State of Karnataka vs M. Manjunatha

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 20.10.2010 passed by the I Additional Sessions Judge, in S.C. No. 153/2009, is called in question in this appeal by the State.

The accused-respondent herein was tried and acquitted of the offences punishable under Sections 364 and 302 of IPC.

Case of the prosecution in brief is that the deceased Nuthan @ Nandakumar, aged about five years is the son of P.Ws. 1 and 2; the accused was about 18 years of age and studying in 10th Standard at the time of incident; the accused and the deceased are from the same locality; the accused used to play along with other kids in the locality; he used to play with the other kids including the deceased in the normal way as any other kids play; the accused took the victim Nuthan @ Nandakumar from the play ground and got him "nippattu" (eatable) from the shop of P.W. 8; thereafter accused took the deceased about half a kilometer from the shop of P.W. 8, assaulted him with club (stick) and pushed him inside the abandoned open well, situated in the land of Gubalal Muniswamappa, consequent upon which Nuthan @ Nandakumar died.

The incident has taken place at about 4.00 p.m. on 10.7.2008. The first information came to be lodged by the father of the victim (P.W. 1) as per Ex. P1 at about 9.00 a.m. on 11.7.2008 before P.W. 12, the Assistant sub-Inspector of Police, Thalaghattapura Police Station, which came to be registered in Crime No. 275/2008. Initially the crime came to be registered for the offence punishable under Section 366A of IPC and after taking out the dead body from the well, the crime is converted for the offence punishable under Section 302 of IPC. C.W. 27, the sub-Inspector of Police laid the charge sheet. However, he is not examined before the Court. The Assistant Sub-Inspector of Police-P.W. 12 and the Inspector of Police-P.W. 13 investigated into the crime to certain extent and they handed over the investigation to C.W. 27 who laid the charge sheet.

In order to prove its case, the prosecution in all has examined 13 witnesses and got marked 13 Exhibits and 4 Material Objects. On behalf of the defence, 3 Exhibits were got marked. The trial Court on evaluation of the material on record, acquitted the accused by giving benefit of doubt in his favour.

Learned Government Pleader appearing on behalf of the State taking us through the material on record including the impugned judgment, submits that the trial Court is not justified in acquitting the accused, more particularly when the prosecution has proved its case beyond reasonable doubt; all the circumstances relied upon by the prosecution are also proved by the prosecution; the judgment of the trial Court is unreasoned and consequently, conclusion reached by it is improper.

Per contra, learned advocate appearing on behalf of the accused argued in support of the judgment of the Court below contending that it may be a case of accidental falling in the well; since no reliable motive is found against the accused, who was studying in 10th Standard and as none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt, the trial Court is justified in acquitting the accused.

P.Ws. 1 and 2 are the parents of the deceased. P.W. 1 is the first informant, based on which crime came to be registered. According to P.W. 2, the deceased Nuthan @ Nandakumar was not found in the house from 3.30 p.m. on 10.7.2008; on that day, birthday of the deceased was being performed and therefore she was preparing sweets in the house; at 3.40 p.m., she came out of the house and found that the victim was not playing in front of the house; she went to play ground and asked the children including the accused; since she did not get any satisfactory answer and as she could not know the whereabouts of the victim, she started searching him further; when she came near the shop of P.W. 8 she learnt from P.Ws. 3, 4 and 8 (owner of the shop) that the accused got nippattu for the deceased from the shop of P.W. 8 and took the deceased along with him; thereafter she asked the accused about the whereabouts of the deceased, but she could not get any proper answer; she sent words to her husband (P.W. 1) through someone; consequently, P.W. 1 came to his house and thereafter, P.Ws. 1, 2 and the brother-in-law of P.W. 1 once again searched for the deceased; they went to the house of the accused at about 9.00 p.m. and asked him the whereabouts of the deceased; accused told P.Ws. 1 and 2 that immediately after getting nippattu for the deceased, he left the company of deceased and he went to his house. On the next day, i.e., on 11.7.2008 at 9.00 a.m., complaint came to be lodged suspecting the hand of the accused.

P.Ws. 3, 4, 6 and 8 are the witnesses who have deposed about the last seen circumstance. P.W. 8 is the owner of the shop from which accused got nippattu for the deceased.

P.W. 5 is the witness for panchanama at Ex. P4 under which the dead body was taken out from the well and at that point of time, the accused was also present along with the police.

P.W. 7 is another witness for panchanama at Ex. P4.

P.W. 9 is the witness for recovery of club near the well wherein the dead body was found, at the instance of the accused. The club-MO. No. 4 was seized under panchanama at Ex. P7.

P.W. 10 is the doctor who conducted autopsy over the dead body. He opined that death is due to asphyxia as a result of drowning. He has also opined that the injury sustained by the deceased is likely to be caused when the victim falls into a ground well. He has specifically admitted that he did not notice any injury caused by the assault with club.

P.W. 11 is the witness for seizure of MO. Nos. 1 to 3, the clothes of the deceased.

P.Ws. 12 and 13 are the Investigating Officers. Among them, P.W. 12 is the Assistant Sub-Inspector of Police, who registered the crime based on the complaint at Ex. P1 lodged by P.W. 1. As aforementioned. The Investigating Officer who completed the investigation and laid the charge sheet is not examined before the Court.

Be that as it may, the prosecution relies on the following circumstances:--

"i) Motive

ii) The last seen circumstance

iii) Recovery of dead body and the club at the instance of the accused.

iv) Non-explanation by the accused."

Re. Motive: In so far as the first circumstance relating to motive is concerned, we find that the trial Court is justified that this circumstance is not proved by the prosecution. Two motives are attributed against the accused, namely, (1) accused was in the habit of committing sexual assault on the minor boys and girls and (2) the accused had taken a mobile phone from the autorikshaw of P.W. 1 (father of the deceased) and that he did not return the same to P.W. 1 and in that regard quarrel took place about six months prior to the incident in question between P.W. 1 and the accused.

Though P.Ws. 1 and 2 are examined in support of the said two motives, the same are not proved beyond reasonable doubt. P.Ws. 1 and 2 specifically admit that they did not know as to whether the accused had indulged in sexual assault on the minor boys/girls in the locality. No complaint is lodged against the accused in that regard prior to the incident in question. Even the complaint at Ex. P1 does not disclose about the said motive. P.Ws. 1 and 2 specifically admit that they came to know about such alleged conduct of the accused through third parties, meaning thereby that they are hearsay witnesses for such circumstance. In other words, P.Ws. 1 and 2 have deposed on assumption with regard to such alleged motive.

Even in respect of the alleged theft of mobile phone also, there is no mention in the complaint at Ex. P1. So also, the alleged incident of committing theft of mobile phone by the accused had taken place 5 to 6 months prior to the incident in question. Moreover, it is specifically admitted by P.W. 1, the father of the deceased that there was no ill-will between him and the accused as well as the parents of the accused. In the light of the clear admission of P.W. 1 that there was no ill-will whatsoever against the accused or the parents of the accused, the trial Court is justified in concluding that the aspect of motive is not proved by the prosecution.

Re. Last seen circumstance: In order to prove the said circumstance, the prosecution has examined P.Ws. 3, 4, 6 and 8. Among them, P.W. 8 is the owner of the shop wherein the accused had got nippattu for the deceased. Admittedly, the victim was aged about five years and the accused was aged about 18 years and was studying in 10th Standard. Accused used to play with the boys in the locality including the deceased as any other boys play, in front of the house or in the play ground. P.W. 8 has deposed that in the evening of 10.7.2008, the accused had brought the deceased to his shop and purchased nippattu for the deceased and thereafter both of them went away; at that point of time, P.Ws. 3 and 4 were also sitting near the shop of P.W. 8. The version of P.W. 8 is supported by P.Ws. 3 and 4. They have deposed that they have also seen the victim along with the deceased near the shop of P.W. 8. Same is the version of P.W. 6. Prima facie we agree with the conclusion reached by the trial Court that the last seen circumstance is proved. However, even according to P.Ws. 1 and 2, when they had gone to the house of the accused in the night of 10.7.2008, they were informed by the accused that after getting nippattu for the deceased, he sent the deceased to his house and thereafter he started playing with other boys in the play ground. Undisputedly, the accused was not absconding. He was playing in the play ground near his house. Even on the next day, he had been to school and attended the classes. In this context, the trial Court may be justified in observing that the natural conduct of the real culprit would be either to abscond or to hide himself. In the matter on hand, the accused was very much seen playing at 5.30 p.m. in the play ground. P.W. 2 went to the play ground and asked the accused about her son Nuthan @ Nandakumar and at that time itself she was told by the accused that after getting nippattu for the deceased, he left his company and the deceased went to his house and he does not know what has happened subsequently. Be that as it may, we agree with the conclusion reached by the trial Court that Mast seen circumstance'' is proved by the prosecution to the extent it relates to the presence of the accused and the deceased in front of the shop of P.W. 8. Thereafter nobody has seen the deceased with the accused. However, the said circumstance (to that extent) alone would not be sufficient to bring home the guilt against the accused particularly when the prosecution has failed to prove other circumstances.

Re. Recovery of dead body and club at the instance of the accused: It is the case of the prosecution that the body was taken out from the well with the help of the officials of Fire Force Department in the presence of panchas (P.Ws. 5 and 7). Immediately after drawing panchanama at Ex. P4 relating to taking out of the dead body from the well, another panchanama at Ex. P7 was drawn in respect of recovery of club in the presence of P.W. 9. It is admitted by P.W. 9 that more than 300 people had already gathered near the well by the time the panchas and the police came along with the accused near the well, which means that number of villagers had gathered near the well. Virtually, neither the dead body nor the club (stick) was recovered at the instance of the accused. Hence, the trial Court is justified in concluding that the circumstance relating to recovery of dead body and the club at the instance of the accused is not proved by the prosecution beyond reasonable doubt.

Re. Non non-explanation by the accused: Though nothing is stated by the accused in his statement recorded under Section 313 Cr.P.C., suggestion is made by the defence in the cross-examination to the witnesses that immediately after getting nippattu for the deceased, accused left his company and thereafter he did not know as to where the deceased went. Therefore, it cannot be said that the accused had not explained the circumstance against him.

In addition to the aforementioned facts, the trial Court in detail has narrated as to how the prosecution has suppressed the origin and genesis of the case of the prosecution. The complaint at Ex. P1 specifically discloses that the same is lodged at 9.00 a.m. on 11.7.2008. It not only contains the signature of the complainant, but also the signature of P.W. 8-Suresha. It is specifically endorsed on the complaint that the same is written by P.W. 8. Despite the same, P.W. 1, the complainant has deposed before the Court that the complaint is lodged by him in the evening of 10.7.2008 itself, i.e., immediately after missing of the child. He further admits that the police have written Ex. P1 and that he does not know as to what is written in the complaint. In Ex. P1, it is specifically stated that he came to know about the missing of the boy only at 9.00 p.m. on 10.7.2008. These aspects would clearly reveal that neither P.W. 1 nor the prosecution has come out before the Court with true facts.

In addition to the same, looking to the photographs (Ex. P3), it is clear that the well in which the dead body is found, is an abandoned well and it had no barricades whatsoever. It was an open well. Not even an inch of wall is constructed around it. Any passer by or any boy may fall in the said well accidentally. In this regard, the suggestion made by the defence that the deceased must have slipped into the well, assumes importance.

Be that as it may, looking to the totality of the facts and circumstances of the case, we are of the opinion that the trial Court is justified in acquitting the accused by giving benefit of doubt in his favour. Only on the basis of the Mast seen circumstance'' (which is partially proved), the accused cannot be convicted for the offences with which he is charged. This being the appeal against the order of acquittal and as we find that the view taken by the trial Court is one of the possible views under the facts and circumstances of the case, no interference is called for.

Hence, appeal fails and accordingly, the same stands dismissed.