State of Karnataka vs Unnamalai and Others

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 11.11.2011 passed by the Fast Track Court, Bangalore City in SC No. 406/2011 is called in question in this appeal by the State.

The Trial Court has tried and acquitted the accused for the offences punishable under Sections 302, 201 read with Section 34 of IPC.

The case of the prosecution is that accused No. 2 is the first wife and PW3 is the second wife of the deceased respectively. Accused No. 1 is the mother of accused No. 2. Accused No. 4 is the cousin sister of accused No. 1 and she is the wife of accused No. 3. Accused No. 3 is the husband of accused No. 4. PW2 was born out of the wedlock between the deceased and accused No. 2. She was aged about 8 years and was residing with her parents. At the time of recording her evidence, she was studying in 3rd standard.

Since accused No. 2 did not like the deceased going to the house of his second wife-PW3, she hatched a plan along with accused Nos. 1, 3 and 4 to do away the life of the deceased, who was drunkard; on the date of incident, i.e. on 25.10.2010, the deceased came from out side after consuming the liquor as usual; at that time, accused Nos. 3 and 4 were also inside the house and they made him to drink liquor; when the deceased was kept on the spot for having dinner, accused No. 3 strangulated the neck of the deceased with the plastic rope; accused No. 4 held the legs of deceased tightly; accused No. 1 held the hands of the deceased and accused No. 2 not only stabbed with the knife on the neck, but also cut off the private part of the deceased, the deceased died on the spot with bleeding injury; the incident is witnessed by PW2, minor daughter of the deceased and accused No. 2.

On getting information about the murder of the deceased, PW1-landlord of the house, wherein the deceased was living with his family, rushed to the spot and saw the dead body, thereafter he lodged a complaint as per Ex. P1 before the Byappanahalli Police Station, which came to be registered in Crime No. 310/2010 for the offences punishable under Sections 302, 201 read with Section 34 of IPC by the Inspector of Police, (PW14). He conducted the investigation and filed a charge sheet against the accused.

In order to prove its case, the prosecution in all, has examined 21 witnesses and got marked Exs. P1 to P28 and MOs. 1 to 17. On behalf of the defence, no witness were examined and no documents were marked. The Trial Court, after evaluation of the material evidence on record acquitted the accused of the charges leveled against them.

Sri Nawaz, learned SPP drawing our attention to the material on record submits that the Trial Court is not justified in acquitting the accused more particularly, no explanation is forthcoming from accused No. 2, wife of the deceased in relation to the cause of death, the manner in which the incident had taken place; there is cogent evidence of PW2 who is an eye witness, in order to prove the guilt of the accused; she has deposed in natural manner; she has not exaggerated any fact before the Court. On these grounds, he prays for setting aside the judgment and order of acquittal.

Per contra, Sri Nanjunda Gowda, learned counsel appearing on behalf of the accused argued in support of the judgment of the Trial Court.

The case of the prosecution is mainly based on the evidence of PW2, eye witness, who was aged about 8 years at the time of recording the evidence. The incident has taken place during the intervening night of 24th and 25th of October, 2010; the evidence of PW2 was recorded on 28.7.2011 i.e. about 9 months after the incident, which means the child was aged about 7 years at the time of incident; the presence of PW2 is not disputed and there was no suggestion by the defence with regard to her presence in the scene of offence at the time of incident; however, it is admitted by the prosecution witness that accused Nos. 3 and 4, who are the husband and wife respectively have got different a house residing in different locality and their house is situated at about one kilometer away from the place of incident; accused No. 1/mother of accused No. 2 was also residing separately in different house; but accused Nos. 1, 3 and 4 are living with their respective family in their respective houses; they were not living in the house of accused No. 2 and deceased.

As aforesaid, the complaint, Ex. P1 was lodged by the landlord-PW1. He was informed by certain persons regarding the murder; thereafter he lodged the complaint. PW2 is the minor daughter of the deceased and accused No. 2. She is the eye witness to the incident. PW3 is the second wife of the deceased and speaks about the motive of the offence committed by accused Nos. 1 and 2, who were quarrelling with the deceased for the reasons that the deceased was living with PW3; PW4, mother of the deceased deposed about the motive for commission of offence; PW5 is the father of the deceased and his evidence is on par with the evidence of PW4; PW6 is the witness for seizure mahazar Exs. P3 to P6 under which MOs. 5 to 14 were seized and she turned hostile to the case of the prosecution; PW7 is the witness for Ex. P7, the inquest mahazar; PW8 came to the spot after the incident and suspected the accused for committal of the offence; PW9 is a woman head constable and she apprehended accused Nos. 1 to 4 on 26.10.2010 at 5.00 p.m; PW10 is the doctor, who conducted autopsy over the dead body and issued post mortem report as per Ex. P10. He has given his opinion as per Ex. P10. The opinion of the doctor discloses that the death is due to asphysia as a result of ligature strangulation; PW11 is the head constable and he along with PW9, WHC apprehended accused Nos. 1 to 4; PW12 is the panch witness of Ex. P2 and he turned hostile to the prosecution case; PW13 is a police constable, who carried 17 sealed articles to Forensic Science Laboratory for examination. However, the FSL report is not placed on record before the court below. PW14 is the Inspector of Police attached to Bypanahalli P.S, who received complaint as at Ex. P1 and registered the crime, conducted investigation and filed a charge sheet.

From the aforementioned evidence led on behalf of the prosecution, it is clear that PWs. 2 to 5 have deposed about motive for commission of offence. PW3 is the second wife of the deceased. The entire case of the prosecution is that accused No. 2 being the first wife of the deceased was not liking the deceased as he was living with PW3 (second wife). In this view of the matter, the evidence of PW3 plays an important role in deciding the circumstances regarding the motive for commission of offence. Hence, we have meticulously evaluated the evidence of PW3.

PW3 has admitted that her marriage with the deceased was performed by accused No. 2 (first wife of the deceased); accused No. 2 took initiative for performance of the marriage and actively participated in the marriage whole heartedly; she had given consent for the second marriage; after the marriage, PW3 was residing separately in a different house and she used to go to the house of accused No. 2 oftenly and so also accused No. 2 was going to the house of PW3 oftenly; PW2 who is none other than the daughter of the deceased is an eye witness to the incident; she was looked after by the deceased with all due care and love, he used to take the child to the school and take her back to the home; the deceased has indeed borne all the school fees and other expenses of PW2; the deceased was also looking after PW3 and her children with love and affection; PW2 has further admitted that accused No. 2 has never quarreled with the deceased.

All the aforementioned admissions of PW2 before Court amply prove that deceased, PWs. 2 and 3 were living amicably and there was no difference of opinion at any point of time; so also, there was no quarrels whatsoever between accused No. 2 and the deceased and so also between PW3 and accused No. 2. Thus, the motive, has put forth by the prosecution before the Court is only assumption the trial court is justified in not accepting the same; since it is categorically admitted by the prosecution witness, more particularly, the second wife (PW3) who has categorically deposed that the deceased was cordially living with her, accused No. 2 and they were cordially living with PW3; there was no occasion either for accused No. 2 and her parents or the relatives to have any grudge against the accused. Therefore, the aspect of motive put forth by the prosecution is not proved by the prosecution by adducing cogent and acceptable evidence.

It is the specific defence of the accused that the deceased was drunkard and he used to come to the house at about 1.30 in the mid night everyday; he used to lend money to various persons; the defence of the accused is that the incident had taken place and the same is committed by the third party, but the dead body was thrown near door of the house in the midnight of 24.10.2010 and 25.10.2010. On the other hand, it is the specific case of the prosecution that the death has occurred within the house of the deceased when he was sleeping on the bed. Though the deceased had sustained several bleeding injury on his body and there was profuse bleeding from his body, the entire bed and bed sheet were blood stained, the Investigation Officer has not seized any of the bloodstains on the bed or bed sheet and obtained forensic report. On the other hand, the evidence of PWs. 2 and 3 makes it amply clear that the blood had spilled on the front yard of the house of the deceased as well as on the open space in front of the house within the compound wall. This indicates that death has taken place within the compound of the house. There was no reason as to why profuse spilling of blood was found outside the house, more particularly, on the open yard i.e. ground portion. PW2 in her evidence deposed that she found bloodstains in the veranda and also in the open space situated in front of her house and she also found footprints at the bloodshed area. PW3, the second wife of the deceased was aged about 35 years at the time of incident and she also clearly admits in her evidence that the blood had spilled over the stones laid in front of the house of the accused within the compound wall. In this context, looking to the aforementioned facts and circumstances, it appears that if there was bloodstain on the bed sheet and bed, they were not sent to the FSL for examination by the Investigation Officer. The police could not have left the spot without seizing such articles. Per contra, the evidence on record disclose that there was spilling of blood outside the house. Hence, the defence of the accused is that the incident had taken place either inside or outside the house is an important aspect. We find that evidence of PW2 is rightly not believed by the Trial Court. PW2, the child witness, has deposed in her examination-in-chief about the manner in which the death has taken place and about the out come of the crime, in her cross-examination, she categorically admits number of facts which are against the prosecution case and contradict the case of the prosecution. She has deposed before the Court that after the incident, she was living with her paternal-grand-parents, they were looking after her welfare. She used to come to the house at 7.00 p.m. from school as well as tuition class. After having food, she is sleeping at 7.30-8.00 p.m. She used to sleep with covered bed sheet. She used to wakeup on the next day morning at 7.30-8.00. Further, she has admitted that the house of accused No. 2 is situated at a distance of the house of accused No. 1, whereas the house of accused Nos. 3 and 4 and accused No. 1 is the distance of one kilo meter away from the place of incident. In front of the house of PW2, there is a big ground. On the next date of incident, when she woke up, she found that all the accused weeping loudly. PW2 asked accused No. 2 as to why she is weeping. When she got up from the bed, the police and hundred of people were gathered in front of her house. On being asked by the police, she told that she does not know about the incident at all. The blood had spilled on the front yard of the house as well as on the ground. At about 7.00 a.m., the police had taken her to the police station and she was made to stay in the police station up to the evening of 25.10.2010. The police had given her to eat chocolate, ice cream etc., in the police station. She has specifically admitted that the police as well as her grand-parents, uncle has tutored her and told her that she has to depose as tutored by them. She further admits that she would have slept everyday even prior to the deceased coming to the house of the second accused. In her further cross-examination, she has made improvements before the Court. She has deposed in the examination-in-chief that accused No. 1 was holding hand and accused No. 4 held the legs of the deceased and accused No. 2 stabbed with the knife. The version of PW.2 in respect of the incident is fully an improved version. PW2 clearly admits that at the first time before the Court deposed that she do not know about the incident of murder of her father. She further admits that whatever stated in the cross-examination-in-chief, on the previous date of recording of deposition, she was tutored by the police. She has further deposed that number of people were gathered in front of the house and they were talking some third party murdered the deceased and have thrown the dead body in front of the house.

The aforementioned contradictory evidence of PW2 does not gain confidence of the Court about the veracity of the evidence of PW2 and adverse inference can be drawn that she is tutored witness. Furthermore, she has categorically deposed before Court that she was tutored by her grand-parents, uncle and police. In view of the above mentioned specific admissions on the part of PW2 that she was tutored by the police and her grand-parents, it is not proper to rely upon the contradictory evidence of this sole child witness. Thus, we find that it is unsafely to rely on the evidence of PW2.

It is further also relevant to note that though the number of blood stained articles were seized by the police during the course of investigation and they were sent for examination to the FSL, for the reasons best known to the police, they have not made available the contents of FSL report before the Court. Therefore, it is very difficult for this Court to conclude that the articles seized from the spot were having the same blood group, as that of the deceased.

Be that as it may, in the absence of any cogent and corroborative material, the evidence of PW2 narrated above does not gain confidence of the Court. The trial Court, after evaluation of the oral and documentary evidence in proper perspective, is justified in acquitting the accused. In our considered opinion, the view taken by the trial Court appears to be a possible view, under the facts and circumstances of the case. Even on reconsideration of the material on record, we do not find any ground to interfere with the judgment and order of acquittal. Hence, the appeal filed by the State is devoid of merit and needs to be dismissed. Hence, no interference is called for.

In view of the above, the appeal filed by the State fails and accordingly, the same stands dismissed.