Shyam vs State of Karnataka

Mohan M. Shantana Goudar, J.—1. The judgment and order of conviction dated 21.1.2012 passed by the Fast Track Court-III in S.C. No. 324/2008 is called in question in this appeal by the convicted accused.

By the impugned judgment and order, the Trial Court has convicted the accused/appellant herein for the offences punishable under Sections 302 and 201 of IPC.

Case of the prosecution in brief is that, the deceased Nirmala was the wife of the accused; they were living together after the marriage; they used to quarrel frequently even in respect of small matters; few days prior to the incident, the accused was quarrelling with the deceased on the ground that the deceased had stolen his mobile phone or that she is the reason for the missing of his mobile phone from the house; at about 9.45 p.m. on 17.10.2007, the accused came along with his wife in his auto rickshaw to the shop of the complainant and purchased one cigarette and left the shop; at about 11.00 p.m., once again the accused came in the very auto rickshaw along with his wife near the shop of the complainant and told him that the auto rickshaw has met with an accident and his wife has died in the said accident; the complainant saw the dead body of the deceased in the auto-rickshaw; the accused had requested the complainant to call the ambulance for shifting the dead body; however, the complainant being feared, informed about the said matter to K.R. Puram Traffic Police; the Assistant Sub-Inspector of Police (PW.13) rushed to the spot along with the ambulance and shifted the dead body to Bowring Hospital. The deceased had sustained number of injuries all over the body. PW.1 - complainant being suspicious about the conduct of the accused and about the death of the deceased lodged a complaint as per Ex. P1 at 9.30 p.m. on 18.10.2007 before Mahadevapura Police Station, which was registered in Crime No. 286/2007 for the offences punishable under Sections 302 and 201 of IPC. PW.15 - Inspector of the said Police Station completed the investigation and laid the chargesheet.

In order to prove its case, the prosecution in all has examined 19 witnesses and got marked 28 Exhibits and 5 Material Objects. On behalf of the defence, one exhibit came to be marked. The accused examined himself as D.W.1. As mentioned supra, the Trial Court on evaluation of the material on record, convicted the accused for the offences with which he was charged.

Sri Jadhav, learned Senior Advocate appearing on behalf of the appellant taking us through the entire material on record submits that the case rests on circumstantial evidence and none of the circumstances are proved by the prosecution beyond reasonable doubt; the first informant (PW.1) and his brother (PW.12), who had allegedly seen the accused and the deceased together just prior to the incident, have turned hostile to the case of the prosecution and that they have not deposed about the accused taking the deceased in the auto rickshaw prior to the incident; the auto rickshaw which is involved in the accident was not owned by the accused; the deceased had sustained accidental injuries and not the injuries caused by the accused; the independent witnesses, who were supposed to depose about the recovery of weapons allegedly used by the accused for commission of offence have not supported the case of the prosecution; since the case rests on the circumstantial evidence, heavy duty lies on the prosecution in order to prove the complete chain of circumstances against the accused. According to the appellant''s counsel, though the evidence may raise suspicion in the mind of the Court, the material on record is not sufficient to convict the accused, inasmuch as the prosecution has not proved its case beyond reasonable doubt. On these among the other grounds, he prays for acquittal of the accused.

Per contra, Sri Nawaz, learned SPP argued in support of the judgment of the Court below contending that the Trial Court is justified in convicting the accused more particularly, when the Motor Vehicle Inspector, who inspected the auto rickshaw has categorically deposed and given the report that there is no damage to the auto rickshaw involved in the accident. It is the opinion of the Motor Vehicle Inspector that the damages caused to the auto rickshaw are the "man made" (intentional) damages and not an accidental damages; in other words, he submits that the accused has created a make believe story to tilt the case in his favour.

There cannot be any dispute with regard to the well settled proposition of law that in a case entirely based on the circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. All the circumstances so proved should form a complete chain of circumstances and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence;

The circumstances relied upon by the prosecution are as under:

(a) Motive;

(b) The accused and the deceased were last seen together just prior to the incident;

(c) The accused was carrying the dead body in his auto rickshaw;

(d) The injury sustained by the injured/deceased suggests that the death is homicidal in nature;

(e) The damages caused to the auto rickshaw are not accidental damage but the damages are caused by a person intentionally;

(f) Recovery of weapons at the instance of the accused.

It is the case of the prosecution that the accused and the deceased were quarrelling with each other frequently even on smaller issues; just prior to the incident, the accused quarrelled with the deceased on the issue of missing of his mobile phone. In order to prove the circumstance of motive, the prosecution has relied upon the evidence of PWs.3 and 4. Both of them are neighbours of the house of the accused and the deceased.

PW.3 has deposed that the deceased used to complain before her about the frequent physical assaults by the accused on the deceased; she was complaining about the physical as well as the mental torture by the accused frequently; just prior to the incident, the accused was quarrelling with the deceased about missing of his mobile phone; even in the cross-examination, PW.3 has reiterated that the accused used to quarrel with the deceased since 4-5 years; the accused did not mend his conduct despite repeated requests by PW.3 and others. The accused used to torture the deceased demanding money from her. In that regard, the deceased was complaining about the aforementioned conduct of the accused not only before PW.3, but also before the other neighbours.

PW.4 is another neighbour. She has also deposed on par with the evidence of PW.3. Her evidence also discloses that the accused was torturing the injured/deceased both physically and mentally and the accused did not mend his conduct despite repeated advices and requests.

Though PWs.3 and 4 were subjected to searching cross-examination, nothing worth is elicited to discredit their evidence. As mentioned supra, even in the cross-examination, both of them have deposed that frequently, the accused used to quarrel with the deceased on one or the other pretext and he used to torture her both physically and mentally.

In our considered opinion, the circumstance of motive is proved by the prosecution beyond reasonable doubt, inasmuch as the evidence of PWs.3 and 4 has remained un-impeached.

The prosecution has relied upon the evidence of PWs.1 and 12 to prove the last seen circumstance. PW.1 is none other than the complainant. PW.12 is the brother of PW.1. Both PWs.1 and 12 were having a petty shop and the said shop was situated just a little distance away from the shop of the accused and the deceased wherein, they were vending vegetables.

PW.1 has deposed that both the husband (accused) and wife (deceased) were doing business in the said vegetable shop; at about 11.00 p.m. on 17.10.2007, the accused brought the auto-rickshaw to the shop of PW.1 and told him that the deceased has sustained injuries in the accident; PW.1 thereafter, saw the injured with bleeding injuries in the auto rickshaw; the accused requested PW.1 to call the ambulance; however, PW.1 called K.R. Puram Traffic Police over phone, who inturn came to the said spot with ambulance; the police took both the deceased and the accused in the ambulance to Bowring Hospital. PW.1 has further deposed that the tarpaulin of the auto rickshaw had torn and the upper rods of the auto rickshaw had bent; it is further deposed by PW.1 that the deceased and her husband were living amicably and he does not know as to why the death had taken place. Lastly, he has deposed in his examination-in-chief that at about 7.30 p.m., on the very day i.e. on 17.10.2007 (i.e., prior to the incident), the accused alone had come to his shop for purchasing cigarette.

PW.1 was treated hostile (in part) and he was cross-examined by the Public Prosecutor.

In the cross-examination, PW.1 has admitted that he saw the dead body of the deceased lying in the auto rickshaw and he felt that the deceased must have died. He has also deposed that the front glass of the auto rickshaw had broken and except the breaking of front glass, the bending of rods as well as tearing of tarpaulin, no other damage to the auto rickshaw was witnessed by him; since the auto rickshaw was not damaged to a major extent, the suspicion grew in his mind about the conduct of the accused and hence, he lodged a complaint. It is further admitted by PW.1 that the accused had not sustained any injury during the said period.

From the evidence of PW.1, atleast it is amply clear that the accused was driving auto rickshaw at about 11.30 p.m. on 17.10.2007 and in the said auto rickshaw, the dead body of the deceased with bleeding injuries was found. It is also clear from the evidence of PW.1 that the accused had not even sustained a single injury and that the auto rickshaw was not subjected to greater damage.

PW.12 is the brother of PW.1. He was also present in the very petty shop along with PW.1 during relevant point of time. He has deposed that the accused had come to the shop in the auto rickshaw at 10.00 p.m. on the said date and told PWs.1 and 12 that his wife (deceased) had died. He has also deposed in the examination-in-chief that the accused had come to his shop at 9 p.m. and purchased cigarette and nobody was present along with the accused. PW.12 was treated hostile to the case of the prosecution and hence, he was cross-examined by the Public Prosecutor. In the cross-examination, he admitted that the accused had come to the shop at 11.00 p.m. and told him that his wife met with an accident and PW.1 informed about the said matter to the traffic police. He has denied other suggestions made by the Public Prosecutor and he has also denied the suggestion that he has made statement before the Police as per Ex. P10.

Be that as it may, the evidence of PW.12 supports the case of the prosecution and also supports the evidence of PW.1 to the effect that the accused had carried dead body of the deceased in auto rickshaw from 10 p.m. to 11 p.m. and the deceased had sustained number of bleeding injuries.

Though PWs.1 and 12 have given goby to their earlier version as stated by them before the Police during the course of investigation that the accused had come to the spot at 7.30 p.m. in the auto rickshaw along with his wife and had purchased cigarette, their evidence before the Court clearly reveals that after the incident, the accused carried the dead body in the auto rickshaw. The evidence of PWs.1 and 12 confirms that the accused was driving the auto rickshaw and the said auto rickshaw was not damaged to a major extent. However, the said auto rickshaw was carrying the dead body of the wife of the accused with heavy bleeding injures and that the accused had not sustained any injury.

With regard to the injuries sustained by the deceased, we have got the evidence of the PW.9 -Doctor, who conducted post mortem examination. The Post mortem report is at Ex. P7. Looking to the aforementioned post mortem report as well as the evidence of the Doctor - PW.9, it is clear that the deceased had sustained as many as ten external injuries. Out of them, three are chopped wounds, two are incised wounds and four are abrasions and contusions. Curiously, injury No. 9 sustained by the deceased reads thus:

"There is an oval teeth bite mark over left side middle of chest, 9 cm below axilla and 13 cms above left iliac crest over an area of 4 cm x 0.25 cm in upper row with 7 marks and 2 marks of lower row measuring 1.5 cm x 0.25 cm."

Thus, it is clear from the medical evidence that out of ten injuries, three are chopped wounds, two are incised wounds, four are abrasions and contusions and one injury is due to bite by a person. Injury No. 9 clearly discloses that the oval teeth bite mark by a person is found over left middle of chest. Seven marks of upper teeth and two marks of lower teeth are found on the body of the deceased.

The Doctor - PW.9, who conducted the postmortem examination reiterates in his evidence about the said facts. There is no serious cross-examination by the defence of PW.9 - Doctor, who conducted post mortem examination, except making the suggestion by the defence that the injuries sustained by the deceased may be due to the accident. The Doctor has denied that suggestion and has reiterated that the injuries sustained by the injured are not caused due to the accident and they are caused due to the intervention of human agency, which means a person caused such injuries.

The evidence of PW.9 - Doctor and Ex. P7 -Postmortem report is supported by the evidence of PW.13 - Assistant Sub-Inspector of Police. PW.13 has deposed that he went to the spot immediately on getting the telephone call from PW.1; the accused had not sustained any injuries, whereas the deceased had sustained the chopped wounds and incised wounds over the head, neck and other parts of the body; he has also visited the spot wherein the accident has allegedly occurred, but he did not find any signs of the accident at the said spot. Even in the cross-examination, PW.13 has reiterated that he did not find any clue on the auto-rickshaw to suggest that the auto-rickshaw had met with an accident.

The aforementioned evidence clearly reveals that the injured had not sustained any accidental injuries, but she had sustained homicidal injuries. The injuries found on the injured were not due to the accident, but they are caused due to the intervention of human agency. If really the accident had taken place, the injured would not have sustained chopped wounds or incised wounds or teeth mark over her body. The facts brought on record by the prosecution conclusively prove that the injured had not died because of the accident, but due to the act of a person. In other words, death of the injured is not accidental in nature, but it is homicidal in nature.

The next circumstance is regarding damage to the auto rickshaw. P.W.8 is the Assistant Motor Vehicle Inspector. His evidence discloses that he inspected the auto rickshaw in question and he found that the tarpaulin cloth of auto rickshaw and the front wind glass of auto rickshaw were removed. He has opined that tearing of the tarpaulin cloth and breaking of the front wind glass would not have been possible because of the accident and on the contrary, the said damage caused to the auto rickshaw was at the intervention of the human being. His evidence further discloses that he has driven the said auto rickshaw on road (for testing) and has found that the breaks were in order.

In the cross examination, P.W.8 has reiterated that if two vehicles were involved in the accident, there was likelihood of both the vehicles being damaged; in case if the accident is caused hitting the auto rickshaw from behind, then front portion of the auto rickshaw will not be damaged, whereas the back side of auto rickshaw would be damaged. The evidence of P.W.8 conclusively proves that there was no damage particularly to the hind portion of the auto rickshaw and therefore, the accident could not have been occurred as per the defence of the accused. It is clear from his evidence that the auto rickshaw was intentionally damaged by person and not as a result of the accident.

The evidence of P.W.8 is supported by P.W.13 who is Assistant Sub Inspector of Police. He has deposed that he did not find any major damage to the auto rickshaw. He has opined that the auto rickshaw might not have met with an accident.

Thus, the evidence of official witnesses would make clear that the auto rickshaw was not involved in any accident but the same was damaged by the person intentionally.

Regarding the recovery of weapons at the instance of the accused, the prosecution has relied on the evidence of P.Ws.10, 11 and 15.

P.Ws.10 and 11, who are the witnesses for mahazar Ex. P.8, have turned hostile to the case of prosecution. However, the recovery mahazar is supported by the evidence of the investigating officer (P.W.15). There is no reason as to why we should not believe the evidence of P.W.15, who has no interest either in the case of accused or the prosecution. He is an independent official witness and he is a responsible officer of the State. Recovery of the weapon/chopper (M.O.1) was made based on the voluntary statement of the accused. It is by now well settled that the voluntary statement made need not be attested by independent witnesses. As the investigating officer has recorded the statement of accused and the article was recovered pursuant there to, there is no reason to discard the evidence of the police officer. The evidence of the police officer regarding the recovery at the instance of accused should ordinarily be believed. It is for the accused to show that such evidence is unreliable. In the matter on hand, P.W.15 has emphatically deposed that accused gave a statement before him as per Ex. P.22 to the effect that he will show the place where he had kept the weapons for commission of the crime and thereafter, the accused took the police and the panchas to the place where the offence was committed. Thereafter, he took the police 50 yards from the place of scene of offence and produced the chopper which was hidden by him. The said mahazar is marked as per Ex. P.8. The chopper is also marked as M.O.1 and the same was subjected to property Form No. 12. This evidence of P.W.15 in the examination in chief is not shaken by the defence during the course of cross examination. It was suggested by the defence that the mahazar in respect of the chopper is created in the police station and such suggestion is denied. Except putting such suggestion by the defence, no other material is brought on record to show that the evidence of investigating officer with regard to recovery of weapon is unbelievable. Since we find that the evidence of the investigating officer is independent and reliable, we proceed to rely on the same.

It is also relevant to note that the clothes of the deceased as well as the chopper (M.O.1) recovered at the instance of the accused were sent to FSL for examination; P.W.17-Assistant Director of FSL has given the report as per Ex. P.28. The evidence of P.W.17 and the report as per Ex. P.28 would clearly reveal that the blood stained clothes of the deceased as well as the chopper are stained with the human blood having ''O'' group. If really the accused had not used M.O.1 for commission of the offence, it would not have contained the group of blood which is similar to the blood as found on the clothes of the deceased. The said circumstance also supports the case of the prosecution.

The accused is examined himself as D.W.1. He has admitted that the auto rickshaw seized in the case is not owned by him and that, his wife has died in the accident which happened in collision between the auto rickshaw and the lorry. In the cross examination, particularly while answering to the Court question, D.W.1 virtually has spoiled his defence. He has admitted that he does not know the number of the auto rickshaw which was involved in the accident; that he does not know as to who was driving the said auto rickshaw; that he does not know as to the number of the lorry involved in the accident; that he was in the house when the accident took place at 10.00 p.m.; that he does not know as to where his wife was going in the auto rickshaw at 10.00 p.m.; that he came to know about the death of the deceased only on the next day morning. He however admitted while answering to the Court question that he has not lodged any complaint before the police bringing to the notice of the police that the deceased has died in the accident. These answers given by the accused are totally contrary to the evidence of even the hostile witnesses. As mentioned supra the evidence of P.Ws.3 and 12 would clearly reveal that it was the accused who was driving the auto rickshaw and in the said auto rickshaw, the dead body was found. If really the accused was innocent, he would not have kept quite without lodging the complaint. On the other hand, the evidence of P.W.13-Assistant Sub Inspector of Police would clearly reveal that he rushed to the spot and found the dead body in the auto rickshaw. He took the dead body and the accused from the ambulance to Bowring hospital. In view of the same, the defence as raised by the accused cannot be accepted.

In his statement under Section 313 of Cr.P.C. (answer to question No. 48), the accused has admitted that the auto rickshaw as found in photographs (Exs.P.15 and P16) is the auto rickshaw belonging to him, which means that he has admitted that the auto rickshaw owned by him was involved in the accident in question.

From the aforementioned, it is amply clear that all the circumstances relied upon by the prosecution are proved beyond reasonable doubt. It is also clear that such proved circumstances will form the complete chain of circumstances and the same would not leave any doubt in the mind of the Court about the complicity of the accused in the crime.

Sri. Jadhav, learned Senior Advocate submitted that though the Assistant Sub Inspector of Police (P.W.13) came to the spot at 11.30 p.m. on 17.10.2007, he did not make any endeavour to lodge the suo-motu complaint in the police station; however, the police registered the crime on the complaint of P.W.1 on 18.10.2007; there is delay of about one day in lodging the complaint by P.W.1; moreover, there is no reason as to why the police did not file suo-motu complaint since P.W.13 had the knowledge and he had sent the accused as well as the deceased for medical examination to the hospital.

It is no doubt true that there is negligence on the part of the police in not registering the crime suo-motu immediately after P.W.13 came to know about the incident. On occasions, such negligence or omission may give rise to reasonable doubt which would obviously go in favour of the accused. But in the present case, the evidence of the prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was moved to the hospital immediately. All the circumstances are proved by the prosecution beyond reasonable doubt. Their evidence does not suffer from any infirmity which would render the case of the prosecution doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the investigating officer should not be for the benefit in favour of the accused. It may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. In a case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively. A criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. Criminal justice should not be taken casually for the wrongs committed by the investigating officer. Ignoring the evidence of the investigating officer, the Courts are free to act as per the law. As mentioned supra, on careful evaluation of the material on record, we are of the opinion that the prosecution has proved its case beyond reasonable doubt inasmuch as the circumstances relied upon by it are proved conclusively so as to complete the chain of circumstances.

Looking to the entire evidence on record and the discussion made above, we are of the clear opinion that the trial Court is justified in convicting the accused for the offences punishable under Sections 302 and 201 of IPC. The accused has not only committed the murder, but he has tried to conceal the offence for making the public to believe that the deceased died in the accident. Therefore, the trial Court is justified in convicting the accused for the offences punishable under Sections 302 and 201 of IPC. We find that the reasons assigned and the conclusions arrived at by the trial Court are just and proper. Hence, no interference is called for.

Appeal stands dismissed.