State of Karnataka vs Prakash Poojary and Others

Mohan M. Shantana Goudar, J.

The judgment and order of acquittal dated 17th March 2012 passed by Fast Track Court, Udupi in S.C. No. 2/2011 is appealed against by the State.

Since accused No. 1, namely Prakash Poojary has expired on 18.7.2014, appeal against him (accused No. 1) stands abated. Hence, appeal filed by the State against the other accused is heard on merits.

The accused were charged and acquitted of the offences punishable under sections 302 and 392 r/w 34 IPC.

The case of the prosecution in brief is that during the night intervening 7.4.2010 and 8.4.2010, the accused went near the house of deceased Sakku Bai with an intention to rob the gold ornaments and in the garb of purchasing firewood gram in the ''hadi (hut)'' took her to the backside of the hadi; robbed the gold ornaments worn by her worth Rs. 1,15,000/- and inflicted injuries on her neck with the help of a chopper, consequent upon which, Sakku Bai died on the spot.

Sakku Bai was aged 68 years; the place in which the incident has occurred is Borgalgudde, Nitte village. Karkala Taluk, Udupi District. The deceased was living alone in a farm house situated within a area of 3 1/2 acres of cashew plantation; her husband Damodhar had expired eight years prior to the incident; among her children, two had expired and others were residing elsewhere; the deadbody was first seen by P.W. - 2 who was the labourer working in the land of the deceased; after seeing the deadbody, he informed his friend P.W. - 3 about the same; thereafter P.Ws. - 2 and 3 jointly went and informed P.W. - 1 who is the step-brother of the deceased. P.W. - 1 came to the spot and on seeing the deadbody lodged the complaint as per Ex.-P1 before Karkala Rural police station of which P.W. - 14 was the Sub-Inspector of police. The complaint was lodged at about 5.00 p.m. on 8.4.2010. P.W. - 14 Sub-Inspector of Police registered the case in Cr. No. 43/2010 of Karkala rural police station. P.Ws. - 12, 14 and 13 investigated into the crime, ultimately, P.W. - 15 laid the charge-sheet.

In order to prove its case, the prosecution in all examined 15 witnesses and got marked 28 exhibits and 15 material objects. Two exhibits was got marked on behalf of the accused. As aforementioned, the trial court on evaluation of the material on record held that the prosecution has not proved its case beyond reasonable doubt.

Sri. Visweswaraiah, learned Government Pleader taking us through the entire material on record and the judgment of the court below submits that the judgment of the trial court is improper and incorrect; the reasons assigned and the conclusion reached by the trial court is improper; the evidence of P.Ws. - 7, 8 and 9 is sufficient to prove the guilt against the accused, inasmuch as, their evidence proves the case of the prosecution beyond reasonable doubt that the accused robbed the jewellery and committed murder of deceased Sakku Bai; the recovery of jewels of the deceased at the instance of the accused is proved and therefore, according to him, the impugned judgment is liable to the set-aside. Per-contra Sei. Arun Shyam, learned counsel appearing for respondent No. 2-accused No. 2 argued in support of the judgment of the court below.

There are no eyewitnesses to the incident in question. The case rests on circumstantial evidence. The only circumstance relied upon by the prosecution is relating to recovery of gold ornaments of the deceased at the instance of the accused, as also, recovery of chopper used for the commission of the offence at the instance of accused No. 1.

P.W. - 1 is the step-brother of the deceased. He lodged the complaint as per Ex.-P1 after seeing the deadbody; the complaint came to be lodged at about 5.00 p.m. on 8.4.2010, based on which, crime came to be registered and investigated. He has deposed that the deceased was residing in cashew garden alone.

P.W. - 2 is the labourer working in the land of the deceased. In the morning of 8.4.2010, he came to the work in usual manner and saw the deadbody near the house of the deceased; he informed P.W. - 3 about the same and thereafter P.Ws. - 2 and 3 went together and informed P.W. - 1 who lodged the complaint.

P.W. - 4 is the Doctor, who conducted post-mortem examination over the deadbody. Ex. - P4 is the post-mortem report and Ex. - P5 is the opinion furnished by the Doctor after seeing the weapon used for commission of murder of deceased Sakku Bai that the death can be caused with the help of such weapon M.O.4.

P.W. - 5 is the engineer. He drew sketch of offence as per Ex. - P7.

P.Ws. - 6 and 7 are the witnesses for inquest panchanama Ex. - P8. P.W. - 7 is also witness for panchanamas Exs. - P9, P10, P11 and P12. These panchanamas are relating to recovery and seizure of gold ornaments, chopper Ex. - P10 and mobile phone of the accused. Ex. - P10 is the panchanama relating to recovery of gold ornaments M.O.1 to 3; Ex. - P10 is relating to recovery of M.O.4 and gold neck chain. Ex. - P11 is relating to panchanama drawn in the shop of P.W. - 9 in which certain gold ornaments were seized. Ex. - P12 is relating to seizure of mobile phone of accused Nos. 1 and 2.

P.W. - 8 is the receiver of recovered gold ornaments M.O.3.

P.W. - 9 is the brother of the deceased. He identified M.Os. 1 to 3 as the ornaments belonging to the deceased.

P.W. - 10 is the owner of a cashew factory, who has deposed that accused Nos. 1 and 2 are working in his factory.

P.W. - 11 is the police constable, who carried FIR to the jurisdictional Magistrate.

P.W. - 12, 14 and 15 are the Investigating Officers. Among them, P.W. - 14 registered the crime based on the complaint Ex. - P1 and P.W. - 15 laid the charge-sheet.

P.W. - 13 has deposed about seeing the deadbody near her house at 4.00 p.m. on 7.4.2010.

From the aforementioned narration, we are of the opinion that the important witnesses in this case are P.Ws. - 7 and 8. It is clear from the evidence of P.W. - 13 that deceased was seen alive at 4.00 p.m. on 7.4.2010, however, thereafter nobody has seen the deceased alive. In the matter on hand, the prosecution has not relied upon any of the circumstance like the accused were seen with the deceased just prior to the incident in question; the circumstance relating to abscondance of the accused etc. As aforementioned, the only circumstance relied upon by the prosecution is relating to recovery of gold ornaments at the instance of the accused and such gold ornaments are belonging to the deceased, so also, the prosecution relied upon the recovery of chopper at the instance of accused No. 1.

P.W. - 7 is none other than the son of sister of the deceased. According to the case of the prosecution, the accused were arrested on 2.8.2010 at 1.00 p.m. and thereafter their voluntary statements were recorded as per Exs. - P19 and P20 immediately; the accused led the police to various places for the purpose of recovery of gold ornaments hidden by the accused; so also accused No. 1 has led the police and panchas to a place wherein he had hidden the chopper used for the commission of the offence.

P.W. - 7 has deposed that after four months of the incident i.e., on 2.8.2010 the police asked him to come to the Karkala rural police station; he did not voluntarily go to the police station, however, police had asked him to come to the police station and hence both the accused came to the police station; P.W. - 7 has seen both the accused for the first time in the police station; thereafter both the accused led P.W. - 7 and one Ganapathi Kamath (not examined) and the police in the police jeep to Borgalgudda village; they stopped the jeep at certain distance from the house of the deceased, P.W. - 7 came to know that the said house was that of accused No. 2; accused No. 2 took out a plastic cover hidden under a stone near his house, wherein two gold bangles were packed and the said gold ornaments were seized under Ex. - P9. Thereafter, accused No. 1 led the police and the panchas to a colony called as ''Five cents colony''; accused No. 1 led the police and panchas to a house wherein he had hidden a plastic bag in which the chopper was found; he has also produced a box to the police which contained a pair of earstuds. These were seized by the police under panchanama Ex. - P10; he identified gold ornaments and the chopper M.O.4 which were seized. Thereafter, both the accused led the panchas and the police to Siddakatte via Moodabidri road; a market complex is situated in Siddakatte village; a shop under the name of ''Swarnaprabha Jewellers'' was being run in the said commercial complex; the accused led the police and the panchas directly to the said shop; the name of owner of the shop is Prabhakar Acharya-P.W. - 8; accused No. 1 told P.W. - 8 that he had pledged the gold chain about three months prior to that day and the said gold chain is belonging to Sakku Bai (the deceased); that they had murdered Sakku Bai and had pledged the said chain with P.W. - 8; P.W. - 8 thereafter told the police that though accused No. 1 pledged the said ornaments for Rs. 25,000/- in his shop, he did not know about the offence committed by accused No. 1; gold chain so pledged by accused No. 1 is seized by the police under panchanama Ex. - P11; said panchanama was drawn from 7.30 p.m. to 8.00 p.m. as per version of P.W. - 7. So also, the police seized two mobile phones of the accused in the police station under panchanama Ex. - P12.

P.W. - 8 the owner of ''Swarnaprabha Jewellers'' also has deposed before the Court to the effect that a year back prior to his deposition, both the accused came to his shop with a ''havala'' (red stoned coral beads) gold chain; both the accused requested that the said gold chain has to be converted to one necklace and one chain within one week; P.W. - 8 told the accused atleast 15 days are needed for modifying the chain; P.W. - 8 thereafter converted the said "havala" gold chain into a new chain and necklace and handed over such gold ornaments to the accused. In the examination-in-chief, P.W. - 8 has taken a complete ''U'' turn by deposing that the accused did not come to his shop alongwith the police and that they had come only once at the time of getting the old gold chain converted; Coral (havala) beads were handed over to the accused; however, the gold was not handed over to the police; M.O.3 is not seized by the police from his shop; he has further deposed that the accused did not bring the police to his shop. P.W. - 8 was treated hostile witness by the prosecution and he was cross-examined by the Public Prosecutor. Number of suggestions were made by the Prosecutor to P.W. - 8. However, all such suggestions are denied by P.W. - 8. In the cross examination P.W. - 8 had reiterated that the police did not come to his shop at all and on the contrary, he himself went to the police station after a getting phone call from the police. From the aforementioned material, we are of the opinion that the evidence of P.W. - 8 may not be of any use to the case of the prosecution. He has given go-bye to the prosecution case completely in the examination-in-chief itself. Even in the cross examination, nothing worth is elicited by the prosecution.

In order to evaluate the evidence of P.W. - 7, it would be beneficial to refer to the evidence of P.W. - 9. He is none other than brother of the deceased. He is examined by the prosecution for the purpose of identifying the gold ornaments. He has deposed that the police had called him to the police station at 7 ''O'' clock on 2.8.2010 and consequently, P.W. - 9 went to the police station and identified the gold ornaments.

In the cross examination, P.W. - 9 has reiterated that he went to the police station at 7.00 p.m. on 2.8.2010 on getting a phone call from the police; while going to police station, he went alongwith Prabhakara Kamath-P.W. - 1 and Vivekananda Shenoy-P.W. - 7. As aforementioned, P.W. - 7 is a mahazar witness for the recovery panchanamas Exs. - P9, P10, P-11 and P12. All these panchanamas Exs. - P9, P10, P11 and P12 are drawn by the police after recovery of seizure of certain gold ornaments, chopper, mobile phone etc., right from 3.30 p.m., till 7.30 p.m., which means all the panchanamas are drawn one after the other without leaving any gap. P.W. - 7 was present at the time of alleged recovery and he has endorsed his signature on all the panchanamas which were drawn at 3.30 p.m. to 7.30 p.m. at different places. Panchanama Ex. - P11 was relating to recovery of gold ornaments from the shop of P.W. - 8 situated at Siddakatte village. Said place is 45 minutes journey from the police station. Even assuming that P.W. - 7 and police had come to the police station, immediately after completion of drawing up of panchanama at 7.30 p.m. in Siddakatte village in Karkala Taluk, they would have reached the police station by about 8.30 to 9.00 p.m. However, strangely, P.W. - 9 has deposed that he was called to police station at 7.00 p.m. on 2.8.2010 itself and he went to the police station alongwith P.W. - 1 and 7. Since P.W. - 7 was very much present alongwith P.W. - 9 and he went to police station for the first time at about 7.00 p.m., as deposed by P.W. - 9, there was no occasion for P.W. - 7 to act as pancha for all the recovery panchanamas i.e., Ex. - P9, 10 and 11.

P.W. - 9 further admits in the cross-examination that M.Os. 1 to 3-gold ornaments were kept on the table of the police station by the time he reached the police station at about 7.00 p.m. alongwith P.Ws. - 1 and 7. Specific suggestions are made to recovery panchas that the gold ornaments M.O. 1 to 3 which were allegedly seized under the aforementioned mahazars were new one and not old one. However, though such suggestions are denied, the trial court which had the occasion to see the gold ornaments in Court has observed in the course of the judgment that the gold ornaments viz., M.O. 1 to 3 appear to be new one and not old.

The aforementioned observations of the trial court have been supported from the deposition of P.W. - 8-the jewellery shop owner. He has deposed that necklace having coral (havala) beads were given by the accused land 2 to him for converting them into two chains, consequently, he converted the coral beads necklace into two chains at the request of accused Nos. 1 and 2 and handed over such new chains to accused. Thus the evidence of P.W. - 8 clearly shows that the coral (havala) necklace did not exist after conversion of the same into two chains. Despite the same, what is allegedly seized by the police during the course of investigation is M.O. 3 coral (havala) necklace itself. It is curious to note that the police have strangely seized the coral (havala) necklace which was not at all in existence after converting the same into two chains. All these facts are narrated by the trial court in detail while acquitting the accused.

Even on reconsideration of the entire material, we find that the circumstance of recovery as put forth by the prosecution before the Court is unbelievable. The evidence of P.W. - 7 is watered down by the evidence of P.W. - 9, who has deposed that P.W. - 7 went alongwith him to the police station at 7.00 p.m. on 2.8.2010. Hence, it is clear that P.W. - 7 had no occasion to act as mahazar witness to recovery panchanama Exs. - P9, 10 and 11. The other mahazar witness C.W. - 16 viz., Ganapathi Kamat is not examined. Since the evidence of P.W. - 7 does not prove the case of the prosecution beyond reasonable doubt and as his presence at the time of recovery mahazars itself was doubtful, the trial court is justified in disbelieving the circumstance relating to recovery of gold ornaments and chopper at the instance of accused Nos. 1 and 2.

Since the only circumstance relied upon by the prosecution is not proved by it beyond reasonable doubt, in our considered opinion, the Trial Court is justified in acquitting the accused. Hence, no interference is called for. Appeal fails and the same stands dismissed.