Narasimhamurthy vs State

Dilip B. Bhosale, J.—This appeal is directed against the Judgment and Order dated 14.10.2010 rendered by the 5th Fast Track Court, at Madhugiri in Sessions Case No. 244/2009, whereby the appellant-accused has been convicted for the offence punishable u/s 302 of IPC and sentenced to suffer life imprisonment for the rest of his life. The case of the prosecution, in brief, is that the respondent - accused on 18.08.2009 at 11.30 p.m., murdered his wife assaulting her with an axe on her neck. The accused killed her as he was suspecting her character. According to the prosecution the deceased had illicit relations with one Nagaraja of the same village, and there used to be frequent quarrels between them over that issue. The accused was working as bus conductor and used to go on duty for weeks together. On 19.08.2009 there was a quarrel between the accused and the deceased and on that count, when the deceased was sleeping he assaulted her with the axe and killed her.

The incident was witnessed by Divya (PW 2)- the daughter of the deceased and accused. Immediately after the occurrence, she informed the incident to her grand-father-Hanumanthappa (PW1). Hanumanthappa immediately rushed to the scene of offence and after seeing his daughter dead, rushed to the police station and lodged an FIR. On the basis of the FIR, a crime was registered bearing Crime No. 131/2009. The investigation was accordingly set in motion and after completing the investigation, a charge sheet was filed. The case was then committed to the Sessions Court, Tumkur on 23.11.2009.

In the course of trial, in order to bring home the guilt of the accused, the prosecution examined as many as 19 witnesses, most of which are family members of the deceased and the accused including the eyewitness (PW2). The prosecution examined the son of the deceased (PW3), father of the deceased (PW1), mother of the deceased (PW9) and so also the villagers and neighbours being PWs. 4, 5 and 6. The prosecution examined punch witnesses namely PWs. 4 and 8 in support of its case and police constable, photographer, doctor, punch witnesses etc., The prosecution also placed on record 10 material objects in support of their case along with several documents consisting of punchnamas (mahazar), photographs, sketch of the scene of offence, etc.

We have perused the entire evidence on record. Before we make any observations on merits, we deem it appropriate to reproduce paragraphs 9 and 10 of the judgment. A perusal of the observations made by the Trial Court, in our opinion, would clearly demonstrate as to why we reversing the judgment and acquitting the accused. Paragraph 9 and 10 of the Judgment read thus:

Unfortunately, the complainant deposed evidence as hostile witness. How ever he has admitted in his cross examination about the photographs of the dead body of his daughter. They are marked has Ex. P 3 to P6. The said photographs fully support that deceased was attacked from an axe on her neck. Even the daughter of the accused and the deceased, Divya has not supported that accused had attacked her mother on the particular night in her evidence as PW2. The son of the accused has deposed evidence as PW3, and he has also been treated as hostile witness. Similarly Pw4, Pw5, Pw6, Pw7, Pw8, Pw9, have been treated as hostile witnesses PW9 is the mother of the deceased Ramanjanamma. Therefore, even the mother of the victim has turned hostile, to the case of the prosecution.

PW10 is the police constable and was appointed to watch the dead body.

He was the witness to the inquest mahazar. He has collected the belongings of the dead body which are marked has M.O. 1 to 9. PW11, is the Assistant Engineer and prepared the sketch of the house of the accused where the dead body of the deceased was found. It is marked has Ex. P14. The Learned Counsel for the accused has tried to elicit contradiction about the sketch and the mahazar but it is not any way material to the offence committed by the accused. PW12 is the witness to the mahazar drawn at the time of recovery of the axe. The mahazar is marked as Ex. P16. The prosecution has not proved the Ex. P16, the recovery mahazar. How, ever the axe Ex. P. 10 has been recovered by the I.O. at the instance of the accused. The handle of the axe reveals the blood stains. It shows that the axe was used by the accused to attack his wife while she was sleeping. Pw14, Dr. Ravishanker had conducted the postmortem to the dead body of Ramanjanamma. He has identified the photographs of the dead body marked has Ex. P3 to 6. Further, he has stated that the wounds on the dead body of Ramanjanamma could be caused by attacking by M.O. 10 axe. Therefore, no doubt can be raised that accused has not committed the murder of his wife Ramanjanamma, even though the relatives of the deceased have not supported the prosecution case. PW. 15, is the witness to the mahazar Ex. P13. He has been treated as hostile witnesses. It appears that the witnesses have decided to turn hostile, so that accused could be released from jail to look after the young children of the accused and the deceased. But the circumstance of this case and the materials on record amply prove that the deceased was murdered by the accused. PW. 16, is the photographer of the dead body of the deceased which are marked as Ex. P3 to 6. There is no ground to believe that the photographs are created photographs as contended by the Learned Counsel for the accused. PW. 17 is the police officer who has conducted the investigation partly. He has traced the accused and produced him before the police sub Inspector. If the accused had not committed the murder of his wife the immediate conduct of the accused would have been about reporting the matter to the police soon after he found the murder of his wife. In this case, murder was committed on the night of 18.8.2009. The accused was arrested on 20.8.2009. It shows that accused tried to abscond after the incident without informing the matter to the police. Therefore conduct of the accused clearly proves that he has committed the murder of his wife. PW. 18, is the witness to the recovery mahazar and has been treated has hostile witness PW. 19 is the P.S.I. and deposed evidence that he registered the case and filed the F.I.R. Further he has traced the accused at the Dommathmary village. There fore it is clear that the accused having committed the murder of his wife, tried to abscond to avoid being arrested by the police.

We have perused the evidence of all the witnesses, in particular, the complainant - P.W. 1, the daughter of the deceased - P.W. 2, the son of the deceased - P.W. 3 and the mother of the deceased - P.W. 9. It would be relevant to reproduce the true translation placed on record by the appellant of the relevant portion in the examination in chief of P.W. 1, which reads thus:

I, don''t know what was happen to my daughter. Nobody were called and informed. My grand daughter not stated anything to me. I have not given statement to the police, I was put my thumb impression while the police asked me to put signature. The document which was contained thumb impression is marked as Ex. P-1 that is complaint. Another document contained thumb impression is marked as Ex. P-2.

It is requested to declare the witness hostile.

It is clear from the portion of the examination in chief of this witness that he did not support the prosecution case at all and hence he was declared hostile. Even the evidence of other witnesses, namely the daughter of the deceased - P.W. 2, the sole eyewitness, son of the deceased - P.W. 3 and mother of the deceased - P.W. 9 is similar and they also did not support the prosecution case at all. The villagers and the neighbour, namely P.Ws. 4, 5 and 6 also did not support the prosecution case at all and they all were declared hostile. Even the panch witnesses for spot mahazar also did not support the prosecution and they were also declared hostile. Even the other panch witnesses also turned hostile. The prosecution did not examine the Investigating Officer for the reasons best known to them It is in this backdrop, the Sessions Court has recorded the order of conviction solely on the basis of the conduct of the accused, who allegedly was absconding for two days and the photographs. Having considered the entire evidence on record, in our opinion, this is a case of no evidence. The appreciation made by the learned Judge is not only perverse, but it suffers from manifest illegalities. In the circumstances, this appeal is allowed. The order of conviction is set aside. The accused is directed to be set at liberty forthwith, if not required in any other case.