State of Karnataka vs Kumar and Others

Mohan M. Shantana Goudar, J.—Judgment and order of acquittal passed by the Fast Track Court-III, Bangalore Rural District, Bangalore, in Sessions Case Nos. 82/2007 and 83/2007 is appealed against by the State.

Accused Nos. 2, 3, and 4 were charged, tried and acquitted for the offences punishable under sections 376(2), 302 and 201 of IPC. Accused No. 1 namely, Appi @ Prakasha @ Kumara @ T. Srikumar, is not sent up for trial and case against him is split up.

The case of the prosecution in brief is that Kum.Shabrin Taj, aged about 10 years, is the daughter of P.W.1 - Mohammad Noorulla. She did not return home in the evening of 19.2.2006. P.W.1, his relatives and friends searched for the missing girl till 2.00 A.M. of 20.2.2006. Since the missing girl was not found, P.W.1-father of the missing girl lodged the first information with the police at about 11.00 A.M. on 20.2.2006, which came to be registered as UDR No. 15/2006 of Hoskote Police station, under section 174(c) of Cr.P.C. The crime was registered against two unknown persons. At about 9.30 A.M., i.e. before lodging complaint, the dead body was taken out from the well waters. There were no cloths on the person of the dead body. However, the cloths of the missing girl were found near the well. The first information report was sent to jurisdictional Magistrate, as per Ex.P8 at 11.30 A.M. on 20th February 2006. The Inquest Panchnama was conducted over the dead body and thereafter, a case was registered in Crime No. 89/2006.

Though the crime was allegedly committed during the intervening night between 19th and 20th February 2006, no progress was made during the course of investigation, till 12.06.2006. However, accused Nos. 3 and 4 namely, Kumar @ Shivakumar and Afsar @ Nazeer (respondents herein) were apprehended at about 2.30 A.M. of 12th June 2006 when the police found them on the street wandering suspiciously. On being questioned, the accused Nos. 3 and 4 admitted to have committed murder of the child. Accused No. 3 and 4 were brought before the police station at 3.30 A.M. During further investigation, accused Nos. 1 and 2 were also arrested on 3.7.2006 and 2.7.2006 respectively. The police after completion of investigation laid the charge sheet.

In order to prove its case, the prosecution in all examined 16 witnesses and marked 21 exhibits. On behalf of the defence, no witness was examined. The trial Court, on evaluation of the material on record, acquitted the accused by concluding that the prosecution has not proved its case beyond reasonable doubt.

It is relevant to note that accused No. 1 was absconding at the time of committal of the case and therefore, case against him was split up and the trial went on only against accused Nos. 2, 3 and 4. Accused No. 2 was tried in S.C. No. 83/2007 and accused Nos. 3 and 4 were tried in S.C. No. 82/2007. Both the Sessions cases were clubbed and decided together by the impugned judgment and order of acquittal.

The case rests on circumstantial evidence. The three circumstances relied upon by the prosecution are:

a) voluntary statement of the accused before the police confessing about the crime;

b) the accused showing the place of murder i.e. well;

c) the accused and deceased were last seen together;

P.W.1 is the father of the deceased. He lodged the complaint based on which, the investigation was taken up. He identified the dead body of the child. P.Ws.2, 3 and 7 are the witnesses to the last seen circumstance. P.W.4 was present when the dead body of Shabrin Taj was brought out from the well water. P.W.5 is the police constable who carried the material to Forensic Science Laboratory. P.W.6 is the brother of the deceased. He found the cloths of the deceased near the well. P.W.8 is the doctor who conducted the post mortem examination on the dead body. P.W.9 is the doctor who examined accused Nos. 3 and 4 and opined that they are capable of performing the act of sexual intercourse. P.W.10 is the police constable who apprehended accused Nos. 3 and 4 on the ground that they have committed theft on 12.6.2006. P.W.11 is the owner of the land wherein the well is situated. P.W.12 is the police constable who apprehended accused No. 2 on 2.7.2006. P.W.13 is the Scientific Officer of Forensic Science Laboratory, Bangalore. P.W.14, 15, and 6 are the investigating officers.

The first circumstance relied upon by the prosecution cannot be said to be a circumstance which can be taken into consideration inasmuch as the confession of the accused before the police is no confession in the eye of law.

Even the second circumstance relating to pointing out the place where the offence was taken place is also justifiably not given due importance by the court below inasmuch as the police as well as all the witnesses very well knew about the situation of the well in the land. Even prior to lodging of the complaint, the dead body was found and the same was identified by the father of the deceased. Since the entire material with regard to finding of dead body in the well was available even prior to lodging of complaint, no importance can be attached to the alleged statements made by the accused showing the well in which the dead body was thrown.

The only other circumstance to be considered is the last seen circumstance. According to the case of the prosecution, P.W.2, 3, and 7 had seen all the four accused with the deceased in an Auto on 19.2.2006. There is no material to show that P.Ws.2, 3 and 7 were unknown to either P.W.1 or to police. They are from the very locality. Had they really seen the accused with the deceased on 19.2.2006, they would not have kept quite without informing either to police or to P.W.1 of the same on the very next day itself, particularly when the dead body was taken out from the well waters. These witnesses were present at the time of inquest. The inquest was drawn on 20.2.2006. There is no reason as to why they kept quite till their statements were recorded on 6.9.2006 which means that the statements of P.Ws.2, 3 and 7 are recorded after long lapse of about seven months from the date of incident.

If the depositions of PWs.2, 3, and 7 is eschewed from consideration or are not given due weight, the entire case of the prosecution fails. Even assuming that the evidence of P.Ws.2, 3 and 7 is believable, it is not a fit case to convict the accused only on the basis of the said circumstance. There cannot be any dispute that the prosecution case which is fully based on circumstantial evidence has to be proved in its entirety; all the circumstances will have to be proved beyond reasonable doubt so as to complete the chain of circumstances; there should not be any room for doubting the veracity of witnesses who depose about the circumstances. In the case on hand, we find that the conduct of P.Ws. 2, 3 and 7 of keeping quite for about seven months from the date of incident, more particularly when they are from the same locality and when they knew about the incident in question, would render their version unbelievable. We find that their evidence bristles with suspicion.

In view of the above, the trial court, in our considered opinion, is justified in acquitting the accused. The view taken by the trial court is the only possible view in the facts and circumstances of the case.

Hence, no interference is called for. The appeal fails and the same stands dismissed.