State of Karnataka vs Govindanaika and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 03.08.2011 passed by Prl. District & Sessions Court, Mysore in S.C. No. 66/2010 is called in question in this appeal by the State.

The accused are tried and acquitted of the offences punishable under Sections 302, 201 read with Section 34 of IPC.

Case of the prosecution in brief is that deceased Mallesha is the first son of P.Ws. 2 and 13; he was aged about 17 years during the relevant point of time; at about 6.00 p.m. on 24.10.2009 accused No. 1 came to the house of deceased and took the deceased along with him; accused No. 1 along with other accused forced the deceased to consume alcohol; thereafter made galata with the deceased; all the accused including the juvenile accused (who is facing trial before the juvenile justice Court) and the deceased stayed in the house of one Devanaika wherein accused No. 3 was selling gobi-manchuri. Since the deceased did not return to the house, P.W. 2 (father of the deceased) started enquiring about his son, at about 7.00 a.m. on 25.10.2009 juvenile offender (accused No. 2 namely Suresh) informed P.W. 2 that the deceased had come on the previous day night and had stayed along with accused in the house of Devanaika; before the accused could get up from bed on 25.10.2009, the deceased had left the house of Devanaika and has gone elsewhere; thereafter, P.W. 2 enquired with other accused also, but the reply was same. P.W. 2 and his relatives searched for the deceased, but they did not find the deceased. At about 6.00 a.m. on 26.10.2009, Somanaika (P.W. 11) and Lakshmananayaka came to the house of deceased and told P.W. 2 that T-shirt and chappals belonging to the deceased were found on the tank bund; after hearing them, P.W. 2 and the villagers went near the tank bund and they searched for the dead body, ultimately, they could able to trace the dead body within the lake; legs of the dead body were tied with the waist thread; there were injuries on the cheek and head of the deceased; the blood was oozing from the ears and nose of the deceased.

P.W. 2 lodged the complaint at about 11.45 a.m. on 26.10.2009 as per Ex. P-3, which came to be registered in Crime No. 300/2009 of H.D. Kote Police Station for the offences punishable under Sections 302 and 201 of IPC. P.W. 26-Police Officer has completed the investigation and laid the charge sheet.

In order to prove its case the prosecution in all, has examined 26 witnesses and got marked 25 documents and 6 material objects. On behalf of the defence, no witness has been examined. As aforementioned, the Trial Court on evaluation of the materials on record, acquitted all the accused, who faced the trial in S.C. No. 66/2010.

It is relevant to note that accused No. 2 namely Suresh, was a juvenile offender during the relevant time and therefore, the case was bifurcated and said Suresh was sent before the Juvenile Justice Board for Trial. Thus the trial went on only against accused Nos. 1, 3, 4 and 5 and all of them are acquitted, by the Trial Court.

Sri Chetan Desai, learned High Court Government Pleader for the appellant taking us through the materials on record submits that the Trial Court is not justified in acquitting the accused, more particularly when prosecution has proved all the circumstances relied upon by it, beyond all reasonable doubt; the circumstances so proved will complete the chain of circumstances, which does not allow the accused from the clutches of law; from the proved circumstances, the only conclusion that can be reached is that the accused were responsible for commission of the offence and none else; the accused have not come up with any defence and they have not explained as to how the deceased parted their company during the night of 24.10.2009. On these among other grounds, he prays for setting aside the judgment of the Trial Court and for conviction of the accused.

Sri P. Nataraju, learned counsel appearing on behalf of the respondents-accused, per contra, argued in support of the judgment of the Court below.

It is not in dispute that the accused including the juvenile offender are friends of the deceased; it is specifically admitted by P.W. 2 (father of the deceased) that the accused are close friends of the deceased and that no quarrel ensued prior to the incident in question between the accused and the deceased, the accused were friendly with the deceased. It is also not in dispute that the deceased found missing from the night intervening between 24.10.2009 and 25.10.2009; his dead body is found in the lake on the early hours of 26.10.2009.

The post-mortem report (Ex. P-1) and the evidence of the doctor (P.W. 1), who conducted the post mortem examination, clearly reveal that the deceased died due to head injury, which was a result of blunt force. The doctor has opined that the death was due to coma as a result of head injury. The doctor has also opined that the time of death may be between 36 and 48 hours prior to post-mortem examination. The doctor has specifically denied the suggestion in his cross-examination that the type of injuries sustained by the victim could be caused if the person slips and falls down from the edge of the channel. The sum and substance of the post-mortem report and the evidence of P.W. 1 (doctor) reveals that it is the case of homicidal death and not the case of accidental death.

Before proceeding further it would be beneficial to note the version of each of the witnesses in brief.

P.W. 1, as aforementioned is the doctor, who conducted the post-mortem examination; he has given post-mortem report as per Ex. P-1; his final opinion is at Ex. P-2. P.W. 2 is the father of the deceased; he has lodged the complaint as per Ex. P-3 based on which crime came to be registered, he is also the witness for seizure mahazar Ex. P-4 under which M.Os. 1 and 5 were seized. P.Ws. 3 and 4 are the witnesses for scene of mahazar panchanama Exs. P.5 and P.6; Ex. P-5 relates to scene of recovery of dead body, whereas, Ex. P-6 relates to the place wherein the quarrel took place between the deceased and accused during the night of 24.10.2009. P.Ws. 5 and 6 are the witnesses for seizure panchanama Ex. P-4 under which M.Os. 1 and 5 were seized. P.W. 7 is the witness for inquest mahazar Ex. P-9. P.W. 8 is the mother of the deceased; she has deposed on par with the evidence of P.W. 2; according to her, accused No. 1 came to her house and took the deceased along with him on the evening of 24.10.2009. P.Ws. 9, 10, 13, 14 and 23 are the witnesses, who have deposed about the minor quarrel, which took place between the accused and the deceased on the evening of 24.10.2009. P.Ws. 4 and 12 are the witnesses, who enquired with certain accused to know about the whereabouts of the deceased. P.Ws. 11 (the brother of P.W. 2) and P.W. 12, have also enquired with the accused about the whereabouts of the deceased. P.Ws. 15, 16, 17 and 18, who were supposed to depose about the quarrel between the deceased and the accused, have turned hostile to the case of the prosecution. P.W. 19 is the Secretary of Panchayat; he issued extract of the house wherein deceased slept along with accused during the night of 24.10.2009. P.Ws. 20 and 21 are the witnesses for seizure panchanama Ex. P-21 under which the clothes of the deceased were seized after post-mortem examination. P.W. 22 is another witness, who has turned hostile to the case of the prosecution. P.W. 24 is the Police Constable, who guarded the dead body. P.W. 25 is the Asst. Sub-Inspector of Police, he received the complaint lodged by P.W. 2 and registered the case in Crime No. 300/2009. P.W. 26 is the Investigating Officer; he completed the investigation and laid the charge sheet.

From the aforementioned, it is clear that there are no eye-witnesses to the incident in question, the case rests only on circumstantial evidence; as the prosecution relies upon the following three circumstances:

(i) The deceased was last seen with the accused - P.Ws. 2 and 8 have deposed about the same.

(ii) Quarrel took place between the deceased and the accused in the evening of 24.10.2009 - P.Ws. 9, 13, 14 and 23 have deposed about the said circumstance.

(iii) P.Ws. 4 and 12 held talks with the accused to know about the whereabouts of the deceased.

Practically circumstances (i) and (iii) overlap inasmuch as both these circumstances are related to last seen theory.

P.Ws. 2 and 8 are the parents of the deceased; they were present in the house in the evening of 24.10.2009 along with the deceased; accused No. 1-friend of the deceased came to the house of the deceased and took the deceased along with him at about 6.00 p.m. on 24.10.2009. This circumstance is spoken to by both these witnesses i.e., P.Ws. 2 and 8 i.e., the husband and wife respectively (parents of the deceased). Both of them have deposed that accused No. 1 took the deceased along with them at 6.00 p.m. on 24.10.2009. These witnesses have not deposed anything against other accused. However, their evidence makes it clear that accused No. 1 and deceased were seen together in the evening of 24.10.2009.

The evidence of P.W. 4 discloses that having come to know that the deceased was sleeping with the accused during the night of 24.10.2009, they called accused No. 3 to a place wherein ten persons had gathered and enquired him; accused No. 3 confessed before such persons that the deceased was with the accused and he had slept in the house of one Devanaika during the night of 24.10.2009. He has also stated before P.Ws. 4 and 6, who had gathered there that the accused did not know as to when the deceased got up from the bed and went away from the house of Devanaika. It is further deposed by P.W. 4 that accused No. 3 told him that Mallesh and Suresh i.e., deceased and accused No. 2, were sleeping along with him in the said house. It is curious to note that accused No. 3 did not divulge the names of other accused except of accused No. 2, who had slept in the said house.

P.W. 12 has deposed that accused Nos. 1 and 3 were enquired by him as well as the public, who have gathered in the particular spot, but P.W. 12 did not know as to what was told by accused No. 1 or accused No. 3. Thus, practically the evidence of P.W. 12 is of no use inasmuch as he has not revealed the names of any of the accused.

If we read the evidence of P.Ws. 2, 4 and 8 homogenously, at the most it becomes clear that accused No. 1 took the deceased along with him and he slept in the house of Devanaika along with accused Nos. 2 and 3.

Coming to the only other circumstance relied upon by the prosecution i.e., the quarrels ensued between the accused and deceased as aforementioned, the prosecution relies upon the evidence of P.Ws. 9, 13, 14 and 23.

P.W. 9 has deposed that he was passing through the main road at 6.00 p.m. on 24.10.2009, he saw accused Nos. 1 and 5 along with the deceased near the drain; such place is about 150 feet away from the place where gobi-manchuri was being sold; at about 9.00 p.m. also he saw accused Nos. 1 and 5 along with the deceased talking with each other by sitting on a tyre vehicle in-front of gobi-manchuri shop. Thus, the evidence of P.W. 9 makes it clear that accused Nos. 1 and 5 were sitting along with the deceased and they were holding him from 6.00 p.m. to 9.00 p.m. on 24.10.2009.

P.W. 13 has deposed that he has not seen the deceased prior to his death; at about 8.00 p.m. Mr. Kumar (accused No. 3) and Suresh (accused No. 2) were playing tape-recorder in the house of Devanaika and at that point of time he heard the sounds of quarrel, but he does not know as to the persons who were involved in the quarrel; such quarrel took place from 8.00 p.m. to 10.00 p.m.; however, P.W. 13 went and slept in his house even when the quarrels were taking place.

However, in the cross-examination P.W. 13 is treated as hostile witness; on being cross-examined by the Public Prosecutor, P.W. 13 reiterates that he has not seen the persons quarreling with each other; the persons, who were quarreling did not make loud voice, but quarrel took place in a milder tone; he did not enter the house of Devanaika to verify as to who were involved in the quarrel; number of persons passing through the said place were hearing the sounds of quarrel; only accused Nos. 2 and 3 were sleeping in the house of Devanaika and not other accused etc.

All the suggestions put by the Prosecutor to P.W. 13 are denied by him; however, in the cross-examination the counsel for P.Ws. 3 and 4, he has admitted that from the sounds which emanated from the house, he was under the impression that deceased Mallesh was also involved in the quarrel, but he has not seen Mallesh personally near the house; 10 to 15 houses were adjoining the house of Devanaika wherein the quarrel was taken place. He has reiterated that he has not seen the persons, who were all involved in the said quarrel. Thus, the evidence of P.W. 13 is of no use inasmuch as he has not implicated any accused by deposing that either all the accused or certain of the accused were found quarreling with the deceased. Same is the version of P.W. 14; he has also not implicated any accused.

However, P.W. 23 has confined his deposition as against accused No. 1; he has deposed that at about 8.00 p.m., he had seen the deceased along with accused Nos. 1 and 4 near the gobi-manchuri selling shop and at that point of time the deceased and accused No. 4 were quarreling with each other and at that point of time accused No. 1 was threatening the deceased that he would commit the murder of the deceased.

In the cross-examination, P.W. 23 has deposed that number of houses were adjoining the house, wherein the quarrel taken place and number of persons were passing through the said main road; however, at that point of time none of the other persons were passing through the said road. He admits that he has deposed for the first time before the Court that he has pacified the quarrel between the deceased and accused Nos. 1 and 4. Thus, the evidence of P.W. 23 stares at accused Nos. 1 and 4 and not other accused.

Even the entire version of P.Ws. 9, 14 and 23 is believed, it can be merely said that these witnesses had seen the deceased near the spot along with accused Nos. 1, 4 and 5 in the evening of 24.10.2009 which means these witnesses have deposed about the last seen theory.

From the aforementioned evidence, the prosecution, in our considered opinion, has proved the circumstance of last seen inasmuch as the deceased was seen in the company of certain of the accused on 24.10.2009, but the dead body was found after two days i.e., in the morning of 26.10.2009; all the accused were very much in the village, they were not absconding; all the accused were close friends of the deceased and there was no motive for commission of the offence against the deceased. The last seen circumstance, if at all can be used against the accused as a circumstance, it should have been connected with the time of death; here is the case where the deceased was seen with the accused at about 6.00 p.m. to 9.00 p.m. on 24.10.2009, whereas the dead body was found at 6.00 a.m. on 26.10.2009.

The prosecution has not fixed the time of death of the deceased. From the evidence of the doctor, who conducted post-mortem examination, it cannot be definitely said that the death has occurred at a particular time. Hence, we find that there is no proximity that the deceased and accused were last seen together at the time of the death of the deceased; even assuming that the last seen circumstance is viewed as incriminating circumstance, the same would be of no significance inasmuch as no other circumstance is relied upon by the prosecution.

All the three circumstances relied upon by the prosecution are related to the last seen theory only and hence, at the most it can be said that minor quarrel took place and some of the accused were seen with deceased in the evening of 24.10.2009; what happened subsequently is not known to anybody, even if extra judicial confession made by the accused before P.Ws. 4 and 12 is to be believed, at the most it can be presumed that the deceased left the company of the accused somewhere between the intervening night of 24.10.2009 and 25.10.2009; he was not found in the house, and he had left the house even prior to accused woke up in the morning of 25.10.2009.

It is now well established that in a case based on circumstantial evidence, there must be complete chain of circumstances which would lead to only one hypothesis that the accused are the only persons, who have committed the offence and none else; in the instant case there is nothing to show that accused have committed the offence and on the basis of the aforementioned material, in our considered opinion, it would be harsh to convict the accused. In deciding the sufficiency of circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together in establishing the guilt of the accused, the facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every other hypothesis except the one sought to be proved. In the matter on hand, since the prosecution is able to prove only the last seen circumstance that too which is not proximate to the time of death of the deceased, the Trial Court is justified in acquitting the accused.

On reconsidering the material on record, we do not find any ground to interfere with the judgment and order of the Court below. The view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case.

Hence, appeal fails and accordingly, it is dismissed.