Gangadharaiah vs State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order of conviction passed by the Fast Track Court-V, Bangalore Rural District, Bangalore dated 28.1.2011 in S.C. No. 165/2008, is called in question in this appeal by the convicted accused.

The accused/appellant is tried and convicted for the offence punishable under Section 302 of IPC by the Court below.

Case of the prosecution in brief is that the accused was having acquaintance with the deceased since many years; in the year 2007, accused had taken a loan of Rs. 20,000/- from deceased Rathnamma with a promise that he will return back the same within three months; but the amount was not returned by him despite repeated demands by the deceased; one week prior to 23.12.2007, accused came to Huchammanadoddi village (the village in which deceased was living with her family members) by taking his lorry; deceased waylaid the lorry and dragged the accused, holding his shirt collar, out of the lorry in the presence of elders and abused him in filthy language. She slapped on the cheek of the accused; the accused became angry since he was insulted in the presence of villagers; with the said motive, accused decided to kill Rathnamma; on 23.12.2007 accused went to the house of the deceased situated in Huchammanadoddi village and informed her that she may accompany him so that he would repay the entire loan amount; he took Rathnamma to Anchepalya village near Samsung Godown in between 2.30 p.m. to 3.15 p.m. and strangulated and killed her; thereafter, in order to destroy the evidence, he took the three gold ornaments worn by the deceased; two of the gold ornaments were thrown by him in a nala, which was flowing and one of the gold ornament (M.O. No. 4) was taken by him and kept in his house, which came to be recovered during the course of investigation by the police. Though the deceased was unheard of from 23.12.2007, no missing complaint was lodged by any of the members of the deceased till the dead body was found; the dead body was found in a bush near the nala on 28.12.2007 by P.W. 8, who in turn, lodged the written complaint as per Ex. P5 before Bidadi police station at 5.20 p.m. on 28.12.2007, which came to be registered in crime No. 671/2007 for the offence punishable under Section 302 of IPC. P.W. 15, the Inspector of Ramanagar Rural Circle completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 15 witnesses and got marked 12 exhibits and 4 material objects. On behalf of defence no witness was examined. The trial Court, on evaluation of the material on record, as aforementioned, convicted the accused for the offence punishable under Sections 302 and 201 of IPC.

Sri Hashmath Pasha, learned Advocate appearing on behalf of the defence/appellant taking us through the entire material on record submits that the Court below is not justified in convicting the accused since, absolutely no reliable material is found against him. Out of the two circumstances relied upon by the prosecution, one circumstance is recovery of a pair of ear studs marked as M.O. No. 4, which is totally unbelievable. Even the last seen theory put forth by the prosecution appears to be highly artificial in as much as, either P.W. 1 or any of the inmates of the house of the deceased would not have allowed the deceased to go along with the accused if really, the quarrel had taken place between the accused and the deceased prior to 23.12.2007; the accused is from a different village altogether and there is no connection whatsoever between the deceased and the accused; even according to the prosecution, the accused and deceased were intimately knowing each other and had got many transactions; in such a situation, it would be hard to believe that the accused had thrown two gold ornaments in the flowing water. According to him, the very fact that none of the family members of the deceased had lodged even a missing complaint after 23.12.2007 itself would clearly reveal that none of the family members of the deceased had suspected either the death or complicity of the accused in the death of the deceased. Lastly, he submits that the dead body was not identified and merely on the say of P.W. 1, the prosecution has created a false case against the accused.

Per-contra, learned SPP-2 argued in support of the judgment of the Court below.

P.W. 1 is the son of deceased Rathnamma. He has deposed about the previous quarrel which took place about one week prior to 23.12.2007; he has seen his mother going with the accused last; he went to the police station and identified the photographs at Ex. P1 as of his mother. P.W. 2 is the tailor working at Bidadi. He has also deposed about the last seen circumstance. P.W. 3 has deposed about the previous quarrel between the accused and deceased; P.W. 4 also saw the accused and the deceased alighting from BTS bus near Anchepalya on 23.12.2007 and he saw the accused alone going away from the scene of offence. P.W. 5 is the witness for inquest panchanama Ex. P2. P.W. 6 is the witness for recovery panchanama Ex. P3 under which M.O. 4 - a pair of ear stud was recovered from the house of the accused; P.W. 7 is the photographer. He took photographs of the dead body as per Ex. P1. Ex. P4 is the receipt given by him. P.W. 8 is the complainant. He is a passerby. He saw the unknown female dead body and lodged the complaint as per Ex. P1. P.W. 9 is one more witness for Ex. P3 mahazar under which, a pair of ear stud were recovered. P.W. 10 is the Doctor who conducted autopsy on the spot since the dead body was highly decomposed. He was unable to give the cause of death. He has further deposed that the dead body was in an unidentifiable condition. P.W. 11 is the witness for the mahazar Ex. P8 under which, M.O. No. 3 blouse of the deceased is seized in the police station. P.W. 12 is the witness for Ex. P8 mahazar under which, M.Os. 2 and 3 were seized in the police station. P.W. 13 is the Sub-Inspector of police attached to Bidadi police station. He has deposed about the lodging of complaint by P.W. 8 and registering of crime based on Ex. P5. P.W. 14 is the police constable. He participated during the course of investigation. P.W. 15 is the investigating officer. He completed the investigation and laid the charge sheet.

There are no eyewitnesses to the incident in question. Case rests on circumstantial evidence. The two circumstances only are relied upon by the prosecution are as under:

i) Last seen circumstance as deposed by P.Ws. 1, 2, 3 and 4.

ii) Recovery of ear studs of the deceased from the house of accused under panchanama Ex. P3. P.Ws. 6 and 9 are the mahazar witnesses.

Undisputedly, there were cordial relations between the accused and the deceased since many years. The deceased was in the habit of going in the lorry of the accused frequently and it was seen by number of villagers; even the family members of the deceased were knowing about the relationship between the deceased and the accused. However, there is nothing on record to show that there was illicit relationship between the two. According to the case of the prosecution, the accused had taken loan of Rs. 20,000/- from the deceased and had not repaid. In that regard, quarrel took place between the two and in the said quarrel the deceased had slapped the accused on his cheek in front of the villagers. This was the main reason for commission of the crime. It is also not in dispute that the quarrel between the accused and the deceased took place prior to one week of the date of incident. The accused allegedly took the deceased from her house in the morning of 23.12.2007 and none of the family members including P.W. 1 objected for the same. According to the case of the prosecution, the death has occurred in the evening of 23.12.2007. Though the deceased left the house with the accused and though P.W. 1 and other family members of the deceased knew that quarrel took place between the accused and the deceased few days prior to the incident, they did not object the deceased going with the accused, so also, the deceased without taking any exception went along with the accused in his lorry in the usual manner. It is borne out from the evidence that the deceased was in the habit of going along with the accused in the lorry frequently. She even used to go in the lorry of other persons carrying on for her butter business. This act of the deceased going with the accused despite quarrel between them appears to be artificial, so also, the conduct of P.W. 1 and other family members of the deceased in keeping quiet without objecting the accused to take the deceased along with him or without objecting the deceased to go along with the accused also appears to be artificial. If really, P.Ws. 1 to 4 had seen the accused and the deceased together on 23.12.2007 prior to the incident, they would not have missed to state the same before the police immediately after the incident. The statement of these witnesses are recorded only after the arrest of the accused and not prior to thereof. The accused was arrested on 31.12.2007 from his native place. He was not absconding as such. It is but natural for P.W. 1 to suspect the hand of accused in deceased not coming back to the house because of the earlier quarrel between them. P.W. 1 or his family members could not have kept quiet without lodging the missing complaint or without suspecting the role of accused in missing of the deceased. The very fact that P.W. 1 and his family members including P.Ws. 2, 3 and 4 kept quiet till the arrest of the accused could give raise to suspicion about their veracity before the Court. It is no doubt true that P.Ws. 1 to 4 have deposed about the last seen circumstance. But the deposition of these witnesses relating to last seen circumstance appears to be contrary to the natural course of conduct or natural course of human behavior. As mentioned supra, P.W. 1 being the son of the deceased would not have kept silent without lodging the complaint at least alleging missing of the lady. Since the accused had taken the deceased along with him in the morning of 23.12.2007 in his lorry, it is but natural for P.W. 1 to suspect the role of accused No. 1 in missing of the deceased. Hence, in our considered opinion, the last seen theory as put forth by the prosecution is not satisfactorily proved by the prosecution.

The case of the prosecution even in respect of recovery of a pair of ear stud M.O. No. 4 under Ex. P3 appears to be highly artificial. It is the case of prosecution that the accused was in need of money and therefore, he had taken Rs. 20,000/- from the deceased, which was not repaid by him. It is also an admitted case of the prosecution that after committing the murder, the accused had robbed three gold ornaments viz., nose stud, neck chain and a pair of ear stud; the accused had thrown two gold ornaments among them i.e., nose stud and neck chain in the nala in which, the water was flowing with force. However, he chose to keep a pair of ear stud of the deceased in his house that too in safe custody. This story as made out by the prosecution before the Court appears to be artificial in as much as, the accused would not have thrown the other two gold ornaments in river or nala. If really, he was in need of money, he would have as well taken all the three gold ornaments along with him and would have kept in his house or sold. Even otherwise, the accused would not have taken only one pair along with him to be kept in safe custody if really, he had got any intention to screen himself from the offence; since he had already thrown two gold ornaments in a flowing water, he would have thrown the third gold ornament also in the water. This make believe story created by the prosecution does not deserve to be accepted in as much as, such material does not gain the confidence of the Court. The prosecution has created a story as if the accused has taken one pair of ear stud to his house only to be seized by the police subsequently, so as to enable the police to create a murder story against him.

It is relevant to note that, the lone family member of the deceased who is examined before the Court is P.W. 1. Through him M.O. No. 4/ear studs recovered is marked. In the examination-in-chief itself P.W. 1 does not depose that the ear studs M.O. No. 4 belongs to his mother. He has merely deposed that the police showed a pair of gold ornaments seized and such gold ornaments were identified by him in the Court. Nowhere he has deposed that those ear studs are of his mother and that she was wearing those ear studs while she left the house along with the accused. In view of the above, we are of the clear view that the prosecution has not proved the circumstance of recovery also beyond reasonable doubt.

Since none of the two circumstances relied upon by the prosecution are proved and as there is no other material incriminating against the accused the view taken by the trial Court cannot be accepted. The trial Court has proceeded merely on assumptions and has decided the case based on preponderance of probabilities. The prosecution has to prove its case beyond reasonable doubt. In a case based on circumstantial evidence, all the circumstances need to be proved by the prosecution beyond reasonable doubt, so as to form a chain of circumstances, without leaving any room for the accused to escape. We have already mentioned supra, only two circumstances are relied upon by the prosecution and both these circumstances are not proved by the prosecution beyond reasonable doubt. Hence, the judgment and order of conviction passed by the trial Court needs to be set aside. The same stands set aside. Accordingly, the following order is made:

(i) Appeal is allowed.

(ii) Accused is acquitted of all the charges leveled against him.

(iii) He shall be set free forthwith, if not required in any other case.

Operative portion of the order shall be communicated to the concerned prison authorities forthwith for further action.