and the present appellant and had pointed to the direction in which he allegedly saw accused No.3 and Atmanand proceed, it is sought to be demonstrated that it was not possible for the said witness, P.W.4 and the present appellant and accused No.1 to be proceeding in the opposite directions and the directions indicated in Ex.P-13, could only lead to a conclusion that they were proceeding in the same direction. Therefore, it also improbabilizes the said witness having seen the deceased and accused No.3 also proceeding in a direction which he claims to have seen. Added to this, the time at which he is said to have seen the present appellant as well as the deceased and accused No.3, is a long interval and that it is impossible that he could have seen the appellant and accused No.1 as well as accused No.3 and Atmanand in the manner that he has stated.
10. Further insofar as P.W.8, who claims to have seen all the three accused together, coming from the direction in which the dead body was ultimately found and that accused : 10 : No.3 being naked at that time and all the three having hidden themselves by the road side, on seeing P.W.8 and thereafter accused No.1 having gone home to bring a saree for accused No.3, who was naked, is a circumstance that cannot be readily accepted. If all the three accused have hidden themselves by the road side and thereafter accused No.1 had gone home to bring a saree, it is not the case of P.W.8 that he stood by and waited to see accused No.1 return with the saree and thereafter accused No.3 draping herself with the saree and thereafter all the three accused proceeding towards the Village. This testimony is not readily acceptable and should have been discarded, as being unbelievable.
11. Further the reliance placed by the Trial Court on the testimony of a score of witnesses, who have spoken about accused No.3 and Atmanand coming together, having met each other and having proceeded together, would only indicate that they were last seen together. This would not enable the prosecution to also claim that it established the fact that accused Nos.1 and 2 had thereafter followed them and had committed : 11 : the murder. The possibility of accused Nos.1 and 2 coming there in search of accused No.3 and Atmanand, as if they knew before hand that they would be meeting and going in a particular direction is a coincidence, which is not explained as to the manner in which they had gained information instantaneously of the two meeting each other. Thereafter, accused Nos.1 and 2 having appeared there, in search of them and having followed them. This theory of the prosecution is highly improbable and is not explained with any clarity and supporting evidence.
12. The learned counsel would point out that apart from these infirmities, the glaring circumstance that the incident is said to have taken place on 04.08.2009 and the complaint is lodged eight days later and it is highly improper that the dead body was discovered only on the date of the complaint when the body was neither buried nor dumped in the quarry and having remained unnoticed which was floating on the water for such a long period and the manner in which the death had occurred being detected on a highly decomposed body was so : 12 : unlikely that the manner in which the death had occasioned could not have been established with any accuracy.
13. In this regard, the learned counsel places reliance on a decision of the Supreme Court in the case of Rambraksh alias Jalim vs. State of Chhattisgarh, AIR 2016 Supreme Court 2381, in dealing with circumstantial evidence and the "last seen" theory and the Court has held that a conviction cannot be recorded against the accused, merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, the theory would come into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased found dead is so small that the possibility of any person, other than accused being the perpetrator of the crime becomes impossible.
14. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the : 13 : chain of circumstances to bring home the guilt of the accused and has referred to earlier judgments in the case of Krishnan alias Ramasamy and others vs. State of Tamil Nadu, (2014) 12 Supreme Court Cases 279 as well as Bodhraj alias Bodha and others vs. State of Jammu and Kashmir, (2002) 8 Supreme Court Cases 45, and also in the case of Jaswant Gir vs. State of Punjab, (2005) 12 Supreme Court Cases 438, wherein these principles have been emphasised and reiterated. Hence, the learned counsel for the appellant would submit that apart from the lack of motive insofar as the present appellant is concerned, the chain of circumstances as alleged by the prosecution have not been established, as being so close in proximity of time and with any accuracy to demonstrate that the appellant herein was guilty of any criminal act as alleged. Therefore, the learned counsel seeks that the judgment of the Court below be set aside and the accused be acquitted.
15. The learned Additional State Public Prosecutor on the other hand seeks to justify the judgment and would emphasize the findings of the Court have not been shaken, as : 14 : regards the motive and the clinching evidence of accused No.3 and the deceased having had a long standing illicit affair and of having met on 04.08.2009 in the presence of several witnesses and having proceeded together and the further evidence of P.W.8, wherein the accused were all seen together and coming back from the direction in which the dead body was found, having been established, the principles laid down by the Supreme Court in the above referred decisions cited by the learned counsel for the appellant are squarely applicable, as the proximity of the place where the dead body was subsequently discovered and the fact that there was enmity between the accused No.1 and the deceased as well as their family as having been firmly established, it cannot be said that the last seen theory as propounded by the prosecution was untenable in the facts and circumstances of the case.
16. Further, it is pointed out that the claim of the appellant that there was no motive established as against him is not also wholly correct that the evidence of P.W.25 would indicate that accused No.2 was indeed having an illicit affair : 15 : with accused No.3 as well and this was the reason why he had actively joined accused No.1 in committing the murder of the deceased. Therefore, he seeks to support the findings of the Trial Court and takes this Court through the record to sustain the judgment of the Trial Court.
17. In the light of the above rival contentions and a close examination of the record, the alleged motive of a long standing enmity and a grievance that accused No.3 and Atmanand were having an illicit affair and inspite of repeated warnings he had continued to meet accused No.3 and she was a willing partner had infuriated accused No.1 and accused No.2 was also peeved with the fact that accused No.3 was having an affair with Atmanand and they together having chosen to follow accused No.3 and Atmanand when they went away together, as stated by the several witnesses and thereafter had committed murder, is an event that is not witnessed by any person. Apart from the claim, the witnesses had seen accused No.3 and Atmanand go away together and particularly P.W.4. And having stated that he had seen both accused No.3 and : 16 : Atmanand going in one direction and thereafter, having met accused Nos.1 and 2, who were coming in search of them and he having informed them about Atmanand and accused No.3 going in a particular direction and they having followed them, as stated by him is shown to be a doubtful testimony for the direction in which he was said to be coming and the direction in which accused Nos.1 and 2 were proceeding were in the same direction and therefore, was not readily acceptable that he was speaking the truth and as suggested by the learned counsel for the appellant, he was apparently set up to bolster the case of the prosecution.
18. Insofar as the evidence of P.W.8, who had claimed that he had seen all the three accused return from the direction in which the dead body was ultimately found is also a doubtful story, as it was late in the evening, when there was poor light and he having claimed to having seen accused No.3 being naked and thereafter having hidden themselves by the road side, on seeing him and then proceeded to his home to bring a saree for accused No.3 in which she had draped herself and then : 17 : proceeded further, not having been proved, it cannot be readily accepted.
19. The further circumstance that from the alleged date of incident and the date of discovery of the dead body, there being a gap of eight days also dilutes the case of the prosecution and it is not readily acceptable that the witnesses could so cogently recreate the sequence of events in the manner that they have claimed. The odd circumstance that accused No.3 was said to be naked is not properly explained by the prosecution with reference to any evidence. The Police have surmised that she was found naked for the reason that they had discovered burnt remains of a saree and the burnt remains of a lungi at the place where the incident is said to have taken place. It was surmised that the deceased and Atmanand, who was said to be drunk at the point of time had insisted that accused No.3 stay with him for a longer while and when she wanted to get back to the village, he had deliberately stripped her saree and burnt it, so as to prevent her from going back to the village. This is not supported by any other witnesses which is again a : 18 : serious gap in the case of the prosecution, in recounting and recreating the sequence of events.
20. The claim of the learned Additional State Public Prosecutor that the links in the chain of circumstantial evidence have been established in the present case on hand, in the manner which is required to be established as laid down by a catena of decisions of Supreme Court which are referred to above, cannot be said to be available in the present case on hand. The material evidence on record does not disclose that the chain of events have been shown to be so closely linked as to form one continuous sequence of events without any break, pointing to the unerring guilt of the accused. It cannot be said that the prosecution had established the case at all and certainly not insofar as the present appellant is concerned, as the motive alleged is vague and unsure and the very presence of the accused Nos.1 and 2 at the given point of time as claimed by the witnesses is a coincidence which cannot be readily accepted. For the meeting between accused No.3 and Atmanand was by chance. Therefore, it could not be said that accused : 19 : Nos.1 and 2 had fore knowledge of their meeting and that it was possible for them to commit murder by following them. Therefore, the coincidence is not readily acceptable, as being true to facts. Therefore, in the absence of any direct evidence, as to the manner in which the murder had been committed, it cannot be said that the prosecution had established its case against the appellant beyond all reasonable doubt.
21. Before we part with this case, there is one another aspect which requires to be taken note of. Accused No.1 is said to be absconding and it is believed that he is no more. Be that as it may, insofar as accused No.3 who had stood trial and has been convicted has not chosen to file any appeal. This Court is of the opinion that the prosecution has not made out a case against any of the accused. Whether the decision in favour of the appellant herein could be extended to accused No.3 as well, is a point which is no longer res integra. It has been answered by the Supreme Court in several decisions.
: 20 :
22. In the case of Suresh Chaudhary etc., vs. State of Bihar, AIR 2003 Supreme Court 1981, this very question arose for consideration, as to whether the relief to a non-appealing accused could be extended on the finding that the judgment of acquittal would be applicable to all the accused. In this regard, the Supreme Court has held, while considering the case of one of the accused who had not filed any appeal, but the Supreme Court having acquitted the other accused who were in appeal, has extended the benefit thus:
"14. This leaves us to consider the case of one another accused namely Sona alias Sonwa Chaudhary who was one of the accused before learned Sessions Judge who came to be convicted by him vide his judgment in Sessions Trial No.417/1993. He along with other appellants herein had preferred the criminal appeal before the High Court of Patna which is Crl. A. No.88/1995 which came to be dismissed by the impugned judgment. For some reason or the other he has not preferred any appeal and has accepted the judgments of courts below. We, in these appeals, have come to the conclusion that the : 21 : prosecution has failed to establish its case against the appellants which finding is applicable to all the accused. The question then arises whether the benefit of this judgment of ours should be extended to the non-appealing accused namely Sona alias Sonwa Choudhary or not. This Court in a catena of cases has held where on the evaluation of a case this Court reaches the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the order of conviction by way of an appeal. See Bijoy Singh v. State of Bihar (2002 (9) SCC 147). This Court while rendering the above judgment has placed reliance on some other judgments of this Court in Raja Ram v. State of M.P. (1994 (2) SCC 568); Dandu Lakshmi Reddy v. State of A.P. (1999 (7) SCC 69 and Anil Rai v. State of Bihar (2001 (7) SCC 318) wherein this Court had taken a similar view. Following the above dictum of this Court in the judgments noticed by us hereinabove, we are of the opinion since we have come to the conclusion that no conviction of any accused is possible based on the prosecution case as presented, it becomes our duty to extend the benefit of acquittal in these : 22 : appeals also to a non-appealing accused, therefore, Sona alias Sonwa Choudhary who is the first accused before the Sessions Court in Sessions Trial No.417/93 and who was the first appellant before the High Court in Crl. A. No.88 of 1995 will also be acquitted of all the charges of which he is found guilty by the two courts below."
Accordingly, the appeal is allowed. The judgment of the Court below is set aside, not only insofar as accused No.2 is concerned, but also as against accused No.3 as well. They stand acquitted.
Consequently, the judgment of the Trial Court is set aside. Accused Nos.2 and 3 shall be set at liberty forthwith.
The operative portion of the Judgment shall be communicated to the Jail authorities of Central Jail, Dharwad, forthwith for immediate compliance.
Sd/-
JUDGE Sd/-
JUDGE Rsh