Sharanappa Hallappa Halagi vs State of Karnataka

Anand Byrareddy, J.—Shri. S.N. Padashetty, learned counsel states that he also represents the counsel for the appellant in Criminal Appeal No. 3593/2010.

Heard the learned counsel Shri. S.N. Padashetty and the learned Additional State Public Prosecutor.

The accused are before this Court questioning the judgment of conviction for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860. The brief facts as alleged by the prosecution are as follows:

Accused No. 1 Sharanappa is said to have had an illicit relationship with one Kalyanamma. It transpires that accused No. 1 was under the belief that Kalyanamma was no longer interested in his affection and that she may have developed a relationship with another, and he had developed ill-will towards her. In the process, he had, with the assistance of accused No. 2, Hanumanth, plotted the murder of Kalyanamma. On 03.04.2007 when Kalyanamma was alone, on the land belonging to her, of Malli village, it is alleged that accused No. 2 had caught hold of Kalyanamma and aided accused No. 1 to assault her on her head with an axe and thereby caused grievous injury, to which she had succumbed on the spot and they had dumped her dead body in a water body and had fled the scene. It is later, after investigation, that the accused were taken into custody and on their committal to the Sessions Court, charges were framed for the offence as aforesaid to which the accused had pleaded not guilty and claimed to be tried. Thereafter, the prosecution had examined 15 witnesses and had marked several exhibits apart from material objects.

After recording the statement of the accused under Section 313 of Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration:

"(i) Whether the prosecution proves that on 3.4.2007 at 4 p.m. near the land of Moolemane at Malli village, the accused persons with a common intention of committing an offence of murder, the first accused assaulted,Kalyanamma on her head with an Axe, when 2nd accused was holding her and caused her death and thereby committed an offence of murder punishable u/S. 302 r/w 34, IPC?

(ii) Whether the prosecution proves that on the above said date time and place the accused persons in furtherance of their common intention, knowing full well that they have committed an offence of murder, which is punishable with maximum of death sentence, have attempted to cause disappearance of the evidence of commission of the offence of murder by throwing the dead body into the Pit (Halla) containing water and thereby committed an offence punishable u/S 201 r/w 34 of IPC?

(iii) What order?"

The Court had answered point No. 1 in the affirmative, point No. 2 in the negative against the prosecution and had convicted the accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.5,000/- each and Rs.8,000/- was to be paid as compensation to PW-7 and PW-9, the son and husband respectively, of the deceased. It is that which is under challenge in the present appeals.

The grounds of appeals urged are almost identical and the counsel for the appellants is heard at length. It is contended that the prosecution has not established the motive, that is alleged, by leading any cogent evidence. The alleged illicit relationship between accused No. 1 and the deceased, who was the mother of five children, notwithstanding there was no reason for the involvement of accused No. 2, the only evidence of the alleged illicit relationship between accused No. 1 and the deceased was the evidence of the complainant, the brother of the deceased and his wife, cannot be readily accepted. There is no other independent witness who has spoken of the alleged illicit relationship. The complaint was lodged on mere suspicion of the involvement of accused No. 2. In the first instance, there were no statements recorded of any eye-witness as to the involvement of accused Nos. 1 and 2 in having committed the murder of the deceased. The statements of PW-5 and PW-6 were significantly recorded two days after the incident, which is wholly inexplicable for the reason that PW-5 was the nephew of the deceased and when there was such a close relationship between the deceased and PW-5 and when PW-5 and PW-6, were said to be on their way to purchase bullocks and while proceeding along the cart road, which passes near the land where Kalyanamma was said to be keeping watch over the sugar cane crop, they are supposed to have heard screams and while they were proceeding towards the Nala to quench their thirst, and thereafter they had noticed that accused No. 2 was holding Kalyanamma and accused No. 1 was brandishing an axe with which he had struck her on her head causing a serious injury and they saw that Kalyanamma fall to the ground and seeing that she was dead, the accused are said to have run away and thereafter PW-5 and PW- 6 namely, Bheemappa and Kashim Sab are said to have verified that the deceased was In'' fact Kalyanamma. But did not choose to take any action and had proceeded to the place where they were going, to purchase bullocks and returned only at midnight and did not chose to inform anybody of the incident. They did not chose to inform the police authorities as well, when they came to record the spot panchanama. It is only much later, after the recording of the panchanama, PW-5 and PW-6 are said to have come forward to make a statement that they had witnessed the gruesome incident of accused Nos. 1 and 2 committing the murder of Kalyanamma. This sequence of events, the learned Counsel would point out, is totally unacceptable, especially the fact that PW-5 being a close relative of the deceased, the normal human reaction would be to at least rush back to the village to inform others or his family as to the incident having taken place. The explanation offered that since accused No. 2 was relatively a young person and accused No. 1 being armed with a deadly weapon and when they saw that he was capable of committing murder, they were mortally afraid of raising any alarm or informing about the incident and they mustered the courage to reveal the incident only two days later, is an explanation which cannot be readily accepted. Therefore, it is evident that not only the motive is alleged of an illicit relationship having soured and the accused No. 1 deciding to do away with Kalyanamma, because he had developed ill-will towards her and that he had sought the assistance of accused No. 2 in doing so and further that they had actually committed the murder of Kalyanamma as stated by PW5 and PW-6 is a theory which does not find support in the manner in which it is narrated nor is there any evidence to establish that it was indeed the accused who had committed the murder of Kalyanamma.

The further case of the prosecution that the circumstance preceded the commission of the murder, namely, that when Kalyanamma was returning from the land after the day''s agricultural work, along with PW-7 Halleppa and PW-8 Gundappa, it is stated that accused No. 2 Hanumanth who came along had said that he was taking his bullocks to the neighbouring land of Siddaramayya and that Kalyanamma must stay there till 6 ''o'' clock to ensure that the bullocks do not stray into her lands. On this suggestion, Kalyanamma is said to have gone back to her land and thereafter Hanumanth has again enquired with PW-7 and PW-8 whether she was alone on the land at 6.00 p.m. Since Kalyanamma did not return home that night and after a futile search by the complainant as well as other witnesses, it was only on the next day that the dead body of Kalyanamma was discovered by PW-3 Malkappa who saw the dead body in a water body. This again is too remote to suggest that there was a plan made by accused Nos. 1 and 2 to ensure that Kalyanamma would be alone on the land to enable them to commit her murder. It is pointed out by the learned counsel that even if there was such a plan, on the mere suggestion, Kalyanamma staying back on the land and her willingly going there alone and remaining to keep watch that cattle did not stray into her land, was not predictable. In that, it was not ensured that she would indeed stay alone on the land to enable accused Nos. 1 and 2 to commit her murder. It was too much of a co-incidence to be expected that on a suggestion of accused No. 2, Kalyanamma would go back and remain alone on the land to enable accused Nos. 1 and 2 to commit her murder. Hence, the theory put forward by the prosecution as to the possible illicit affair between the accused No. 1 and the deceased and accused No. 2 who did not have any alleged ill-will against Kalyanamma, being accomplished of accused No. 1, without any possible motive being suggested, cannot be readily accepted to the known principles of criminal jurisprudence. Therefore, to merely implicate the accused on this shaky theory, without any foundation, has lead to a miscarriage of justice and therefore not only the motive, the very commission of the act is not established by reference to cogent evidence.

The third circumstance, according to which the prosecution had been able to implicate the accused was that there were voluntary statements made by the accused and it is at their instance that recoveries were made of blood stained clothes worn by the accused at the time of commission of the offence and of the weapon that was used in the commission of the offence. It is also made out that the blood group of the blood found on the blood stained clothes and the blood group of the blood found on the axe, that was used for commission of the offence, were of the same blood group and therefore it is claimed by the prosecution that the commission of the act by the accused is clearly established. This reasoning and conclusion would be rather unfair to the accused. The finding that the accused had indeed committed the murder on the basis of voluntary statements alleged to have been made before PW-4 and discovery and recovery of all the clothes worn by the accused at their instance is a self serving claim which cannot be readily accepted. The fact that all the clothes worn by the accused were recovered from the spot would lead to a presumption that they had a change of clothes ready, for otherwise, it would be odd for them to go back to their village or to their home without any clothes and therefore, recovery of the clothes worn by them at the same place at the same time cannot be readily accepted except the same were planted to ensure the implication of the accused.

Similarly, the fact that the accused were said to be absconding for several days, after they being shown as accused, is a self serving claim. In the ultimate analysis, since the accused were indeed arrested, it was not difficult for the accused to keep themselves away, if they were absconding for a few days, they could have done it for a longer period. Hence, the assertion that the accused had reason to abscond is an allegation and does not stand. It is a mere allegation and the fact that they were arrested after several days does not lead to a presumption that they were indeed absconding. Therefore, the learned Counsel would submit that the prosecution cannot be said to have established its case beyond all reasonable doubt and the appellants are entitled to honourable acquittal.

On the other hand, the learned Additional State Public Prosecutor seeks to justify the judgment of the trial Court.

On a careful perusal of the record and on consideration of the several contentions and grounds raised in the appeals, it is found that Kalyanamma though was married to PW-9, was staying in Malli village to look after the lands along with her children and her husband PW-9 was in Ratnagiri, Maharashtra State and was said to be doing coolie work and therefore they were living separately. Kalyanamma was aged about 38 and the fact that accused No. 1 was known to the family and to Kalyanamma is not in serious dispute. It is not the case of accused No. 1 that he was a stranger to the village or to Kalyanamma and the fact that there was an illicit relationship, though not established by any material evidence, as to Kalyanamma and accused No. 1 engaging in a sexual relationship, the allegation that there was an illicit relationship and it had turned sour, as stated by PW-3 and PW-10, cannot be totally disbelieved.

The homicidal death of Kalyanamma is not also in dispute. It is the question as to whether accused Nos. 1 and 2 had committed her murder in the manner as stated by PW-5 and PW-6 that requires to be addressed. The evidence of PW-5 and PW-6 in this regard is consistent. They have consistently stated as to the manner in which the act was committed by accused Nos. 1 and 2. The controversy arises as to the timing of their initial statement of having witnessed the commission of murder. It is a matter on record that they had not revealed the incident on the same day to anyone and they had proceeded on their way even after seeing such a ghastly incident, as if everything was normal. It is also slated (hat they returned very late that day and again did not chose to inform anyone of the incident the next day as well and even after the police enquiries were conduced and spot panchanama was drawn up the said witnesses had not chosen to indicate or inform the police or anyone else of the incident. It is only two clear days after the incident that PW-5 and PW-6 have again consistently come forward to narrate the manner in which the incident had occurred and it is only then that the police have named accused and have proceeded to arrest them, though in the complaint a mere suspicion was alleged against Hanumanth accused No. 2.

The material evidence or the statements of PW-5 and PW-6 were the trigger in seeking to foist the charges against the accused with any certainty. Therefore, the question arises as to whether the conduct of PW-5 and PW-6 was a conduct of any normal person. In this regard the Court below has drawn sustenance from a judgment cited at the Bar, where the Supreme Court has addressed situation such as this, where witnesses remain silent of incidents having occurred and only later chose to reveal the same. Though the trial Court has referred to the decision of the Supreme Court, no particulars are furnished of the said judgment. However, in the case of State of Uttar Pradesh v. Devendra Singh reported in AIR 2004 SC 3690 the Supreme Court has expressed an opinion that it is observed that human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Some may remain tightlipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances, there is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Reference is drawn to Rana Pratap and others v. State of Haryana, reported in 1983 (3) SCC 327 in the judgment. The trial Court has drawn sustenance from these observations which have been reiterated in the judgment of the High Court of Uttarakhand.

The trial Court has also discussed the explanation offered by the witnesses in having remained silent for two days before revealing the incident. The trial Court has accepted the explanation that has been offered since PW-5 was particularly questioned as to why he did not inform the matter to the complainant soon after the commission of the murder, especially since he was closely related to the deceased and the answer given is, the reason that it was not informed was because witness felt that they may even be accused of having committed the murder and since he was further questioned as to what made him reveal the incident at least after two days, it was stated that since the police had completed drawing up panchanama and spot panchanama and since the dead body had been hurried, they had mustered the courage to reveal the incident. The same explanation had been offered by PW-5. Whereas since having elicited such answer from PW-5, the defence had not chosen to question PW-6 who in turn also had revealed consistently of the incident as to why he did not chose to inform the incident immediately. Apart from this, the trial Court has also found that in the cross-examination of PW-15, the Investigating Officer, the counsel for the defence had asked similar questions and he had replied that he had obtained the statement of the witnesses of PW-5 and PW-6 only on 05.04.2007, that is, two days after the incident and that he had even questioned PW-5 and PW-6 as to why they had delayed in bringing the information to his notice and that they had replied that they were mortally afraid of the accused and it is for that reason that they had not chosen to intimate immediately. Since the defence did not chose to probe further into the aspect, the trial Court has opined that the explanation offered by PW-5 and PW-6 was apparently accepted and not having questioned further and doubted, the veracity of the very explanation and the narration of the incident, as they are said to have witnessed was accepted by the trial Court.

It is to be further noticed that the commission of murder is not an ordinary incident. It would shock the conscience and cast fear into a normal person observing such a scene and when accused No. 2 was relatively a young man and accused No. 1 though he was in his 40''s was holding a deadly weapon and when the said witnesses had seen the brutal manner in which the murder was committed, it cannot be said that they are expected to act in a vigilant fashion to immediately rush to police or to rush to village to inform others and act in a manner as if dictated by a rule. As observed by the Supreme Court herein above, it is quite possible that each person reacts to a situation in different ways and thus revelation of the incident, two days later, can be put in that category of reaction or response which may be negative in character but all the same an acceptable human behaviour and therefor the Court below having proceeded to accept the evidence of PW-5 and PW-6 having regard to other attendant circumstances, cannot be said to be illegal or out of place.

The further circumstance that after the accused were named as the persons who had actually committed the murder and not merely on the suspicion that was indicated in the complaint, after the statements of PW-5 and PW-6 were recorded, the Investigation Officer claim that the accused were absconding and they were not to be found in Malli village nor the neighbouring village and it is only later that they were apprehended. Their whereabouts were not known from the date of commission of the offence till they were apprehended. On the basis of voluntary statements, the several incriminating materials, such as blood stained clothes worn by the accused and the weapon used in the commission of the offence from the sugar cane field, at their instance were recovered. Though a doubt is sought to be cast on the manner in which said recoveries were made, the learned counsel for the appellants would point out that sugar cane crop was a standing crop and had not been harvested and the circumstance therefore cannot be reconciled with the statement that the incriminating material was recovered from where it was hurried under the harvested sugar cane that was kept in a heap. This is inconsistent with the fact that there was a standing sugar cane crop and there had been no harvest. While it can be explained that apart from the standing crop there would be other weeds and wastage which had been kept from under which the incriminating material may said to have been recovered. The police, who are acting in an impartial fashion, with an intention to arrive at the truth, cannot be presumed that they had acted with a mala fide intention of implicating the accused. There is no warrant to disbelieve the voluntary statements made on recovery of material at the instance of the accused.

Insofar as accused No. 2 is concerned, his acquaintance with accused No. 1 is never disputed and the fact that he had willingly aided accused No. 1 in committing the murder of Kalyanamma, cannot also be ruled out. Therefore, we are in full agreement with the findings of the trial Court and there is no warrant for interference.

Consequently, the appeals are dismissed.