Karnataka High Court
The State Of Karnataka Through ... vs S Rangaswamy S/O Late Sannaiah on 2 March, 2009
Bench: Manjula Chellur, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE rm DAY OF MARCH, 2009 PRESENT THE HON'BLE MRS. JUSTICE MANJULA CHEL§U$tre AND ' t THE HoN'BLE M. JUSTICE B. SREENIV}éfiTGofiDBAb cr1.A.No. 96 OT 2§b4;t: " '. BETWEEN V' 1 The State of Karnataka Through Vijayanagara Police W_' Bangalore City "' 'tApbe11ant (By Sri. Bhavani singh;# sE§5),e*' S. Rangas_'wamy',f'<.,» 4' _ S/o late Sannaiah;V'_ Aged about 49 years, " No.47--A, :21 Cross Road, TT gain Hd.;a_' "=,BPc Layout, II Stage '£angalore_4,fi0 Respondent
'(ByTsrif"c,v§*fiagesh and Sunil Dutt Yadav V« advooate for applicant in IA--1/08) «am THTB CRL.A. IS FILED U/S.378(1) a (3) CR.P.C "tBz_THE STATE 9.9. FOR THE STATE PRAYING THAT THIS HQN'BLE COURT MAY BE. PLEASED TO GRANT LEAVE To FILE AN APPEAL AGAINST THE JUDGEMENT DT 24.09.2003 PASSED BY THE XXV ADDL. 119/97 ACQUITTING 302 CITY SESSIONS JUDGE, BANGALORE, IN S.C_NO.
THE RESPONDENT ~ ACCUSED FOR THE OFFENCE U/S. OF IPC.
THIS CRL.A. comm ON FOR DICTATING JUDGE-EENT, THIS DAY, MANJULA CI-IELLUR J. THE FOLLOWING:
Lfl3DGnfl3NT This appeal is directed against therfifldgflent} and order of acquittal on_the file of 25" Addi. City Sessions Judge, I¥§énga1ore[*s5in_ S.C. No.11?/i§9?GEdated '24)9.20U3j The respondent~ accused, herein Dfécéfly trial of charge for an offence fiunishabie finder section 302 IPC. which "n came to be registered on the file of Vijayanagar Pol'ice--»,._7 f%$¢%%I'b5Ii§rA fl D'-vof_>i:ncident on 6.11.1996.
2," They admitted facts are the deceased RajeshwariG; was married to the accused S. V*Rangaéwemy about 25 years back prior to the date The couple did not f'harassment to her.
'..a.') have any issues out of the said marriage. Therefore, the couple had fostered one boy by name Ranganath who is not examined before Court. As on the date of the incident, an M.C. petition no.46/1996 under section 13 of the Hindu Marriage:
Act, filed by the accused Rangaswafiy, against" ' deceased Rajeshwari was pendingn hit is also not' in dispute that as on _the zdate off incident," Rangaswamy was residing tat Door_"Ec;4f/A, 3" Cross, 9"' Main,'; RPC "'L§y¢u;, Vijayanagar, Bangalore and deceased Rajeshwari was residing at a working wowens' !hostei,oHfiAs'"on the date of incident, both hushand and wife were working at Bangalore Water Eupoiy and Sewage Board situated at Qauvery fihawan, near City Civil Court Complex. 3;:It is the case of the prosecution before fgthe trial Court that accused was suspecting the fidelity tof} the deceased wife. Therefore, it fr ultimately resulted in ill~treatment and Therefore, when the matrimonial litigation was still pending between the parties, the accused said to have persuaded the deceased _Rajeshwari in the afternoon on 6.11.1996 to accompany him to his residehtiyal house at RPC layout, Vijayanagar, and 11.55 p.m. he killed her in the assaulting her with an iron "7
4. So far as the Rajefhwari bY the. afzfiused i"s'V"r1o"V: direct evidence whatsoever 'land wficase of the prosecution b_ase;:;d' evidence.
According ' ,_pros'ecL1tion, P .Ws.4, 6 and 2 police o"ftficiaV1s"" Vijayanagar Police Station whopygjwexre on'"p_atrol. duty on their motor bike on that nliglztlwyrere proceeding in front of the house when they heard screams from the said h'oi.;se and on hearing the screams, they Q'4"--._V"stopped_.:' their motor cycle and rushed into the "house. On entering the house they saw one person _coming out of the house wearing blood stained clothes and saw the deceased Rajeshwari in a pool of blood in the bed room of the house, p.w,4fheek the accused to the police station leaving p;w;§_ at the spot to keep a watch over the dead bodjg"
Meanwhile he alerted his 1superior <eb§u;,dthe7 incident of death of a female at RPC layoutkandi he conducted seizure proceedings regardinc hlood stained clothes of'e§he;"accnsedi in lthei police station in the presence wot lhaharar witnesses. Then the police inspector arrived at the spot and this P.W.§ proceeds to the station handing over further~in§esti§ationato Pew £4 G. Kotrabasappa. Durind the eefigee of the investigation, they said to have recoyered one see at the spot M.O 3 and also} collected" blood stained clothes of the ,deceased rafter the post mortem and recorded lhtatements cf various persons including kith and kin _ cf'. the deceased. According to the hdfi "prosecution, the brother-in--law of the deceased dP}W,§ by name M.Raju on 6.11.1996 in the d"',Wa%ternoon said to have visited the office of the (3 deceased and on enquiry front the colleagues of the deceased he learnt the cause for her absence at the office 'that husband. of 'the deceased Ihad taken the deceased along with him from Vthe office. Therefore, the prosecution relies upon' the evidence of this witness Raju not only withil regard to the aspect of moti§e"but also one ofg the circumstances that hel learnt _from free, colleagues of the deceased that' accused' and' deceased went together Vfrofi~.the office, of the accused. Before the'triaj Court the prosecution tried to bring, onf record 7thefl circumstance of motive», t--hrouVgh:"'-.the<"'-other kith and kin of the deceased ;}e, 2;W,5i$huvaneshwari sister of the deceased, P W,? Susheelamma ~ mother, P.W.8 m gheelavathi another sister of the deceased. 55"u9Then so far as alleged presence of ""~..:"'9.ws.4n& 6 at the time of incident, P.Ws.4 & 6 Ware 5examined to show that these persons came i"'rWacross the dead body of Rajeshwari after hearing
-J the screaming and noticing the accused with blood stained clothes near the main door of the house. Though the prosecution tried to bring . it 3"' party witnesses to support the Mewidenceu offui' P.Ws. 4 &= 6 by examining P;W.3'Shivarudraiah'~W neighbour unfortunately Vthisj witnessg did ;fiat< support the case of the prosecutign; gfhe other witnesses, apart free the police constables are P.W.10-- Dr. Kashyap;g"é}w:i1egQvigVVenkata Raom photographer!_ P W.1é fl;3 gg, ?gfikatétt --engineer, who drew "theixroughifishetch Mott the spot are examinede_"w""
5; '--Throughe "the a police officials, the prosecution ltriedttto" bring on record how the "*,invest;gation was conducted, who was the carrier is of the tie to the Court and the ultimate filing of " the f_charge sheet before Court? The e circumstances relied upon by the prosecution swbeforefl the trial Court could be narrated as under:
<)
7. Before the trial Court as the accused pleaded not guilty of the charge, evidence was taken up examining 15 witnesses, markingtilfg documents apart from 6 material obfiefitsLrl 4?fie5 defence got marked Exs.D-l to 3be6L f=_gf£e:7 recording 313 Cr.P.C. ,statement, the "learned .
Judge proceeded to appreoiate "the vetidences on record, both oral and docufientery andqugltimately did not accept the case or the firosecution and held that escett_the circunstandg at presence of dead body" igihthejihouseiigfgeaccused and the matrimcniaiuéisputestfiendingghetween the parties, no other'- to be established and therefore, helde that gaccused was not guilty of the Eoffence ~punishable under section 302 IPC. yhggrieued by the same, the State has filed this Qgf The learned S P.P. has brought to our inotice the evidence of P.W.4, pendency of V" uwmatrimonial litigation between the parties and
4.-
-s ..'
14. So far as first circumstance of motive is concerned, the evidence of blood relatives of deceased P.Ws.5, 7, 8 & 9 brotherwinwlaw of the deceased would reveal that as on the datek of homicidal death of the deceased, theigf gas"
matrimonial litigation seeking divorcep fori thaf i dissolution of the marriage between the husband, and wife at the instance of the husband,,pendingv in M.C.46/1996. According to the prosecution, on' 6.11.1996, the said. M.CvA.4-6::/'1_9'9~6' was"vvJ,.is.ted for hearing and on the" same fnight, the death has occurred. Though the prosecution sas required to establish hearing on 6.11.1996 and the presence of both the parties before Court by prodccing several 'documents pertaining to the dmatrimonial case 46/1996, they have not attempted d%D7 §rifi§, dh- record such material. A feeble attempt 'came to be made during the course of R'Ep"arguments of the appeal before this Court to rely "upon: such documents. The prosecution cannot u"«; bring on record any such document at this stage 4 ui /.
16. According to the prosecution, P.W.9 goes to the office of the deceased and from some one in the office learns that accused spoke to the deceased Rajeshwari and took her from the office. This is not within the direct knowledge of ?:W.9c and the said information was given to him fromhi some one in the office of the deceaseelm fie does. not even disclose the name of the person"sho gave. such information and even if he were to give the name of such personc in the absence of examining the said person, the-'evidencen of P.W.9 that accused coming to the"office of the deceased and taking'; her office is nothing but hearsay *evidencei and. the Court cannot place reliance on such evidence. In the absence of any hclinching 'and convincing evidence that deceased A"and'accusedfifrom the office of the deceased went to" the' house of accused on 6.11.1996 and VVultimately her dead body was found in the said ihheuse somewhere at 11.55 or 12.00 on the night of E*--fi 6i11.1996, except the evidence of P.Ws. 4 & 6, no other evidence is placed, on record, therefore, the same cannot be believed. In other words, in order to opine that deceased at the persuasion of the accused. alone, she went to the matrimonial home on that day and ultimately she met fwith untimely death in the said house, _it ig[fn¢gj. established by any other Mevidence*:afidu"the'"
prosecution relies upon the revidence"offgtwQa police officials P.Ws. 4r&x§.
17. Before advertir19""'-;'fi37'x"'F!1inda't0~ the said important circumstance *_&eliéd[a upon by the prosecutiong we may have to say that one of the circumstances that her dead body was found in the house_ of *acCuSedR_is also established by the bW_presecution. 'Unfortunately, there is no definite VA material"fiith certainty to show that on 6.11.1996 except the accused there was no other inmate in l the said house on that day when the dead body of tithe deceased was found in a pool of blood. On the other hand, ample evidence by way of cross- uwexamination was brought on record by the defence that inside the house there were several other persons, the inmates of the house when P.Ws;y4u& 6 went inside the house and as a matter of factgjé one of the inmates accompanied P fill, to» chef police station. Very surprisingly}: they witnessW ago P.W.6 Srinivas says there were Wseyerall persons sitting inside the house and one of them was picked up yby_ P WC4p* and saidud person accompanied. P.W.4 to 5the,}police< station. One cannot definitely fsay' whether gthe so called person picked up by Eiw 4 was the accused himself or any other_inmate of the house of the accused. 18y '--Thevdu£actpd.remains this house was accessible* to. several others and several other , _members were residing in the said house and when ii the" dead *hody of the deceased Rajeshwari was a$%i iiu"'lD' found ih*a pool of blood, other inmates were also present, V This would indirectly suggest that it *»§as not just accused who alone lived in the said 'house but also several other persons including Mr. Ranganath the foster son of the accused and the deceased were living in the house.
19. In order to accept the case of P.WsL»4d&;e 6, the prosecution brought on record other factsvh through the evidence of these 2 witnesses, hOw'ar watch was kept on inspector arrived at the spot, who conducted the inquest and spot mahafar insiudinu the taking of, important photographs_ at tthe' scene 'of offence, they also f'$§§ggfi:«%_as Tireeordi through the Investigatinfiidfficegfflhstrfipgerprints were also collected at the sect whiie drawing Ex.P»3 spot mahazaru in orderf.to..__[ascertain the real culprit. As a_ matter. of fifact, one of the witnesses "w diéoioggs that the Investigating Officer informed VE'the'c'relati§es that when fingerprints were avaiiabie at the spot, definitely they would be h able to catch hold of the real culprit. If the [%uery object of fingerprints taken at the spot was 'to ascertain the details of the accused, whether Waccused before us was taken to custody only on the adead*.hcdy,h_4t%9 §the.dn E9 suspicion because of the matrimonial litigation pending between the parties or whether the accused is really the culprit in this case has to be ascertained from the other facts"'._,"w_ith reference to the evidence of P.Ws. 4 &
20. According to the pr,o,secut--io'n",* spot rnahazar and other importante..jaspects' investigation was done non VW,l1,l9Q6; at"
instance of P.W.l4 MrlKxhotrahasappa,flgPolice Inspector. As a~ flatter {as _raOt, thisv police inspector said' to spot on the very same Vvtandihep discloses before the Court on oath next day he conducted inquest, s'poVtu.mah"azar and other investigation. w"».,7tn to beliefife the presence of P.Ws.4 & 6 at _ahout. on patrol duty somewhere near of the house of the accused, though v,_several'3 circumstances were attempted to be '~:j'b:ro'ught on record, the prosecution did not bring on record the 51-232) from the police station or mother register maintained in the police station the i the nature of permanent documents are placed before the Court.
21. The murder incident happened at 11.45pm at the address stated above. After takinco the accused to the police station, he arrested him hy'_ collecting personal details and registered crime . No.7l8/96 at about 12.30am: on p?el1:96, ;> This person drew Ex.P.1 a mahazarg for recovering "ad* shirt and pant which had Blood stains;7 fhey were identified as .m;os.r""'e§dla_2. V"'"" p.w.2-- Mr.R.Somasundar is a eitness to tnis Ex P.l and so also $k:§o3 drawn at the spot on the next day. According to-this P fi;2; P.w.9 Mr.Raju his uncle informed him about the murder at RPC Layout. He "p_went4tQ the said premises. This police took him lg to the police station. There he saw the accused and his cicthes were blood stained. A nmhazar j was drawn accordingly and he admits putting his 'p;signature to the said documents. According to # Q;é, on 6.11.96 he went to the house of u"Rajeshwari at 11.30pm and police were very much hours present there. The police had informed him that he had to be a witness for the spot mahazar and he had to give evidence in that regard before the Court. Therefore, he went to the hence} of deceased and from there, they went to the policed station. When he reached_4 theH""
T Rajeshwari, there was a gathering of_éO persons at the spot. When he spoke to'-,.P'.WV.4;',:'E3=S'I«--._,he.3 got-. ' acquainted with him as inspector ~Mndduramaiah. Earlier to that he was not aware of him. He has not given his phone Jnumher 'to dthe" police. A mahazar was done in the house of Rajeshwari and he cannot' ga§{f$hop°fi%s~ the person who drew" the mahazar 'i V;fie_"fi§u§§t at Rajeshwari. The said panohanama 5&5? to an end at 12.15. it was early . Ex.P.3 as the He admits "mahaaardkdrawn" at the house and Ex.P.2 is the inquest mahazar. Ex.P.l is the nmhazar drawn in
-tithe police station. According to this witness, "maharar was drawn in the house of Rajeshwari uvwhich was over by l2.&5am on 7.11.96 and from 'house = Gf V {fi§W%hh<;¢-if A<t 1,.» there they went to the police station where another mahazar was drawn. All the witnesses who signed Ex.P.3 had signed Ex.P.1 as well. He signed those two documents having confidence in the police- During the cross--examinationiW he admits that at the time of mahazar gtheyi found ~ broken pieces of bangles which_ were Jkeptl in' all cover, so also the blood stains on the floor mete collected. when they went to the policejstation,,l the writer in the police Hstationdainformed. him that they had already drawn a mahazar along with Mudduramaiah and Kotrahasappa and therefore, they took their ~eiéhatu?etdl 'He eie. not dictate the contents of.nehaeart_' By the time they reached police 'stations it Vwas between 12.45 to 1.00am. .After ycoming to the police station, the blood lsteineddgiothes were shown to him by the police and? he" see those clothes in the yard of the 'q compound. After seeing the clothes, he accepted 'that they were in order, but he did not disclose uwhow those blood stained clothes M 0.1 and 2 were xflvahd. his clothes were not yet seized. are none other than the close relatives of the accused. As a matter of fact, the presence of relatives to act as mahazar witness for-ifissfiyifly were secured by asking them to Q9fiEt'to~.thet station over the phone. Within 30 to 65 minutes7 they arrived at the station and after showing theh blood stained clothes anfilgther $;g¢¢1é§ 5f the accused, they were seized under mahazarrfj After seizing the said c1a£h¢s[ {ts sea; or the station was put. He.aoain!says?that the relative of the accused gag; 5segur§q .59: itfiaimfiahazar by the accused hifiseif and ncg s? the instance of the police, :'By the time Ex 9.1 was completed, FIR was alreadytVgot.hreadyr' He 'visited. the spot at about 11.55pm, after reaching the spot he secured ythew presence of Kotrabasappa and AC? Muniyappa *wh¢_arri@édVat the spot and appointed him. It wasg within 10 minutes. It must have been V"midnicht by that time. Accused. was very much 'hpresent at the spot and he was not yet arrested ?or the Jh§x€§, hi.tfi'«3 "presencek, of?" independent witnesses ,Wot P.W.9.
first time himself, Inspector and ACP had seen the accused. As higher authorities came,_ his responsibility was reduced. Then, he returned to the station at about 12.30am. In examination, he says after arrest of the.accused*V in the police station he ,mprepared¥ dremandl application, which is at Ex.Dg5f According te."r him, all the particulars °how_ theyn learnt about the incident had to he mentioned , He did not try to know at what tine" incident 'figs ftakern place. However, ap.Q34D.5irenahd application, date and time of the incident nas hentioned as 11.15pm on
6.ll.l996{ ifromithe evidence of P.W.4, P W.2 and p.w.9, has tar has flan P.l and the so-called reconery M.Os,lV and 2 are concerned, the sub~ Vin$pectQr_ was not even capable of securing 'the for the preparation of mahazar Ex.P.i and at the request "sf the accused, accused seems to have secured the llprasence of P.W.2 and others with the assistance This would also suggest that P.W.9 and tfie'"€f0$$f"L V"the ihofise others were taking active part in the process of investigation and PSI P.W.4 did not dot any independent or individual thinking regarding the, investigation he was required to do:d",.Iff hath _d M.0s.1 and 2 said to have contained bl0od<stainsT surprisingly, nothing was mentioned regarding then shirt in the prisoners search,redister,_
23. Then coming to the enact time at which the alleged incident' it is the case of the prosecutidfiflghatflafi ahont 11.55 P.W.4 and 6 heards thew sa;eémiugih§§_daf lady from the place _ef,dineidentiajidiheumwafi ?.WL4 and 6 have deposed uthe rssid "scream refers to deceased Rajeshwéf%3#iy Y 1% ether words, P W.4 did not ascertain since when the dead bedy was found in itpe bed room of the house? According to them at "1lf§S' they vsaw the accused coming with blood stained'ciothes and noticed the dead body inside after hearing the screaming. If Qflpresence of those persens at the spot of incident uHVaiong' with, P.W.6 were to be at l1.55pH: how he could prepare remand application informing the arrest of the accused at 11 35pm? Similarly} FIR was prepared by 12.30am i.e., early thongs :Qf~ 7.11 96. if FIR were to be at 12,3Q§m.g5d_h§w7_' the crime number could come in Er P21} wnich wast drawn between 0.45 hours n.to 1¥3QT- hoafis?' Surprisingly in the bogg, of 'the? Fifi twhile ' referring to the contentém'cf' the complaint the crime number was giwen t;nQ;tnefl reg@ster. After registering' tnea_criweg numterftuthettinvestigation seems to fiane oewwéfi¢edernithrswease. In order to accept_Ttfié5q§re$eneefi'orW.§.w.4 and. 6 at the place ofiinerflehtat about 13.35pm; there is yet one mofég_g1;£i§§e»§§:{§it in the case of the proseeutionn"afiocording to P.W.2, S, 7, 8 and 9, ,Ati1.e k:'Lit.Ah.'an;:i kin of the deceased categorically adefioeed you Voath before the €ourt that the incident .335 taken place at 11 00pm. If all t"eethese*persons especially the blood relatives of trdeceased. Rajeshwari knew about the incident by t"",m;§.00pm, the evidence of P.w.é and. 6 regarding request accused and act at the whims and fancies of accused, if he were to conduct an independent investigation.
25. We have the eevidence i'df<_rPCW.4 Kotrabasappa. He was the Inspector oi Poiic¢¥atg that time.
gentleman seems to have arriuéd at the spot of incident when p_w:4'paécfiéédgpi§,w.5 and others were all present at the spot3VdAccording to this gentleman} "accused. was, sent away to the police station with FgW.4 and on the next day morningp they flconducted,pinguest' as per Ex.P.2, recovery mahazar*Ex;Pn3 seizing M 0.3 an iron rod at about Bamt to 9afi~_(?.1l.96). Quite contrary to this A'importantz%admission of P.W.l4, P.W.4 comes out d.with""ag_different narration regarding inquest E£¢P.3 etc. After writing mahazar and FER he got mxthe approval of the Inspector ACP and at the spot znin the presence of Inspector, ACP he said to have "examined the spot and prepared the mahazar at the On 6.11.9'6--f"'at 00'.=3V0\_h:ou'rs\;Wthis' spot. He also seized incriminating articles found at the spot and another mahazar was written in this regard. when all this happened ACE snd_ Inspector were very much present, Along with thef properties seized from the spotf he bronghtithei accused to the police station hand reached ttheh police station by 00.30 (7.V'11.f95)_";_;
26. From this é§}ae§cg, what ane conid infer is, a mahazar was dxafin at the sfiot on the very same nightfiiseizingihhincrifiinating materials. However, Ehis hitneés sass not disclose whether this eahasae is Ext? 3. 'if it were to be EX.?.3 there iislano -eif$ieuits"»for hifil to identify the mahazar as» Ex,E,3;_h~}k2 does not even refer to wM_M-Qf3;§h&_ironmrod. Therefore; this must be a 'differentWmahazar under which some incriminating articles said to have been seized which are not placeetsberore us. if a mahazar at the spot '*,seizingt incriminating articies came into Zefiistence at 00.30 hours, there was no neeé for vh"fiaking another mahazar seizing %.0¥3 said to be seal could have been epened to confirm the identity of M.Os.1 and 2 to this gentleman. ifihis piece of evidence persuades us to accept,bthefl« arguments of the learned Counsel for the eefeneee that there were totally 3 seeie ore was §ivehrtoW the mahazar witness and.V2 ahfi h3i left. with {£né' yolice station to be ueeerfley 'the Vieeeetifiating Officers whenever they :equ§;é&¢_ This has come in the evidence of efle5:é,§e§z§b§§§ppa. From the evidence on 4reeord£W"we® eete! teeth an iron rod which was ~§m§1§§; *then_ M,o§3i eaie. to have been recovered at a?9.§§e§wflfi 5 ii 96 or early hours of 7j3§.96,eiifE%V;tH%iVSaid rod was to be the incriminating farfiicfiée end again M.O.3 being an incrifiimatin§~L article, does it suggest the icomhiieifig"gQf' more than one aceueed, or does it irefieeththeieature sf inveetigatien done by the Infiestigatihg officers in this cese_ 23f Then coming to the other important 0» , °é§2oireumstence that the eeuse wee in exclusive ._ 'ff:
ii-(1 possession of accused as per the evidence of P.W.5, sister of the deceased where the dead body of the deceased Rajeshwari was found, the learned Prosecutor relies on two citations ¢howdVthe_ presence of a dead body at a place where accusedi has exclusive knowledge would "become .a .stronq1 circumstance supporting the h_caseW,"o§.iJtheR prosecution. They are:
1.1994 sec 176 in tpé case of Jagjit Singh Vs. State of Himachal_'FradeshX.lPara~6 of this decision reads as under}:
_ drake #61 it may not be necessary to>discuss"the"e§idence of P.Ws.2 to 5, the neighbours or even the evidence of _€other nitnesses. The presence of the ldeceased and' the appellant in the l*gqu§r£e§'gf the appellant where the dead fl*fhodjwwds found, is not in dispute. If "2 these; circumstances are accepted then they sufficiently incriminate the l3 appellant and in the absence of any such place, said circumstance would definitely be a strong circumstance against the accused.
29. As against this, the learned C¢cdnséiiV appearing for the defence 0Mr C)? Nagesha relies upon two judgments of Apex Cofirtd They are *
1.ILR 2000 Kart 24Gi;wthe1para?10~o£ which reads as under:
j.;W_e:'~v.do'-."novt agree with the High court. dfii a germinal case ii; was ;torH "the "i§r§ge§utiafiWV to prove the inv§iveaé$£diof*,§n; accused beyond all reasonable Kdoabtgh It was not a case 'whereibothj husband and wife, were last Vfi'seen_ together inside a room. The incident might have taken place in a trace fbfit the prosecution itself has bronght out evidences to the effect ,that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from, the room, they rushed towards the same and broke open the door. Section 106 of the Evidence», Act, to which reference was made by the _r, High Court in the aforementionedddh situation, cannot be said to have anjd application whatsoever._ M.
2. 2005 Crl.L.J ,2608'x.in._ Murlidhar Vs. State of Rajasthan.*?ara¥l$ of this' decision reads as underzydm "para~l8:: §i5§11y;f the yfiigh Court havingh accepted Qthe« evidence as to offehcefl of Eabduction° fiunishable under section 3§&rI§C£came to the conciusion that the orosecution evidence e. When considered xdindh.the light of the v'proxifiity'"ofdttime within which Ramlal '$°spsLained injuries and the proximity of the Vglace within which the dead body dwasJ_found, was enough to draw an inference that Ramlal's death was "caused by the accused. Relying on $éCtion 106 of the Evidence Act, 1872 h and 'the observations of this Court in State of' West Bengal vs. Mir Mohammad Omar and Ors., the High Court heid that
-11} it was established that the appellants were the abductors of Ramlal, and sinceh the facts were especially in theH2jW knowledge of the abductors, as? theflqovl accused--abductors failed to oifer, afiyl explanation as to what transpired after "
Ramlal had been abducted?" tHe_*:§u£fi tf7"
would be justifiedh in pdrawindedthefl inference that thelh abdUCior55t7hadl murdered the, victim 7.Ramlal}~ after abduction. "
From the above decisions i eli the citations relied and so also the defence; "iti isig?erfi£"clear" that no two criminal cases wonld be simiiag[p. It is also well settled that' e§egy- casee has to be understood with reference to "the_ legal position depending upon ' the' §acts_ and circumstances of that particular 'case. duflnf that view of the matter, from the principles laid down from the above 4 decisions, lbe'oue could infer that if the circumstances of last Fséeh, accused and the deceased last seen together "and if the homicidal death and the place of dead 9' ,deceased_was alive in 1"presence,of accused at "'rejection is not based ';we_have discussed, the body was within the exclusive possession or knowledge of the accused, he has to explain how the dead body was found at that place?
30. In the present c§se}"'gngre--_is_,amp1é material suggesting that several othet" persons:
were also present in the ihouse'qalong lwith the accused. As a matter of f3¢t.l?.W.4 chooses one among the inmates 'and 'took _himupto the police body in ;the _fisa§ room g Iiherefore, it is not a place_ to vwhich_»accused_ alone has exclusive access7 "Von fi?$§fQi%§k none of the circumstances relied upon bf tbe=prosecution would suggest that accused and~ deceased were seen together when the said house. The very 11.55pm as stated by ?.W.4 and such and. 6 'is 'rejected by the trial court on perverse reasoning. As very narration of case by M" uw_§.W.4 and 6 'would. go to show that either they have subscribed their signature to the investigation done by some one else or the entire investigation is not done by them as them. In the absence of establishing the §resence_l of accused at the relevant toint of timepof the death of the deceased. at that Kpiacegj fie 'cannotL apply the law laid down by the Supreme Court withh reference to section 105 of the Evidence Act by drawing adverse intetencej fwhenf the presence of accused at the place as incident is doubtful, he is not egpected to ernlaih anything much less how the dead hhody4,cafieg into shouse. It is quite possihle--for the deceased to visit that house for some reason: lhfived it the deceased has visited the said house to see her foster son or other 'Ainmates,_ the crime cannot be connected to the '"accusedk_ 31{'d ffiut in the present case except the misunderstandings and pendency of the matrimonial i»litigation between the parties no other circumstance is established. The other circumstance i.e., the place of dead body in the house of the accused also would not lead us ta, the conclusion that accused alone is responsible ' for the incident in question. "Noz circumstancel should suggest or should be, inconsistent bnigh-
that of the innocence of the accused;, g
32. In the present7 case, 'even if two circumstances are accepted;Wthey,uould not lead us to thewccnciusicn_tnatfiaccused alone is guilty of the comnission of the crime.
333 Viewed frofifiany angle, from the entire reasoning of the trial court in the judgment of Vlacguittal,*one cannot point out any perversity. i34ldlBaving' regard. to the above discussion, we are, of the opinion there are no grounds to 2R,interfere with the judgment and order of hacguittal of the trial court. Accordingly, the M appeal deserves to be dismissed and stands dismissed.
S.=\ K/K\-*"S