Renukmar and Others vs State of Karnataka

Mohan M. Shantana Goudar, J—The appellants herein are convicted by the Fast Track Court-II, Tumkur in S.C. No. 122/2011, by the impugned judgment and order dated 19.10.2011, for the offences punishable under Sections 302 and 201 of IPC.

Case of the prosecution in brief is that the deceased, both the accused, P.W. 1 and P.W. 9 are the sons and daughter of D.W. 1 Smt. Puttarangamma respectively; the deceased and P.W. 9 were residing at Bangalore; the deceased was running an autorickshaw whereas, P.W. 9 was working in a garment factory; P.W. 1 was the only brother who got himself divided from the joint family and got his separate property and was residing separately; whereas, both the accused, the deceased and P.W. 9 continued as joint family members; since the deceased and P.W. 9 were residing at Bangalore, both the accused were living in the village along with their mother (Puttarangamma) D.W. 1. Though P.W. 1 had taken his share from the joint family properties, he had grievance against the accused, in as much as, he was of the impression that he is not given his due share in the properties and in that regard, he was grinding an axe against the accused and his mother. It is the further case of the prosecution that the deceased had also grievance against the accused since he was not allotted his share. This part of the motive of the prosecution appears to be vague. Be that as it may. With the said motive in background, the accused committed the murder of the deceased by assaulting him and by strangulating his neck during the intervening night of 4.1.2011 and 5.1.2011 and buried the dead body in a ditch situated near Vishaka factory situated in the village, in order to hide from the crime.

Since the deceased was not found in the village after the night of 4.1.2011, P.W. 1 lodged missing complaint as per Ex. P1 on 10.1.2011 before Kora police station, Tumkur district, which came to be registered in Crime No. 7/2011. When the investigation was going on in the said crime, P.Ws. 1 and 9 jointly filed habeas corpus petition before this Court suspecting the hands of accused Nos. 1 and 2 in missing of the deceased. Accused Nos. 1 and 2 were arrested on 1.2.2011 in the village and they were interrogated. Even prior to that date also, the accused were interrogated by the police, but they did not get any clue from the accused. However, on 1.2.2011, accused Nos. 1 and 2 gave voluntary statement as per Exs. P17 and P18, based on which, dead body was exhumed from the ditch situated near Vishaka factory under panchanama Ex. P2 in the presence of panchas P.Ws. 7 and 8. At the time of exhumation of the dead body, the Taluka Executive Magistrate P.W. 13, the Doctor P.W. 14 and the Inspector of Police P.W. 17 were present apart from the accused. Based on the very voluntary statements, the club M.O. 4 and spade M.O. 5 used for commission of the offence were recovered at the instance of the accused under panchanama Ex. P7, so also, a motorcycle (M.O. 6) was seized from the house of the accused on the very day. P.W. 17, the Inspector of Police, completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 18 witnesses and got marked 28 exhibits and 10 material objects. On behalf of the defence one witness is examined and 3 exhibits were got marked. As aforementioned, the trial Court on evaluation of the material on record, convicted the accused for the offences punishable under Sections 302 and 201 of IPC.

Sri. A.H. Bhagawan, learned advocate appearing on behalf of the appellants taking us through the entire material on record submits that none of the circumstances relied upon by the prosecution are proved by the prosecution beyond reasonable doubt; since none of the circumstances are proved, the chain of events was virtually not complete; the evidence of P.W. 18 - the Sub-Inspector of Police reveals that accused have not made voluntary disclosure and consequently, their statement before the police is not admissible under Section 27 of the Indian Evidence Act; in view of the same, the entire circumstances of recovery of dead body as well as other material objects cannot be relied upon at by the Court. He further submits that the aspect of motive as put forth by the prosecution is vague; since P.W. 1 had grievance against the accused, he took initiative to get false case foisted against the accused. The evidence on record clearly reveals that the deceased was of an unwanted character in the society, in as much as, he was facing trial in various criminal Courts for various offences including the offence of dacoity, robbery, murder etc., It is also borne out from the records that number of enemies were created by him, who in turn were searching for him during relevant period. On these among other grounds, he prays for acquittal of the accused.

Sri. K.R. Keshavamurthy, learned SPP-2 has argued in support of the judgment of the Court below.

P.W. 1 is the brother of the deceased. He lodged the missing complaint as per Ex. P1, which came to be registered in crime No. 7/2011. He filed habeas corpus W.P. No. 24/2011 before this Court with an allegation that accused Nos. 1 and 2 have allegedly committed the murder of the deceased. He is also witness for scene of offence mahazar Ex. P2 and seizure of M.Os. 1 to 3.

P.W. 2 is the Auto driver. He had taken the deceased in his autorickshaw to the village and left him near a Tractor.

P.Ws. 3, 4 and 6 are the circumstantial witnesses, but they have turned hostile to the case of the prosecution.

P.W. 5 is the Security Guard of Vishaka factory. He speaks about exhuming of the dead body.

P.Ws. 7 and 8 are the witnesses for scene of offence mahazar Ex. P2 and inquest mahazar Ex. P6.

P.W. 9 is the sister of the deceased and the accused. In the examination-in-chief she had not deposed about the motive though she was examined to prove the circumstance of motive. However, in the cross-examination by the State Public Prosecutor, she has admitted that the deceased had got grievance against the accused in as much as, he did not get his share in the property.

P.W. 10 has deposed about the exhumation of the dead body and about the motive.

P.W. 11 is the witness for spot mahazar Ex. P7 under which, M.Os. 4 and 5 i.e., club and spade are recovered.

P.W. 12 is the photographer who has taken video shots and the video CD''s are marked at M.O. Nos. 7 and 8.

P.W. 13 is the Taluka Executive Magistrate. He conducted inquest proceedings as per Ex. P6. He was present at the time of exhumation of the dead body.

P.W. 14 is the Doctor. He conducted autopsy over the dead body and gave report as per Ex. P12.

P.W. 15 is the Assistant Engineer. He has drawn the sketch of the scene of offence as per Ex. P15.

P.W. 16 is another witness for recovery of M.Os. 4 and 5 under Ex. P7 as well as the motorcycle under M.O. No. 6.

P.W. 17 is the Investigation Officer. He completed the investigation and laid the charge sheet.

P.W. 18 is the Sub-Inspector of Police. He registered the case in Crime No. 7/2011 for man missing. He has conducted part of the investigation.

D.W. 1 is none other than the mother of the deceased and the accused. She has deposed about the antecedents of the deceased and narrated in detail as to his activities.

There are no eyewitnesses to the incident in question. The case rests on circumstantial evidence. The circumstances relied upon by the prosecution are as under:-

(i) The deceased died of homicidal death.

(ii) The deceased told P.W. 1 on the night of the incident that he is going to the house of the accused for sleeping.

(iii) The accused told P.W. 1 on the next day that the deceased left their house during night itself.

(iv) Recovery of the dead body and material objects M.Os. 4, 5 and 6 at the instance of the accused based on their voluntary statement.

(v) Motive relating to the incident i.e., property dispute.

Re. first circumstance that deceased died of homicidal death: There is no much serious doubt that the death of the deceased was homicidal. The Post Mortem report Ex. P12 and the evidence of the Doctor P.W. 14 clearly reveals that it is a case of homicidal death. The death was due to head injury sustained. The dead body was buried in a ditch situated near Vishaka factory in the village.

Re. second & third circumstances: It is the case of the prosecution that the deceased came to the house of P.W. 1 at about 10.30 p.m. on 4.1.2011 and after talking to him for some time, he told P.W. 1 that he would go and sleep in the house of the accused. It is further case of the prosecution that when the deceased was not seen on the next day morning, P.W. 1 asked the accused about the whereabouts of the deceased. In that context, accused told P.W. 1 that deceased ran away from their house during the night of 4.1.2011 itself. To prove this aspect of the matter, the evidence of P.W. 1 is pressed into service by the prosecution.

We have already mentioned supra that the complaint Ex. P1 was lodged after six days of the date of missing of the deceased. By then P.W. 1 had talked with various persons including P.W. 9 and the accused. Since the deceased was not available either in the village or in Bangalore, a missing complaint as per Ex. P1 came to be lodged before Kora police station by P.W. 1. In the said missing complaint lodged after six days of missing of the deceased, P.W. 1 has clearly mentioned and clarified that when he asked his brothers (accused) they told him that the deceased had not come to his house at all. It means, the story as put forth by the prosecution through the evidence of P.W. 1 that accused told before P.W. 1 that the deceased came to their house and left their house during night of 4.1.2011 itself cannot be believed, in as much as, the same appears to be a false theory put up by the prosecution. The complaint Ex. P1 specifies that the accused had told before P.W. 1 that the deceased had not at all come to their house. Added to it, P.W. 2, the driver of the autorickshaw in which the deceased traveled from Mallasandra to Kodihalli during night of 4.1.2011, has deposed that at the request of the deceased, he gave lift to him from Mallasandra to Kodihalli village in his autorickshaw and left him in the village at 10.30 p.m. Though P.W. 2 had taken the autorickshaw before the house of P.W. 1, the deceased did not alight from the autorickshaw and consequently, the deceased was left by P.W. 2 near a thrashing ground wherein a tractor was stationed and some three persons were present. One Mr. Siddaraju, owner of the thrashing machine was also sitting near the said place. At that point of time, the deceased having seen Siddaraju mistook him as accused No. 2 and tried to assault him, but after having come to know that it was Siddaraju and not accused No. 2, the deceased did not assault Siddaraju. Thereafter, the deceased took the tractor telling P.W. 2 that the said tractor belongs to him and went towards Kora police station. While leaving the company of P.W. 2, deceased had taken Rs. 200/- for his expenses as hand loan. This evidence of P.W. 2 clearly reveals that the deceased neither visited the house of P.W. 1 nor visited the house of accused, but he simply went towards a thrashing ground and took the tractor from that place and went away saying that he would be going to Kora police station.

The evidence of P.W. 2 finds corroboration from the evidence of D.W. 1. As aforementioned, D.W. 1 is none other than the mother of the deceased as well as the accused. She has deposed that she had purchased the tractor in the name of the deceased for his use in order to see that deceased lives in the village and not in Bangalore. Though the deceased lived in the village for about one month, he could not adjust in the village and therefore, he went back to Bangalore, despite repeated requests of D.W. 1 and other family members. It is specified by D.W. 1, the mother of the deceased that the deceased was taken by P.W. 1 in a car and thereafter, the deceased had not come back to the village.

In addition to the same, Ex. D1 is marked during the cross-examination of P.W. 1. Ex. D1 is the portion of the statement made by P.W. 1 before the police during the course of investigation and the same reveals that though the deceased had called him over phone that he is coming to the village from Tumkur and though P.W. 1 was waiting for the deceased for a long time during the night of 4.1.2011, the deceased did not come to the house of P.W. 1. Ex. D1 so marked is confronted to the investigation officer and the same is proved as per law. Hence, it is clear that Ex. D1 fully supports the defence version that the deceased neither came to the house of P.W. 1 nor went to the house of the accused.

The aforementioned material on record, if considered homogenously, becomes evident that the deceased neither met P.W. 1 nor met accused during the night of 4.1.2011 and he left the village with a Tractor. Therefore, the second and third circumstance relied upon by the prosecution also fails.

Re. fourth circumstance of recovery of the dead body as well as material objects used for commission of the offence: The defence is justified in arguing that the prosecution has not proved this circumstance also. It is the specific case of the prosecution that Investigation Officer has recorded the voluntary statements of accused Nos. 1 and 2 as per Exs. P17 and P18, based on which, the dead body as well as M.O. Nos. 4, 5 and 6 were recovered. The same is the evidence of the investigation officer P.W. 17. But the evidence of P.W. 18, the Sub-Inspector of Police fully destroys the case of the prosecution. He has admitted in the examination-in-chief itself that he attended the habeas corpus in the High Court and after receiving instructions from the Court he came back to the village and started interrogating the accused. The accused were brought to the police station and after intensive interrogation, the accused confessed before him about they committing murder of the deceased and burying the dead body in a ditch near Vishaka factory. Based on this statement extracted from the accused with force, Sections 302 and 201 of IPC were added by the Sub-Inspector of Police (P.W. 18) and subsequent investigation is proceeded with. The evidence of P.W. 18 makes it amply clear that the voluntary statements Exs. P17 and P18 cannot be relied upon at all, in as much as, they are hit by the provisions of Sections 24, 25 and 26 of the Indian Evidence Act. The confession of the accused before the police caused by inducement, threat etc., is inadmissible in law and such statements if any, made by the accused should not be proved against the accused. Admittedly, the accused were in the custody of the police and only after intensive interrogation, the accused allegedly made disclosure of the burial of the dead body in a particular place. Therefore, the voluntary statements Exs. P17 and P18 are inadmissible and consequently, the recovery based on involuntary and the statements extracted by force cannot be made use of.

In addition to the same, P.W. 1 has admitted in the cross-examination that by the time they went to the spot wherein the dead body was buried, the Tahsildar, three to four persons from the village and ten police officials were already present on the said spot, which means, the Tahsildar, villagers as well as the police officials had prior intimation about the burial of the dead body at the said place. Therefore, by any stretch of imagination it cannot be said that it is a discovery made by the police based on the statements of the accused. Therefore, entire aspect of recovery of the dead body as well as other material objects cannot be relied upon, in as much as, there is no legal evidence to support the said circumstance.

Re. fifth circumstance of motive: We have already clarified supra that the motive as put forth by the prosecution is fragile. P.Ws. 1 and 9 in one sentence have vaguely deposed before the Court that the accused did not want to give any share in favour of the deceased. But the evidence of P.Ws. 1 and 9 runs contrary to the evidence of D.W. 1 who is none other than the mother of accused, deceased and P.W. 9. She has deposed that P.W. 1 had got his share and was residing separately, whereas, all others were residing jointly. As a matter of fact, a tractor was purchased for the benefit of the deceased by his mother. Despite the same, the deceased did not mend his conduct and he did not stay back in the village. Therefore, the aspect of motive is also not proved.

The evidence on record, more particularly, the evidence of D.W. 1 clearly reveals that the deceased was an unwanted person in the society; he was facing number of criminal trials in various Courts; he was involved in murder, dacoity, robbery etc cases. He was popularly known as "Bond" in the locality. Certain of the persons had come to the village to make enquiries about the deceased prior to the incident. The deceased was in custody number of times and he was released on bail since D.W. 1 had helped for his litigation expenses and for arranging bail bonds etc. Having regard to this background, the defence may be justified in arguing that any of the persons who are ill-disposed towards the deceased, who was a known bad element in the locality, must have committed the murder of the deceased. Be that as it may. Since none of the circumstances relied upon by the prosecution are proved beyond reasonable doubt and consequently, since the chain of circumstances is not complete as against the accused, the trial Court is not justified in convicting the accused.

On re-appreciation of the material on record, we find that the reasons assigned and the conclusions arrived at by the trial Court are not proper and correct. The aforementioned discussions made by us lead to the only conclusion that the accused are entitled to be acquitted. Accordingly, the following order is made:

(a) Appeal is allowed.

(b) The judgment and order of conviction dated 19.10.2011 passed by the trial Court convicting accused Nos. 1 and 2 (Sri. Renukumar and Sri. Prasad) for the offences punishable under Sections 302 and 201 stand set aside.

(c) The accused are acquitted of all the charges leveled against them. They shall be set at liberty forthwith, if not required in any other case.

Operative portion of this order shall be communicated to the Prison Authorities forthwith, for further action.