State of Karnataka vs Venkatesh

M.F. Saldanha, J.-This appeal which has been hotly contested raises once again the question as to how a Criminal Court is required to apply the law relating to circumstantial evidence in a given situation. The deceased Rajegowda and accused Venkatesh are brothers and it is alleged that there was some unpleasantness and quarrels over the family property. Rajegowda was last seen alive on 12-5-1994 when he left the house ostensibly to go to his fields. Since he did not return, after waiting for a considerable period of time after three days, his wife Prema lodged a missing person''s complaint. The prosecution alleges that accused Venkatesh had attacked his brother Rajegowda with a stone over a quarrel, that Rajegowda sustained a serious head injury, that he collapsed and died and that the accused put the body in a bullock cart and took it to a remote place, tied stones to it and dumped it in the Kaveri backwaters. The accused is supposed to have sustained an injury to his hand which he got treated at Kollegal Hospital and this attracted the attention of his relations and associates who kept on asking him about it. He did not disclose the circumstances under which he sustained the injury but, it is the prosecution case that when he attacked Rajegowda, that Rajegowda in turn inflicted the injury with a sickle. P.W. 2, Ramegowda however contends that the accused is alleged to have made an extrajudicial confession to P.W. 6 which was witnessed by him and the reason given is that the accused was overcome by remorse and that he confessed to the offence. What is more incriminating is the fact that the police arrested the accused and while he was in custody, he is alleged to have made a statement to the effect that he will point out the place where he has concealed the dead body and that pursuant to this statement, the parents and the panchas went to that place and that the dead body of Rajegowda was recovered. Furthermore, the prosecution alleges that apart from the earlier statement which is recorded in Ex. P. 26, that the accused also made another statement recorded in Ex. P. 19 to the effect that he will point out the weapons used and that he took the police to his fields and pointed out a rough stone. The stone Mo-5 has been seized but, it is not of much consequence because it was not blood-stained nor was there any incriminating on it. The accused was charge-sheeted and sent up for trial and the learned Trial Judge after a careful analysis of the following seven circumstances acquitted the accused. The circumstances were.-

Motive for the murder i.e., the disputes between the brothers regarding the partition;

Extrajudicial confession attributed to the accused;

Injury;

Confessional statement made by the accused before the police;

Discovery of the dead body of the deceased Rajegowda at the instance of the accused;

Recovery of weapon Mo. 5 at the instance of the accused;

Medical evidence that the injury found on the body of Rajegowda could have been caused by the stone Mo-5.

The present appeal has been preferred by the State assailing the order of acquittal. This is a very hotly contested case and we need to record that it is very evenly balanced. The learned Government Pleader Sri Nawaz has done an excellent job insofar as he has analysed the evidence and he has very strongly contended that the circumstances are conclusive and sufficient to fully establish the guilt of the accused. Fortunately, learned Advocate Sri Sanjay Patil who represents the accused has also done a first class job of the case. He was well prepared. He has analysed the case exceedingly well and he has argued it with a degree of competency both on facts and in law which is admirable. Both the learned Government Pleader and the learned Advocate who represents the accused are relatively young Counsel and we need to record that we have been extremely well-impressed by their performances.

We need to briefly recount the well crystallised position in law relating to circumstantial evidence because the short question is as to whether the finding of the Trial Court that these circumstances do not establish the guilt of the accused, even if taken cumulatively, is required to be confirmed or whether it is required to be interfered with. Often times, Criminal Courts make the familiar mistake of recording convictions on the basis of just one circumstance which in their opinion is a strong circumstance and is conclusive. We need to remind ourselves that unlike other cases of oral and documentary evidence, that the law with regard to circumstantial evidence very clearly postulates that there must be a chain or a web of circumstances which establish a nexus between the accused and the offence which is so conclusive that it leads to only one inference which is in consonance with the guilt of the accused and to nothing else. Here again, the Supreme Court has had to repeatedly point out that the chain of circumstances pre-supposes several links and that one link or two links do not constitute a chain. Again, the law as laid down by the Apex Court and the High Courts requires that every link in the chain has got to be a strong and sustainable link and that one or two strong links cannot substitute for a few other weak links because in that event, the chain will not be good enough. In other words, the duty of the Court is to examine each circumstance individually and record its finding as to whether it is strong and conclusive and to then lastly examine the cumulative effect of this chain of circumstances for purposes of concluding as to whether they lead to the irresistible conclusion of guilt. This briefly summarises the law on the point and it is on the basis of these principles, that we have reviewed the record and the judgment of the Trial Court.

The first circumstance alleged is that there was a background dispute relating to the partition. Such disputes are not unusual particularly in property matters and what we have tried to find out from the evidence is that as to whether the disputes had lead to any very serious hostility which was strong enough to lead to one brother taking the life of the other. Quarrels over property, minor or not so minor, do not always lead to murders and if they do, it is usually a culmination of hostility that has taken a vicious turn. Mr. Patil is right when he points out to us that merely because there was some unpleasantness over the partition is no ground on which the brothers would kill each other and he demonstrates to us that there was no litigation between them, nor do the witnesses say that the hostility had taken a violent turn or that it was of a very serious nature. On the basis of the present record therefore all that we are required to hold is that it was a possible motive but, that it is neither strong nor conclusive.

The extrajudicial confession that is attributed to the accused is referred to by P.Ws. 2 and 6. We have very carefully analysed this evidence and the learned Government Pleader vehemently submitted that it is not at all unusual for a person who has committed a murder to be overcome by the act and to express regret. According to P.W. 2 since the deceased had been missing for several days, they first asked the accused who is the brother about the injury that was sustained by him, that he did not give any answer about it, but that when the references were made to the deceased Rajegowda, the accused broke down, he shed tears and disclosed that he had killed him perhaps accidentally when he hit him with a stone and that he had disposed of the body. Despite the fact that P.W. 6 who seems to have turned somewhat hostile and P.W. 2 deposed to these facts, we have some hesitation in accepting them, the reason being that it is a little difficult to accept the position whereby the accused who has committed the murder should have taken the precaution of disposing of the body in a manner whereby he hoped that it would not be detected and would then make a disclosure which would get him arrested and even convicted. He was not under pressure and there was really no reason why he would have done this and consequently, we find it extremely difficult to hold circumstance 2 as having been conclusively established.

Similarly, as far as the injury was concerned, the prosecution evidence itself is that the accused never confessed to having sustained it in the course of the incident and the evidence of the doctor only indicates that the injury was sustained around the time when the deceased had disappeared but, these are all disjointed facts and one cannot conjecture and jump to an adverse conclusion that the injury was sustained due to a sickle blow from the deceased when the accused tried to kill him. There is nothing on record to support this conclusion and we agree with the finding of the Trial Court that circumstance 3 is also inconclusive.

The strongest circumstance which has been pressed by the learned Government Pleader is the confessional statement attributed to the accused and the subsequent circumstance viz., the discovery of the dead body at the instance of the accused. We are required to straightaway reject Ex. P. 26 because, though it purports to indicate that the accused made a statement that he would point out the place where he has concealed the body, this statement neither bears the signature nor thumb impression of the accused and in keeping with the law on the point and requirements of Section 27 of the Indian Evidence Act, we find that it cannot be used as the foundational basis of the discovery of the body. There is something else that has come on record viz., the fact that the panchanama drawn up by the police indicates that the body was floating because it had decomposed and that the hand and shoulder was well visible above the water. The other aspect of the matter pointed out to us by Mr. Patil and which emerges from the evidence of the two witnesses is that prior to the so-called confession, the villagers themselves had discovered the dead body, that they had reported it to the police and that it was recovered pursuant to this information. Obviously, the police have tried to distort the facts and attributed the discovery to the accused in order to incriminate him. We cannot therefore hold that circumstance 4 and 5 are incriminating vis-a-vis the accused. In this regard, we would also prefer to dispose of circumstance 7 because undoubtedly there was a serious head injury on the body and the doctor has opined that this could have been caused by the stone Mo-5. That is only a possibility and since the discovery evidence itself is not sufficiently incriminating, what flows from it is not going to improve matters for the prosecution.

Lastly, the recovery of the rough stone Mo-5, which again is attributed to the accused will once again have to be watered down because the so-called statement attributed to the accused suffers from the some defect insofar as it is neither signed nor is there any thumb impression. Apart from these, the stone Mo-5, did not have any blood stains on it nor is there anything to indicate that this was the weapon that was used.

We do concede that there are situations in which a whole set of circumstances so perfectly planned, blend with each other, they compliment each other and like a jig-saw puzzle, when put together, they make out a perfect picture and in situations such as those even if each circumstance is not very important and very crucial, the combination of the circumstances is what is 100% conclusive. In this case, we have applied this last test to find out whether they compliment or bolster each other, but the answer to that is also in the negative. Taken together, these circumstances still fall very much short of the legal requirements for sustaining a conviction. In our considered view therefore, after having heard the learned Counsel on facts and in law and having done a total and complete in-depth review of the record, we rule that the material is not good enough to sustain a conviction.

The order of acquittal is accordingly confirmed. The appeal fails on merits and stands dismissed. The bail bond of the accused to stand cancelled.