Satteppa and Others vs The State of Karnataka

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

The appellants were the accused before the court below in the following circumstances :

"It was the case of the prosecution that Mallappa, son of Shankar Gurav was the complainant. It transpires that Mallappa''s father Shankar Gurav was employed in the Grameena Vikas Bank at Jath in Maharashtra State, as a peon. The complainant, his mother, brother and sister were residing at Nakur Rehabilitation Centre near Savalagi, since Savalagi village was the maternal place of the complainant''s mother. Shankar would visit them periodically, every week or a fortnight. It transpires that accused No. 1 and accused No. 2, the present appellants were also residing near Nakur Rehabilitation Centre and their house was situated near the house of Rajawa, wife of Mahadev Madar. Rajawa had a daughter by the name of Ashwini, who was aged about 16, as on the date of filing of the case, and it transpires that there was an alliance proposed, whereby Ashwini was to marry accused No. 2, the appellant No. 2 herein. But however, it had been noticed by the accused that Sandeep Gurav, the deceased, had a close relationship with Ashwini and suspecting that there was a deeper relationship, accused No. 1 is said to have advised Sandeep not to be friendly with Ashwini any more, as she was to marry accused No. 2. However, since Sandeep did not heed to the request and the threat, it was alleged that accused Nos. 1 and 2 had hatched a plan to kill Sandeep. On 27.6.2009, at about 4.p.m., the accused are alleged to have taken Sandeep on their bicycle from a sweet meat stall situated near the bus-stand at Savalagi, on the pretext of hunting for rabbits. Sandeep was said to have been taken to the land belonging to one Satteppa, bearing survey No. 288 of Savalagi village, where there was an open well.

It is further alleged that accused Nos. 1 and 2 are said to have tied up the hands and legs of Sandeep with a metal wire and cloth and after killing him, had thrown the dead body into the open well and thereby had committed the murder of Sandeep. They were alleged to have taken away his cell phone, a NOKIA Model 1209, from Sandeep and after having removed the sim card, had sold the said cell phone to Balesh Ravu Harapale, a tractor driver, and also a resident of Savalagi, for a sum of Rs. 700/-. It is only on 11.7.2009, which is clearly about 14 days after the incident, at about 8.30 p.m., the complainant, Mallappa had stated before the Savalagi Police that the dead body of Sandeep was found floating in the well belonging to Satteppa on land bearing Survey No. 288 of Savalagi village and that he and his father had witnessed and identified the dead body as being that of Sandeep. It was stated that he had been murdered by unknown persons and the body was then thrown into the open well. He had requested that further action be taken to trace the miscreants, who may have committed the murder.

The complaint was registered as crime No. 103/2009 and investigation was taken up. After the investigation, the Circle Inspector of Police, Jamakhandi had filed a charge sheet against accused Nos. 1 and 2, on 12.10.2009 before the Court of the JMFC, Jamakhandi, who in turn, after taking cognizance of the offences alleged, had ordered registration of a criminal case in CC 48/2009 and on 10.2.2010, the Magistrate had committed the case to the court below in terms of Section 209 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''CrPC'', for brevity) and it was re-registered as SC 21/2010. The accused were arrested on 17.7.2009 and were produced before the Jurisdictional Magistrate and were released on regular bail on 15.10.2009 by the Sessions Judge, Bagalkot.

Initially, a case having been registered on the file of the Sessions Judge, Bagalkot, thereafter it was made over to the Fast-Track court, Jamakhandi for trial. Charges were framed against the accused and they having pleaded not guilty and having claimed to be tried, the prosecution had tendered evidence of 22 witnesses namely, PWs.1 to 22 and had marked Exhibits P.1 to P.36 and material objects Mos.1 to 11.

Accused Nos. 1 and 2 had then been examined under Section 313 of the CrPC to enable them to explain the incriminating evidence appearing against them. They had denied the statements, in toto, but they did not however seek to tender any evidence. After having heard the arguments on both sides and after considering the material on record, the court below has convicted the accused and has imposed the punishment of life imprisonment and a fine of Rs. 5,000/-, each, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity) and also rigorous imprisonment for a period of 7 years and a fine of Rs. 2,000/- each, for the offence punishable under Section 201 of the IPC.

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

The learned counsel for the appellants would point out that insofar as the motive alleged for the commission of the offence by the appellants is concerned, the complainant had not indicated that he suspected the accused of having committed the murder of his brother, but he had merely stated that he had been murdered by unknown persons. It is only as an after-thought, in the course of his evidence, that he has stated the possible involvement of the accused. This, by itself, would not be sufficient to bring home the allegation that it was the accused who had committed the murder of Sandeep on account of his involvement with Ashwini. Apart from the evidence of PW.1, there are only incriminating statements said to have been made by accused Nos. 1 and 2 at the stage of investigation, which cannot be held against them as no such incriminating evidence can be cited against the appellants without there being corroborative evidence and other circumstances made out, independently.

Insofar as the actual incident of commission of the crime is concerned, there are no eye witnesses and it is on a mere surmise on the part of the prosecution as to the manner in which the offence may have been committed. On the "last seen" theory of the prosecution, of the deceased having been seen with the appellants at the bus stand in Savalagi, several witnesses, namely, PWs -7,8 and 13 have been examined. PW.7 was the proprietor of a sweet meat stall. PW.8 was the owner of a flour mill. PW.13 was the owner of land where the dead body was discovered.

Insofar as PW.7 is concerned, the learned counsel would point out that though the prosecution had sought to rely on the statement allegedly said to have been made at the time of investigation, he had been treated as a hostile witness at the trial and therefore, there is no reliance that could be placed on his evidence. Similarly, PW.8, who was said to be the owner of a flour mill, who is said to have seen Sandeep along with the accused before his disappearance, had also been treated as a hostile witness and therefore his statement made earlier, to the effect that he had seen the accused along with the deceased, was of no relevance and could not be relied upon.

Further, PW.17, who was the mother of Ashwini has not again corroborated the case of the prosecution that it was indeed so. On the other hand, she has been treated as a hostile witness and her statement has not been relied upon by the prosecution.

Insofar as accused No. 13 is concerned, he was stated to be the nearby land owner of land where the dead body was discovered and his evidence is only to the effect that the dead body had been fished out of the open well and he had seen the body.

It is pointed out by the learned counsel for the appellants that admittedly, the dead body was in a highly decomposed state. And it is only on the basis of the evidence of PW.1 and PW.5, it is claimed that the body was that of Sandeep, who had been murdered. Hence, there is doubt about the identity of the body, as it could not be said that the mere statement of PWs.1 and PW.5 that the clothes found on the dead body were that of Sandeep should be accepted as conclusive proof.

Further it is strongly urged on behalf of the prosecution that the cell phone which was said to have been sold by accused No. 1 to PW.15, on the basis that the original receipt for having purchased the cell phone by PW.15 was produced and the fact that the purchaser, PW.15, had stated that he had purchased it from accused No. 1 is found to have been contradicted in the course of evidence. In that, the said PW.15 has not maintained consistency in his statement as to the date on which he had purchased the cell phone and whether it was from accused No. 1 or accused No. 2. This evidence again would not conclusively establish that Sandeep did have a cell phone bearing a particular number and the cell phone which had been sold by accused No. 1 in favour of PW.15, was the very cell phone. This, the learned counsel, would submit, would not be a sound basis to assume that the accused - appellants had committed murder. This by itself could not be treated as a strong circumstantial evidence to bring home the guilt of the accused and would submit that the same could not be cited as the basis for finding the accused guilty of a serious crime of murder.

Therefore, the learned Counsel would point out that the entire edifice on which the prosecution had sought to build its case had collapsed in the several witnesses having turned hostile and the "last seen" theory of the prosecution having fallen to the ground. There was no basis for the prosecution to hold that it was the appellants who had committed the murder of Sandeep on account of any alleged relationship that Sandeep may have had with Ashwini, which is again not proved. And the identity of the deceased and the manner in which the act had been committed also not having been established, it could not be said that the prosecution had discharged the burden of proof of establishing its case beyond all reasonable doubt. Merely on the basis of a transaction whereby the accused are said to have sold the cell phone to PW.15 could not be the sole basis for the prosecution to hold that they were indeed responsible for the commission of the crime. The court below was therefore in error in proceeding on that basis alone, which is wholly impermissible in law and would run contrary to the settled principles of law in bringing home a charge of a serious offence of murder on that basis. The learned Counsel for the appellants seeks that the conviction of the accused by the court below be set aside and the accused be acquitted.

While the learned Additional State Public Prosecutor would vehemently seek to justify the judgment of the trial court. It is contended that as per the voluntary statement made by accused in the manner in which they had come into possession of the cell phone and the fact that the metal wire with which the accused had been murdered was also of a similar nature, as found in the home of the accused, who were brothers, and which was seized at the instance of the accused, would certainly establish their involvement and the court below having proceeded on this circumstantial evidence cannot be said to be bad in law and seeks to justify the judgment.

However, it is noticed that the court below has proceeded on the basis that the motive for the commission of the offence was that the deceased was over-friendly with one Ashwini and since Ashwini was to marry accused No. 2, accused Nos. 1 and 2 had warned the deceased not to have anything to do with Ashwini and when he continued to remain friendly, had hatched a conspiracy to supposedly take him hunting for rabbits and thereafter had murdered Sandeep and had thrown him into an open well. It is on the basis of the last seen theory of the three witnesses, namely, PWs 7,8 and 13, whose statements were sought to be used against the accused, had miserably failed in corroborating the case of the prosecution as they had not adhered to their earlier statements and were treated as hostile witnesses. If the very fact that Sandeep was "last seen" along with the accused was not established, the further accusation as to Sandeep having been murdered by them and having thrown him into an open well after tying up his hands and legs cannot be held to be accepted. There are no eye witnesses to the incident. Further the body having been discovered 13 days after the alleged murder was in a highly decomposed state and the identity of the body was itself in doubt. Mere identification of the clothes found on the dead body as being that of Sandeep by itself, would not be conclusive proof that it was indeed the dead body of Sandeep. In the absence of any other incriminating evidence and in the absence of a clear report, in that, the post-mortem report was only a vague report, indicating that the dead body may be that of a 16 year old, it cannot be said that the dead body was that of Sandeep. The only incriminating evidence that is sought to be relied upon and used against the accused, is the transaction relating to a cell phone which is said to have been purchased by the father of Sandeep. It is noticed that PW.19 having stated that the cell phone had been purchased by accused No. 1 and thereafter accused No. 2, and not having stated the date on which he had purchased, it is evident that the transaction by itself would not indicate that the cell phone was taken from the custody of Sandeep and it was sold by accused to PW.15. In the face of admission by PW.1 that his brother, before his demise, stated that he had given his cell phone to somebody else, is also a circumstance to indicate that the sequence of events sought to be projected by the prosecution is not readily acceptable. Therefore, a serious offence punishable under Section 302 of the IPC, along with other provisions of the Code, would require the prosecution to establish its case beyond reasonable doubt.

As seen from the present circumstances, and the findings arrived at by the court below it cannot be said that the prosecution had established its case beyond all reasonable doubt.

The appeal is allowed. The order of conviction passed by the Fast Track Court, Jamakhandi in SC 21/2010 is set aside. The accused are set at liberty forthwith.

The operative portion of the judgment to be transmitted to the Jail authorities for the immediate release of the accused, forthwith.