Karnataka High Court
The State vs Lakshmidhar Das And Anr. on 23 March, 1998
Equivalent citations: 1999CRILJ2839
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
JUDGMENT M.F. Saldanha, J.
1. This appeal preferred by the State of Karnataka is directed against a judgment dated 29-12-1986 rendered by the XIV Additional City Civil and Sessions Judge, Bangalore City in S.C. No. 113/82. The two accused were charged with having committed murder and dacoity at the residential premises of Amrutlal Sethi which incidentally was situated on the 3rd floor of the very building in which his factory and office were located. The allegation was that accused No. 1 was an employee of the factory and that he is alleged to have entered the residence of the deceased on the night between 1-7-1982 and 2-7-1982 and brutally murdered the deceased by assaulting him on the head with a cast iron hammer which is M.O. 19. The accused No. 1 is alleged to have decamped with a large amount of cash and proceeded to his native place in Orissa. The deceased not having been seen for several days, and the premises being locked from the outside, his son-in-law had the lock opened on 5-7-1982 whereupon the decomposed body of Sethi was found in the flat in a pool of blood. The wife and son alleged that a large amount of money as also some jewellery was missing and the police commenced their investigation. They claim to have traced accused No. 1 at his native place in Orissa, to have arrested him on 18-7-1982 and to have recovered a bloodstained white banian MO. 12 from his person. He was brought down to Bangalore and it is alleged that he made a certain statement pursuant to which the police recovered the iron hammer M.O. 19 which was found thrown in the open place behind the building. The weapon is supposed to have been "bloodstained but there is no indication of this blood having been analysed. In fact, we had occasion to point out to the learned S.P.P. that all his excellent efforts were unfortunately in vain only because an absolutely worthless investigation has been carried out in this case. The prosecution further alleges that accused No. 2 who is the real brother of accused No. 1 had deposited five amounts totalling Rs. 88,250/ - between the short period starting from 5-7-1982 up to 12-7-1982 and that too, in different banks. All these deposits are cash deposits and it is the prosecution case that these deposits represent the amount that had been stolen by accused No. 1 from the residence of the deceased. On completion of the investigation the two accused were charged with having committed the offence of murder as also dacoity under Sections 302 and 392 r/w. 34, I.P.C. as also the allied charges under Sections 411 and 457, I.P.C. The learned trial Judge acquitted the accused on the ground that the prosecution had failed to establish the charges. In view of he seriousness of the incident the State preferred an appeal to this Court. The earlier Division Bench of this Court on 27-5-1987 summarily dismissed the appeal and it is against this order that the State filed a special leave petition before the Supreme Court. The Supreme Court of India by its order dated 2-2-1995 observed that it was essential for the High Court to have carefully reappraised the entire evidence and to have passed a proper speaking order and for this reason, allowed Criminal Appeal No. 231/95 and remanded the matter to this Court for a de novo hearing.
2. At the hearing of the appeal, the learned S.P.P. submitted that the reasoning of the learned trial Judge who has essentially held that the chain of circumstances in this case cannot be said to have been established and that consequently, the accused are entitled to benefit of doubt, is assailable. Learned counsel in the first instance pointed out to us that the accused No. 1 has admitted the fact that he was an employee of the deceased. He submits that even though the watchman of the building has resiled from his earlier statement that accused No. 1 has not been able to give any satisfactory explanation as to why he went away to his native place in Orissa exactly at the time when the murder took place as there is unimpeachable evidence that the police partly followed him to that place and arrested him there. The submission is that this is a strong circumstances of guilt because it is not a question of absconding but it is a question of guilty conduct in so far as there is no reason why the accused No. 1, being one of the 40 to 50 employees should suddenly take off if he had nothing to do with the incident and further more, when he had no valid explanation for his having gone to Orissa. The respondents learned advocate was quick to point out to us that P.W. 12 has in fact admitted that the accused was unwell and was sleeping in his room which was why he was not attending to his work and that the police apprehended him in Bangalore itself and not in Orissa. This evidence is extremely doubtful and it is an admission that has come in cross-examination but we do find on a careful examination of the record that there is no doubt about the fact that accused No. 1 had abruptly left for his native place and that this is where he was apprehended. This is undoubtedly a guilty circumstance.
3. Coupled with this fact, the learned S.P.P. points out to, us that when accused No. 1 was arrested and his clothes were checked the police found a banian on his person which was bloodstained. This item is M.O. 12 and the submission is that the bloodstains on the clothing of the accused No. 1 very clearly indicate his connection with the offences. Apart from denying, accused No. 1 has not offered any explanation as to how his clothes were bloodstained. The respondents learned advocate has pointed out to us that the witnesses to the mahazar have not been examined and further more, the submission is that this circumstances is inconclusive for the simple reason that the investigating officer, for reasons best known, has not bothered to forward this important garment for chemical analysis which ought to have been done. The photographs indicate that there were huge quantities of blood on the clothes of the deceased as also on several items including the carpet and there was no difficulty for the forensic experts to have matched the blood groups but the police have not done this. Under these circumstances though we do not propose to discard this evidence under this head we need to observe that it is a weak circumstance in view of the fact that no follow-up action is taken up and that it is not conclusively established. One of the grounds canvassed by the defence was that it would be absurd for anyone to believe that an assailant would be found wearing the bloodstained garment after lapse of so many days. It does appear strange but one cannot overlook the fact that if the bloodstains were not extensive and having regard to the status of the accused there might have been a possibility that he continued to wear the same clothing even after several days.
4. The learned S.P.P. then went on to the strongest of the circumstances when he pointed out to us that it has been conclusively established that the brother accused No. 2 has within the few days around this point of time deposited a huge amount of cash totalling Rs. 88,250/- in as many as five different bank accounts and it is very clear that this was hurriedly done and that there is a close link between accused No. 1 going to his native place and accused No. 2 depositing these amounts in the banks. The learned S.P.P. submitted that once the complicity of accused No. 1 is established that it is not an essential requirement of law that specific evidence must be led with regard to the source of this money. He has pointed out to us that the defence made a weak attempt to establish that accused No. 2 was doing different forms of businesses from agriculture to rice to kerosene and the like, in an attempt to account for that amount of money but he is right when he submits that it is physically impossible for a person of that status doing these petty jobs to have suddenly come into possession of this huge amount of money legally. This is a highly suspicious circumstance and it does appear to be connected to the earlier circumstances.
5. After the accused No. 1 was brought back to Bangalore the murder weapon M.O. 19 was recovered by the police from behind the building at the instance of accused No. 1. The learned S.P.P. submits that this virtually clinches the entire issue because in conjunction with the earlier circumstances, it establishes that A-1 was the assailant and if he was the assailant, then it legitimately follows that he was also the person who committed the act of dacoity and looting the large amount of money from the residence of deceased Sethi. The respondents learned advocate was quick to point out to us that the only witness to this recovery who is examined has turned hostile and that therefore it is word against the word namely it is only the word of the police officer as against the word of the accused. In þ certain instance we would have given total credibility to the evidence of the police officer but this is a case in which the investigation has been perfunctory, which is probably an under statement, and having regard to the general manner in which the case has been investigated, we are not prepared to rely totally on the evidence of the police officer in the absence of the mahazar having been proved. To that extent again though we do not write off this circumstance it again has (have) to be recorded as relatively weak link.
6. There is one another head of evidence in so far as two suit cases have been recovered by the police and it is alleged that accused No. 1 had purchased these from one Anthony P.W. 5 at Madras. It is true that P.W. 5 had identified accused No. 1 as the person who made the purchases but the learned trial Judge has discarded the evidence on the ground that accused No. 1 was a casual customer, and it was absolutely impossible for the shop-keeper to have identified him after a considerable lapse of time. The learned trial Judge has gone by normal probabilities but we must take note of the fact that we cannot totally rule out the possibility of Anthony having remembered the customer for whatever reason as the evidence has remained unshaken. Unfortunately these items are relatively cheap and the fact that accused No. 1 had purchased something of this type would not necessarily be regarded as an incriminating circumstance. There are instances when persons commit dacoity or theft and start virtually blowing up the ill-gotten wealth in a big way and it is this type of spending that attracts the attention and something from which the Court will draw an adverse inference. This circumstance therefore in the present case is a relatively innocuous one.
7. The real question is as to whether on the basis of this material the two accused can be held guilty of the offences with which they are charged. We need to mention here that we find certain very serious and obvious lacunae in the investigation which we are briefly summarising--
(a) There is no explanation as to how and under what circumstances nobody investigated into the disappearance of Sethi for a full five days and the excuse given that he might have gone somewhere is totally unacceptable.
(b) That considering the fact that a factory with about 40 to 50 employees and an office were run in the same building and that the deceased had his close relations staying in the same city, it is inconceivable that for five days nobody would have felt suspicious about the disappearance of Sethi. There are many question marks as far as these areas are concerned which raise serious doubts.
(c) The evidence with regard to the arrest of the accused in Orissa and precisely what transpired there is not totally conclusive but more importantly, we find that the investigating officer has not bothered to investigate into the source of the large amount of cash deposited into the bank accounts as a result of which he has left a gaping void in the prosecution case.
(d) With regard to the two recoveries i.e. the bloodstained banian and the murder weapon M.O. 19, the link with accused No. 1 that is sought to be alleged has not been satisfactorily established but were importantly, there are certain lurking doubts with regard to this aspect of the case.
8. We do concede that the incident was an extremely serious one and an unfortunate one and that under normal circumstances the administration of justice ought to have brought the culprit to book. This is a case in which there is no doubt about the fact that a grave suspicion does emanate with regard to the complicity of both accused No. l and accused No. 2. The learned S.P.P. made an absolutely valiant attempt to convince the Court that the infirmities mentioned by us are relatively insignificant and if the evidence is pieced together that it falls into a perfect pattern and that the Court can safely convict the accused on the basis of this material. The respondents' learned advocate submitted that the trial Court has very carefully analysed the principles of law that apply to cases of circumstantial evidence, which we do not need to repeat, and he submitted that it is well settled that in an appeal against acquittal where the order of the trial Court is perfectly plausible and sustainable, that interference is not permissible.
9. We need to record here that the present case throws up an interesting dimension of law relating to circumstantial evidence. The learned S.P.P. is right when he perhaps points out to us that this is a case in which the various circumstances which can be likened to links have more or less been not only brought on record but established by the prosecution some very convincing and some of them as indicated by us with not such a high degree of conviction. The interesting dimension that comes up is that whereas the law requires that there has to be a chain of circumstances which presupposes the several links or a web of circumstances which consist of several strands, that the law also requires that all of these have to be individually established, in other words, that every one of them has to be of equal strength. The learned S.P.P. did submit that the links are of equal strength but in our considered view we find that the majority of them are relatively weak and one or two of them extremely weak. The strength of a chain is invariably to be tested on the basis of the weakest link and the law with regard to circumstantial evidence requires that every link has-to be significantly strong as it has to inextricably fasten the accused with the guilt of the offence. We have referred in detail to the cash amount that was deposited by accused No. 2 in various banks which is obviously the reason for the murder. The investigating officer has not ruled out the various possibilities by following the investigation in Orissa but he has not bothered to do the all important investigation in Bangalore for purposes of establishing that this amount of money was with the deceased or in his residence and that this was removed from there. This is the most important evidence in the case which would have linked the two accused with the offence. The total lack of evidence in respect of this vital area would in our considered view have to designate this void as virtually the missing link.
10. As indicated by us earlier, the interesting dimension of the law of circumstantial evidence that is thrown up in this case is that a conviction cannot be sustained on the basis of a series of links some strong and some weak, they have all got to be equally established but more importantly, the chain has to be a complete one but not a chain which is in pieces. Two sets of circumstances not joined together because of what we have discussed as a missing link is absolutely fatal to the prosecution, in a case of circumstantial evidence.
11. We need to confess that it is with a degree of distress that this Court is required to dispose of this appeal confirming the acquittals. As indicated by us, with a little bit of professionalism and a proper and thorough investigation of the case the Police could certainly have established the complicity of the culprits. The fact that these voids have been left in the prosecution case make it impossible to sustain a conviction. Having regard to this position in law, we are left with no option except to confirm the decision of the trial Court as it would be against the well established principles of law.
12. The appeal accordingly fails and stands dismissed. The bail bonds of the respondents to stand cancelled, Appeal dismissed.