State of Karnataka vs Shekaraiah

The judgment and order of acquittal dated 20-12-2012 passed by the First Additional District and Sessions Court, Tumkur in Sessions Case No. 115/2011 is called in question in this appeal by the State. By the impugned judgment, the trial Court has acquit the accused for the offence punishable under Section 302 read with Section 34 of IPC.

Case of the prosecution in brief is that accused Nos. 1 and 3 are the sons of deceased Doddaiah, accused No. 2, who is the wife of accused No. 1 i.e. the daughter-in-law of the deceased Doddaiah; P.Ws. 1 and 2 are also the sons of the deceased; the said Doddaiah has also got one daughter (P.W. 3). There was dispute between the deceased Doddaiah and accused persons with regard to the sharing of the property. In that connection on 27-8-2009 at about 2.00 a.m., accused No. 2 called the deceased out of his home and accused Nos. 1 and 3 assaulted the deceased with chopper and club on his head and the other parts of the body and committed his murder. FIR came to be lodged by RW. 1 before the Rural Police Station, Tumkur as per Ex.P.l which came to be registered in Cr. No. 297/2009 at 7.30 a.m. on 28-8-2009 for the offence punishable under Section 302 of IPC. The police after investigation, laid charge-sheet against all the three accused.

In order to prove its case, the prosecution, in all, has examined 21 witnesses and got marked 25 exhibits and 8 material objects. On behalf of the defence, neither the witnesses nor the documents were got marked. As mention supra, the trial Court, on evaluation of the material on record, has acquit the accused.

It is the case of prosecution that on 27-8-2009, after having dinner, the complainant and all the family members slept and on the next day morning on 28-8-2009 at 6.00 a.m., the wife of the deceased i.e., the mother of accused Nos. 1 and 3 and P.Ws. 1 to 3, called P.W. 1 saying that somebody had locked the door from outside. She also informed P.W. 1 that one Mr. Raghu, son of Ranganna, a neighbouring garden owner informed her that Doddaiah has died and his body is found in the pathway leading to the garden. The deceased had sustained severe injuries on his head. On enquiry, P.W. 1 /complainant came to know from his mother that at 3.00 a.m., some one called the deceased and hence, the deceased went outside the house. According to the complainant, some miscreants with an intention to murder the deceased had called him outside the home, assaulted on his head with the deadly weapons and killed him and have taken away two gold finger rings which the deceased was wearing at the time of his death.

There are three small houses situated in the garden land of the deceased. The deceased and his wife were living in one house, P.W. 1 and his family members were residing in another house and the accused were residing in the third house. According to the prosecution case, at about 3.00 a.m., somebody called the deceased out of the house and the deceased went out of the house and thereafter, the dead body was found on the morning of 28-8-2009. The complaint as per Ex.P.l was filed by P.W. 1 suspecting foul play and no specific name of any assailant was mention in the complaint. Though investigation went on for more than one year, no useful material was collected during the investigation and there are no eye-witnesses to the incident in question. Thus, the case of prosecution rests on the circumstantial evidence.

The circumstances are as under :

i. Accused Nos. 1 and 3 were seen going to the house situated in the garden land during mid night intervening in between 27-8-2009 and 28-8-2009. P.Ws. 5 and 6 who were supposed to depose about the said incident have turned hostile to the case of prosecution.

ii. Recovery of the chopper and wooden club, which were allegedly blood stained. The recovery was made after one year of the incident under Ex.P.15. P.Ws. 18 and 19 are the mahazar witnesses.

Except the aforemention circumstances, no other circumstance is found. It is not in dispute that the accused are absconding. It is also not in dispute that the houses of accused and the deceased are abutting each other.

Regarding the first circumstance; Though the prosecution has tried to rely upon the circumstance that P.Ws. 5 and 6 saw the accused going to the house during the midnight intervening between 27-8-2009 and 28-8-2009, both the witnesses have turned hostile to the case of prosecution. They have not supported the case of prosecution. No material worth relying was obtained from them during their cross-examination. Since there is no incriminating material collected from P.Ws. 5 and 6, the trial Court is justified in holding that the last seen circumstance is not proved by the prosecution.

The second circumstance is with regard to the recovery of chopper and wooden club under Ex. P. 15. According to the case of prosecution, both the aforemention weapons were recovered on 4-8-2010. Undisputedly, the incident has taken place on 28-8-2009. Hence, it is clear that the alleged recovery is made one year after the incident in question. As mention supra, the accused were not absconding. They were very much present in the village. They were residing in the very house wherein the complainant and his brothers were residing. Ex.P.15 discloses that the recovery was made in the garden land. The chopper and the club were allegedly concealed under heap of the coconut leaves. This Court is at loss to understand as to how the chopper or the club can have blood stains even after one year of the incident inasmuch as within an year, at least 2-3 months would be the rainy season in this part of the State. Be that as it may. There is no reason as to why the recovery was not made within a reasonable time from the date of the offence so also there is no reason as to why and how the police could suspect the accused only after one year. We have also mention supra that the relationship between the brothers and sister was not cordial and hence, the defence is justified in arguing that there is every likelihood of false implication of the accused in the crime after one year. Be that as it may. Having regard to the material on record it would be difficult for this Court to believe the aspect of recovery which is done one year after the incident.

Moreover, it is the case of prosecution that M.Os.5 and 6, which were blood stained, were recovered at the instance of accused Nos. 1 and 3. There is no material to show that the blood stains on the said weapons tallied with the blood of the deceased. Ex.P.18 is the FSL Report. It does not even mention as to whether there were blood stains on the weapons and as to whether the blood is of human origin or not, so also serology report does not disclose the grouping of the blood. It is to be noted here that the chopper and wooden club (M.Os. 5 and 6) are not sent to the FSL for examination. Only the soil collected was sent to the FSL for examination.

Even another certificate issued by the FSL as per Ex.P.23 names the articles sent for scientific examination and in the said report, it is stated that only Banian, Shawl and Nicker of the deceased sent for examination. In the absence of any material on record for connecting the weapons recovered and the crime, no useful purpose would be served in relying upon the recovery mahazar.

P.Ws. 18 and 19 are the witnesses for recovery mahazar Ex.P.15. Among them, P.W. 18 has turned hostile to the case of prosecution. P.W. 19 has not at all deposed that the accused voluntarily took panchas and the police to the place for showing them the place of concealment of the weapons. The evidence of P.W. 19 reveals that the police officials took the panchas and the accused to the said place and thereafter, the seizure was made. Therefore, the said recovery cannot be said to be based on the voluntary statement of the accused. Hence, it is clear that there is no connecting link between the recovery mahazar and the complicity of the accused in the crime.

Therefore, both the circumstances are not proved by the State much less beyond the reasonable doubt. On considering the entire material on record, we are of the clear opinion that the view taken by the trial Court while acquitting the accused is one of the possible views which may be taken under the facts and circumstances of the case. No interference is called for. Appeal stands dismissed.