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Judgment
Both accused, having been convicted and sentenced by
the Fast Track Court-XVI, Bengaluru City, in S.C. No.
1051/2005 in relation to offences punishable under Sections
392, 397 and 302 IPC, read with Section 34 IPC, have
preferred this appeal. The learned trial Judge sentenced
both accused 1 and 2 to undergo rigorous imprisonment for
a period of seven years and pay a fine of Rs.2,000/- each
with default imprisonment for two months in relation to
offence under Section 392 IPC. For the offence under
Section 397 IPC, they have been sentenced to undergo
rigorous imprisonment for a period of seven years and in
relation to offence under Section 302 IPC, they have been
sentenced to imprisonment for life and to pay fine of
Rs.2,000/- with default clause of two months imprisonment.
The prosecution case in brief is that the deceased
namely Kamalamma was a resident of house No. 28 situate
at Maramma Temple Street, Krishnaihanapalya, Bengaluru.
She was carrying on business in scrap items in her house
itself. In the intervening night of 6.8.2005 and 7.8.2005, the
accused gained entry into her house and cut her neck while
she was sleeping and caused her death. They robbed off
some gold items such as ear studs, nose studs and
mangalya that she was wearing and also cash of Rs.2,200/-
kept in the almirah. The son of the deceased, namely
Suresh Kumar made a report of this incident to the police in
the early hours of 7.8.2005 to the Byappanahalli Police
Station. Based on this report, police registered a case in
Cr.No.133/2005 for the offence under Section 302 IPC. After
investigation, the police laid a charge sheet against the
accused for the offence under Section 302 IPC.
The learned Fast Track Court Judge, at the time of
framing the charge found that the facts of the case would
attract the offences punishable under Section 392 read with
Section 397 IPC also besides the offence under Section 302
IPC and, therefore, charged the accused for these offences.
Since the accused denied the charges and claimed to be
tried, prosecution went into trial, examined 12 witnesses
PWs 1 to 12 and got marked 23 exhibits as per Exs. P1 to
P23 and 24 material objects marked MO1 to 24. Ex.D1
came to be marked during cross-examination of DW1. After
appreciating the evidence, learned trial Judge came to the
conclusion that the involvement of the accused in the
incident had been established by the prosecution beyond
reasonable doubt and therefore found them guilty of the
offences.
The trial Court has recorded reasons that the
prosecution case rests on circumstantial evidence. It has
held that the prosecution was supposed to prove the
circumstances namely (i) setting the criminal law into motion
by making report at 3.30 AM on 7.8.2005 (ii) drawing up of
spot mahazar in between 8.45 and 9.30 AM on 7.8.2005 (iii)
securing of a finger print expert, a photographer and the dog
squad on the very same day (iv) conducting inquest
mahazar on 7.8.2005 between 6.00 AM and 9.00 AM (v)
apprehending the accused on the very same day (vi) seizure
of incriminating materials on the basis of voluntary
statement given by the accused (vii) seizure of blood stained
clothes of the accused (viii) conducting post-mortem
examination and lastly production of the accused before the
Court on 8.8.2005. The trial Court has held that the links in
the chain of circumstances have been proved and that the
totality of the circumstances clearly lead to draw an
inference that the entire case of the prosecution has been
proved beyond reasonable doubt.
Assailing the findings of the learned trial Judge, the
learned counsel for the appellant argued that the trial Court
erroneously held that all the circumstances had been
proved. No doubt the witnesses who had been examined for
establishing the inquest mahazar, spot mahazar and seizure
mahazars testified that in their presence these mahazars
were drawn and recoveries made from the accused, yet the
trial Court lost sight of unnatural conduct of Kataiah, the
husband of the deceased. The I.O did not record his
statement. According to PW1, who made a report to the
police about the incident stated that it was his father who
came to his house in the midnight and informed him about
the incident, but it could be seen from the evidence of
investigation officer that Kataiah was not able to move at all.
He was fast asleep even when he went to spot. If really
Katiah had gone to the house of his son, the reason why his
statement was not recorded was not forthcoming. The
prosecution did not examine another prime witness CW8
Smt. Baby, who according to the prosecution was the one
who had seen the accused in the house of the deceased on
the previous night. This witness was not examined. In the
absence of the evidence of this witness, it is not possible to
connect the accused with the incident. The prosecution case
reveals that one brother and a sister of PW1 also came to the
place of the incident soon after getting information from
PW1. They were not examined. The prosecution did not
place any material before the Court as to how the accused
were able to gain entry into the house of the deceased. The
house of the deceased is situated in a slum area where
houses are closely situated. If somebody would break open
the door in the midnight, the breaking noise would attract
the attention of the neighbours. The I.O did not find it
necessary to examine the neighbours. These being the
shortcomings in the prosecution case, merely on the basis of
some recovery made by the investigating officer and tracing
of chance finger prints of one of the accused, it is highly
impossible to draw conclusions about involvement of the
accused in the offence. His submission was that if the trial
Court had appreciated the entire evidence in right
perspective, it would have been possible for it to hold that
the circumstances had not been proved. Any amount of
suspicion based on the recovery cannot take the place of
proof. With these points, he argued for acquitting of the
accused by setting aside the judgment of the trial Court.
The learned counsel for the accused also argued
that the trial Court committed another mistake in holding
the accused guilty of the offences both under Section 392
and 397 IPC. The charge was raised only for the offence
under Section 397 which is a major offence. When the trial
Court held the accused guilty of the offence under Section
397 IPC, there was no need to hold them guilty of a lesser
offence, namely Section 392 IPC and sentence them for that
offence also.
The learned High Court Government Pleader
argued that the police were able to trace the accused within
no time. From their presence the articles that they had
robbed off the house of the deceased were recovered. They
themselves led the police to the place where they had hidden
the knives and produced the same before the police. The
chance finger prints of one of the accused was also traced on
the almirah kept in the house of the deceased. The finger
print expert gave opinion that those chance finger prints
matched with finger prints of one accused. In a case like
this, recovery of stolen articles and the weapons used for the
commission of the offence play an important role. It may be
true that the prosecution did not examine a material witness
namely Smt. Baby. This by itself cannot be a ground for
disbelieving the other part of the evidence which proves the
involvement of the accused in the offence unerringly. It was
for the accused to have given an explanation as to how they
were able to possess the stolen articles. Their failure to give
explanation in this behalf provided a missing link and,
therefore, the learned trial Judge is right in holding the
accused guilty of the offences.
The above arguments give rise to the following
points for discussion: -
(i) Is the trial Court right in arriving at a conclusion
that chain of circumstances have been proved by
the prosecution to hold the accused guilty of the
offences charged against them?
(ii) Could the trial Court have sentenced the
accused for the offences under Sections 392 and
397 IPC?
Point No. (i): -
Given a look at the evidence tendered by each of
the witnesses examined by the prosecution, it was PW1, the
son of the deceased who reported the incident to the police.
PWs2, 3 and 4 speak about the inquest panchanama
conducted in their presence as per Ex.P3. PWs 3 and 4 also
testified the fact of spot mahazar as per Ex.P4 having been
drawn in their presence. PW4 also speaks about another
mahazar Ex.P5 drawn in connection with recovery of stolen
jewellery and cash of Rs.2,200/- from the accused. These
articles are marked as MO6 to 14. PW4 was also a witness
to Ex.P6, a panchanama drawn in relation to seizure of two
knives, MO19 and 20 as produced by the accused by taking
the police to the place where they had hidden them. This
witness also testifies the panchanama as per Ex.P7 drawn in
connection with seizure of blood stained clothes of the
accused as per MO 21 to 24.
PW5 is the doctor who conducted autopsy of the
dead body of the deceased. He has given evidence that
before dissection of the dead body, he noticed the presence
of a cut injury, irregular in shape on the neck of the
deceased. Ex.P8 is the post mortem report. PW6 is the
Assistant Director of Forensic Laboratory. He has given
evidence with regard to subjecting some of the seized articles
and the clothes of the accused and the deceased to chemical
examination. PW7 is a photographer who took the
photographs of the dead body having gone to the place of the
incident. PW8, Police Sub-Inspector, who has given evidence
that he apprehended both the accused at Yeshwanthapura
Railway Station Bengaluru.
PW9 is the investigation officer. He has given
evidence about the investigation he made. PW10 is the finger
print expert and has given evidence about having found the
chance finger prints on a steel almirah and TV showcase. He
subjected these chance finger prints to scientific examination
with the admitted finger prints of both the accused and gave
a report that the chance finger prints matched with the
finger prints of the second accused. He gave a report in this
regard as per Ex.P20. PW11 and 12 are two police witnesses
who have given evidence with regard to the duty entrusted to
them by the investigation officer.
It is very evident that the trial Court has mainly
relied on recovery of incriminating articles from the accused
and matching of chance finger prints with the finger prints of
the accused No.2. Even if we assess the entire evidence of
PWs 2 to 4, with regard to drawing up of inquest mahazar,
recovery mahazars and seizure mahazars, we find that all
these witnesses have not been discredited in the cross-
examination. Therefore, we have to endorse the findings
given by the trial Judge in this regard. Undoubtedly, the two
important circumstances, namely recovery of the stolen
jewllery and cash from the accused as also seizure of the
knives MO19 and 20 do get established.
There are two other circumstances which the trial
Court has not noticed. These circumstances are (1)
possibility of accused having visited the house of the
deceased on the previous evening or night (2) the mode of
gaining entry into the house of the deceased. Apart from
these two, the conduct of the husband of the deceased,
namely Kataiah also assumes importance.
The trial Court has held that no time was lost in
making a report to police by PW1 as per Ex.P1. This is true
also. But, here the conduct of Kataiah needs to be
considered. PW1 has given evidence that his father, i.e.,
Kataiah came to his house about 1.30 AM and told him
about the incident. At 3.30 AM PW1 makes a report of the
incident to the police. Therefore, PW1 first came to know
about the incident from his father. The question that arises
here is whether Kataiah had really gone to the house of PW1.
This is because of the evidence given by IO-PW9 who in his
evidence has clearly stated that he did not interrogate
Kataiah during investigation. The explanation that PW9
gives for not examining Kataiah is that he was not in a
position to speak because his mental condition was not good
and he appeared to be under shock. It cannot be doubted
that Kataiah was not in the house when the incident took
place. He was very much present in the house. That means
he might have seen the faces of the persons who committed
the crime. If according to PW1, his father was able to come
to his house to tell him about the incident, the statement of
PW9 that he was not in a condition to speak becomes
impossible to be accepted. If evidence of PW9 is taken to be
true, obviously what PW1 has stated becomes difficult to be
believed. Kataiah is not cited as a witness in the charge
sheet. He would have been the best witness to identify the
accused. Moreover, according to PW1 when his father came
to his house, his neighbour, namely Sridhar was very much
present and that he accompanied PW1 to police station also.
But, CW2 is not examined as a witness. If Sridhar had been
examined, probably he would have made the position clear.
The trial Court has held that the proof of inquest
conducted by the IO is one of the circumstances which has
been proved. In our opinion inquest itself cannot be a
circumstance, rather it is a part of routine procedure of
investigation. Any clue that IO gets while conducting
inquest may be considered as a circumstance to be
established. This is necessary to be stated because, while
conducting inquest, a woman by name Smt. Baby CW-8 was
examined. She was a maid servant in the house of the
deceased. She was not examined as a witness though cited
in the charge sheet. According to the prosecution, she was
the one who saw the accused having come to the house of
deceased on the previous evening to make an enquiry
whether deceased would purchase some scrap items from
them. We find that the evidence of Baby would have helped
the prosecution because it was only after examining this
woman, probably, the IO might have come to know about the
persons involved in the commission of offence and on this
basis he might have instructed PW8 to trace and apprehend
the accused. PW8 says that the IO had not given him the
details or the photographs of the accused. If this is the
evidence of PW8, how could they trace the accused at
Yeshwanthapur Railway Station? In a case based on
circumstantial evidence, tracing of the accused is also one of
the circumstances, and this is possible only when a witness
having seen the accused reveals the same before the
investigation officer. Therefore, the evidence of Baby was so
crucial for identification of the accused before the court. It is
not known why Baby was left out from being examined
before the Court. For this reason we have to opine here that
first circumstance that we have pointed in paragraph 13
above does not get established.
The other circumstance is, mode of gaining entry
into the house of the deceased by the persons who might
have committed the crime. The spot panchanama-Ex. P2
does not contain particulars about the condition of the main
door of the house of deceased. Interestingly, the finger print
expert examined as PW10 has mentioned about noticing one
broken front door. It was the duty of the investigating officer
to have keenly observed as to how the accused might have
gained entry into the house. This is very important because
the house of the accused is situated in a place where the
neighbouring houses are also closely situated. While
breaking the door, obviously that sound should have
attracted the attention of neighbourhood and therefore a
doubt would arise whether was it possible for the accused to
have entered the house of the deceased in the midnight by
breaking the front door of the house of the deceased. There
is no evidence in this behalf.
The above circumstances in our opinion have not
been proved. It is needless to say that the prosecution
should prove the links in the chain of circumstances. It is
the duty of the investigation officer while giving evidence
before the Court, to narrate the circumstances that he comes
across during investigation. He should not rhetorically give
evidence by just narrating as to what he did and on what
date. We feel that it is the duty of the public prosecutor also
to have elicited from the investigation officer the
circumstances, so that the trial judge can apply his mind
while appreciating the evidence.
Recovery of incriminating articles at times can be
considered to be a sole circumstance to connect the accused
with offences charged against them; it cannot also a be a
sole circumstance, and may be one of the circumstances. It
all depends on the facts of a given case. In this case,
recovery cannot be alone considered, though the accused
have failed to offer explanation as to how they were found in
possession of jewellery and cash found stolen in the house of
the deceased. So from the above discussion it is amply
clear that two views are possible to be taken - one view being
the findings given by the learned trial judge in the
background of seizure of the incriminating articles from the
accused and the other view being in the background of the
circumstances that we have discussed above. When two
views are possible, the established principle is that its
benefit must be given to the accused. Therefore point No.1 is
answered in the negative. Point No. (ii): -
The learned trial judge framed the charges for the
offence under Section 392 read with Sections 397, 302 read
with Section 34 IPC. Having found the accused guilty of the
offence under Section 392 read with 397 IPC, he proceeded
to sentence the accused for the offence under Section 392 as
also under Section 397 IPC. In our opinion sentencing the
accused for these two offences is not in accordance with law.
Section 392 IPC prescribes punishment for robbery. The
period of imprisonment may extend to ten years with fine
and if the robbery is committed on the high way between
sunset and sunrise, the imprisonment period can be
extended up to fourteen years. Section 397 IPC also
prescribes punishment of imprisonment for a minimum
period of seven years if during robbery or dacoity the
offender uses deadly weapons or causes grievous hurt to any
person or attempts to cause death or grievous hurt to any
person. The prosecution case squarely falls under Section
397 IPC as according to the prosecution the accused used
knives and caused the death of the deceased. Therefore
Section 392 IPC does not come into picture at all. For this
reason we are of the opinion that convicting the accused for
the offences under Section 392 and Section 397 IPC is not
justifiable. Therefore this point is answered in negative.
From the discussion on point No.1, we come to the
conclusion that this appeal deserves to be allowed and
judgment of the trial court convicting the accused under Section 392 read with 397 IPC and 302 read with 34 IPC set
aside. Accordingly the following order:
ORDER
i. Appeal is allowed
ii. Judgment of conviction recorded by the trial court
in S.C.No.1051/2005 is set aside.
iii. The accused are acquitted of the offences. They
shall be set at liberty if their presence is not
required in any other case.