B. Srinivas Byrappa vs D.K. Venkatarama Kondappa

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 17.3.2012 passed by the Sessions Court, Kolar in S.C.No. 130/2011 is called in question in these appeals.

By the impugned judgment, the trial Court has acquitted the accused of the offences punishable under Sections 302 and 392 of IPC.

Crl.A.No.706/2012 is filed by the original complainant questioning the judgment and order of acquittal, whereas Crl. A.No.731/2012 is filed by the State against the judgment and order of acquittal. Both the appeals are taken up together for hearing and the following order is made.

Case of the prosecution in brief is that deceased Jayamma is the younger sister of the complainant Srinivas(P.W.1); she had married Hanumappa of Dodda Attihalli village about 20 years prior to the incident; two children namely, Shwetha and Shivaraj were born out of the wedlock; 13 years prior to the incident, husband of Jayamma had expired due to ill-health and thereafter, the complainant was looking after the family of Jayamma; the house wherein Jayamma was residing was situated at Annehalli and the same was having two portions, one portion was occupied by Jayamma and her daughter and the other portion was occupied by Rajappa, S/o Munivenkatappa (relative of husband of Jayamma); though both the portions of the house were owned by husband of Jayamma, said Rajappa was not ready to vacate the house despite advice by the villagers; Rajappa was asking the deceased to sell the said house to him; however, Jayamma did not agree for the same.

On 14.3.2011 Jayamma had been to the house of complainant and asked for certain amount of money; she also took back the two row gold chain which she had given to the complainant; she was wearing the gold chain and other ornaments when she attended the marriage two days prior to the incident in question; the complainant had assured Jayamma that he would come to the village on 20.3.2011 and talk to Rajappa for vacating the house.

On 19.3.2011 Shwetha-P.W.2 (daughter of the deceased) and the deceased Jayamma went to the land of Ravi (CW 16) to bring fodder; after collecting one bunch of fodder, Shwetha came back to the house and the deceased remained in the land for collecting some more fodder for the cattle; however, deceased did not come back to the house till 6.30 p.m.; being worried, Shwetha enquired with her relatives and neighbours including Ramesh, Venkataravana, Kondappa etc., who in turn started searching for Jayamma; ultimately, they found the dead body of Jayamma in the land of C.W.16; deceased was murdered by cutting her neck and by throwing stone on her; the gold ornaments viz., ole (ear studs) and two row chain were missing from the person of the deceased; on being informed, R W.1 came to the village and thereafter lodged the complaint after seeing the dead body; the complaint as per Ex.P1 came to be registered before Nangali police station in Crime No. 35/2011 by the Sub-Inspector of Police P.W. 11; the FIR as per Ex.P16 was sent to Court. P.W. 13, the Inspector of Police completed the investigation and laid the charge-sheet.

In order to prove its case the prosecution in all examined 13 witnesses and got marked 25 exhibits and 14 material objects. On behalf of the defence 3 exhibits were got marked. As mentioned supra, the trial Court, on evaluation of the material on record, acquitted the accused.

Sri. Siji Malayil, learned advocate for the complainant and Sri. Vijayakumar Majage, learned Addl. SPP appearing on behalf of the State, taking us through the material on record argued that all the six circumstances relied upon by the prosecution are proved beyond reasonable doubt; the circumstances so proved form complete chain of circumstances, which does not leave any scope for the accused to escape; the circumstances so proved will lead to the only conclusion that the accused and accused alone has committed the offence.

Per-contra, Sri. A.H. Bhagavan, learned advocate appearing on behalf of the accused argued in support of the judgment of the Court below.

Before proceeding further, it would be relevant to note the depositions of each of the witnesses in brief.

P.W. 1 is the brother of the deceased. He has deposed that few days prior to the incident in question the deceased had come to his house and had taken two row gold chain with her, in order to wear the same in a marriage; on being informed by the villagers about the death of the deceased, P.W.1 came to Doddahatti Halli village and saw the dead body of the deceased and thereafter lodged the complaint as per Ex.P1.

P.W. 2 is the daughter of the deceased. She went along with the deceased to the field on the date of the incident, but returned early; she has deposed about missing of the ornaments from the person of the deceased.

P.W. 3 is from the same village. He has seen the dead body; he has deposed that ornaments worn by the deceased were missing; he has deposed about the recovery of M.Os.1 and 2 i.e., gold chain and ole on the basis of the information given by the accused under panchanama Ex.P5; he has also deposed about the recovery of lungi and shirt M.Os.11 and 12 from the accused. According to him, the said clothes were blood stained.

P.W. 4 is the relative of the deceased. According to him, the deceased had made extrajudicial confession before him immediately after the incident. However, the statement of P.W.4 was recorded by the police on 28.3.2011

P.W. 5 has deposed that he saw the accused going towards the land of Ravi (C.W. 16) just prior to the incident in question.

P.W. 6 is the Doctor. She examined the accused on 31.3.2011 and found that two scratches found on the face of the accused were healed. She has given the certificate as per Ex.P10.

P.W. 7 is another witness for recovery of chain and ole M.Os.1 and 2 under Ex.P5.

P.W. 8 is the witness for mahazar Ex.P13 under which, lungi and shirt of the accused as per M.Os. 11 and 12, which were blood stained were recovered from the house of the accused.

P.W. 9 is the gold smith. According to him, he went along with the panchas, accused and the police to the place wherein the accused had hidden the gold ornaments M.Os.1 and 2 and he weighed the gold jewels after recovery of the gold ornaments.

P.W. 10 is the Doctor who conducted autopsy of the dead body. The post-mortem report is at Ex.P15. The Doctor has opined that the death is due to cardio respiratory arrest secondary to injury to vital organ brain so also, due to respiratory arrest secondary to tracheal injury caused due to incised wound to trachea.

P.W. 11 is the Inspector of Police. He received the complaint as per Ex.P1 and registered the crime. He has conducted part of investigation.

P.W. 12 is the Police Constable. He carried FIR to the Court.

P.W. 13 is the Inspector of Police. He completed the investigation and laid the charge-sheet.

From the aforementioned it is clear that there are no eyewitnesses to the incident in question. The case of the prosecution fully rests on the circumstantial evidence. The circumstances are as under:

(1) The accused was seen going towards the land of C.W. 16 by P.W.5.

(2) The accused made extra-judicial confession before P.W.4 on the very day of the incident.

(3) Recovery of gold chain and ear stud (M.Os.1 and 2) belonging to the deceased at the instance of the accused under panchanama Ex.P5.

- P.Ws.3 and 7 are the mahazar witnesses; P.W.9 is the gold smith who weighed the gold ornaments after the recovery and P.W. 13 is the investigation officer who has deposed about the circumstance of recovery.

(4) Recovery of blood stained clothes of the accused (M.Os.11 and 12) under panchanama Ex.P13.

- P.W.8 is the mahazar witness and P.W.13 is the investigation officer.

(5) Abscondence of the accused till 31.3.2011.

-P.W.7 has deposed about the said circumstance.

(6) The accused was found with two scratch injuries on his face on the night of the incident.

- P.W.5 has deposed about the said circumstance and the same is supported by the evidence of P.W.6(doctor who issued certificate as per Ex.P10).

Since the case rests on circumstantial evidence, burden is on the prosecution to prove the circumstances and the circumstances so proved should form a complete chain, so as not to leave any doubt in the mind of the Court about the complicity of the accused. The chain of circumstances so proved will have to lead to the only hypothesis that the accused is the actual culprit. However, the trial court having discussed each and every circumstance has concluded that the circumstances relied upon by the prosecution are not proved beyond reasonable doubt.

Regarding circumstance No. 1

It is the case of the prosecution that P.W.5 saw the accused going towards the land of C.W. 16 during the relevant point of time. Undisputedly, P.W.5 is the relative of the deceased. There cannot also be any dispute that the land of C.W. 16 is surrounded by other lands also. P.W.5 has deposed that at about 4.30 p.m. when he was in his land, he saw the accused working in his land; the land of the accused is by the side of the land of P.W 5; however, the land of C.W. 16 Ravi where the incident has taken place is at a distance of 300 mtrs. away from the land of P.W.5; at about 5.00 or 5.30 p.m., P.W.5 saw the accused going towards the land of C.W. 16 and at about 6.30 p.m. he saw the accused returning from the land of C.W. 16. However, he did not notice any injuries on the person of the accused as he was far away. At about 7.00 or 7.30 p.m. there was hue and cry in the village and on making enquiry he came to know that Jayamma was murdered. He went to the scene of offence and saw the dead body of Jayami in. While he was returning to village at 8.30 p m. after seeing the dead body he saw the accused standing near the house of the accused and at that point of time he saw scratch marks on the face of the accused He was treated hostile by the Public Prosecutor on the point that P.W.5 did not support the ease of the prosecution about he witnessing the accused with scratch marks while the accused was returning to his land at 6.30 p.m. Even in the cross-examination by the Public Prosecutor, PW.5 has deposed that he had not seen the scratch marks on the face and nose of the accused and he had not seen the blood stain doll es while the accused was passing near his land at about 6.30 p.m. During the cross-examination by the defence, P.W.5 has deposed hat at about 10.00 or 11.00 p.m. the police came to the village after hearing the news of death of Jayamma; when the police came to the village, the villagers had assembled on the street; at that time, himself, P.W.4, C.W.3 Ramesh, C.W. 16 Ravi were present along with other people. However, at that point of time he did not tell the police that he saw the accused going towards the land of C.W. 16 at 6.30 p.m. According to him, his statement was recorded on 21.3.2011, but according to the investigation officer, the statement of P.W.5 was recorded on 25.3.2011.

Be that as it may. The fact remains that P.W.5 has not disclosed before anybody including the complainant who is the relative of P.W.5 about the accused going towards the land of C.W. 16 and coming back from the land of C.W. 16 at about 6.30 p.m. and that the accused was having scratch marks on the face. This information was withheld by P.W.5 for at least Six days i.e., till 25.3.2011 on which day his statement was stated to have been recorded. Ex.D3 is marked during the cross-examination of P.W.5. Ex.D3 discloses that the deceased had got illicit relationship with one Manjunath. Having regard to the aforementioned deposition of P.W.5 it is amply clear that the vital information which P.W.5 only knew about the accused allegedly going towards the land of C.W. 16 and coming back from the said land at 6.30 p.m. was withheld by him till 25.3.2011 though he was very much present in the village and though he had talked with number of people including the complainant and the police. There is no reason as to why P.W.5 should keep quiet without disclosing such information before anybody including the police. Moreover, his evidence with regard to accused sustaining scratch marks on his face also is shaky. Except the evidence of P.W.5, we do not have any other material to show that the accused was going towards the scene of offence during the relevant point of time. Even assuming that accused had gone towards the land of C.W. 16, it is not open for the prosecution to contend that the accused had gone only to the land of C.W. 16, particularly in the light of the fact that the land of the accused was also situated near the land of C.W. 16. In the normal course the accused could have gone to his land also for agricultural operations.

Regarding circumstance No. 2 (extra judicial confession):

PW.4 has deposed that the accused has made extra-judicial confession before him on the very night of the incident in question. Though such deposition is forthcoming from RW.4 in the examination-in-chief, in the cross examination it is clearly admitted by P.W.4 that he did not see the accused at about 9.00 p.m on 19.3.2011 (as was stated in his examination-in-chief); he did not see the accused in a frightened mood on 19.3.2011; he has not asked the accused as to why he is frightened and consequently, the accused did not tell PW.4 that he has killed Jayamma and therefore, he was frightened; so also, the accused not told before him about the robbing of gold ornaments from Jayamma etc. He has further clarified that he has not stated before the Police that he saw the accused on 19.3.2011 These clear admissions of PW.4 in the cross examination completely erase his version as found in the examination-in-chief with regard to extra-judicial confession. In view of the same, the Trial Court is justified in concluding that the said circumstance relating to extrajudicial confession allegedly made by the accused is not proved by the prosecution.

Regarding circumstance No. 3:

The third circumstance is relating to recovery of gold chain and ole (ear-studs) M.O.Nos.1 and 2 belonging to the deceased, at the instance of accused under panchanama - Ex.P5. PWs.3 and 7 are the mahazar witnesses for the said panchanama. PW.9 is the Goldsmith, who went with the police and Panchayathdars to the scene of offence and weighed the gold after recovery. PW. 13 is the Investigating Officer, who has deposed about the circumstance of recovery.

P.W.3 has deposed that at about 11.00 a.m on 31.3.2011, the Circle Inspector of Police brought the accused to the village; himself. Siddappa and Srinivasappa were requested to be Panchayatdars; the Videographer and the Photographer were also brought by the Police; then the accused led the Police and Panchayathdars to Dodda Kere Tank in the village; the accused after getting down from the jeep, went near the bush; there was a big stone and the accused pushed the said stone aside; after removing the earth/mud, the accused produced M.O.Nos.1 and 2, which he had buried in the ground. They were seized under panchanama Ex.P5. At the time of seizure, the gold ornaments were weighed by the Goldsmith

In the cross-examination, PW.3 has admitted that till 31.3.2011, himself or any of the villagers did not suspect either CW.6- Rajappa or the accused as the persons who committed the murder of Jayamma; there were no blood stains or mud stains on M.O.No.1 - gold chain and M.O.No.2 - ear-studs; the Police did not affix paper slips with signature of Police and Panchayathdars on M.O.No. 1 - gold chain and M.O.No.2 - ole (ear-studs) as well as on the stone.

From the aforementioned version of PW.3, it is amply clear that M.O.Nos.1 and 2 were buried under the ground and they were removed and were seized under panchanama. However, it is clear that the Police did not affix the paper slips with the signature of Police and Panchayathdars on M.O.Nos.1 and 2 as well as on the stone seized. If really the Police had seized M.O.Nos.1 and 2 as required under law, it is incumbent on the Police to affix the paper slips containing the signature of Police as well as Panchayathdars on the Material Objects seized. Hence, it is clear that the process of seizure is improper and incorrect. In that context, the defence is justified in arguing that these Material Objects are planted by the prosecution only to suit the purpose of its case. The evidence of PW.3 will have to be tested along with PW.7, who is another witness for mahazar Ex.P5. He has also deposed that at about 11.00 a.m. on 31.3.2011, the accused led the Police and Panchayathdars to the place near Dodda Hatti Kere situated by the side of the village: the accused removed a stone and dug the earth below it and produced M.O.Nos.1 and 2; during the recovery proceedings, the photograph was taken as per Ex.P11 with regard to M.O.Nos.1 and 2.

In the cross-examination, PW.7 has admitted that the Police have not recorded his statement and he has not stated before the Police that he had seen Jayamma, who was wearing gold chain and ole at the time of the marriage in the month of March, 2011; he has not stated before the Police that he went and saw the dead body of Jayamma and ornaments were missing from her person; that he has not stated before the Police that the accused was missing from the village from the next day of murder. He has also admitted that the Police did not seal M.O.Nos. 1 and 2 after seizing the same as there were no blood stains on M.O.Nos.1 and 2. He has clearly admitted that about 5 to 6 persons were present when photograph Ex.P10 was taken and he is not appearing in the said photograph. From the evidence of PW.7, it is clear that M.O.Nos.1 and 2 were not sealed at all after seizure. Consequently, we are of the opinion that the evidence of PW.7 fully supports the evidence of PW.3, who has deposed that the said gold ornaments were sealed and the paper slips containing the signature of Police and Panchayathdars were not affixed on the gold ornaments. Since the gold ornaments themselves were not sealed, there is a lot of scope for suspecting the truthfulness of the investigation. Moreover, PW.7 has not deposed about the presence of PW.9 - Goldsmith, who was allegedly present at the time of seizure.

PW.9 who was stated to be present at the time of seizure of M.O.Nos. 1 and 2 has also deposed that the gold chain and pair of ole were concealed in the ground and they were taken out by the accused. He clearly admits in the cross-examination that, he also does not appear in the photograph - Ex.P11 and so also M.O.Nos.1 and 2 (gold ornaments) do not appear in Ex.P11. It is clearly admitted by PW.9 that there were no blood stains on M.O.Nos.1 and 2.Curiously and more importantly, he also supports the evidence of PWs.3 and 7 to the effect that the paper slips with signature of Police and Panchayathdars were not affixed on the sealed articles. It is also admitted by him that he has given the evidence in five or six other cases on behalf of the Police. From the evidence of PW.9, it is amply clear that, he is a stock witness of the Police. So also the ornaments, which were allegedly seized were not sealed and they were kept open. Such ornaments were not blood stained.

It is the case of the prosecution that the face and neck of the deceased were crushed because of throwing up of stone on the face of the deceased as well as by cutting the neck of the deceased with axe or sickle, but not even a drop of blood was found on M.O.Nos. 1 and 2 as is clear from the versions of PWs.3, 7 and 9.

Ex.P11 is the photograph and the same does not disclose that M.O.Nos.1 and 2 were removed from the soil. ''Hie photograph on record discloses that the stone is kept in a barren land and hence, the Court is at a loss to understand as to how M.O.Nos.1 and 2 were allegedly hidden by the accused.

Looking to such version on record, it would be very difficult for the Court to believe the case of the prosecution that M.O.Nos. 1 and 2 were recovered, at the instance of accused No. 1.

Curiously, PW. 13 - Investigating Officer also clearly admits that the paper slips were computerized paper slips and they were affixed on Material Objects and they did not bear the signatures of Panchayathdars. It is also further admitted by PW. 13 that the accused has not stated in his voluntary statement that he had concealed the gold ornaments near Venkataramana Kere and M.O.Nos.12 and 13 were not stained with blood. It is also not mentioned in panchanama Ex.P5 that M.O.Nos.1, 2 and 13 were mud stained. It is clearly admitted by PW. 13 that the paper slips with the signatures of the Investigating Officer and Panchayathdars were not affixed on the seized articles. So also, it is not mentioned in the mahazar that PW.9 (Goldsmith) weighed and valued the gold ornaments on the spot itself. This clear admission of Investigating Officer fully supports the defence version that the recovery of gold ornaments is a make-1 believe affair.

Regarding circumstance No. 4:

The fourth circumstance is with regard to recovery of the blood stained clothes of the accused. Ex.P13 is the panchanama. PW.8 is the witness for mahazar Ex.P12 and PW. 13 is the Investigating Officer.

According to the case of the prosecution, lungi and shirt - M.O.Nos. 11 and 12 were re- covered on 31.3.2011 from the house of (he accused, at the instance of accused. PW.8 has deposed that, at the time of recovery and seizure of blood stained clothes - M.O.Nos.11 and 12, the photograph as per Ex.P12 was taken. It is admitted by PW.8 that, in the photograph Ex.P12, the accused and PW.8 only are appearing and none else; in Ex.P12- photograph, M.O.No.11-lungi was not found, the blood stained clothes were not appearing in the photograph Ex.P12, though the photographs were taken at the time of mahazar, PW. 13 - Investigating Officer has deposed that the mahazar - Ex.P13 does not mention that at how many places there were blood stains on the clothes M.O.Nos. 11 and 12 (lungi and shirt). Since there was lapse on the Investigation and as the photograph Ex.P12 did not depict blood stains over the clothes seized, the Investigating Officer seems to have tried to improve the case of the prosecution when the matter was posted for judgment before the Trial Court. It is relevant to note here itself that, after hearing at length, the matter was posted for judgment. On the date of delivery of judgment, an application came to be filed by the prosecution to reopen the case in order to give opportunity to the prosecution to produce additional documents as per Exs.P21 to P25. The said request was acceded to by the Trial Court and the additional photographs were produced and they were marked as Exs.P21 to P25. If really such photographs were in existence while the trial was going on at the first instance, the Investigating Officer would not have missed to produce such photographs. As mentioned supra, the photographs Exs.P11 and P12 show only two persons. Since it was argued by the defence that those photographs do not really support the case of the prosecution, it seems the prosecution wants to rebuild the case by producing the additional photographs, which show the Police Officers and Panchayathdars in the photographs.

It is no doubt true that M.O.Nos. 11 and 12 (lungi and shirt) seized were sent to Forensic Science Laboratory examination. The Serologist Report discloses that the blood group found on the clothes of the accused matches with the blood group of the deceased i.e. TT Group of blood. Merely because M.O.Nos. 11 and 12 were found to have contained ''B'' Group of blood, the same would not enure to the benefit of the prosecution, unless it is shown that those clothes were recovered and seized, as per law''. Since we find from the evidence of PWs.8 and 13 that the recovery of M.O.Nos. 11 and 12 is doubtful, no useful purpose will be served on behalf of the prosecution by relying upon the report of Forensic Science Laboratory. Moreover, as observed by the Trial Court that it is highly improbable for the accused to preserve the blood stained clothes M.O.Nos. 11 and 12 in his almirah situated in his house till they were seized more particularly when the Axe allegedly used by the accused for commission of offence was not preserved by the accused. The preservation of the blood stained clothes for about 12 to 13 days by the accused, that too in the house, appears to be highly improbable and against the normal human conduct and hence, the Trial Court is justified in not relying upon the evidence relating to the circumstance of recovery of blood stained clothes M.O.Nos.11 and 12.

Regarding circumstance No. 5:

The fifth circumstance is with regard to abscondence of the accused till 31.3.2011. It is the case of the prosecution that the accused absconded till 31.3.2011 after the incident. Though PW.7 has deposed that the accused was unheard off after the date of incident till 31.3.2011, in the cross-examination he has clearly admitted that he has not stated so before the Police.

Since, it is admitted by PW.7 that he has not stated before the Police about abscondence of the accused, it is clear that his version is coming from him for the first time before the Court. Moreover, the evidence of PW.3 makes it amply clear that he had seen the accused in his house after the incident and he had talked with the accused also. If really the accused had absconded as per the case of the prosecution, he would not have been found in his house in the village itself immediately after the incident. Moreover, as is clear from the evidence of PW.3 that neither himself nor any of the villagers suspected the hand of the accused till 31.3.2011. So also, nothing is placed on record by the Investigating Officer to show that the attempts were made by the Police trace the accused, who was allegedly absconding. In view of the same, we find that the said circumstance of abscondence is not proved by the prosecution.

Regarding circumstance No. 6:

The last circumstance relied upon by the prosecution that two scratch marks found on the face of the accused. PVV.5 has deposed about the accused was having two scratch marks on his face. The evidence of PW.5 is supported by the evidence of PW.6 - Doctor and the certificate Ex.P10. It is no doubt true that the evidence of the PW.6 - Doctor and the wound certificate - Ex.P10 clearly disclose that the accused had sustained two scratch marks on his face and the said marks are as under:

"1. Healed scratch mark present right medial aspect of eye. 1 x 1 cm.

Healed scratch mark in front of neck, medial aspect of lower 1/3 of sterno cledo mastoid muscle."

The Doctor has also opined that the wounds mentioned supra can be caused with sharp objects such as thorns or nails. The first injury mentioned supra is measuring 1 cm x 1 cm on the right medial aspect of eye. Insofar as the second injury is concerned, there is a scratch mark in front of neck. However, no measurement is mentioned by the Doctor, which clearly reveals that it is a negligible scratch mark. The Doctor has also opined that the age of the wound is about 10 15 days. Prima facie, it appears that the accused has sustained two scratch marks on Ins face. It leads to certain amount of suspicion against the accused, inasmuch as the accused has not tried to explain about sustaining of such scratch marks on his face. Hence, at the most, it can be said that the last circumstance relied upon by the prosecution is proved anil the same would lead to suspicion against the accused.

Be that as it may, as the prosecution has relied upon six circumstances and as it has failed to prove five major five circumstances and has proved only one circumstance relating to availability of two small scratch marks on the face of the accused, it cannot be said that the prosecution has proved its case beyond reasonable doubt. The proof of last circumstance may generate certain amount of suspicion against the accused.

There cannot be any dispute that any amount of suspicion or grave suspicion cannot be equated to proof beyond reasonable doubt. The prosecution has to prove its case beyond reasonable doubt. Since we find that the five circumstances out of the six circumstances are not proved by the prosecution to the satisfaction of the Court and as we find that the Trial Court has assigned valid reasons for disbelieving the case of the prosecution relating to such five circumstances, it is concluded that the prosecution has not proved its case beyond reasonable doubt. Since the view taken by the Trial Court while acquitting the accused is plausible view under the facts and circumstances of the case, no interference is called for.

Accordingly, appeals fail and the same stand dismissed.