State of Karnataka vs Smt. Saraswati alias Pallavi

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 19.4.2012 passed by the Sessions Judge, I Fast Track Court, Shimoga in S.C.No.210/2011 is appealed against by the State.

By the impugned judgment and order, the Trial Court acquitted the accused of the offences punishable under Sections 302 and 201 of IPC.

Case of the prosecution in brief is that the accused Saraswathi is the wife of the deceased Manjunatha; PW. 1 (complainant) is the mother of the deceased; the marriage between the accused and the deceased took place about one month prior to the incident in question; after the marriage, the accused and the deceased were not living happily; that the accused was not co-operating with the deceased in the matter of co-habitation; the accused used to frequently go to her parents'' house; the accused and the deceased were not sleeping together in a room but the accused was sleeping separately from the deceased; the deceased was sleeping in a room whereas, the accused and her mother-in-law PW.1 were sleeping together in another room; at about 3.00 a.m. on 1.7.2010, (he accused allegedly committed the murder of the deceased by assaulting him with chopper M.O.No.13 and thereafter, set him ablaze by pouring kerosene while accused was sleeping on the cot in the room of the matrimonial house; at about 5.30 to 5.45 a.m., the complainant found that smoke was oozing out from the room of the deceased and hence, she alerted accused, who was sleeping along with the complainant; immediately thereafter, the accused tried to intimate about such fact to the neighbours including the relatives by tapping doors in the early hours of 1.7.2010; all the neighbours including the relatives came to the house and extinguished fire but by then the deceased had died.

The first information came to be lodged by PW. 1 as per Ex. P1 and the same came to be registered at 11.00 a.m. on 1.7.2010 in UDR No. 13/2010 under .Section 174(3) of Cr.P.C. The inquest panchanama was conducted as well as the scene of offence panchanama was drawn. The Inspector of Police have noticed certain injuries on the dead body and have noticed the blood stains on the walls of the room wherein the dead body was found and the fowl play, suo motu reported to JMFC as per Ex.P33. The first information came to be registered including Section 302 of IPC subsequently and the same reached the jurisdictional Magistrate at 00.30 hours on 2.7.2010. After completion of investigation, PW. 18 -Inspector of Police laid the charge-sheet.

In order to prove its case, the prosecution in all examined 19 witnesses and got marked 55 Exhibits and 15 Material Objects. On behalf of the defence, 3 Exhibits were got marked.

As mentioned supra, the Trial Court on evaluation of the material on record, acquitted the accused by giving benefit of doubt in her favour.

Sri Majage, learned Additional SPP taking us through the material on record contends that, the circumstances relied upon by the prosecution are proved; since the incident taken place within the house and as the accused is the wife of the deceased, it is incumbent on her part to explain about death of the deceased; the very fact that the injuries were found on the dead body and blood stains were found on the walls of the room would clearly reveal that it is a homicidal death more particularly, when the Doctor, who conducted autopsy opined that it is a homicidal death. The friends as well as the relatives of the deceased have deposed that the accused was not co-operating with the deceased in marital affairs and she used to sleep separately; PW. 1/complainant also deposed about the said factor; it seems, she was not a willing person to marry the deceased and hence, she taken law into her hands in order to see that her husband should not be alive; that she wanted to suppress her pregnancy; that the accused was seen at about 4.00 a.m. outside her house near a drainage, wherein the chop-per-M.O. No. 13 is recovered subsequently; the chopper as well as the other materials seized during the course of investigation were found to have contained human blood of ''A'' Group; the explanation offered by the accused during the statement recorded under Section 313 of Cr.P.C. is unacceptable, false and hence, adverse inference needs to be drawn against her. On these among other grounds, he prays for setting aside the judgment of the Court below.

Per contra, Sri. Dinesh Kumar, learned Advocate appearing on behalf of the accused/respondent herein argued in support of the judgment of the Court below.

PW. 1 is the mother-in-law of the accused and the mother of the deceased. She lodged First Information as per Ex.PI and based on which UDRNo. 13/2010 is registered in Vinoba Nagar Police Station, Shimoga. She is the witness for scene of offence panchanama also. She identified M.O. Nos.1 to 14 seized under the said panchanama. She deposed about strained relationship between the accused and the deceased and about smoke oozing out from the room of the deceased.

PW.2 is the social worker. He was knowing the accused and the deceased. He deposed about the strained relationship between the accused and deceased. He is the witness for scene of offence panchanama Ex.P2, seizure panchanama Ex.P3 and identified the photographs Exs.P4 to P18.

PW.3 is the another witness for scene of offence panchanama Ex.P2 and seizure mahazar Ex.P3.

PW.4 is the witness for recovery mahazar Ex.P19 under which, blood stained chopper M.O.No.13, night dress of the accused M.O. No. 14 and match box M.O.No.15 were recovered.

PW.5 is the witness for inquest mahazar Ex.P20 and he identified the photographs Exs.P21 to P23.

PW.6 is the brother of the deceased. He deposed about the strained relationship between the accused and deceased and about advising the deceased suitably.

PW.7 is the brother-in-law of the deceased. He was also advising the deceased suitably whenever the accused used to complain about the deceased.

According to him, the accused came to his house and tapped the door and informed about the incident at 5.45 a.m. on the date of the incident. He informed about the incident to PW.2 Haleshappa.

PW.8 is the neighbour of the deceased. She saw the dead body after about 6.00 a.m.

PW.9 is the Doctor, who subjected the accused for medical examination and deposed that the accused was pregnant (6 weeks) and given report, which is at Ex.P24.

PW.10 is another Doctor, who conducted post-mortem examination over the dead body. The post-mortem report is at Ex.P25. He rendered his opinion as per Ex.P26. He also deposed about the Forensic Science Laboratory report as per Ex.P28 and given the report on examination of the weapon (M.O. No. 13) as per Ex.P27.

PW. 11 is the Revenue Official, who issued the demand extract of the house as per Ex.P29, wherein the incident taken place.

PW.12 is the Engineer of MESCOM (the wing of Karnataka Electricity Board). He given the report as per Ex.P30 to see that there was no short circuit in the house during relevant point of time, which means there is a flow of electricity in the house.

PW. 13 is the relative of PW. 1. According to PW.13, the accused made extra judicial confession even before her.

PW. 14 is the person known to the accused and the deceased. He deposed that he saw the accused standing near the drainage near her house at about 4.30 a.m. on the date of incident. On being informed, he also came to the house of the deceased and poured water on the body of the deceased.

PW.15 is the neighbour of the deceased. He deposed about the conduct of the deceased as informed by PW.1.

PW. 16 is the Police Sub-Inspector, who registered UDR No. 13/2010 on the basis of the complaint Ex.P1 lodged by PW. 1. He conducted part of the investigation.

PW.17 is the Police Constable. He carried certain articles to Forensic Science Laboratory.

PW.18 is the Inspector of Police. He completed the investigation and laid the charge-sheet.

PW. 19 is the Doctor attached to Meggon Medical Institute, Shimogga. She examined the accused medically and subjected the accused to scanning test. According to her, pregnancy of the accused was about 6 to 8 weeks. The pregnancy was aborted prior to 31.7.2010. The case sheet of the Hospital is at Ex.P55.

From the aforementioned narration, it is clear that the case of the prosecution fully rests on the circumstantial evidence. The circumstances relied upon by the prosecution are as under:

(a) the deceased and the accused, who were married about one month prior to the incident in question were not living happily and they were sleeping separately in different rooms of the same house;

(b) recovery of chopper M.O.No.13 used for commission of offence, at the instance of the accused under panchanama Ex.P19;

PW.4 is the witness for the said mahazar.

(c) Extra judicial confession made by the accused before PW.13;

(d) The accused was found to be eight weeks pregnant during relevant point of time, though the marriage was performed about one month prior to the incident.

There is no serious dispute that the death in question is a homicidal death. The defence also does not dispute that it is a case of homicidal death. Even otherwise, the post-mortem report Ex.P25 and the Evidence of the Doctor-PW. 10, who conducted Autopsy clearly supports the case of the prosecution that it is a case of homicidal death. The post-mortem report discloses that the skull of the deceased was fractured: the deceased had also sustained lacerations. The final opinion rendered by the Doctor as per Ex.P27 reveals that the bums injuries are post-mortem in nature and the head and facial injuries are anti-mortem in nature. It is further opined that the cause of death of the deceased is due to ''Extradural Haemorrhage'' as a result of ''Head Injury'' sustained. Thus, in our considered opinion, it is clear that it is the case of homicidal death. Added to it, the blood stains were also found on the walls of the room wherein the dead body was found.

However, on going through the evidence on record and after hearing, we are of the opinion that the circumstances mentioned supra are not proved by the prosecution beyond reasonable doubt. There cannot be any dispute that in a case based on circumstantial evidence, all the circumstances relied upon by the prosecution need to be proved so as to complete the chain of circumstances. Such proved chain of circumstances should not leave any doubt in the mind of the Court about the complicity of the accused facing trial.

Regarding Circumstance No. 1:

It is not in dispute that the marriage taken place between the accused and the deceased on 30.5.2010 at Shimogga as per their custom. It is also not in dispute that the accused and the deceased were living together under the same roof, same house. However, it is the case of the prosecution that the accused and the deceased were not in cordial relationship and they were sleeping separately, since the accused was not co-operating with the deceased in the matter of co-habitation and sexual intercourse. The deceased was sleeping in a separate room whereas, the accused and her mother-in-law (PW.1) were sleeping in a different room.

In this context, it would be relevant to note that the earliest version of PW. 1/complainant as found in Ex.Pl. The First Information was lodged by none other than the mother of the deceased, who was aged about 65 years at the time of the incident. In the First Information itself, she deposed that from the date of the marriage, the husband and wife i.e. the accused and the deceased were living happily and amicably; during the night of 30.6.2010. the deceased was sleeping alone in the bed room; the complainant and the accused Saraswathi were sleeping in the hall of the house; it might be 10.30 - 11.00 p.m. when they slept; however at about 5.30 a.m. on 1.7.2010 when the complainant got up from the bed and went to the room of the deceased, she found that smoke and burnt smell were oozing out from the room of the deceased; being frightened, PW.l woke up accused, who was sleeping along with PW.1; the accused after seeing that the deceased was in a room surrounded by full of smoke, she immediately went to the houses of the neighbours and called them for help. It is further mentioned in Ex.P 1 that the dead body was found in a sleeping position and that the complainant did not raise any suspicion against anybody including the accused. However, have suspected fowl play, she requested the Police to take action as per law. Such First Information of PW. 1 was registered in UDR No. 13/2010 as per Section 174(3) of Cr.P.C. at 11.00 a.m. on 1.7.2010. Thereafter, the scene of panchanama as well as inquest panchanama were drawn. During the course of inquest, the statements of near relatives including the statement of the complainant as well as the statements of the sisters and brothers-in-law of the deceased were recorded apart from the neighbours.

From the averments made in the complaint Ex.Pl, it is amply clear that the accused and the deceased were living amicably; the complainant did not make any grouse against the accused about her alleged non-co-operation with the deceased in the matter of co-habitation and sexual intercourse etc; herself and the accused had slept together in one room and the deceased had slept in another room; only on 5.30 a.m. the complainant got up and have seen the deceased being burnt and have seen smoke oozing out from the room, she alerted the accused, who was still sleeping by then in the separate room. The bare reading of Ex.P1 does not disclose any offence against the accused. The complainant/mother of the deceased did not suspect the hands of the accused at all, in the incident in question. If really the complainant had got any grouse against the accused, she would not have missed to state particularly when she had seen the dead body of her son. By the time, the First Information came to be lodged at 11.00 a.m. number of persons including the children of the complainant had arrived on the scene of offence and had talked: since it is not at all mentioned in the complaint Ex.P1 about so called illegal intimacy of the accused with somebody or about the illegal pregnancy of the said lady or about alleged non-co-operation to lead matrimonial life with the deceased, she would have definitely mentioned so in the First Information itself, more particularly, when the First Information came to be registered at 11.00 a.m. before which time the complainant had even talked to the villagers, elders, friends of the deceased and her daughters, sons-in-law including the Police.

The inquest panchanama Ex.P20 also reveals the statements of number of persons recorded. Such statements are made by near relatives of the deceased. The statements so recorded during the course of inquest clearly reveal that the accused and her mother-in-law (PW.1) as well as the deceased had dinner together and thereafter, the deceased went out of the house at about 10.30 to 11.00 p.m. on 30.6.2010. The accused and PW. 1/complainant together slept in one room. Subsequently, it is not known as to when the deceased came back to house and slept in the house. In that regard, the suggestions were made to the witnesses more particularly to PW.1 that the deceased was have habit of consuming alcohol, playing matka, gambling etc. Though such suggestions are denied by PW. 1, such suggestions assume importance in view of the conduct of the deceased usually going out of the house after dinner at 10.30 to 11.00 p.m. and coming back to the house and sleeping in a different room later.

After completion of the part of the investigation as mentioned supra, the Police Inspector have noticed blood stains on the walls of the room wherein the dead body was found, generated suspicion in his mind and therefore, lodged suo motu report before the Magistrate as per Ex.P33. In the said report also, he not suspected the hands of the accused. On the other hand, the report discloses that the deceased died of homicidal death. It is also mentioned in the very report that during the course of investigation, he found some miscreants entered the house between 11.30 p.m. to 5.30 a.m. and assaulted on the head of the deceased with the help of certain weapon. Even when such report was made, which was received by the Magistrate on 2.7.2010 at 00.30 hours, neither the Police nor anybody in the village including the family members did point out anything against the accused. As mentioned supra, if really the accused was not co-operating with the deceased, and really she was pregnant even prior to the marriage as alleged by the prosecution, the prosecution witnesses would not have missed to state so before the Police at least when the Police made subsequent report as per Ex.P33. Hence, the Police are justified in registering the complaint against unknown person for the offences punishable under Sections 302 and 201 of IPC.

However, during the course of recording the evidence before the Trial Court, all the relatives of the deceased including the complainant, brothers-in-law and close friends of the deceased have deposed before the Court that the deceased was not living happily with the accused; she used to quarrel with the deceased; she was have illicit relationship with the third person; she was not co-operating with the deceased in her marital life etc. All these versions of the witnesses are clearly after thought, inasmuch as such statements were not made by any of the witnesses before the Police at the earliest including at the time when their statements were recorded during the course of inquest. Since the versions as found in the depositions recorded before the Court are clearly after thought, the Trial Court rightly disbelieved the depositions of the prosecution witnesses, who are near relatives of the deceased.

Regarding Circumstance No. 2:

The second circumstance is with regard to recovery of chopper - M.O. No. 13, at the instance of the accused. The same was recovered under panchanama Ex.P19. PW.4 is the witness for recovery mahazar.

According to PW.4, the accused led the police and panc to the drainage and took-out the chopper which she hidden within the pipe of the drainage and such chopper was have blood stains at the time of seizure. PW.4 also deposed that the green coloured night dress of the deceased was also recovered and seized, at the instance of the accused from the bed room of the deceased. These items along with the blood stained mud collected were sent to Forensic Science Laboratory examination. The Forensic Science Laboratory reports are at Exs.P50 and P51. These reports nowhere reveal that the night gown worn by the accused at the time of the incident was containing bloods stains. Not even a single drop of blood had fallen on the night dress of the accused. If really, she had used the chopper for commission of offence, definitely there would have been at least few drops of blood stains on her night gown worn by her. It is the case of the prosecution that the blood spilled over extensively and the blood stains were found on the walls of the room but not even one drop of blood was found on the night gown of the accused, which clearly reveal that the accused was not at all present at the time of the incident in the said room.

Though it is deposed by PW.4 in his ex-ami nation-in-chief that the chopper M.O. No. 13 seized was have blood stains, such version is unacceptable in view of the admission of PW.4 in the cross-examination. It is clearly admitted by PW.4 that at the time of conducting panchanama, it was raining; the water was flowing in the drainage and the chopper was within the drainage. It is also found from the evidence of PW.4 that the drainage was not the open drainage but it was a drainage have pipe and within that pipe, the chopper was found. If the water flows on the pipe, it would be unthinkable to have blood stains on the chopper.

Moreover, PW.14 had seen the accused near the drainage about 4.30 a.m. on 1.7.2010. However, the factum of PW.14 seeing the accused near the drainage in odd hours was not at all disclosed by PW.14 with anybody including the mother of the deceased, sisters of the deceased and brothers-in-law of the deceased. Undisputedly, PW.14 is the close family friend of the deceased. According to himself and his friend Niranjan Murthy usually go to walk in the early hours at about 4.00 a.m. everyday and at that point of time, they saw the accused out of her house at 4.30 a.m. Such version of PW. 14 cannot be believed at any stretch of imagination, more particularly, when he immediately come to the spot at 5.45 a.m. and extinguished fire but not disclosed about the said factum of accused standing outside at 4.30 a.m. to anybody. As mentioned supra, all the records are generated only after 2-3 days of the incident. Till such time, none of the witnesses have opened their mouth about the alleged incident and incriminating material against the accused. In this view of the matter, the Trial Court is justified in disbelieving the circumstance of recovery of chopper.

Regarding Circumstance No. 3:

The third circumstance is with regard to extrajudicial confession, which is said to have been made by the accused in front of PW. 13. The said circumstance is also not proved by the prosecution. PW.13 clearly admitted that up to that point of time the accused had never spoken to him about the family affairs of about the family matters of the accused and deceased. She clearly admitted that though she talked with all the family members including PW. 1 immediately after the incident till her statement is recorded on 4.7.2010, she did not disclose about the alleged extrajudicial confession made by the accused. There is no reason as to why PW. 13 should withhold such vital information without being disclosed before PW. 1 at least, who is her relative. She further clarified that she not even told about the said fact to any of the people including the Police over phone also. Under such circumstances, it would be very difficult for the Court to believe the version of prosecution that the accused made extrajudicial confession in front of PW.13, who was not at all friendly with the accused and whose version is unbelievable.

Regarding Circumstance No. 4:

The last circumstance is that the accused wanted to hide her illegal pregnancy from the deceased and his mother and hence, she committed the murder of the deceased. Such case of the prosecution also is unbelievable.

Though it is deposed by the Doctor PW.9 that the accused was eight weeks'' pregnant, such version of PW.9 is directly against the version of another Doctor PW.19. The Doctor - PW.19 is the Head of the Department of Gynaecology in Meggon Medical Institute, Shimogga. Though the said Doctor deposed that the accused was six to eight weeks'' pregnant at the time of her examination, in the cross-examination, she admits that the accused might be five weeks'' pregnant. She also clearly admitted that the accused was examined by her on 9.7.2010. It is clearly admitted by her that the accused was five weeks'' pregnant. Since the marriage taken place on 30.5.2010, no suspicion can arise against the accused, who was five weeks'' pregnant as on 9.7.2010, inasmuch as by that time, already about 40 days had elapsed after the marriage.

Having regard to the aforementioned discussion, it is clear that the Trial Court is justified in acquitting the accused, inasmuch as the prosecution failed to prove any of the four circumstances relied upon by it. Even on re-appreciation of the material on record, we do not find any ground to disagree with the reasons assigned and conclusion arrived at by the Trial Court. Since the view taken by the Trial Court is plausible view under the facts and circumstances of the case, no interference is called for.

Accordingly, appeal fails and the same stands dismissed.