Chikkathayamma and Others vs The State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction dated 22.09.2011, passed by the Fast Track Court, Srirangapatna, in S.C. No. 38/2003 is called in question in these appeals by the convicted-accused.

Crl. A. No. 1110/2011 is filed by convicted accused No. 6; Crl. A. No. 16/2012 is filed by convicted accused Nos. 2 and 5 and Crl. A. No. 58/2012 is filed by the convicted accused No. 4. Though allegations were made against six accused persons, charge sheet came to be filed against five persons. Accused No. 3 namely, Prakash was not sent up for trial. The trial proceeded against the remaining five accused i.e. accused Nos. 1 and 2 and accused Nos. 4, 5, and 6. The trial Court acquitted accused No. 1 of all the charges leveled against him. However, accused Nos. 2, 4, 5 and 6 are convicted by the trial Court for the offences punishable under sections 302, 341, 201 read with Section 34 of IPC and they were sentenced accordingly.

The case of the prosecution in brief is that accused Nos. 1, 2, 3 and husband of accused No. 6 are genitive brothers; accused No. 4 Siddaraju who is the resident of Battalli village is the brother-in-law of accused No. 3. Accused No. 5 who is the resident of M. Shettahalli village is the sister''s son of accused Nos. 1, 2 and 3. The land of accused Nos. 1, 2, and 3 is adjoining the land of deceased Chinnaswamachar. Accused had laid pipe underneath the land of the deceased for irrigation purposes from the Channel. In that regard, there used to be frequent misunderstanding between the deceased on one side and accused Nos. 1, 2 and 3 on the other side. In addition to the same, there was a land dispute between accused Nos. 1, 2 and 3 on one side and Shivalingegowda -P.W. 21 on the other side. In that regard, accused Nos. 1 to 3 requested the deceased to give evidence in their favour before the Assistant Commissioner in the Revenue proceedings. However, the deceased had refused to oblige the request of accused Nos. 1 to 3 and therefore accused were nursing grudge against the deceased.

The incident in question has taken place at about 7.00 P.M. to 9.00 P.M. on 13.9.2002. It is the case of prosecution that on 13.9.2002, accused Nos. 2 to 6 were involved in agricultural operations in their fields, whereas the deceased, his son- P.W. 1 and wife- P.W. 15 had engaged in agricultural operations in their field which is adjoining the agricultural land of accused Nos. 1 to 3; accused Nos. 2 to 6 quarreled with the deceased and his son on the ground that the deceased did not support them by deposing in their favour before the Assistant Commissioner. Accused No. 6 had taken the cattle on the crop grown by the deceased and in that regard also, the deceased, P.W. 1 and P.W. 15 had quarreled with accused No. 6. P.Ws. 1 and 15 remained in the field upto 4 to 4.30 P.M. on 13.9.2002 and thereafter went to their house for participating in Ganesha Immersion Ceremony. Hence, the deceased alone was in the land and the deceased told P.Ws. 1 and 15 that he would come later by collecting grass for the cattle. Accused Nos. 2 to 6 were also still working in their field. The deceased did not come back to his house upto 9.00 P.M. and therefore, P.Ws. 1 and 15 came out of their house and started searching for the deceased. They found a pair of chappals; a lungi and a towel on the way; however, they did not get the clue of the deceased; the lungi so seen by P.Ws. 1 and 15 was belonging to accused No. 4; the pair of chappal were of accused Nos. 6 and blood stained towel was that of the deceased. Since, P.Ws. 1 & 15 did not get any clue about the deceased, they went to the house and once again started searching for the deceased at about 6.00 A.M. on 14.9.2002. While so searching, once again they saw the very lungi, towel, pair of chappal and bicycle of the deceased and a bundle of grass. On thorough and meticulous search, they found the dead body of the deceased in a cement pipe under a culvert; the face of the deceased was blood stained and thereafter, a complaint came to be lodged at 12.30 P.M. on 14.9.2002 by P.W. 1 as per Ex. P1 before the P.S.I.-P.W. 24 of Srirangapatna police station, who in turn sent the same to another Sub-Inspector of Police- P.W. 29. The said PSI (P.W. 29) registered crime No. 266/2002, based on Ex. P1. F.I.R. as per Ex. P34 was prepared by P.W. 29 which reached the Magistrate at 4.50 P.M. on that day. P.W. 28 laid the charge sheet after completion of the investigation.

In order to prove its case, the prosecution in all examined 31 witnesses, got marked 36 exhibits and 26 material objects. On behalf of defence, 2 exhibits were got marked.

As aforementioned, the trial Court acquitted accused No. 1 and convicted accused Nos. 2,4,5 and 6 for the offences with which they are charged.

Shri Hashmath Pasha, learned Advocate appearing on behalf of the appellants in all these appeals taking us through the material on record submits that the prosecution relies upon four circumstances viz., motive, last seen circumstance, recovery of bloodstained cloths at the instance of accused Nos. 4 and 5 from the house of accused No. 6 and abscondance. Out of those four circumstances, only two circumstances pressed into service by the prosecution namely, the circumstance relating to last seen as well as the recovery of blood stained cloths, are not proved by the prosecution inasmuch as the witnesses who were supposed to depose about the said circumstances have turned hostile. There is nothing on record to show that accused absconded inasmuch as no material is forthcoming to show that the accused intentionally left their native place and hidden elsewhere; accused Nos. 4 and 5 are not from Gowdahalli village of Srirangapana Taluk. They are not concerned with the litigation between accused Nos. 1 to 3 and deceased on any aspect of the matter.

He further submits that, accused No. 4 is brother-in-law of accused No. 3 and accused No. 5 is sister''s son of accused Nos. 1 to 3. Merely because accused Nos. 4 and 5 are relatives of accused Nos. 1 to 3, they should not have been falsely implicated by the prosecution; the allegations found against accused Nos. 2, 4, 5, and 6 are exactly similar to the allegations against accused No. 3. Since accused No. 3 is given up and he is not sent up for trial, the same yardstick had to be applied to other accused also. According to the learned Counsel for the appellants, the trial court has convicted the accused merely on conjunctions and surmises.

Per contra, the learned Government Pleader argued in support of the judgment of the court below by contending that the trial court is justified in convicting the accused based on the circumstances relied upon by it.

P.W. 1 is the son of the deceased. He has lodged the complaint as per Ex. P1. He is the witness for scene of offence mahazar Ex. P2. He has deposed about the motive for commission of the incident. He has also deposed that the deceased was working in the adjoining land in the evening of 13.9.2002 and at that point of time, accused Nos. 2 to 5 were also working in their adjoining land.

P.W. 2 is the younger brother of deceased. He has also deposed about the motive for commission of the offence. He has made efforts to trace the dead body.

P.W. 3 is the elder brother of the deceased. He was supposed to depose about the aspect of motive. However, he has turned hostile.

P.Ws. 4, 5, 7 and 8 are supposed to depose about the last-seen circumstance and about the quarrel between the deceased and 4-5 persons. They have turned hostile.

P.W. 6 is another elder brother of the deceased. He was supposed to depose about the motive. He has turned partly hostile.

P.W. 9 went along with P.W. 1 for searching the deceased. He found the dead body of the deceased as well as his bicycle.

P.W. 10 has turned partly hostile. He is the owner of the adjacent land of the deceased. He has deposed about the laying of pipeline.

P.W. 11 also accompanied P.W. 1 to search the deceased. He found towel and lungi of the deceased. He came back since the deceased was not traced.

P.Ws. 12 and 13 are the witnesses for inquest panchanama at Ex. P12.

P.W. 14 is another son of the deceased. He also searched for the deceased in the evening of 13.9.2002. However, he did not find him. He is also the witness for seizure mahazar at Ex. P2.

P.W. 15 is the wife of the deceased. She deposed that there was verbal quarrel between the deceased and 2 to 6 persons.

P.W. 16 is the witness, who was supposed to depose about the seizure of the clothes of accused Nos. 4 and 5 under mahazars Ex. P14 and P15. He has turned hostile.

P.W. 17 is the wife of accused No. 1. She has turned hostile.

P.W. 18 is another witness for recovery of clothes of accused Nos. 4 and 5 under Ex. P14 and P15. He has also turned hostile.

P.Ws. 19 and 20 are the Police Constables who participated in the investigation at different levels.

P.Ws. 21 has deposed about the quarrel between the deceased and the accused with regard to the land. He fully supports the case of the prosecution with regard to motive.

P.W. 22 has turned hostile.

P.W. 23 is the Officer of Forensic Science Laboratory. Ex. P.19 is the FSL report.

P.W. 24 is the Sub-Inspector of Police of Srirangapatna Police Station. On receiving the telephonic information on 14.9.2012, he went to the spot and recorded Ex. P1 from P.W. 1 and sent the same to P.W. 29 for registration.

P.W. 25 is another Police Constable who was deputed to trace the accused. However he did not find the accused. His report is at Ex. P21.

P.W. 26 is the witness for panchanama at Ex. P13 under which accused No. 2 pointed out the place of seizure.

P.W. 27 is the witness for panchanama at Ex. P17 regarding the seizure of clothes of the deceased.

P.W. 28 is the Investigating Officer. He completed the investigation and laid the charge sheet.

P.W. 29 is the Sub-Inspector of Police, Srirangapatna Police Station. He received the complaint and registered the crime.

P.W. 30 is the doctor. He has deposed about the postmortem report at Ex. P27. He is not the doctor who conducted the postmortem examination. However, based on the postmortem report, he has deposed.

P.W. 31 is the Police Constable who delivered the FIR to the jurisdictional Magistrate.

The case of the prosecution fully rests on the circumstantial evidence. The four circumstances relied upon by the prosecution are as under:--

"i) Motive.

ii) Accused were last seen together with the deceased.

iii) Recovery of the blood stained clothes of accused Nos. 4 and 5 (MO. Nos. 24, 25 and 26) from the house of accused No. 6 under Ex. P14 and P15.

iv) Abscondence of the accused."

i) Re circumstance of motive: We find ample material on record to prove the circumstance of motive. The defence also is not serious in cross-examining the witnesses of the prosecution to disprove or create suspicion in the mind of the court about the said circumstance. P.Ws. 1, 14, 15 and 21 are the witnesses who have deposed about the frequent quarrels between the deceased and accused with regard to water as well as on the question of the deceased not supporting accused Nos. 1 to 3 in resolving litigation between the accused and P.W. 21. All the aforementioned witnesses have deposed that the incident has taken place because of the said motive. We find that the evidence of these witnesses with regard to circumstance of motive is consistent and cogent.

ii) Regarding last seen circumstance:

According to the case of the prosecution, the deceased was working with P.Ws. 1 and 15 in his land adjoining the land of accused Nos. 1 to 3. At that point of time, accused Nos. 2 to 6 also were working in their land; P.Ws. 1 and 15 worked upto 4.30 P.M. on 13.9.2002 and went back to their house for attending Ganesha Immersion Ceremony. However, deceased continued to work in his land and told P.Ws. 1 and 15 that he would collect grass for the cattle and came home later. However, the deceased did not come home upto 7.00 P.M. The said circumstance is deposed by P.Ws. 1, 15, 4, 5, 7, and 8. All the independent witnesses i.e. P.Ws. 4, 5, 7 & 8 have turned hostile. They did not support the case of the prosecution with regard to the said circumstance. The trial Court relying upon the evidence of P.Ws. 1 and 15 held that the said circumstance is proved.

P.W. 1 is the son of the deceased who has deposed that while he was working with the deceased upto 4.00 P.M., the accused Nos. 1 to 3 started quarrelling with the deceased. They even threatened the deceased with dire consequences, by telling that the deceased should not live any more since he did not support the accused in the litigation between accused Nos. 1 to 3 and P.W. 21. In the cross-examination of P.W. 1, it is elicited by the defence that all the aforementioned utterances by the accused against the deceased are improvements. All such commissions are proved by confronting the same to the investigating officer.

Thus it is clear that the evidence of P.W. 1 in respect of accused threatening the deceased with dire consequences is an improvement. Since the omissions are proved and as these omissions are material omissions, they need to be seriously taken note of while evaluating the material on record. If such material omissions are omitted from being considered, nothing remains in the evidence of P.Ws. 1 to 4 to show that there used to be quarrel between accused Nos. 2 to 6 and deceased.

The evidence of P.W. 15 does not anywhere reveal that the accused threatened with dire consequence of taking away with the life of deceased on the ground of deceased not supporting the accused in the litigation. On the other hand, version of P.W. 15 is that accused Nos. 2 to 6 came with their cattle on the land of the deceased. Consequent upon which, crops grown by the deceased on his land were destroyed to certain extent. However, she did not depose that the quarrel ensued between the deceased and accused in that regard. There is nothing on record to show as to when the animosity between the deceased and accused was in existence. Be that as it may, prior to the incident in question, there was no quarrel between the deceased and accused Nos. 2 to 6 on the agricultural land. In addition to the same, as aforementioned, all the independent witnesses-P.Ws. 4, 5, 7 and 8 have turned hostile. Though they were supposed to depose about the quarrel between the deceased and accused Nos. 2 to 6, they did not support the case of the prosecution to any extent. Therefore, in our considered opinion, the trial Court is not justified in concluding that the last seen circumstance is proved. On the other hand, on reconsideration of the entire material, we find that the said circumstance of last seen is not proved by the prosecution beyond reasonable doubt.

iii) Re. recovery of the blood stained cloths:

It is a case of the prosecution that blood stained cloths worn by the accused Nos. 4 and 6 at the time of commission of offence (M.Os. 24, 25 and 26) were hidden by them in the house of accused No. 6 and they were seized from the said house under panchanama Ex. P15 on 2.10.2002. It is no doubt true that accused Nos. 2 and 5 were arrested on 2.10.2002. However, it sounds improbable that the accused retained blood stained cloths, if any, in their house without destroying for such a long period. It is important to note that both the mahazar witnesses P.Ws. 16 and 18, for recovery of panchanama-Ex. P15 have turned hostile. They did not support the case of the prosecution with regard to recovery of the said cloths. In the absence of the evidence of the panchas and in the light of the shaky material, the defence is justified in contending that the evidence of the investigating officer relating to recovery may not be believed to prove the said circumstance. We agree with the said submission of the defence inasmuch as we find that the investigation officer has tried to improve the case from stage to stage. In the light of the fact that the recovery has taken place after about 20 days of the incident in question and in the light of the fact that both the panchas have turned hostile, we are of the considered opinion that the trial Court has not proved the circumstance of recovery beyond reasonable doubt.

iv) Regarding abscondance: The last circumstance relied upon by the prosecution is abscondance of the accused. The only witness for the said circumstance is P.W. 25, the police constable. According to the case of the prosecution, accused Nos. 1 and 2 absconded for three months three days. Accused Nos. 4 and 5 absconded for 18 days and that abscondance has led to delay in filing of the charge sheet. Accused No. 6 is a lady. Except that her chappals were allegedly found 1 KM. away from the dead body, no other incriminating circumstance is forth-coming against her. However, the evidence of the prosecution feebly suggest that accused No. 6 came on the land of the deceased prior to the incident in question and in that regard, the deceased had verbal quarrel with accused No. 6. There is no reason for accused No. 6 to hide herself. Be that as it may, it is relevant to note the evidence of P.W. 25- the police constable who was deputed to search for the accused. He has deposed that he went to Seehalli village of T. Narasipur taluk and visited the house of the accused and relatives; he further visited Arekere village and he did get any clue of the accused. He came to police station and given his report as per Ex. 21. Except this evidence of P.W. 25, nothing more is produced by the prosecution before the court to support the aforementioned deposition of P.W. 25 relating to abscondance.

Ex. P21 also reflects that police constable P.W. 25 searched for accused in Seehalli village of Arekere village. As aforementioned, accused No. 4 is from Bettahalli village and accused No. 5 is from M. Shettihalli village whereas accused Nos. 1, 2, and 6 are from Gowdahalli village. There is nothing on record to show that P.W. 25 searched in Gowdahalli village or any adjoining areas. Merely because P.W. 25 has visited two other villages, it cannot be concluded that he has made serious efforts to trace the accused and accused were absconding. Therefore, the circumstance of abscondance of accused also is not proved by the prosecution.

The aforementioned discussion leads to the only conclusion that the prosecution has proved its case only with regard to the circumstance of motive. None of the other circumstances relied upon by the prosecution are proved beyond reasonable doubt. The sole circumstance of motive alone cannot be held to be sufficient to convict the accused for the offence u/s. 302 IPC.

On going through the judgment of the trial Court, we find that it has virtually relied upon the allegations found in the charge sheet and the evidence of P.Ws. 1 and 15 (which is not reliable). In the absence of any legal evidence against the accused, the trial Court is not justified in convicting the accused. We find that the trial Court has convicted the accused merely on assumptions. Hence, the judgment and order of conviction dated 22.09.2011 passed by the trial Court in Sessions case No. 38/2003 against the accused for the offences punishable under sections 302, 341, 201 read with section 34 of IPC is required to be set aside and it is accordingly set aside.

Appeals are allowed. Accused - appellants herein are acquitted of all the charges leveled against them. They shall be set at liberty forthwith, if not required in any other case.

Operative portion of this order shall be sent to the concerned prison authorities forthwith.