State by Maddur Police vs Boregowda

Mohan M. Shantana Goudar, J.—1. The judgment and order of acquittal dated 29.2.2012 passed by the Principal Sessions Judge, Mandya in SC. No. 146/2010 is appealed against by the State.

By the impugned order, the trial Court has acquitted the accused of the offences punishable under Sections 506, 448, 302 and 114 r/w. Section 34 of IPC.

Case of the prosecution in brief is that the houses of the accused and the deceased are adjoining each other; there was a dispute between two families with regard to the space in which the family members of the deceased used to tether the sheep; however, accused were claiming that the said open space is belonging to them and they tried to encircle the said property by fencing the same; the quarrels used to take place between the members of two families in respect of the said space; at about 7.00 p.m. on 27.7.2009, once again the quarrel ensued between the members of the two families and in the said quarrel, the family members of the accused had allegedly assaulted the parents of the deceased, however, they had not sustained any injury; in that regard the parents of the deceased with a view to lodge a complaint in the Police Station in respect of the incident that occurred at 7.00 p.m. on 27.7.2009 went to Neelakantanahalli Village, wherein the aunt and uncle of the deceased were living; as the father of the deceased did not have worldy knowledge, the parents of the deceased wanted to take the assistance of aunt and uncle of the deceased for lodging the complaint in the Police Station; the parents of the deceased left the house on 27.7.2009 in order to go to Neelakantanahalli Village and thereafter to go to Police Station to lodge the complaint; the deceased was aged about 18 years and her younger sister Kumari Nandini (complainant) was aged about 16-17 years; parents of the deceased while leaving their house had told the deceased that both the sisters should sleep together and the deceased should take care of her younger sister Kumari Nandini (PW.1), inasmuch as she attained puberty during the relevant point of time and therefore she had to sleep within four walls of the house; parents of the deceased did not come back during night of 27.7.2009, on the other hand, they stayed back in the house of PW.7 (aunt of the deceased) since aunt and uncle of the deceased told them that the complaint would be lodged on the next day morning before Police Station; however, the incident has taken place at about 4.00 a.m. on 28.7.2009; at about 5.30 a.m., the parents of the deceased were informed about the incident over telephone, who in turn rushed to the scene of offence and saw the dead body of their daughter.

PW.1 who is the sister of the deceased is the eye witness to the incident in question. She lodged the complaint as per Ex. P1 in Maddur Police Station, Mandya District which came to be registered in Crime No. 312/2009 for the offences punishable under Sections 143, 147, 148, 302 r/w. Section 149 of IPC. Complaint came to be registered by PW.12, the Sub-Inspector of Police, Maddur Police Station and the First Information Report is sent to the jurisdictional Magistrate. PW.14, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 14 witnesses and got marked 14 Exhibits and 4 Material Objects. On behalf of the defence, one Exhibit was got marked. The trial Court on evaluation of the material on record, acquitted the accused by giving benefit of doubt in favour of them.

The trial Court, as aforementioned, on evaluation of the materials on record, acquitted the accused by judgment dated 29.02.2012.

Sri. P.M. Nawaz, learned SPP taking us through the material on record, submits that the trial court is not justified in disbelieving the version of PW-1 who is the natural witness for the incident; PW-1 was sleeping in the house when the incident has taken place; PW-1 was aged about 16-17 years during the relevant point of time and she was sufficiently matured to understand about the incident in question; the accused were known to the complainant and therefore, it is not the case of mistaken identity; the aspect of motive is proved by the prosecution by examining not only PW-1 but also other witnesses who have supported the case of the prosecution; PW-8 mother of the deceased fully supports the case of the prosecution by deposing on par with the evidence of PW-1; though PW-8 is not the eyewitness to the incident, she has deposed about the motive for commission of the offence and other relevant factors; the P.M. report Ex. P5 and evidence of the Doctor PW-6 who conducted the post mortem examination, also support the case of the prosecution; in as much as, the Doctor has opined that the death is due to neurogenic shock, secondary to the trauma caused to the vital organ i.e., the brain and asphyxia secondary to external forces applied over the larynx and trachea from outside. On these grounds, he prays for setting aside the judgment of the court below.

Sri. H.C. Shivaramu, learned counsel for the acquitted accused argued in support of the judgment of the court below. He submits that the evidence of PW-1 runs contrary to her own version as found in Ex. P1; the prosecution has tried to improve its case from time to time; there is nothing on record to show that the witness has seen the incident in the light emanating from the kerosene lamp; though the house of the deceased was not supplied with electricity, the prosecution has tried to improve its case by creating the documents to show that the house was fitted with the electric bulb. According to him, the reasons assigned and the conclusion arrived at by the trial court are just and proper.

Before proceeding further, it would be beneficial to refer to the versions of each of the witnesses in brief.

PW-1 is the eyewitness to the incident in question. She is the younger sister of the deceased. She has lodged the complaint as per Ex. P1. She has also deposed about the circumstance of motive for commission of the offence.

PW-2 is the close relative of the deceased. He is the neighbour residing in the adjoining house; he has deposed that on being informed by PW-1, immediately after the incident, he rushed to the spot and saw the deceased with bleeding injuries on her head. At that time, people had already gathered there. He has deposed that he did not see the accused on the spot. He was treated hostile by the public prosecutor and he was cross-examined. However, no useful material was secured by the public prosecutor in support of the case of the prosecution.

PW-3 who was the villager of the deceased has not deposed about the incident and motive. He has turned hostile to the case of the prosecution. His evidence is of no use either to the prosecution or to the defence.

PW-4 has deposed about the motive for commission of the offence. According to him, he has conducted panchayat two days prior to the incident in question. He has advised the accused as well as the father of deceased. He has deposed about the dispute between the parties in respect of the backyard of the house of the deceased.

PW-5 is the witness for seizure as per Ex. P4-the inquest mahazar. He is treated partly hostile. He has not deposed about the seizure of stone and blood stained clothes of the deceased.

PW-6 is the Doctor who conducted the autopsy over the dead body. The Autopsy report is at Ex. P5. He has given the opinion as per Ex. P6 in respect of stone MO-1 used for commission of the offence.

PW-7 is the aunt of the deceased. She is the witness for inquest mahazar Ex. P4 and for the seizure of stone M.O.-1 and clothes of the deceased M.Os 2 to 4.

PW-8 is the mother of deceased. She has deposed about the motive for commission of the offence.

PW-9 is the Asst. Engineer who drew the sketch of scene of offence Ex. P7.

PW-10 is the Secretary of Village Panchayat. He has issued extract of the house as per Ex. P8.

PW-11 is the police constable. He carried the FIR to the jurisdictional Magistrate.

PW-12 is the Sub-Inspector of police of Maddur police station. He registered Cr. No. 312/2009 and issued FIR as per Ex. P9.

PW-13 is the Assistant Director of FSL. He has issued serology report as per Ex. P10, which discloses that the stone and the clothes of deceased were stained with O-Group of human blood.

PW-14 is the Sub-Inspector of Police. He completed the investigation and laid the charge sheet.

From the aforementioned discussion, it is amply clear that the case of prosecution mainly rests on the evidence of PWs 1 and 8. PW-1 is an eyewitness and PW-8, the mother of the deceased, has deposed about the motive. She was not present at the time of incident. However, she rushed to the spot immediately after hearing the news.

Since the case of the prosecution is mainly dependant on the sole testimony of PW-1, we have carefully evaluated the evidence of PW-1. There cannot be any dispute that there is no legal impediment in convicting the person on the sole testimony of a single witness. We are conscious of the fact that corroboration is not a rule of prudence but it is the rule of evidence. Since, the evidence of PW-1 plays an important role in the matter on hand, the same is subjected to greater scrutiny, particularly keeping in mind that PW-1 is the family member of the deceased.

PW-1 has lodged the complaint as per Ex. P1. The same was registered at about 6.30 p.m. The FIR has reached the Magistrate at 8 a.m. on the very day dated 28.07.2009. The incident has taken place at about 4 a.m. on 28.07.2009. The distance between the house of the deceased and the police station is about 9 Kms. Thus, practically there is no delay in lodging the complaint. It can be safely concluded that the complaint came to be registered without any delay. The complaint Ex. P1 discloses that the complainant and the deceased were sleeping in the house during the night of 27.07.2009 after their parents left the house to go to Neelakantanahalli village and from there to proceed to police station for lodging the complaint about the quarrel took place between them and accused. At about 4 a.m., on 28.07.2009, PW-1 heard the sound of opening of thatched door; hence, PW-1 woke up from deep sleep and saw accused No. 1 throwing a big stone on the head of the deceased Ashwini; when the complainant tried to catch accused No. 1 Boregowda, he ran away from the place. At that point of time, accused No. 1 was accompanied with his son Krishna (A2), his wife Gowramma (A3), his daughter Thayakka (A4) and his mother Jayamma (A5) and all these persons also went along with accused No. 1 out of the house of the deceased. Having seen the incident, PW-1 started raising hue and cry and immediately on hearing the cries, Smt. Sakamma and Yelavaiah (PW-2) rushed inside the house and all of them found that the deceased had died on the spot because of bleeding injuries.

From the complaint, it is amply clear that about 5 persons entered the house of the deceased and among them, accused No. 1 threw a big stone on the head of the deceased. Consequent upon which, deceased died on the spot. Thereafter, all the 5 persons including accused No. 1 ran away from the place. The inquest panchanama was conducted from 8 a.m., to 10.30 a.m. It is relevant to note that the scene offence of panchanama is not separately conducted in this matter. The scene of offence panchanama is also included in the inquest panchanama, which is at Ex. P4. Even during the course of preparation of inquest panchanama, the statements of the near relatives including father of the deceased Ningegowda, mother of the deceased Jayasheelamma and one Boraiah are recorded. All these statements found in the inquest panchanama Ex. P4 also reveal that 5 persons entered the house and among them, accused No. 1 threw big stone on the head of the deceased. Hence, it is clear that up to 10.30 a.m., on 28.07.2009, it is believed by all the aforementioned witnesses including the complainant PW-1 that 5 persons entered the house and committed the murder. However, the charge sheet came to be filed only against two persons who have faced trial before the court below.

PW-1 has confined herself to the overt acts of accused Nos. 1 and 2 only. She has deposed before the trial court that at about 4 a.m., on the date of the incident, two accused came inside the house and both of them threw the stone on the deceased and ran away from the place. She has not deposed anything against any of the remaining three persons who had allegedly entered the house as stated in Ex. P1. It is further deposed by PW-1 that her house is not supplied with electricity connection and that she has seen the incident in the light which was being emanated by kerosene lamp. She has also deposed that PW-2 and his wife Sakamma rushed to the place after hearing the cries of PW-1, but by then, the deceased had succumbed to the injuries. She has tried to explain in her evidence that she was under utter pressure at the time of lodging the complaint and therefore, she did not know as to how many persons were implicated in the crime and who were implicated in the crime. She reiterates that except the accused who have faced the trial, no other person had entered the house and committed the murder. In the examination-in-chief, she has clarified that her parents came to the house at 6 a.m., on the date of incident and they started crying loudly and therefore, she did not inform about the names of the assailants and the manner in which the incident has taken place before the police till the evening of 28.07.2009.

Hence, it is clear that she did not disclose about the manner in which incident has taken place and about the actual assailants even before her parents and police till the evening of 28.07.2009. This conduct of PW-1 appears to be highly unnatural. Under the normal circumstances, PW-1 would have disclosed the manner in which the incident has taken place and as to who are the assailants not only before the police but before all the villagers. It is highly improbable that PW-1 did not disclose about the names of the assailants even before her parents till evening of 28.07.2009. It is also admitted by PW-1 in the cross-examination that number of houses are situated in and around the house of the deceased; the house of the deceased has got two portions, one has got the tiled roof and the front portion is having thatched roof with a temporary door made up of coconut leaves. Anybody can open such door and enter the front yard of the house. She has also admitted that she was inside the portion of the house which is having tiled roof, in as much as, she had attained puberty at the relevant point of time and consequently, she had protected herself from cold. The incident has taken place in the month of July, which is a rainy season and therefore, naturally PW-1 must have slept inside the house having tiled roof and would not have slept on the front yard which is having thatched roof.

In the cross-examination, it is specifically admitted by PW-1 that the incident has taken place at about 4 a.m. and that point of time, generally she would be fast asleep; she became awake only after she heard the crying sound of the deceased, meaning thereby, she was fast asleep till then; immediately, after getting up from the bed, she saw the deceased with bleeding injuries and consequently, she rushed outside the house and raised hue and cry in order to gather the attention of the neighbours. However, she has deposed that she had seen the persons who went outside the house. Curiously, it is admitted by PW-1 that she did not even tell her aunt and uncle (PW-2) who had also rushed to the spot immediately after the incident about the names of assailants.

It is further admitted by PW-1 that some persons who went to the police station along with her had written the complaint as per Ex. P1. However, she had given information about the incident while writing the complaint Ex. P1. According to her, the names of other persons are wrongly included in the complaint by mistake but actually such persons were not at all present on the scene of offence and had not entered the house. It is also admitted by her that the names of other persons are included in the complaint while she was under tension and may be because, she wanted to implicate other members of the accused family also, though such persons were not present at the time of incident. It is admitted by her that the police did not seize the kerosene lamp.

Looking to the entire evidence of PW-1, it is amply clear that the same not only runs contrary to her own version as per Ex. P1 and also that she is not an eyewitness to the incident. She got up from the bed only after the incident is completed. By the time, she became awake, the deceased had lost her life and she was fallen with bleeding injuries. If really PW-1 knew about the names of actual assailants, she would not have failed to tell the names of the assailants before her aunt and uncle (PW-2) as well as her parents who came to the spot at 5.30 a.m. These facts would clearly reveal that PW-1 is not an eyewitness to the incident as she has got up from sleep only after the incident is over.

PW-2 being the uncle of the deceased has also not fully supported the case of the prosecution. He has not deposed about the accused running away from the spot or that accused were present at the scene of offence. However, according to PW-1 and as per the case of the prosecution, PW-2 rushed to the spot immediately after the incident, but he did not see any accused on the spot.

PW-8 has deposed that she had directed the deceased to watch the sheep during night by sleeping in the cattle shed itself (front portion of the house) and consequently, the deceased was sleeping outside the door of the house. However, in the charge sheet, it is also admitted by PW-8 that PW-1 was specifically instructed to sleep inside the portion of the house which is having tiled roof, since she needed protection as she had attained puberty during the relevant point of time and consequently, PW-1 was sleeping inside the house. In paragraph-6 of the deposition, PW-8 has admitted that the averments made in the complaint, have been made based on the strong presumption that the family members of the accused have committed the murder and that such suspicion arose in the light of the complainant and her family members about the complicity of the accused in view of the fact that the quarrel took place on the previous night of the incident. It is also admitted by PW-8 that she was informed by PW-1 that she became awake only when some persons threw the stone on the head of the deceased and at that point of time when PW-1 arrived near the scene of offence, no person was present. Thus, it is amply clear that PW-8 was informed by PW-1 that the complaint averments are made only on strong suspicion and not based on actual facts. This evidence of PW-8 has also found support from the evidence of PW-1 herself which is discussed by us already in the preceding paragraphs.

In paragraph-11 of the deposition, PW-1 has deposed that only on assumption, she states that the incident must have taken place at 4 a.m., and at that point of time, she would be fast asleep and only after hearing the cries of the deceased, she got up and saw the deceased with bleeding injuries. The homogeneous reading of the evidence of PWs 1 and 8, would not inspire confidence in the mind of the Court to rely upon such evidence to conclude that the accused, more particularly accused No. 1 has committed the offence.

Another important circumstance which needs to be discussed is the so called existence of light. Admittedly, the incident has taken place at about 4 a.m. It is not in dispute that the house in question was not equipped with electricity supply. PWs 1 and 8 have deposed that kerosene lamp was available and the same was lighted and under such light, PW-1 has seen the incident. However, curiously, the Investigating officer has not seized the kerosene lamp at all. There is no mention of existence of kerosene lamp in the scene of offence panchanama/inquest panchanama Ex. P4. If really such lamp was available and that too it was lighted, it would not have missed the sight of the Investigating Officer. More over, the prosecution has tried to improve its case by creating the documents to show as if the house in question was supplied with electricity. Such improvement is made by the prosecution during the course of trial before the court below. In view of the same, the trial court is justified in concluding that the prosecution has tried to improve its case from time to time. It is not possible to separate grain from chaff. False things cannot be separated from the truth.

In the matter on hand, firstly, the prosecution has tried to implicate all the family members of the accused. However, during the course of trial, they tried to fix the liability only on accused Nos. 1 and 2 who have faced the trial. Even as against them, PW-1 has deposed only on assumption, in as much as, she was not the actual eyewitness to the incident.

In our considered opinion, the trial court has discussed and evaluated the entire material on record in detail, in proper perspective and has come to the correct conclusion. We also find that the reasons assigned and conclusion arrived at by the learned trial Judge are just and proper. Any amount of suspicion or strong suspicion cannot be equated to proof. Since it is the duty of the prosecution to prove its case beyond all reasonable doubt and as the evidence on record is not sufficient to conclude that the prosecution has proved its case beyond all reasonable doubt, the benefit of doubt shall enure to the accused. Hence, no interference is called for.

Accordingly, the appeal fails and is dismissed.