Jagadish Shankareppa Mirji vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for appellant and the learned Additional State Public Prosecutor.

The facts of the case, as claimed by the prosecution, are that on 03.07.2010 at about 8.00 p.m., P.W.8 Siddappa S/o. Bhimappa Kamadinni had received a phone call from his daughter Hema, P.W.3, to inform him that the deceased had gone to the land of accused No. 1 in the morning and he had not returned and that his cell phone appeared to be switched off.

On 04.07.2010 at about 7.00 a.m., P.W.8 is said to have gone along with C.W.6 Siddappa Chikkaraddi, C.W.8 Rangappa Dasaraddi and P.W.5 Siddappa Baluji, to the land of accused No. 1 to make enquiries as to the whereabouts of the deceased. When accused No. 1 was questioned, he had merely said that the deceased had come on the previous day on his motor cycle, but since he had immediately received a phone call he had left the place. By the demeanour of accused No. 1, P.W.8 is said to have grown suspicious, especially when he saw accused No. 1, go and whisper to his wife, who was inside the house. Therefore, when P.W.8 and others were trying to walk towards the land of accused No. 1, the wife of accused No. 1 had dissuaded them from doing so and told them that they will not find anything in the land. But however, they did go into the sugarcane field of accused No. 1 and found that the motor cycle belonging to the deceased was lying there. Thereafter P.W.8 had again questioned the accused No. 1 as to how the motor cycle of the deceased was present on his land. He had not given any satisfactory reply.

Therefore, P.W.8 and others went to the Bilagi police station and registered a complaint, which was registered as Crime No. 143/2010, of the deceased missing. Further P.W.2, the Police Sub-Inspector, on his investigation, had arrested accused No. 1 and enquired about the deceased. The accused No. 1 is said to have made a voluntary statement that he had killed the deceased since he had suspected that the deceased was having an affair with his wife and that he had immersed the dead body weighing it with a stone, in the Ghata Prabha river, which was flowing by his land.

On the said information the body was said to have been recovered, by the Investigating Officer, thereafter P.W.2 had come back to the police station and had registered a case in Crime No. 143/2010 against the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as T.P.C, for brevity), on 05.07.2010. After further investigation the matter was committed to the Court of Sessions and the court below having framed charges and the accused having pleaded not guilty and having claimed to be tried. The prosecution had examined P.Ws.1 to 20 and marked several exhibits and other material objects and the court below after hearing the arguments and after recording the statement of the accused, insofar as the incriminating evidence appearing against the accused and after hearing both the parties had framed the following points for consideration:

"1. Whether the prosecution proves that deceased Devaraddi died homicidal death?

Whether the prosecution proves beyond reasonable doubt that the accused No. 1 suspecting that the deceased Devaraddi Koppad is having illicit relation with his wife, on 03.07.2010 at Koppa S.K. village within the limits of Bilagi police station made a telephone call to deceased to come at 5.00 a.m. to sow onion seeds in his land and when came the accused No. 1 along with accused No. 2 in furtherance of their common intention took the deceased to the cultivating land at 7.30 a.m. and at 8.00 a.m. accused No. 1 assaulted the deceased with sickle on his head and caused his murder and thereby intentionally and knowingly caused the murder of deceased Devaraddi and committed an offence punishable under Section 302 read with Section 34 of the I.P.C.?

Whether the prosecution further proves that on the above said date, time and place the accused No. 1 and 2 in furtherance of their common intention to cause disappearance of evidence of offence, tried to shift the dead body of Devaraddi to somewhere but it faded, they kept it in sugarcane crop till evening and thereafter tied the dead body to a grinding stone with a rope and threw it with dead body in Ghataprabha river which is by the side of the land and thereby committed an offence punishable under Section 302 read with Section 34 of the I.P.C.?

What order?"

The Court below had held the same in the affirmative against accused No. 1 and negative against accused No. 2 and acquitted accused No. 2. Accused No. 1 was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/- for the offence punishable under Section 302 of I.P.C, and he was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs. 2,000/- for the offence punishable under Section 201 of I.P.C.

It is that judgment which is under challenge in the present appeal.

The leaned counsel for the appellant would first of all point out that it was essential for the prosecution to have established the motive with which the appellant is said to have committed the murder of the deceased.

The allegation is that the deceased was having an illicit relationship with the wife of accused No. 1. This is stated on the basis of the voluntary statement of accused No. 1 and not by recourse to any independent evidence. There was no evidence whatsoever of any such relationship having existed between the appellant and the wife of accused No. 1.

On the other hand, the only evidence projected is of the wife of deceased, who has been examined as a witness. She has categorically stated that she was not even aware of any such relationship and she did not suspect any such relationship.

In the absence of a motive, the only other evidence, which is relied upon by the prosecution is the circumstantial evidence of there having been several phone calls made to the cell phone of the deceased by accused No. 1. The mere exchange of phone calls as it was customary for the deceased to have assisted in agricultural labour of the farm of accused No. 1, there would be calls made to his cell phone. This by itself did not establish that there was a motive for the commission of the offence and that the murder had been committed by the appellant, in the absence of any other cogent evidence, except the voluntary statement said to have been made by the accused.

It is also pointed out by the learned counsel that even in order to establish that there were phone calls between the accused No. 1 and the deceased, the call record details have been sought to be marked as Ex. P-36 and in view of the tenor of Section 65(b) of the Indian Evidence Act, 1872 (hereinafter referred to as ''I.E. Act'', for brevity). It cannot be said that the said document would establish the exchange of calls between the appellant and the deceased, for the requirement under Section 65(b) has not been complied with, and therefore, the document cannot be tendered in evidence and could not have been admitted in evidence in proof of exchange of any phone calls.

It is further pointed out that insofar as the commission of murder as alleged by the prosecution, except the statement of witnesses that the motor cycle of the deceased was found lying in the sugarcane field of accused No. 1 and that the dead body of the deceased was recovered from the Ghataprabha river tied down with a stone, on the basis of the voluntary statement of the appellant is again evidence, which cannot be relied upon to bring home the charges in respect of a serious offence punishable under Section 302 of I.P.C. Except this peripheral evidence as regards the commission of offence by the accused, there is no other evidence. The learned counsel would seek to demonstrate this by drawing attention of the evidence of several witnesses. Merely seeking to establish suspicious circumstances would not by itself support the case of the prosecution in demonstrating that the circumstantial evidence produced was of such a degree, which could bring about and demonstrate the chain of events without any missing links and that if the evidence is read together, it should piece together the sequence of events involving the accused and the manner in which the act had been committed. If there are missing links in the chain of events, which cannot be explained or connected, it is dangerous to proceed on the circumstantial evidence to hold that it would be sufficient to bring home a serious charge of murder.

It is in this fashion that the learned counsel would seek to demonstrate that the court below having formed an opinion that there was no evidence against accused No. 2 in order to hold that the charges had been established, which would also equally apply insofar as accused No. 1 is concerned, as the evidence tendered by the prosecution is at best sketchy even to suggest a semblance of a motive or to establish that he had committed any act, which was supported by evidence in order to establish that he had committed the murder of deceased, and therefore, seeks acquittal of the deceased.

On the other hand, the learned Additional State Public Prosecutor would seek to justify the judgment of the Court below and would submit that the voluntary statement of the accused leading to the discovery of the dead body and the fact that the motor cycle of the deceased was found at the spot where the murder had been committed and the evidence of the complainant and other witnesses would amply establish the sequence of events. Insofar as the motive is concerned, the reliance sought to be placed on the evidence of the wife of the deceased to claim that she was not aware of any such affair between the deceased and the wife of accused No. 1 is misleading. On the other hand, it was an illicit affair and was kept secret by the deceased and would certainly not have revealed the same to his wife. It was on such suspicion that the murder had been committed to prevent the further illicit relationship, which the deceased had with the wife of accused No. 1 and the circumstantial evidence that is tendered cannot be characterised as being sketchy and that it does not establish the chain of events. There is sufficient material on record to demonstrate the sequence of events and the links in the chain, as sought to be claimed by the appellant, is well established by the evidence that was tendered.

On the basis of these rival contentions and on an examination of the record, as rightly contended by the learned counsel for the appellants, the motive for the crime is the first step which requires to be established by the prosecution. The contention that the deceased was having an illicit relationship with the wife of accused No. 1 is only on the alleged voluntary statement of accused No. 1. There is no independent evidence of any such relationship and it would not be possible for the prosecution to rely on the alleged voluntary statement of accused No. 1 to even canvass that there was any such illicit relationship. In which event the motive for alleged commission of murder by the accused would be diluted. The further requirement of the prosecution in establishing that the accused and the deceased were seen together and that accused No. 1 and 2 had together committed the murder of the deceased is also sought to be established only on the basis of the voluntary statement of the accused.

The discovery of the motor cycle on the land of accused No. 1 by itself would not be proof of the fact that he may have been murdered by the accused on his land. The further argument of the prosecution that the dead body of the deceased was pulled out of the water of the Ghata Prabha river only at the instance of the accused, is also not clearly established. In that, the accused is said to have merely made a statement that he had dumped the body in the water and the body no doubt having been fished out of the water was not at the spot where the accused had indicated, but some distance away and this by itself would not also establish that it was the accused who had committed the murder of the deceased and if the Court below did not find sufficient evidence to hold that accused No. 2 was in any way involved in the crime. By the same token of reasoning, it could be said that the evidence tendered did not indicate that the accused had indeed committed the murder merely because the motor cycle was discovered on his land and the body was recovered from the river close by. It cannot ipso facto demonstrate that it was the accused, who had committed the murder. It was quite possible for a third party to have committed the murder and in order throw the blame on the accused, the vehicle could have been dumped in the field of the accused and the body could have also been immersed in the water close to his land. This possibility is also there. Therefore, it was necessary for the prosecution to have established its case beyond all reasonable doubt, as rightly pointed out by the learned counsel for the appellant. The chain of events do not stand established by the evidence that is tendered and it would be dangerous to hold that the prosecution had established its case at all, let alone, beyond all reasonable doubt. Accordingly, we hold that the conviction and sentence imposed on the accused No. 1 is not justified.

The appeal is allowed.

The conviction and sentence imposed by the learned Sessions Judge, Bagalkot, in S.C. No. 104/2010, dated 12.06.2012 is set aside.

The accused shall be set at liberty forthwith.

The operative portion of the judgment shall be transmitted to the Jail Authorities immediately.