State of Karnataka vs Satisha

Mohan M. Shantana Goudar, J.—1. The judgment and order of acquittal dated 13.07.2011 passed by the Fast Track Court, Shivamogga, in S.C. No. 37/2011 is the subject matter of this Appeal filed by the State.

The case of the prosecution is brief is that, the deceased Kavitha and the accused were in love with each other since two years prior to the date of death of the deceased Kavitha; The said love affair was known to all the family members of Kavitha; PW.1 is the mother and PW.8 is the brother of the deceased Kavitha; All the family members of deceased Kavitha used to permit Kavitha to accompany the accused on special occasions like attending the marriage and other ceremonies; They used to travel together since two years; Some times, they even stayed away together for one or two days from the house, to the knowledge of the family members of Kavitha. The accused and deceased intended to marry each other. The family members of Kavitha had permitted the deceased Kavitha to marry the accused and the accused was also willing to marry Kavitha; The two brothers of Kavitha viz., PW.8 and another- Mr. Kiran Kumar were the employees under the accused; The accused was an Electrical Contractor. PW.8 and his brother-Kiran Kumar were paid wages according to their involvement in the work, by the accused; About 4 to 5 days prior to 24.05.2009, the accused came to the house of the deceased and the accused told the family members of the deceased that himself and the accused would go to Shivamogga for purchase of clothes; They left the house of the deceased on the motor cycle of the accused at 9.00 a.m., by telling the family members of Kavitha that they would return in the evening of the very day. However, at 9.30 p.m., the accused called over mobile phone of PW.8 and informed him that they would stay together in his friend''s house at Shivamogga, since already night had set in and the accused had promised the family members of the deceased that they would come back together in the morning of next day. However, on the next day at about 10.30 a.m., the accused alone came to the village on the motorcycle and he told that he has left the deceased in the house of one Mr. Raju of Kalgangur village situated in Shivamogga City and that he would go back to Kalgangur village and get the deceased back to the village in the afternoon of that day. However, neither the deceased, nor the accused came back to the village subsequently. After 2 to 3 days i.e., on 24.05.2009, the dead body of the deceased was found lying in the pond of one Mr. Rudresh (PW.2). The said pond is situated in the agricultural land of PW.2 bearing Sy. No. 183/4 of Muthodu Village; Immediately, PW.2 informed about the unknown dead body to the Rural Police Station, Shivamogga; The sub-Inspector of Police (PW.13) attached to the Rural Police Station, Shivamogga, went to the scene of offence and got lifted the dead body out of the pond. The information lodged by PW.2 before the PSI (PW.13) came to be registered in UDR No. 23/2009 of Rural Police Station, Shivamogga. The dead body was subjected to inquest and Post-Mortem examination; On the very evening, the dead body was buried near the very place in front of the panchas. However, prior to burial of the dead body, the photographs of the dead body and the clothes worn viz., Chudidar Pant, top and veil were taken under inquest panchanama-Exs. P8 and the said items are marked at MOs. 1 to 3. On the basis of MOs. 1 to 3, which were seized prior to the burial of the dead body, the family members of the deceased including PWs. 1 and 8 identified the drowned dead body as that of the deceased Kavitha.

PW.1 and her family members having come to know about the aforementioned fact, after eight days of the incident, lodged an information as per Ex. P1 before the Rural Police Station, Shivamogga, which came to be registered by the Sub-Inspector of Police (PW.13) in Crime No. 247/2009 for the offences punishable under Sections 302 and 201 of IPC against the accused and another person namely Raju. During the course of investigation of the crime, the Police seized two set of clothes and two bangles near the place of burial of the dead body. PW. 1 and her family members identified the clothes and bangles said to have been seized by the police, as that of the deceased Kavitha.

After completion of the investigation, the Sub-Inspector of Police (PW. 14) laid the charge sheet.

In order to prove its case, the prosecution in all examined 14 witnesses as PW.1 to PW.14 and got marked 24 documents as per Exs.P1 to P24 and 10 material objects. On behalf of the defence, no witness is examined. As mentioned supra, the trial court on evaluation of the material on record, acquitted the accused since none of the circumstances are proved by the prosecution beyond all reasonable doubt.

Before proceeding further, it would be beneficial to refer to the deposition of each and every witnesses in brief..

PW.1-Yashodamma is the mother of the deceased. On her information as per Ex. P1, Crime No. 247/2009 came to be registered by PSI, Shivamogga Rural Police Station, on 02.06.2009 for the offences punishable under Sections 302 and 201 of IPC. She has deposed about the love affair between the deceased and the accused, and she having knowledge of such relationship, about her consent for marriage between the accused and the deceased, etc. She is also a witness for the last scene circumstance inasmuch as she has deposed that she has seen the accused taking the deceased along with him on the motorcycle at 9.00 a.m. about 4 -5 days prior to 24.05.2009. According to her, the deceased and the accused left together with all happiness in order to purchase the clothes to the deceased from the house at 9.00 a.m., at which time, PW.8 was also present in the house.

PW.2-Rudresha is the owner of the land bearing Registration No. 183/4 of Mathodu Village, wherein, a pond is situated; the said pond was having water to the depth of about 30 feet; After seeing the dead body floating in the pond, he informed about the said fact to the Sub-Inspector (PW.13) of Rural Police Station, shivamogga, who in turn came to the spot and registered the information lodged by PW.2 in UDR No. 23/2009. Ex. P2 is the information lodged by PW.2. PW.3-Rajappa is also the witness for mahazar-Ex. P3 (scene of offence panchanama) and he turned hostile to the prosecution. PW.4- Malleshappa is the witness for mahazars Exs. P4, P5 and P7. Ex. P4 is relating to seizer of mobile phone. Ex. P5 is relating to seizure of the motorcycle of the accused; Ex. P7 is relating to the place where the clothes were burnt and two bangles were found.

It is the case of the prosecution that, two set of clothes, were taken by the deceased along with her when she left the house along with the accused at 9.00 a.m. on the fateful day. PW.5-Bashawab is the witness for inquest mahazar (Ex. P8). He has turned hostile to the prosecution case. PW.6-S.M. Manjappa is another witness to the scene of offence panchanama (Ex. P6) and he supports the case of the prosecution. PW.7-Siddaraju is the witness for Panchanama (Ex. P9) relating to the place where the dead body was buried on 24.05.2009. PW.8-Keerthi Kumar is the brother of the deceased and son of PW.1. He has also deposed on par with the evidence of PW.1. PW.9-Durgamma is the Social Worker, who has settled in the village since four years prior to the incident. She has deposed that she had knowledge that accused and deceased were loving each other and that the deceased did come to the village subsequently. PW.10-K. Mohan and PW.11- Naveen Kumar are the police constables, who participated in the course of investigation at different levels. PW. 12-Dr. Rudramurthy, who conducted post-mortem examination and Autopsy. The post-mortem report is at Ex. P26. PW.13-Keshavamuthy, the PSI of Koti Police Station, Shivamogga, who registered the case in UDR No. 23/2009 as well as Crime No. 247/2009 and conducted a part of the investigation. PW.14-V.S. Siddalingappa is the CPI, Doddapete, Shivamogga, who completed the investigation and laid the charge sheet.

The case of the prosecution rests on only one circumstance, ie., the last scene circumstance, which is deposed by PWs. 1 and PW.8.

The evidence of PW.1-Mother & PW.8-Brother of the deceased clearly reveal that the accused and the deceased were loving each other and they wanted to marry with the consent of the respective families. The accused used to come to the house of the deceased very frequently and used to take the deceased on his motorcycle whenever he wants to go to the functions like marriages and other ceremonies. No evidence is placed on record to show that there was any ill-will between the accused and the deceased at any point of time or that the accused was not willing to marry the deceased. Even on the fateful day, the accused came to the house of the deceased and took the deceased on his motorcycle at 9.00 a.m. with a view to purchase clothes for the deceased. The family members of the deceased including PWs. 1 & 8 had willingly sent the deceased with the accused to Shivamogga for purchase of clothes. The marriage was scheduled to be held after one or two months from that day. The accused had promised that they would come back to the village during that night. But, they did not come back; But on the contrary, the accused called over the phone to PW.8 and informed him that they would come together in the morning. However, on the next day morning also, the accused alone came to the Village. PWs. 1 & 8 knew that the accused had left the deceased in the house of one Mr. Raju at Kalgangur Village. However, the deceased did not return subsequently.

In the matter on hand, the aforementioned Raju was also suspected in the crime. At the time of filing of charge sheet, he is dropped from the case. He is not even made as a witness to the case of the prosecution. He is not even cited in the charge sheet as a witness. There is no reason as to why the Inspector should ignore recording the statement of Raju, if really the accused had taken the deceased and left her in the house of Raju. In order to verify as to whether the deceased was really left by the accused in the house of Raju, the police would have definitely visited the house of Raju and would have recorded his statement. But, unfortunately, the police have failed to investigate into that aspect of the matter. The vacuum is created because of lapses on the part of the Investigating Officer. The only link between the accused and the crime is the last scene circumstance. As mentioned supra, PWs. 1 & 8 deposed that they have seen the accused taking deceased at 9.00 a.m. on his motor cycle on 21.05.2009. It is also not in dispute that the accused and the deceased were loving each other and they had happily decided to marry each other. Even on that day also, the deceased willingly went along with the accused. No material is collected to show that the accused was not the willing party for marriage. In view of the same, in our considered opinion, the trial Court has not proved any motive as against the accused for committing the murder of the deceased. Even assuming that the deceased had gone along with the accused in the morning at 9.00 ''O'' clock on the fateful day, at the most, the presumption may raise against the accused that, he may also be a party for the death of the deceased. By now it is well-settled that the suspicion however grave may be, will not take the place of proof. The only circumstance relied upon by the prosecution is, the last scene circumstance. The accused and the deceased had left the house at 9.00 a.m. on 21.05.2009. Thereafter, what happened till night is not forthcoming. It is also not forthcoming as to when the death of the deceased had occurred. There is no record to show that what happened in the house of Mr. Raju. The post-mortem report and the evidence of the Doctor disclose that the death must have occurred about 4-5 days prior to conducting of post-mortem examination. The Post-mortem examination is conducted on 24.05.2009. There is no material to show as to when the deceased left the house along with the accused. Under such circumstances, the prosecution has to lead evidence that, particular witness has seen the accused along with the deceased near the place of incident or that in and around the time of incident. Proximity in time and proximity to place of incident is not proved. Even assuming that the prosecution has proved that the accused had taken the deceased along him at 9.00 a.m. on 21.05.2009, the same would not absolve the responsibility of the prosecution to prove the last seen circumstance beyond reasonable doubt.

In the matter on hand, the complaint came to be lodged by PW.1 on 02.06.2009, though the incident was said to have occurred somewhere between 19th to 24th of May 2009. PWs. 1 & 8 knew very well that the deceased had left the house along with the accused on the motor cycle in order to go to Shivamogga and they knew very well that the deceased did not come back to the village and whereas the accused has alone came back to the village. Though the accused was very much present in the village, they did not suspect the hands of the accused. They did not even venture to lodge the complaint before the police. They could have at least lodged the missing complaint. If PWs. 1 & 8 had really known that the accused had gone along with the deceased, they would not have missed to lodge the complaint against the accused within one or two days. On the other hand, they lodged the complaint only after about 10-12 days of the incident. The dead body was found on 24.05.2009 and the same was buried on the same day. However, the complaint came to be lodged on 02.06.2009 i.e., after about eight days from the date of burial of the dead body. Even identity of the dead body is not proved beyond reasonable doubt.

Looking to the aforementioned facts and circumstances of the case, in our considered opinion, the trial Court is justified in acquitting the accused. The view of the Trial Court while passing the judgment and order of acquittal is one of the possible view in the facts and circumstances of the case. Hence, no interference in the impugned judgment passed by the Fast Track Court, Shivamogga, in S.C. No. 311/2011, is called for. The appeal fails and accordingly it stands dismissed.