Govindanaika vs State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order of conviction dated 13.8.2010 passed by Fast Track Court-I, Tumkur in S.C. No. 72/2008, is called in question in this appeal by the convicted accused.

The accused was tried and convicted for the offences punishable under Sections 302 and 397 of IPC.

Case of the prosecution in brief is that during the night of 30.11.2007, deceased Smt. Lakshmamma had gone to the house of P.W. 5 from the house of P.W. 1 to bring sambar in a tiffin box; P.Ws. 1 and 5 are the sons of the deceased Lakshmamma; after taking sambar from the house of P.W. 5, she went back to go to the house of P.W. 1; at that point of time, her brother-in-law by name Chatra Nayaka (P.W. 20) accompanied her to go to the house of P.W. 1; on the way, accused met them and told P.W. 20 that he would take Lakshmamma to her house; thereafter, P.W. 20 came back to his house; however, Lakshmamma did not return to the house of P.W. 1; on the next day, P.Ws. 1 and 5 came to know about the death of their mother Lakshmamma; on enquiry in the village, more particularly with P.W. 20, they suspected the hands of the accused in the crime; the dead body was found lying about 25 feet from the house of P.W. 1 by the side of a fence; the gold ornaments worn by the deceased were missing from the dead body.

Based on the aforementioned facts, P.W. 1 lodged a complaint as per Ex. P1 on 1.12.2007 at about 1.30 p.m. which came to be registered by P.W. 16-Head Constable in Crime No. 231/2007 of Kyathasandra Police Station for the offence punishable under Section 302 of IPC. P.W. 19, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case the prosecution in all has examined 21 witnesses and got marked 19 Exhibits and 16 Material Objects. On behalf of the defence no witness is examined and no document is marked. On evaluation of the material on record, the trial Court convicted the accused for the offences punishable under Sections 302 and 397 of IPC.

Sri Gadilingappa, learned advocate appearing on behalf of the accused-appellant taking us through the entire material on record submits that there are no eye witnesses to the incident in question; case of the prosecution rests only on circumstantial evidence; none of the circumstances relied upon by the prosecution is proved by the prosecution beyond reasonable doubt; since the chain of circumstances is not proved against the accused and as there is absolutely no reliable material against the accused, he needs to be acquitted. According to him, the prosecution has concocted the story against the accused.

Per contra, Sri Chethan Desai, learned Government Pleader appearing on behalf of the State argued in support of the judgment of the Court below.

P.Ws. 1 and 5 are the sons of the deceased. P.W. 1 has lodged the complaint as per Ex. P1. Both P.Ws. 1 and 5 have deposed that the gold ornaments of the deceased were missing. They identified the gold ornaments seized during the course of investigation as those of the deceased. P.W. 2 has deposed about the last seen circumstance. He has seen the deceased along with the accused just prior to the incident in question and he has deposed that the deceased was wearing gold ornaments. He is also the witness for inquest panchanama at Ex. P3.

PW. 3 is the Engineer who drew the sketch of scene of offence.

PW. 4 is the Pawnbroker. Accused had pledged the gold ornaments-MO. Nos. 6 and 7 in the shop of P.W. 4 which were seized under panchanama at Ex. P5.

P.W. 6 is the daughter-in-law of the deceased and the wife of P.W. 5. She has deposed that the deceased left her house at about 7.15 p.m. along with a tiffin box with sambar. P.W. 6 has identified the clothes and the gold ornaments of the deceased.

P.W. 7 is the doctor who conducted the postmortem examination over the dead body. Postmortem report is at Ex. P7.

P.W. 8 is the scribe of the complaint.

P.W. 9 intimated P.W. 1 about the death of the deceased telephonically.

P.W. 10 saw the dead body of the deceased. He has also deposed about the deceased wearing gold ornaments before her death. He has clarified that the accused was hiding himself.

P.Ws. 11 and 12 are the witnesses for inquest panchanama at Ex. P3.

P.W. 13 is a witness for panchanama at Ex. P5 under which gold ornaments-MO. Nos. 6 and 7 were seized from the shop of P.W. 4. He is also the witness for seizure of MO. Nos. 14, 15 and 16 (gold chain, shirt and pant of the accused respectively), from the house of the accused under panchanama at Ex. P9.

P.W. 14 is the Head Constable who apprehended the accused.

P.W. 15 is the Photographer who captured the photographs of the dead body as per Exs. P12 & P13.

P.W. 16 is the Head Constable who registered the first information submitted by P.W. 1 and sent the FIR to the jurisdictional Magistrate.

P.W. 17 is one of the Investigating Officers who investigated into the crime in part.

P.W. 18 is the witness for seizure mahazar at Ex. P3 under which clothes of the deceased were seized.

P.W. 19 is the Investigating Officer who completed the investigation and laid the charge sheet.

P.W. 20 is an important witness for last-seen circumstance. He is the brother-in-law of the deceased. He has deposed that when he was taking the deceased back to her house, accused met them and told P.W. 20 that he would take the deceased to her house. At that point of time, the deceased was wearing gold ornaments.

P.W. 21 is the witness for seizure mahazars at Ex. P5 and P9 under which gold ornaments were seized.

There are no eye witnesses to the incident in question. Case of the prosecution mainly rests on the following circumstances:-

"i) The last-seen circumstance - P.Ws. 2 and 20 are the witnesses for the said circumstance along with P.Ws. 5 and 6.

ii) Recovery of gold ornament and clothes of the accused from the house of the accused - P.W. 4 (Pawn Broker) and the panchas P.Ws. 3 and 21 are the witnesses for this circumstance.

iii) Motive.

iv) Abscondence of the accused for one month."

Re. Last-seen circumstance: In order to prove this circumstance that the accused was last-seen with the deceased, the prosecution mainly relies upon the evidence of P.Ws. 2 and 20. The prosecution also relies upon the evidence of P.Ws. 5 and 6.

P.W. 5 is none other than the son of the deceased. He has deposed that he has seen the deceased last at about 6.00 p.m. on 30.11.2007 when he was coming back to his house. At that point of time, the deceased was going to the house of P.W. 5 and she told P.W. 5 that she was going to his house for bringing sambar. At about 9.00 p.m., P.W. 1 (brother of P.W. 5), another son of the deceased came to the house of P.W. 5 and asked about the whereabouts of the deceased Lakshmamma. P.W. 5 answered that the deceased has gone to the house of P.W. 5 for bringing sambar. P.W. 5 slept in the house of P.W. 1 on the night 30.11.2007. On the next day, i.e., on 1.12.2007, P.W. 5 went back to his house and asked his wife-P.W. 6 whether his mother Lakshmamma had come to the house for which P.W. 6 replied that the deceased had come to her house and she went back after taking sambar to go to the house of P.W. 1 and at that point of time, P.W. 20 had accompanied the deceased. Thereafter, he searched for the deceased and found the dead body by the side of a fence situated near the house of P.W. 1. The gold ornaments worn by the deceased were missing.

Version of P.W. 5 is supported by P.W. 6. She has also deposed that in the evening of 30.11.2007, the deceased had come to her house and took sambar and went back to the house of P.W. 1 along with sambar. While the deceased was going back, she was wearing gold ornaments. When she saw the dead body of the deceased all the gold ornaments except the ring were missing. She has further deposed that she saw P.W. 20 taking the deceased from the house of P.W. 5 to the house of P.W. 1. In the cross-examination she admits that the distance between the house of P.Ws. 1 and 5 is about half a kilometer and that the deceased left the house of P.W. 5 at about 7.15 p.m. From the evidence of P.Ws. 5 and 6 it is prima facie clear that the deceased left the house of P.W. 5 along with tiffin box containing sambar at about 7.15 p.m. and she wanted to go to the house of P.W. 1 where she was living.

P.W. 20 is the uncle of P.W. 1 i.e., the brother of the husband of the deceased. He has deposed that he had come to his house at 7.30 p.m. after finishing coolie work; the deceased came near his house with a tiffin box containing sambar; the distance between the house of P.W. 20 and P.W. 1 is very less; the deceased asked P.W. 20 to leave her to her house i.e., house of P.W. 1, which is situated about half a kilometer; while he was taking the deceased, the accused met them half way through and accused told P.W. 20 that he would take the deceased to her house. So saying, accused took the deceased and both of them went together by walk and while going the deceased was wearing certain gold ornaments.

The aforementioned fact that the accused took the deceased during night was told by P.W. 20 in the morning of the next day i.e., on 1.12.2007 to P.W. 5. Thereafter, people started searching for the accused, but he was not in the village. The evidence of P.W. 20 is supported by the evidence of P.W. 2. His version discloses that he saw the deceased with the accused in the evening of 30.11.2007. Later he came to know that P.W. 20 was taking the deceased in order to reach her to her house, but in the middle, accused took the deceased. He has also deposed that the deceased was wearing gold ornaments during the relevant point of time.

The sum and substance of the evidence of these witnesses i.e., P.Ws. 5, 6, 20 and 2 reveal that the deceased was wearing certain gold ornaments during the relevant point of time and she was taking sambar in a tiffin box from the house of P.W. 5 to the house of P.W. 1 wherein she was living; the distance between the house of P.W. 5 and P.W. 1 is about half a kilometer. It is also clear from the said evidence that P.W. 20 initially accompanied the deceased in order to take her to her house, but in the middle, accused met and he took the deceased towards her house. P.W. 20 came back to his house on the next day. All of them saw the dead body of the deceased and the gold ornaments were missing.

Though the aforementioned circumstance appears to have been proved by the prosecution against the accused, looking to the other material on record, we are of the opinion that the said circumstance is not incriminating against the accused. The complaint Ex. P1 lodged by the son of the deceased clearly discloses that when he reached the house at 9.00 p.m. on 30.11.2007, a tiffin carrier containing sambar was present on the table of his house, which means the deceased along with tiffin box containing sambar had reached her house i.e., house of P.W. 1 and had kept the sambar box on the table. Thereafter, once again, she has left the house. The accused is being suspected by the prosecution only on the ground that the deceased was murdered while she was going back to her house along with the accused. But the same does not appear to be so, in view of the clear averment made in the complaint lodged by P.W. 1 that the tiffin box containing sambar was very much available on the table of his house. Therefore, it is amply clear that the deceased has come back to her house along with the tiffin box containing sambar and the said sambar was consumed by P.W. 1 during night of 30.11.2007 and after consuming sambar along with other meals, P.W. 1 slept in his house. The averments made in the complaint are reiterated by P.W. 1 in his evidence before the Court. He has admitted in the cross-examination that the tiffin carrier containing sambar was in the house and that he has stated so in his complaint Ex. P1. From the aforementioned admission of P.W. 1, who is none other than the son of the deceased, as also the averments made by him in the complaint Ex. P1 at the earliest point of time, it is clear that the circumstance of accused taking the deceased along with the tiffin box containing sambar is not incriminating against him. If really the incident had taken place before the deceased reaching her house, the tiffin box containing sambar could not have been found in the house of P.W. 1. So also, the tiffin box containing sambar ought to have been found on the scene of offence. The scene of offence panchanama Ex. P2 nowhere mentions about the presence of the tiffin box or the sambar which was being carried by the deceased. In view of the same, we are of the clear opinion that the prosecution has not proved the first circumstance of last seen against the accused.

The second and third circumstance go together. It is the case of the prosecution that the accused in order to rob the gold ornaments from the deceased has committed murder and robbed the gold ornaments. In order to prove the circumstance of motive and recovery of gold ornaments, the prosecution has pressed into service the evidence of P.Ws. 4, 13 and 21.

P.W. 4 is the pawn broker who has got shop at Tumkur town. He has deposed that he is the owner of Jai Ganesh Bankers and his shop is situated at Aralepete area of Tumkur town. He identifies the accused as the person who pledged M.O. Nos. 6 and 7 in the shop of P.W. 4. After the ornaments were pledged by the accused, P.W. 4 paid Rs. 530/- to the accused. He has further deposed that on 4.1.2008, the police had come to his shop along with the accused and police told P.W. 4 that accused has committed murder and robbed the gold ornaments and that the accused will identify the gold ornaments from his shop. At that point of time, P.W. 4 took out the gold ornaments and handed over to the police which were seized under panchanama Ex. P5. He identified M.Os. 6 and 7/ornaments which were seized. M.O. No. 6 is a single gold ear stud and M.O. No. 7 is a silver anklet. He has deposed that both the ornaments are worth Rs. 1,400/-. He also identified Ex. P6, the receipt given by him. In the cross-examination he has admitted that one Mr. Prakash Naik had come to his shop and pledged the gold ornaments and Ex. P6 is in the name of Prakash Nayaka. However, he identifies the accused as the person who pledged the gold ornaments. The evidence of P.W. 4 thus discloses that the accused impersonated himself in the name of Prakash Nayaka and pledged M.Os. 6 and 7 in the shop of P.W. 4 and took a receipt as per Ex. P6. P.W. 4 lastly admitted in the cross-examination that the police had brought the accused alone at 5.30 p.m. on the date of the seizure and along with them none were present which means, even the panchas P.Ws. 13 and 21 were not present along with the police and the accused, at the time of alleged seizure from the shop of P.W. 4. M.O. Nos. 6 and 7 were seized under panchanama Ex. P5. In order to support the aspect of recovery, the prosecution has relied upon the evidence of mahazar witness P.Ws. 13 and 21.

P.Ws. 13 and 21 are the witnesses for mahazar Exs. P5 and P9. We have already mentioned supra that M.O. No. 6 and 7 were seized under Ex. P5 from the pawn broker shop. However, the gold ornament M.O. No. 14 as well as the clothes of the accused M.Os. 15 and 16 were seized under mahazar Ex. P9 from the house of the accused. For both the mahazars, P.Ws. 13 and 21 are the witnesses.

P.W. 13 though has deposed in the examination in chief that he is a pancha for the mahazar Ex. P5, he did not support the case of the prosecution with regard to Ex. P9. However, in the cross-examination by the Public Prosecutor P.W. 13 has admitted that the police have seized a pant and shirt and the gold ornament from the house of accused under Ex. P9. He has also identified M.Os. 15 and 16 and 14 i.e., clothes of the accused and gold ornament of the deceased, which are seized.

However, in the cross-examination, P.W. 13 has admitted that he went to police station on 4.1.2008 at about 3.30 p.m. and he was there in the police station up to 9.00 p.m. The first panchanama drawn by the police was signed by him at 9.00 p.m. on 4.1.2008 in the police station. He further admits clearly that one shirt and pant were in the police station and they were shown to accused by the police; the police enquired with the accused as to whether the accused had worn the said pant and shirt or not; and thereafter, the shirt and pant of the accused were seized in the police station, which means M.Os. 15 and 16 which were allegedly worn by the accused during the relevant date, were seized in the police station under the panchanama Ex. P9. He also admits that he does not know the contents of Ex. P10 and he does not know as to who has written the said mahazar. However, he clarifies that Ex. P10 was signed not only by the accused, but also by P.W. 21(Ananda Nayaka). Such panchanama was made in between 8.00 p.m. - 9.00 p.m. in the police station. He further clarifies that the police along with the panchas went to pawn broker shop, Tumkur at 9.15 p.m. At that point of time none were present near the shop. The police seized the ornaments M.Os. 6 and 7 from the pawn shop. A yellow receipt was presented to the pawn broker and in the said chit it was mentioned as Prakash Nayaka and Samya Nayaka.

In the cross-examination P.W. 13 has further admitted that on the next day i.e., on 5.1.2008 at 3.00 p.m.-3.30 p.m. the police once again came to him and all of them went to the house of the accused along with the villagers; the house of the accused was open and a panchanama was drawn in the house of the accused from 3.00 p.m.-3.30 p.m. on 5.1.2008. All the aforementioned answers practically negatives the case of the prosecution with regard to recovery. The prosecution wanted to make out the case that two ornaments M.Os. 6 and 7 were seized from the pawn broker shop of P.W. 4 and that blood stained clothes of accused M.Os. 15 and 16 as well as another gold ornament M.O. No. 14 were seized from the house of accused. But P.W. 13 in his cross-examination has clearly admitted that Ex. P9 regarding seizure of the clothes and gold ornaments M.O. 14 was drawn in the police station and those articles were seized in the police station under the said panchanama Ex. P9. Consequently, the case of the prosecution that the blood stained clothes and gold ornament M.O. No. 14 were seized from the house of the accused is unbelievable. So also, P.W. 13 had admitted that he was taken to the pawn broker shop at 9.15 p.m. on that day. He was present in the police station from 3.30 p.m. up to 9.00 p.m. Thereafter, he was taken to the pawn broker shop and the panchanama as per Ex. P5 was drawn after seizure of M.Os. 6 and 7. But panchanama Ex. P5 was drawn from 2.15 p.m. to 3.15 p.m. as per the records. Though, panchanama was allegedly drawn at 2.15 p.m. - 3.15 p.m. on 4.1.2008, P.W. 13 has clarified that the police, accused and the panchas went to pawn broker shop at 9.15 p.m. on 4.1.2008 and not at 2.15 p.m. Therefore, the seizure made under Ex. P5 also cannot be accepted in as much as, the same is doubtful under the facts and circumstances of the case.

Another mahazar witness is P.W. 21 with regard to the recovery panchanama. In the examination-in-chief itself P.W. 21 has deposed that on 6.1.2008 the police called him to police station at 8.00 a.m. and at that point of time a chit Ex. P6 was found with the accused; and thereafter, the accused took the police to the spot wherein the crime is committed. Thereafter, P.W. 21 has deposed about the drawing of panchanama Exs. P5, P9 and P10.

We have already narrated supra about the panchanamas Exs. P5 and P9. Another panchanama Ex. P10 was drawn by the police when the accused was apprehended and brought to the police station. According to the case of the prosecution, a chit Ex. P6 was found with the accused and the same was seized under panchanama Ex. P10 in the police station in the presence of P.Ws. 13 and 21. P.W. 13 has not at all whispered about Ex. P6 chit. However, P.W. 21 has deposed about Ex. P10 as well as about the chit. Based on the said chit, the police allegedly took the accused to the pawn broker shop for the seizure of M.O. Nos. 6 and 7. In the cross-examination P.W. 21 has clearly once again admitted that the police took him on 6.1.2008 (not on 4.1.2008) at 8.00 a.m. in the morning and he was there up to 10.00 a.m. The panchanamas were drawn in the police station up to 9.00 a.m. by the police and such panchanamas were signed by him and Ramalinga Reddy (it seems Ramalinga Nayaka-P.W. 13). At the time of drawing panchanamas M.O. Nos. 6 and 7 were seized. Thereafter, the witnesses were taken to the pawn broker shop at 10.45 a.m. to 11. a.m. and he does not know as to what was written in the mahazar in the pawn broker shop. However, he has admitted that M.O. Nos. 6 and 7 were seized under panchanama. The evidence of P.W. 21 further destroys the case of the prosecution in as much as, P.W. 1 has clarified that the seizures as well as panchanamas were drawn on 4.1.2008 and not on 6.1.2008. All the panchanamas Exs. P5, P8, P9 and P10 were drawn on 4.1.2008 as per the records of the police. But the evidence of P.W. 21 clearly discloses that the panchanamas were drawn on 6.1.2008 that too in the police station. We have already mentioned supra that P.W. 13 has also admitted in the cross-examination that Ex. P9 was drawn on 5.1.2008 at about 3.00 p.m.-3.30 p.m.

In view of the above, it is amply clear that the prosecution has not proved that the ornaments worn by the deceased were seized at the instance of the accused on 4.1.2008 under valid mahazar. P.W. 21 has admitted that the mahazar were drawn in the police station. The evidence of P.W. 13 as mentioned supra clarifies that the panchanamas Exs. P9 and P10 were drawn at about 9.00 p.m. in the police station. In view of the above, we are of the clear opinion that the second and third circumstances also are not proved against the accused by the prosecution.

Re. Last Circumstance - abscondence of the accused: As per the case of the prosecution, the accused is arrested on 4.1.2008. The incident has taken place on 30.11.2007, which means that the accused was absconding for more than one month from the village. P.W. 14-the Head Constable has apprehended the accused. In his evidence he has deposed that he and other police searched for the accused at Janapanahalli tandya, Madakashira etc., and ultimately, the accused was apprehended at Dasarahalli gate on 3.1.2008 and he was produced before the Circle Inspector of Police. On the next day i.e., on 4.1.2008 he was produced before the Court. Except the evidence of P.W. 14 there is no other material to show that the police were making search for the accused. No document is produced by the investigating officer to show that the accused was being searched by the police in different areas. Merely because the accused is apprehended after one month, it cannot be said that the accused was absconding intentionally.

In order to prove the circumstance of abscondence, the prosecution has to place on record the records maintained by the investigation officer relating to deputation of the police personnel for searching the accused on day-to-day basis and the result thereof. No such documents are produced to prove the circumstance of abscondence.

It is also relevant to note at this stage itself that the blood stained clothes allegedly of the accused were sent to Forensic Science Laboratory for examination. The Forensic Science Laboratory report though discloses that the said clothes were containing human blood, there is no report of Serologist relating to blood group. The prosecution has to prove that the blood group found on the clothes of the accused and the deceased match with each other. But in the absence of Serologist opinion in that regard, the said aspect is also not proved by the prosecution.

Looking to the entire material on record, we are of the opinion that the trial Court is not justified in convicting the accused. Since none of the circumstances relied upon by the prosecution are proved beyond reasonable doubt, the benefit of doubt should go in favour of the accused. Accordingly, the following order is made:

"(i) Appeal is allowed. The judgment and order of conviction passed by the Fast Track Court-I, Tumkur dated 13.8.2010 stands set aside.

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

(iii) He shall be released forthwith, if he is not required in any other case.

(iv) Operative portion of this order shall be communicated to the concerned prison authorities forthwith for further action."

We place on record the valuable assistance rendered by Sri. G.M. Gadilingappa, learned Advocate appearing on behalf of appellant who is entrusted the brief by the High Court Legal Services Committee. In view of the above, the Secretary of the High Court Legal Services Committee is directed to pay a sum of Rs. 10,000/- to Sri. G.M. Gadilingappa, learned Advocate, as honorarium.