State vs Sharada

Mohan M. Shantana Goudar, J.

The judgment dated 23.07.2012 passed by the Fast Track Court, Sagar (hereinafter referred to as the Trial Court'' for brevity) in Sessions Case No. 33/2011 is called in question in this appeal by the State.

The sole accused-respondent was tried and acquitted for the offence punishable under Section 302 IPC.

Case of the prosecution in brief is that the deceased Shilpa aged about nine years, is the daughter of PWs. 1 and 10. PW1 is the father of the deceased and PW10 is the mother of the deceased.

PW1 had three brothers including Kariyappa, who is none other than the father-in-law of the accused. PW1 and Kariyappa, were residing in the same house but by dividing the houses by erecting a wall in between two portions.

PW1 and his family members were residing on the hind portion of the house, whereas Kariyappa and his family members were residing in the front portion of the house. The other brothers of PW1 were residing separately in their respective houses.

PW1 and Kariyappa had divided about 20 years prior to the incident in question. Though they were brothers, there was animosity between the two.

The accused, as aforementioned, is the daughter-in-law of Kariyappa i.e., the brother of PW1. She had committed theft of Rs. 1,000/- from the house of PW1 and in that regard, PW1 had complained to Kariyappa and others in the Village. So also, the accused had set the haystack of PW1 ablaze, since there was rivalry between the two family members. In that regard also, PW1 had complained to his other brothers and villagers. All the villagers were talking ill of the accused, since she had committed theft of Rs. 1,000/- and that she had set the haystack of PW1 on fire. Consequently, the accused was annoyed and she wanted to take revenge against the family of PW1.

On the date of the incident i.e., on 23.03.2009 at about 4.30 p.m. while the deceased Shilpa was coming back from her School to her house holding her school bag, the accused met the deceased and told something in her ears; they talked for certain length of time; thereafter, the deceased went back to her house and kept the school bag near the front door of the house and went back along with the accused; the accused led the deceased to the place of incident wherein she has committed murder of the deceased by smothering. At about 5.30 p.m., the family members of the deceased started searching for the deceased, since she was not seen. Ultimately, the dead body was found near the place of incident and the message was sent by the villagers to the jurisdictional police. The jurisdictional police came to the spot. However, the first information came to be lodged by PW1-father of the deceased at about 6.00 a.m. on the next day i.e., on 24.03.2009, which came to be registered in UDR No. 20/2009 in Rural Police Station, Sagar by Sub-Inspector of Police (PW14).

On 26.03.2009 i.e., after three days of the incident in question, another complaint came to be lodged jointly signed by persons viz., Manjappa (PW1), Basappa (PW2) and one Annappa (CW-7) and Venkatesh (PW3).

Based on the said complaint dated 26.03.2009, Crime No. 156/2009 came to be registered in Rural Police Station, Sagar and FIR as per Ex. P12 was sent to jurisdictional Magistrate.

During the course of investigation, the relevant mahazars were held; the dead body was subjected to post mortem examination. Ultimately, PW15-Inspector of Police completed investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 15 witnesses and got marked 17 exhibits and three material objects. On behalf of the defence, no evidence is recorded. As aforementioned, the Trial Court by according the benefit of doubt in favour of the accused, acquitted the accused.

Sri P.M. Nawaz, learned SPP appearing on behalf of the State taking us through the entire material on record submits that there is voluminous evidence in favour of the prosecution to prove the guilt of the accused; PWs. 2 and 3 are the eye witnesses to the incident in question; PWs. 4, 5 and 11 are the eye witnesses who deposed regarding the circumstantial evidence of deceased going with the accused just prior to the incident in question. He further submits that the circumstances of motive are also proved by the prosecution beyond reasonable doubt. Thus according to him, the Trial Court is not justified in acquitting the accused, particularly by disbelieving the versions of the eye witnesses. He further submits that the reasons assigned and the conclusion arrived at by the Trial Court are improper and incorrect.

Per contra, Sri B.S. Prasad, learned Advocate appearing on behalf of the respondent argued in support of the judgment of the Court below.

PW1 is the father of the deceased. He lodged the complaint as per Ex. P1 at about 6.00 a.m. on 24.03.2009, based on which UDR No. 20/2009 came to be registered in Rural Police Station, Sagar. He has deposed about the motive for commission of the offence and regarding the involvement of the accused in the incident in question.

PW2 is the elder brother of PW1. He is the eye witness to the incident. He lodged the second complaint as per Ex. P2 on 26.03.2009 at about 3.15 p.m. in Rural Police Station, Sagar; the said complaint was jointly signed by PWs. 1, 2 and one Sri Annappa and Venkatesh-PW3.

PW3 is another eye witness to the incident. He is the neighbour of PW1. He has also deposed about the motive for commission of the offence.

PW4 is another neighbour of the accused and the deceased. She has deposed that the accused signalled the deceased to come with her and accordingly, the accused went following the deceased. She has also deposed about the motive for commission of the offence.

PW5 is the classmate and friend of the deceased. She has also deposed that the accused spoke with the deceased. On the other hand, the deceased had left the School for going back to her house after closure of the School at about 4.30 p.m.

PW6 is the scribe of Ex. Pl.

PW7 is the Head Mistress of the Government School where the deceased was studying. Her evidence discloses that the deceased attended the classes on the date of the incident. It also discloses that PW5 is the classmate of the deceased. She has produced Ex. P7 disclosing the attendance of the deceased to the class.

PW8 is the Teacher of the School where the deceased was studying. She has deposed that the students left the School at about 4.30 p.m. on 23.03.2009.

PW9 is the witness for inquest mahazar Ex. P8 as well as the mahazar relating to the seizure of clothes Ex. P9. He is also the witness for scene of offence mahazar Ex. P3. Apart from the same, he has deposed about the motive for commission of offence.

PW10 is the mother of the deceased. She has deposed about the motive for commission of the offence.

PW11 is another neighbour. He has deposed that the accused followed the deceased and returned back to the Village all alone. He has also deposed about the motive for commission of the offence.

PW12 is the Doctor. He conducted autopsy over the dead body. Ex. P10 is the post mortem examination.

PW13 is the Village Accountant, who has issued the revenue records pertaining to the spot wherein the dead body was lying as per Ex. PI 1.

PW14 is the Sub-Inspector of Police. He registered both UDR as well as the Crime, based on Exs. P1 and P2 respectively. He conducted part of the investigation.

PW15 is the Inspector, who completed the investigation and laid the charge sheet.

The prosecution mainly relies upon the ocular testimony of PWs. 2 and 3. According to the prosecution, these two witnesses saw the accused smothering/throttling the deceased in the evening of 23.03.2009 near the place where the dead body was lying.

PW2 is none other than the elder brother of PW1 and PW3 is the neighbour of PW1.

It is also the case of the prosecution that the dead body was found at about 5.30-6.00 p.m. on the spot on the very day i.e., on 23.03.2009 and immediately thereafter the police were informed, who rushed to the spot in the evening of 23.03.2009 itself. However, the complaint came to be lodged only at about 6.00 a.m. on the next day i.e., on 24.03.2009 as per Ex. P1. The complaint reveals that since the deceased did not come back to the house till 6.00 p.m. on 23.03.2009, the family members and the villagers started searching for the missing girl. At the time of search by PW1 and other family members, PWs. 2 and 3 and other villagers accompanied PW1, which means that both the eye witnesses went in search of the child on being informed by PW1 about the missing of the child. Thus it is clear that PWs. 2 and 3 were very well knowing that PW1 and his family members were making hectic efforts to know the whereabouts of the child. It is the version of PWs. 2 and 3 before the Court that they saw the accused smothering/throttling the deceased in the evening of 23.03.2009. If really both of them have seen the incident of smothering by the accused in the evening of 23.03.2009, there was no occasion for them to search for the victim.

According to PWs. 2 and 3, they very well knew that the accused committed murder of the deceased by smothering at about 6.00 p.m. itself on 23.03.2009. Both of them were together with PW1 all through during the intervening night between 23.03.2009 and 24.03.2009. As aforementioned, all the villagers including PWs. 2 and 3 and PW1 were searching for the child.

If really PWs. 2 and 3 had seen the accused committing murder of the deceased, they would not have left PW1 uninformed, more particularly when PW2 is the elder brother of PW1 and PW3 is the neighbour and close friend of PW1. They would not have made futile attempt to search for the child throughout the night, if really they had seen the accused murdering the deceased at about 6.00 p.m. on 23.03.2009.

Curiously, even while lodging the complaint as per Ex. P1 at about 6.00 a.m. on 24.03.2009 i.e., on the next day of the incident, PW1 specifically mentions that he and his brother PW2 and others searched for the child and that his brother (PW2) informed the complainant that the child was lying under a mango tree with bleeding in the nose and mouth. Thus, the complaint is silent as to PWs. 2 and 3 allegedly seeing the incident in question. If really PWs. 1, 2 and 3 had known about the murder committed by the accused and if the accused had really committed the offence in the evening of 23.03.2009, they would not have missed to state so at least in the complaint.

Per contra, even when the complaint was lodged on the next day i.e., on 24.03.2009 at 6.00 a.m., nothing is stated by PW1 that PWs. 2, 3 have seen the incident of murder by the accused. However, at the time of lodging the complaint, PW1-complainant had raised mere suspicion against the accused. Had he known about the accused committing murder of the deceased, he would not have suspected any other person, but he would have, on the other hand, specified in the complaint that it was the accused who committed the murder.

The statements of PWs. 2 and 3 are recorded on 26.03.2009 i.e., after three days of the incident. Admittedly, the police arrived at the scene of offence, as is clear from the evidence of PW1 at about 5.30 to 6.00 p.m. on 23.03.2009, i.e., immediately after the incident and at that point of time both PWs. 2 and 3 were very much present on the spot and talked with the police. There is no reason as to why they kept quiet till their statements are recorded on 26.03.2009 or till they lodged the second complaint as per Ex. P2 on 26.03.2009. Hence, it is clear that the prosecution has tried to create the eye witnesses after three days of the incident only to suit its purposes. Accordingly, the Trial Court in our considered opinion, is justified in disbelieving the versions of PWs. 2 and 3.

Thus, what remains to be considered is about the circumstantial evidence. The two circumstances relied upon by the prosecution are:

a) motive and

b) the accused signalling the deceased, talking to her secretly and following the deceased, just prior to the incident in question.

Insofar as the circumstances relating to motive is concerned, the prosecution states that the accused had committed theft of Rs. 1,000/- from the house of PW1 and that she had set the haystack of PW1 ablaze because of rivalry between the two families. In that regard, PW1 had quarreled with the accused and the family of PW1 had told the villagers at large about the illegal activities of the accused. The villagers started calling the accused as thief. Thus the accused had grievance against the family of PW1; in order to take revenge of the same, she committed murder of the deceased.

It is no doubt true that PWs. 1, 2, 3, 4, 10 and 11 have deposed about the aforementioned motive for commission of the offence. However in the matter on hand, the records are not available to show as to whether any complaint was lodged against the accused by either PW1 or his family members. Atleast in respect of the alleged incident of setting haystack of PW1 on fire, there would have been a complaint. It is the further case of the prosecution that the accused silently kept back Rs. 1,000/- stolen by her in the school bag of the deceased without informing either the deceased or anybody. This aspect appears to be artificial.

Be that as it may, even assuming that the circumstance of motive is proved, the same will not come to the aid of the prosecution to bring home the guilt against the accused.

PWs. 4, 5 and 11 are examined by the prosecution in order that the accused talked with the deceased by signaling her and followed her just prior to the incident in the evening of 23.03.2009.

In that context, we have considered the evidence of these witnesses meticulously. The statements of these witnesses are recorded by the Police during investigation only on 27.03.2009 and not prior thereto. The police have admittedly come to the spot in the evening of 23.03.2009. PW1 has admitted in his cross-examination that at that point of time, he lodged the complaint to the police on the spot. However, the Police did not conduct any panchanama or investigation. Curiously, the said complaint allegedly lodged by PW1 on the spot of the incident of 23.03.2009 is not forthcoming on record. The same is suppressed. If really such a complaint is lodged by PW1 within one hour of the incident in question on the spot before the police, there is no reason as to why the police did not record the same and proceeded with the investigation. The Village in which all these prosecution witnesses and the accused are residing is a small and remote Village in Sagar Taluk. All the villagers were searching for the child. If really PWs. 2 and 3 had seen the incident and if really PWs. 4, 5 and 11 had seen the accused talking with the deceased and following her, these witnesses would not have kept quiet without informing either the Police or PW1.

PWs. 4, 5 and 11 clearly admitted that they did not state about the factum of accused talking with the deceased, about the factum of accused signalling the deceased and about the factum of accused following the deceased to anybody including their own family members. There is no valid reason for them as to why they should keep quiet though that they had seen the accused following the deceased at the time of incident. Since they have also participated in searching the deceased along with PW1 and his family members, they would not have missed to state PW1, if they had seen the accused following the deceased.

In a case of circumstantial evidence, there has to be some degree of trustworthiness and certainty about the existence of the circumstances - mere probabilities are certainly not enough. In our considered opinion, the prosecution has not proved the circumstances in a satisfactory way. The prosecution relies upon mere probabilities and the same is not enough to bring home the guilt against the accused.

Therefore, the case of last seen together appears to be clearly created by the prosecution in order to strengthen its case against the accused. Since the material on record is not sufficient to believe the said circumstance, the Trial Court is justified in disbelieving the said circumstance.

The aforementioned discussion would disclose that the prosecution at the most has proved the circumstance of motive. There cannot be any dispute that merely on the basis of suspicion, the accused cannot be convicted. Any amount of suspicion cannot take the place of proof. The prosecution has to prove its case beyond reasonable doubt. Accordingly, the case cannot be decided based on preponderance of probabilities. In view of the same, the Trial Court is justified in acquitting the accused.

Since we find that the view taken by the Trial Court is just and proper and as the same is one of the possible views under the facts and circumstances of the case, no interference is called for.

The appeal fails and is accordingly dismissed.