Mallikarjun vs The State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offences punishable under Sections 302 and 201 of IPC on a trial held by the Sessions Judge, Bijapur.

The facts relevant for the purpose of this appeal are as under:

Ramachandra (the deceased), accused No. 1 - Mallikarjun and accused No. 2 - Basavaraj are the sons of accused No. 3 - Parvatewwa. Ramachandra was staying in Bangalore. He returned to the village later. Marriage of accused No. 2 was held. It is stated that Ramachandra (the deceased) was bit erratic, had mental illness and as his younger brother was married, was not happy with the brothers and his mother. There used to be quarrel amongst Ramchandra (the deceased) and the accused persons. It is in the aforesaid circumstances, the prosecution alleges that on 11.08.2010 at about 3.30 p.m. accused in furtherance of their common intention to cause the death of Ramachandra said to have assaulted him and at that time accused No. 1 caused assault on the deceased with the crowbar and he was facilitated by accused No. 3. On the death of the Ramachandra, his dead body was buried in the house.

PW-1 suspected the conduct of the accused as he did not hear anything about Ramachandra (the deceased) though there used to be a quarrel amongst the members of the family including the deceased and when he went to the accused to enquire, the conduct of the accused was found suspicious and he also observed the possibility of the dead body of the deceased, after assault, having been buried in the house and he found some significant changes at the place where the dead body was buried, as there were new marks.

It is for the aforesaid circumstances, that on 14.08.2011 he approached the Police and submitted his complaint Ex. P-1 to PW-11, which came to be registered for the offences punishable under Sections 302 and 201 read with Section 34 of IPC and the investigation was taken up.

In the course of the investigation, accused Nos. 1 and 3 were arrested on 15.08.2011. On interrogation of accused No. 1, volunteered to show the place where the dead body of Ramachandra was buried and with the assistance of the attesting witnesses he lead the police and other witnesses to his house and he shown the place where the dead body was buried. The dead body was exhumed from the place of the incident i.e. from the house of the accused in the presence of the Taluka Executive Magistrate, PW-19 and inquest was held as per Ex. P-4. Accused No. 1 also produced the crowbar M.O. 4 from the house and it was seized under mahazar. The postmortem examination was held on the body of the deceased by the Doctor PW-10 and the P.M. report Ex. P-14 was collected. The spot mahazar was held, statements of witnesses were recorded. The hand sketch was drawn by the PWD authorities. Photographs were taken and on completion of the investigation, charge was filed against accused Nos. 1 and 3 for the aforesaid charges.

During the trial, the prosecution examined P.W. 1 to PW-20, marked Exs. P1 to P26 and M.O. 1 to M.O. 4. The statement of the accused was recorded under Section 313 of Cr.P.C. No defence evidence was lead.

The learned Trial Judge heard the counsel for the parties and on appreciation of evidence on record, acquitted accused No. 3 and held the first accused guilty for the charges under Sections 302 and 201 of IPC. After hearing, he imposed a sentence of imprisonment for life for the offence punishable under Section 302 of IPC and rigorous imprisonment for five years and to pay fine of Rs. 5,000/- was imposed for the offence punishable under Section 201 of IPC.

Aggrieved by the conviction and sentence the present appeal is filed. We have heard the learned counsel for both the parties. The point that arise for our consideration is:

"Whether Trial Court was justified in convicting the appellant for the offences punishable under Sections 302 and 201 of IPC and directing the sentence?

The learned counsel for the appellant submits that all the witnesses have not supported the case of the prosecution and as the case of the prosecution is dependent only on circumstantial evidence, the circumstances are not proved beyond reasonable doubt. He submits that the recovery of the dead body at the instance of the appellant cannot be accepted for the reason that the place where the dead body was buried was known to others and therefore Section 27 of the Evidence Act has no application. He submits that as accused No. 3 was granted acquittal on the basis of the evidence available on record, there is no reason for the Trial Court to convict the appellant and the benefit extended to accused No. 3 has to be extended to the appellant as well. He also submits that the circumstances which are placed on record by the prosecution are insufficient to convict the appellant and impose sentence. On these grounds, he has sought for setting aside the order of conviction and sentence.

On the other hand, learned Government Pleader appearing for the respondent-State submits that the dead body was found in the house of the accused and the crowbar M.O. 4 was recovered at his instance and this much of evidence which is placed on record and proved from the evidence of Taluka Executive Magistrate and the Investigation Officer is sufficient to affirm the order of conviction and sentence passed by the Trial Court. He further submits that the prosecution has proved the case beyond all reasonable doubts and that there are no reasons to warrant interference in the order of conviction and sentence.

PW-1 is the complainant who submitted his complaint Ex. P-1. PW-2 and PW-13 are the attesting witnesses to the Mahazar Ex. P3 to P6 i.e. the spot mahazar, where the dead body was buried, Ex. P4 inquest mahazar, Ex. P5 spot mahazar and Ex. P6 is the seizure mahazar of the clothes.

PW-3 is the neighbour who speaks to the motive aspect regarding the quarrel amongst the members of the family. PW-4 to PW-8 are also the neighbours of the house of the accused who speak on that aspect of the matter as stated by PW-3. All these witnesses have not supported the case of the prosecution and they are treated as hostile. In their cross-examination, statements have been marked as Exs.P8 to P13. PW-9 is the brother-in-law of accused No. 2. He speaks to motive aspect and has not supported the case of the prosecution on that matter. PW-14 and PW-15 are also the witnesses who speak similarly to PW-4 to PW-9 and they have also not supported the case of the prosecution. PW-16 is the mother-in-law of accused No. 2 and she also does not support the case of the prosecution. Except the official witnesses examined by the prosecution, none other witnesses have come forward to support the case of the prosecution.

What remains on record as a matter of evidence is, the evidence of the Doctor PW-10 who held the postmortem examination and submitted the postmortem report Ex. P-14. PW-11 is the PSI who registered the complaint given by PW-1. PW-12 is the Junior Engineer who drawn the sketch Ex. P-20. PW-17 is the Police Constable who seized the clothes. PW-18 is the Police Constable who carried the F.I.R. PW-19 is the Taluka Executive Magistrate in whose presence the inquest Ex. P4 was held. PW-20 is the Police Constable who held the investigation and filed charge sheet.

So far as the recovery of the dead body at the instance of the first accused is concerned, it is relevant to note that in the complaint Ex. P-1, PW-1 Hanamantappa had stated that there used to be quarrel amongst the family members in the house of the accused and from the date of incident there was no quarrel. He suspected the conduct of the accused, went to their house and he observed the suspicious conduct of each of the accused Nos. 1 to 3. He finds some signs at the scene of occurrence like newly dugged the soil having been found there. He expressed his suspicion in the complaint itself that the dead body might have been buried in the house after an assault on the deceased. With this reference, he files his complaint Ex. P-1. It is in pursuance of this complaint Ex. P-1 that the investigation was taken up and PW-20 kept a watch over the place of the incident, as he suspected the dead body having been buried in the house of the accused at the place from where the dead body was exhumed. So from these circumstances which have been placed on record, it is very much clear that even the police, PW-1 and others had the knowledge that the dead body was buried in the house and therefore for these reasons, we are of the opinion that the recovery of the dead body at the instance of the first accused cannot be called as discovery, as it was not exclusively within his knowledge.

PW-1 had a doubt because of which PW-20 had kept a watch over the scene of occurrence apprehending that the dead body is buried there. That apart, it is accused Nos. 1 to 3 who were the occupants of the house. If the appellant had knowledge of the dead body buried in the house, then it has to be presumed that even accused Nos. 2 and 3 had also the knowledge of the dead body having been buried at the place of the incident. In the background of the aforesaid circumstances, which have been placed on record, we are of the opinion that Section 27 of the Evidence Act has no application at all.

The conduct of PW-20 in not placing on record the extract of the house property of the accused also requires a comment. It is relevant to note that wherever the investigation takes place, the property extract of the place where the dead body is found has to be produced. Though PW-20 made a request to the village authorities to produce the property extract, the same was not placed on record. That apart, the doctor PW-10 states in his evidence that he went to the house of accused No. 1 which bears H. No. 11. Per contra, in Ex. P18 the exhumation report, the house number of the accused is mentioned as L-121. So there is discrepancy as to whether the house of the accused is No. 11 or No. L-121. This discrepancy could have been made clear by the prosecution by producing the assessment extract of the premises during the investigation. Further more, it is relevant to note that when PW-20 interrogated the first accused, PW-20 himself was aware of the fact, and kept watch over the premises. So the conduct of interrogating the first accused about the place where the body of the deceased was buried appears to be a formality to place on record some evidence against the accused and there appears to be no bona fides on the part of PW-20 in collecting such evidence against the first accused.

Further more, it is at the instance of accused No. 1 the M.O.-4 was recovered from the house of the accused. So far as the production of M.O. 4 is concerned, the attesting witnesses for the recovery Ex. P-5 have not supported the case of the prosecution. The fact that the M.O. 4 was recovered from the house of the accused, leads to the only conclusion that it was within the knowledge of the first accused and also within the knowledge of other accused who are said to be the occupants of the said house. Therefore, the recovery of M.O. 4 itself is insufficient to tag the first accused with the crime. As the other accused had also the knowledge of M.O. 4 being used, it cannot be said that it was the first accused who had the exclusive knowledge of the place where the M.O. 4 crowbar was concealed. That apart, PW-20 has not sent the seized article M.O. 4 for the opinion of the forensic experts. It is also fatal to the case of the prosecution.

The Apex Court in the case of Sk. Yusuf Vs. State of West Bengal, AIR 2011 SC 2283 : (2011) 3 Crimes 1 : (2011) 6 JT 640 : (2011) 6 SCALE 511 : (2011) 11 SCC 754 : (2011) 8 SCR 83 : (2011) AIRSCW 3748 : (2011) 4 Supreme 331 has held as under:

"35. Be that as it may, the spade had not been sent for chemical analysis as admitted by Digambar Mondal (PW 19), IO himself and there was no explanation furnished as for what reason it was not sent. In case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in the absence of any report of serologist as to the presence of human blood on the weapon may make the conviction of the accused unsustainable."

So, from looking to the material placed on record, the only circumstance which is made available by the prosecution is the recovery of dead body and M.O.-4 the crowbar. As observed by us above, PW-1 and many others were also aware of the dead body being in the house of the accused so also the other accused were aware of this fact. That apart, the crowbar having been there in the house was also within the knowledge of accused Nos. 2 and 3. In such circumstances, it cannot be said, by any stretch of imagination, that it is the first accused alone who had knowledge of above facts and circumstances. When the only circumstance available as aforesaid, and when the third accused was granted an order of acquittal, on the basis of the aforesaid evidence, there is no reason for the Trial Court to convict the appellant alone for the said offence. Therefore, we are of the view that the benefit extended to accused No. 3 has to be extended to the first accused also. That apart, the State has not filed any appeal against the acquittal of the third accused. In the aforesaid circumstances, we are of the opinion that on the basis of the material placed on record that the prosecution has not proved the guilt of the appellant beyond all reasonable doubts, the appellant is entitled to the benefit of acquittal.

Consequently, the appeal is allowed. The judgment and order of conviction of the appellant for the offences punishable under Sections 302 and 201 of IPC and the sentence thereon are set aside. The appellant is acquitted of the aforesaid charges. The appellant shall be set at liberty forthwith.

In view of disposal of the appeal, I.A. No. 2/2013 filed for producing additional evidence does not survive for consideration and the same is disposed of.