State of Karnataka vs Muniraju and Others

Mohan M. Shantana Goudar, J.

The Judgment and Order of acquittal dated 4th August 2012 passed by the District and Sessions Judge, Chikkaballapur in S.C. No. 52/2009 is called in question in this appeal.

The accused were tried and acquitted for the offences punishable under Sections 302 and 201 of IPC.

Case of the prosecution in brief is that Accused No. 1 borrowed Rs. 35,000/- from the deceased for purchase of two wheeler, whereas Accused No. 2 borrowed Rs. 30,000/- plus Rs. 5,000/- from the deceased for the purpose of drip irrigation; since the accused failed to keep the promise of repayment within the time stipulated, the deceased started pressurizing the accused to repay the amount; since the accused did not have intention to repay the loan amount borrowed by them, they had planned to do away the life of the deceased; Accused No. 2 took the deceased on the motorcycle near a open well situated at Soppahalli village in Chikkaballapur taluk; Accused No. 1 also came to the said spot; both the accused strangulated the neck of the deceased and after committing his murder, both the accused concealed the dead body in a plastic bag and tied the bag with the metal wire and threw the bag containing the dead body in the well in order to conceal the offence; this incident has taken place at about 7 p.m. on 2.11.2008; none of the family members of the deceased lodged the complaint.

However on 4.11.2008 at 4.30 p.m., PW.1, the relative of the deceased having come to know that the deceased has not come to his house after 2.11.2008, lodged the missing complaint as per Ex. P1 before the Chikkaballapur Police Station and the same was registered in Crime No. 292/2008. The body was recovered from the well on 6.11.2008 and at that point of time, PW.1 -complainant came to know from PW.2 that Accused Nos. 1 and 2 were conversing with each other after the incident that they have done away the life of the deceased. Accordingly, PW.1 lodged the further information before the very Chikkaballapur Police Station as per Ex. P2. The accused were arrested on 7.11.2008 and based on the voluntary statements - Ex. P23 and Ex. P21 of Accused Nos. 1 and 2 respectively, the dead body was recovered from the well and other incriminating articles were also recovered at the instance of the accused. PW.16, the Inspector of Police, after completion of investigation laid the charge sheet.

In order to prove its case, the prosecution in all examined 17 witnesses and got marked 28 Exhibits and 14 Material Objects. On behalf of the defence, no witness is examined.

As aforementioned, the trial Court on evaluation of the material on record, gave benefit of doubt in favour of the accused by concluding that the prosecution has not proved its case beyond reasonable doubt.

Learned Government Pleader for the State and the learned counsel for the respondents advanced their arguments in support of their respective cases.

PW.1 is the complainant. He lodged the missing complaint as per Ex. P1 on 4.11.2008, in which he had stated that the deceased has not come back to his house after 2.11.2008. However subsequently on 6.11.2008 further information was laid by PW.1 as per Ex. P2 suspecting the hands of Accused Nos. 1 and 2 in the murder of the deceased. PW.1 has deposed about the motive for commission of the offence. According to him, since the accused could not repay the loan amount borrowed by them from the deceased, they hatched a plan and committed the murder of the deceased.

PW.2 has deposed that he overheard the conversation between Accused Nos. 1 and 2 about the incident of murder of the deceased in front of the T. Shop of PW.7. He has also deposed that he saw both Accused Nos. 1 and 2 on the motorcycle at about 6.30 p.m. on the relevant day alongwith the deceased.

PW.3 is another witness who has deposed about the last seen circumstance. According to him, Accused No. 2 alone was riding the motorcycle and the deceased was a pillion rider during the relevant point of time.

PW.4 has deposed that the accused and the deceased were friends and he knew that the accused had financial transaction with the deceased.

PW.5 has also deposed about Accused No. 2 taking the deceased on the motorcycle in the evening of relevant day. He has also deposed about the inquest panchanama -Ex. P5.

PW.6 has also deposed about the loan transaction between the accused and the deceased. He has deposed about the scene of offence panchanama - Ex. P6 and recovery of MOs. 8 to 12 at the instance of the accused.

PW.7 is the owner of T. shop who was supposed to depose about the conversation between Accused Nos. 1 and 2. He has turned hostile to the case of the prosecution.

PW.8 is the person who lifted the dead body from the well. He has also deposed about the mahazar - Ex. P6.

PW.9 is a witness for mahazars Ex. P8 and Ex. P9. However he is treated hostile inasmuch as he has deposed that Panchanama was drawn in the Police Station and that MOs. 3 to 5 were found in the premises of the Police Station.

PW.10 is the wife of the deceased. He has also deposed about the loan transaction of the accused with the deceased.

PW.11 is the elder sister of the deceased. Though she has deposed in the examination-in-chief that Accused Nos. 1 and 2 had undertaken to provide drip irrigation system to her land, in her cross-examination, she admits that accused were not doing the business of drip irrigation and that false case was lodged against them. Practically, her evidence is against the case of the prosecution.

PW.12 is the Photographer who took photograph of the dead body of the deceased.

PW.13 is the Engineer who drew the sketch of scene of incident as per Ex. P15.

PW.14 is the doctor who conducted post-mortem examination over the dead body of the deceased and the autopsy report is at Ex. P17 and his final opinion is at Ex. P18.

PW.15 is the Head Constable. He submitted the first information to the Court.

PW.16 is the Inspector who completed the investigation and laid the charge sheet.

There are no eye witnesses to the incident in question. Case rests fully on the circumstantial evidence. The circumstances relied upon by the prosecution are as under:

"1. Motive

The accused were last seen with the deceased.

The accused Nos. 1 and 2 were talking with each other after the incident in front of T. Shop of PW.7 which was overheard by PWs. 2 and 7 to the effect that the accused committed murder of the deceased.

The recovery of weapons and the dead body at the instance of the accused."

Insofar as circumstance of motive is concerned, PWs. 1, 2, 10 and 11 have deposed about the accused taking the loan from the deceased. They have also deposed that the accused did not repay the amount to the deceased and in order to avoid repayment in future, they committed murder. It is also deposed that the accused had taken loan from the deceased since they wanted to provide drip irrigation facility to the land. However there is no documentary material to show that the deceased had lent money to the accused. Further, the sister of the deceased (PW.11) has deposed that the accused were not doing the business of providing drip irrigation facility. It is also admitted by PW.11 that the accused were not agriculturists. The oral versions of all these witnesses with regard to the money transaction are consistent. But, the versions of these witnesses with regard to the quantum of loan amount allegedly secured by the accused vary.

With regard to the circumstance of accused last seen with the deceased prior to the incident is concerned, the prosecution relied upon the evidence of PWs. 2, 3 and 5. PW.2 has deposed that he saw both the accused going together on the motorcycle alongwith the deceased at about 6.30 p.m., whereas PW.3 has deposed that he saw Accused No. 2 only with the deceased on the motorcycle on that day; same is the version of PW.5. Thus the evidence of PW.2 runs contrary to the versions of PWs. 3 and 5. In addition to the same, the evidence of PW.3 discloses that on the next day of the incident i.e., on 3.11.2008, father of the deceased asked him as to whether he has seen the deceased Manjunath and he, in turn had informed father of the deceased that the deceased had gone alongwith Accused No. 2 on the motorcycle. The incident has taken place on 2.11.2008. PW.3 has allegedly informed father of the deceased on 3.11.2008 that Accused No. 2 went alongwith the deceased. Despite the same, while lodging the complaint - Ex. P1 alleging missing of the deceased, nothing is alleged against either Accused No. 1 or Accused No. 2. Father of the deceased very well knew that the deceased went alongwith Accused No. 2. It is also not in dispute that the accused and the deceased were knowing each other. If it is so, naturally father of the deceased must have enquired about the deceased either with Accused No. 1 or Accused No. 2. Even otherwise, some allegations ought to have been found against the accused in the complaint - Ex. P1 filed on 4.11.2008. The very fact that the name of any of the accused does not find place in the complaint - Ex. P1 lodged on 4.11.2008 and the very fact that none of the family members of the deceased lodged the complaint against any of the accused till the dead body was found, itself goes to show that the theory of last seen circumstance as put forth by the prosecution appears to be an afterthought.

Moreover PW.3, though has deposed that the Police recovered incriminating articles at the instance of the accused, in the cross-examination PW.3 admits that he has not read the panchanama and that he does not know the contents of the recovery panchanama; he also does not know as to when and on what day, the panchanama was drawn; he also does know about the names of other panchas to the recovery panchanama. He further admits that he has signed the panchanama in the Police Station. From the above, it is clear that the last seen circumstance as put forth by the prosecution before the Court appears to be shaky and such circumstance is not proved by the prosecution beyond reasonable doubt. To the suggestion put forth to PW.2 in his cross-examination that he has not stated before the Police that he saw both the accused with the deceased on the date of the incident, he has deposed that he saw both the accused going alongwith the deceased on the motorcycle. But the case of the prosecution is otherwise. The case of the prosecution is that Accused No. 2 took the deceased on his motorcycle near a well and that Accused No. 1 came near the well independently and committed the murder. Therefore the trial Court is justified in disbelieving the last seen circumstance.

Insofar as the circumstance relating to overhearing of talks of the accused by PWs. 2 and 7 is concerned, both these witnesses have turned hostile. PW.2 has not at all deposed that he overheard the conversation between Accused Nos. 1 and 2. He was treated as hostile witness. In the cross-examination by the Public Prosecutor also, PW.2 has reiterated that he has not overheard Accused Nos. 1 and 2 talking with each other. So also PW.7, the Tea stall owner has turned completely hostile to the case of the prosecution. His evidence is also of no use either to the case of the prosecution or to the defence.

Insofar as recovery of weapons at the instance of the accused is concerned, the evidence of mahazar witness PW.3 is pressed into service. The voluntary statements of accused Nos. 1 and 2 are at Ex. 23 and Ex. P21. Both the statements are exactly similar. Not even a word is changed, which means the Police themselves have created the voluntary statements on two papers and have taken the signatures of the accused. The voluntary statements of the accused ought to have been recorded in their language as spoken to by the accused. Moreover as is clear from the evidence of PW.3, his evidence regarding the recovery of weapons is not believable. PW.3 has admitted in the cross-examination that he does not know what is written in the recovery panchanama and that he has not read the panchanama; he does not know on what day and at what time, the panchanama was prepared; he has signed the panchanama in the Police Station and not in the spot.

PW.8 is a person who lifted the dead body from the well. According to him, the accused had accompanied the Police to the well; however the Police and the accused left the well after making enquiry; thereafter he (PW.8) and other person got down inside the well and lifted the body which was hidden in the bag; thereafter he (PW.8) opened the bag and saw the dead body; at that point of time, neither the Police nor the accused were present. If it is so, the recovery of the dead body at the instance of the accused and subsequent mahazar relating to recovery of weapon may not have much value. The evidence collected by the prosecution does not inspire confidence of the Court.

To crown all these things, PW.11 (sister of the deceased) has clearly admitted that false case is foisted against the accused in order to take revenge against them as there was a family dispute between accused and the deceased. PW.11 has also admitted that the accused were not dealing with the drip irrigation work nor they were agriculturists. Since the sister of the deceased herself has admitted that false case was foisted against the accused and as the material on record is not sufficient to bring home guilt against the accused, the trial Court is justified in acquitting the accused. Hence no interference is called for.

Appeal fails and the same stands dismissed.