Basappa Balappa Maloji and Others vs The State of Karnataka

S. Sujatha, J—This appeal is filed by the accused challenging the judgment and conviction and order of sentence passed by the Principal Sessions Judge, Belgaum in S.C. No. 237/2010.

Heard the learned counsel for the accused as well as the learned Additional State Public Prosecutor.

The appeal arises from the following facts:

"The Deputy Superintendent of Police, Bailhongal filed charge sheet in C.C. No. 220/2010 on the file of the JMFC Bailhongal alleging that after the marriage of accused No. 1- Basappa Balappa Maloji with Vijayalakshmi daughter of complainant Yallappa Lakshman Pujeri, solemnized on 24.03.2006, Vijayalakshmi came to her matrimonial house. Initially, for about six months the husband- accused No. 1 and accused Nos. 2 and 3 said to have looked after the deceased well and subsequently, started pressurizing the said Vijaylakshmi to bring money from her parental home for fixing motor to the bore well and laying pipe in the land. It is alleged that the accused had subjected the Vijayalakshmi to physical and mental cruelty for not bringing money as desired by the accused persons. It is mentioned that accused Nos. 1 to 3 intentionally caused her death at about 10.30 p.m. on 21.02.2010 in their house by assaulting with (''Y'' shaped club) on her stomach and arms and by squeezing her neck by using (''Y'' shaped club) and thereby committed the offence punishable under Sections 498-A and 302, 304-B read with Section 34 of IPC."

On the basis of the charge sheet, accused Nos. 1 and 2 were arrested on 24.02.2010 at 14.00 hours and accused No. 3 on 05.03.2010 at 11.00 hours by PSI, Kittur Police Station and produced before the JMFC, Bailhongal. The case was committed to the Sessions Court by order dated 26.05.2010. After receiving the committal records and thereafter hearing both the parties, charge was framed on 03.01.2011 in respect of offences punishable under Sections 498-A, 302 read with Section 34 IPC. The accused abjured guilt, case was posted for trial. The prosecution in order to substantiate the charges levelled against the accused examined as many as 21 witnesses, 42 documents and 5 Material objects were marked. Accused Nos. 1 to 3 were examined in conformity with Section 313 Cr.P.C., the accused filed written statement and adduced defence evidence by examining the defence witnesses. Upon consideration of evidence, trial Court convicted the accused persons and each of the accused is sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each, for commission of offence punishable under Section 302 read with Section 34 IPC. In default of payment of fine, they shall undergo imprisonment for a further period of three years. Each of the accused is further sentenced to undergo rigorous imprisonment for a period of three years for the commission of offence under Section 498-A read with Section 34 IPC.

It is the case of the appellants that, accused No. 1 and deceased Vijayalakshmi along with their daughter Kumari Neelambari were residing in the farm house situate in the land of the accused and accused Nos. 2 and 3 were residing in another house situate within village of Deagon with other son (juvenile) and as such, the theory of mental cruelty alleged is not acceptable. It is argued that, the reasons assigned, inferences drawn and the conclusion arrived at by the trial Court for convicting the appellants is contrary to the evidence on record. Primarily, there being no eye witnesses to the alleged incident nor any witnesses to speak either regarding affairs that are immediately prior to the alleged incident or to narrate regarding movements/suspicious movements/last seen circumstance of the appellants immediately on or after the alleged incident of crime, the prosecution having miserably failed to prove the case beyond doubt, the trial Court ought not to have convicted the appellants. No motive is established by the prosecution to commit the brutal crime by the accused. It is the case of the accused that they were away from the place of the incident, they were at Mylaralingeshwara temple at Mailar, the main deity being the family deity of the appellants. The whole incident has come to their knowledge only when the accused No. 1 got telephonic message from one of the villagers that Vijayalakshmi was murdered by some dacoits after committing theft in the farm house and as such, immediately, they rushed to the village with great shock, after finding the deceased in the "totti" of their farmhouse being murdered, proceeded to the jurisdictional police station to lodge a complaint. Learned Counsel appearing for the appellants submitted that the case is based on circumstantial evidence and the chain of circumstances highlighted is incomplete warranting the acquittal of the accused.

The learned Additional State Public Prosecutor justified the judgment and sentence passed by the trial Court, vehemently contended that the plea of alibi addressed by the accused was not proved. Circumstantial evidence suggests the involvement of the accused in the commission of offence which cannot be discarded only for the reason that the prosecution has failed to prove the presence or movements of the accused at the time of incident/immediately after the occurrence of the accident, the same being not fatal. Nature of injuries found on the dead body coupled with the material objects (M.O. 1 and 2) seized fortifies the offence committed by the accused with the motive of displeasure in not getting money from the parental house of deceased Vijayalakshmi to lay down the pipe to fix the water pump in the land. The jewels found on the dead body of the Vijayalakshmi namely, the nose thread, kalungara, karimani mangalyam chain etc., established by photos Exs. P14, 15, 17 and 18 suggests the plea of alibi and the thieves attacking the deceased to take away the valuables from the house is concocted story built up by the accused not worth of acceptance.

Having heard the learned counsel for parties and perusing the material on record, we have carefully examined the evidence on record. P.W. 11, the father of deceased has deposed that the accused were putting pressure on the deceased Vijayalakshmi to get the money from her parental house to fix the electric motor to the borewell, which the deceased has disclosed with her parents on her visit to the parental house during the festival and jatra. However, in this regard, he has visited the matrimonial home of the deceased with P.W. 15-Ningappa Arakeri, pleaded their inability to give money or gold as desired by the accused, because of their poor financial condition and requested the accused not to ill-treat Vijayalakshmi. Further P.W. 11 has stated, with the ray of hope that their daughter may be well treated by the accused, he presented one milching buffalo and a pair of bullocks to the accused. In the cross-examination, he has stated that after Vijayalakshmi''s death, the milching buffalo and the pair of bullocks were brought back to his house. P.Ws. 11, 12 and 14 have given evidence regarding the harassment given by the accused demanding money and gold for laying pipes and fixing motor to the borewell. P.W. 6 who is said to have communicated the message of the incident to the parents of the deceased and the other witnesses PWs 4 and 5 turned hostile. It is also pointed out by the appellants that the evidence of P.Ws. 11 to 13 varies from the complaint at Ex. P21, the plea of alibi taken by the appellants that they were at Mylar Temple at the time of the incident, after knowing the incidence, they rushed to the farm house is negated by the trial Court. The consistent stand of the appellants is that they were at the Mylar Temple at the time of incident, on the other hand, the prosecution has not placed any evidence to prove the presence of the accused or movements of these accused at the time of incident or immediately after the incident which is fatal to the case. The prosecution case, murder was committed at by causing the brutal injuries using wadavalike kattige, by the accused, thereafter, shifted to the "totti" where the dead body was found is not proved, vis-�-vis, the injuries found on the body of the deceased as per P.M. report. Consequently, the chain of circumstances is incomplete raising benefit of doubt in favour of the accused. The circumstance of the alleged production of weapons at MO.S. 1 and 2 by the accused on their arrest and seizure and the panchanama Ex. P7 and P8 do not inspire confidence, as the Panchas P.W. 4 and 5 have not supported the case of the prosecution.

Admittedly, there is no eye-witness and the prosecution case is based on circumstantial evidence.

In the case of Shivu and Another Vs. R.G. High Court of Karnataka and Another, (2007) CriLJ 1806 : (2007) 3 JT 332 : (2007) 3 SCALE 157 : (2007) 4 SCC 713 : (2007) 2 SCR 555 , Apex Court has held as under:

"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh V. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where that case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt"

It emerges that the circumstantial evidence must prove the guilt of the accused beyond reasonable doubt.

To bring home the motive, the prosecution has placed that the deceased was residing with all the accused and accused No. 1''s brother (juvenile) in the farm house in the land bearing Sy. No. 397 of Degaon village, the evidence of the parents of the deceased would show that prior to the present incident, the accused were ill-treating the deceased as well as causing mental and physical cruelty by way of pressurizing the deceased to bring money from the parental home and in view of inability of the deceased to bring the required money for fitting motor to the borewell and laying pipe line in the land of the accused, the accused joined together and caused the death of Vijayalakshmi on the night of 21.02.2010 at about 10.30 p.m. at their farm house by using causing injuries as well as strangulating her. The theory of alibi taken by the accused was denied by the prosecution, as the same being not supported by adequate evidence to prove the same. The important evidence of last seen circumstances of the accused is not made out by the prosecution. No attempt is made by the prosecution that the nail scratches found on the dead body of the Vijayalakshmi was of the accused. Nothing is come on record about the whereabouts of the child Neelambari at the time of occurrence of the incident.

It is also pertinent to note that, it is not proved beyond reasonable doubt that seized material objects or weapons were actually used for committing the offence of murder. As per the postmortem report Ex. P3, the scratches on the both the sides of the neck are specifically referred to as finger nail scratches, not as mere scratches or scratches caused by sharp edged object, further the injuries to the liver and homicidal strangulation are the fatal injuries, homicidal strangulation is by hand as finger nail scratches were found on both sides of neck. No evidence is produced by the prosecution that nail scratches were caused by the accused, moreover, the medical opinion of P.W. 3 as per Ex. P5 regarding M.Os. 1 and 2 raises suspicion in view of inordinate delay in between the date of conducting the postmortem i.e., on 23.03.2010 and giving opinion on 06.04.2010 after receiving the material objects at Ex. P5. No material objects were found with the protruding edge to cause the injury sustained by the deceased. With all these discrepancies found in the case of the prosecution, it can be held that the prosecution has not proved beyond doubt that the accused have committed the murder for a motive. In the absence of eye witnesses, P.Ws. 4, 5 and 6 turning hostile in the trial, no proof of accused present at the time of incident or immediately thereafter, suggests the sequence of events sought to projected by the prosecution is not acceptable. A serious offence punishable under Section 498-A of CPC r/w Section 302 of IPC along with other provisions of Code would require the prosecution to establish the case beyond all reasonable doubt. We are of the considered opinion that the accused are required to be acquitted on benefit of doubt in the absence of complete chain pointing to the guilt of the accused.

As seen from the facts and circumstances, and findings arrived at by the Courts below, it cannot be held that prosecution had established the case beyond all reasonable doubt. The appeal is allowed and the order of conviction passed by the Principal Sessions Judge, Belgaum in S.C. No. 237/2010 is set aside, all the accused are set at liberty forthwith. The operative portion of the judgment to be transmitted to the jail authorities for the release of the accused forthwith.