Suresh vs The State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offences punishable under Sections 302 and 201 of IPC on a trial held by the First Additional Sessions Judge, Gulbarga.

The facts reveal that PW-3 Devendrappa found the dead body of a female in the land of one Naganna Makka of his village and found that she was strangulated with the cable wire and therefore approached the police and submitted his complaint Ex. P-4. On receipt of the said complaint, it came to be registered by PW-17 the PSI, University Police Station and FIR was registered for the offences punishable under Section 302 of IPC. Inquest was held on the body of the deceased as per Ex. P-1 in the presence of PW-1, PW-4 and PW-14. The spot mahazar was held as per Ex. P-2. The dead body was kept in mortuary. A photograph was published in the newspaper on the basis of which she was identified to be the wife of PW-7 Chandrakant and mother of PW-8. PW-7, PW-8 and PW-9 the brother of the deceased and PW-5 Venkatesh approached the police. On identification of the dead body, it was revealed that the accused had illicit relationship with the deceased. The dead body was subjected to postmortem examination. The report Ex. P-13 was secured. Seized articles were sent to the experts. The hyoid bone of the deceased was examined by PW-6 and opinion Ex. P7 was obtained. On completion of the investigation, charge sheet was filed against the accused under Section 302 and 201 of IPC.

In the trial, the prosecution examined PW-1 to PW-19, got marked Exs. P-1 to P-14 and produced M.O.s 1 to 14. Statement of the accused was recorded under Section 313 Cr.P.C. No defence evidence was lead. But however, contradictions in the evidence of PW-5, PW-7 and PW9 were marked as Exs. D1 to D8. On completion of the trial, the Trial Court heard the counsel for the parties and under the impugned judgment and order, convicted the appellant for the offence punishable under Section 302 and 201 of IPC and ordered him to undergo imprisonment for life for the offence under Section 302 of IPC and to pay fine and lesser sentence was imposed for the offence under Section 201 of IPC.

Aggrieved by the conviction and sentence, the present appeal is filed.

We have heard the learned counsel for the appellant and the learned Addl. S.P.P. for the State. The point that arise for our consideration is:

"Whether the conviction and sentence ordered against the appellant for the charge under Section 302 and 201 of IPC warrants interference by this Court?"

Learned counsel for the appellant submits that except the evidence of PW-8 and PW-5 there is no material on record and their evidence is unbelievable. He states that they are interested witnesses and the contradictions marked in the evidence of prosecution witnesses would reveal that the case put forth by the prosecution is inconsistent. He submits that there is no direct evidence. The only circumstance that has been brought on record is that of PW-8, the daughter of the deceased and when her evidence cannot be believed, it is his contention that the appellant is entitled to an order of acquittal.

On the other hand learned Addl. S.P.P. submits that the prosecution has proved the case beyond all reasonable doubt.

PW-1, PW-4 and PW-14 are the attesting witnesses to the inquest mahazar Ex. P-1, spot mahazar Ex. P-2 and seizure mahazar Ex. P-3. They speak of the dead body having been found at the place of the incident in a land with a ligature mark over the neck.

PW-3 is the complainant who saw the dead body and informed the police. There is nothing in the complaint Ex. P-4 about the assailant. His evidence could be accepted only to the extent of the dead body having been found in the land at the place of the incident.

PW-6 is the doctor who examined the hyoid bone of the deceased and submitted his report Ex. P-7, on the basis of which PW-19 Dr. Tejshwani held the postmortem examination and issued the report Ex. P-13 which reveals that the death of Laxmi Bai (the deceased) was homicidal, to mean, due to strangulation. There appears to be no serious dispute as regards the homicidal death of Laxmi Bai (the deceased).

The matter is dependant only on the circumstances like the motive, the circumstance of the accused having last seen in the company of the deceased Laxmi Bai as stated by PW-8 in her evidence. So it is only the evidence of PW-8, on the basis of which, the prosecution intends to link the accused with the homicidal death of Laxmi Bai (the deceased). It seeks corroboration of her evidence from the evidence of PW-5, the brother of the deceased and PW-9 Maruti another brother. The rest of the witnesses examined by the prosecution are in relation to the search of the accused, carrying the FIR, drawing the sketch of the scene of occurrence as per Ex. P-8 by the Assistant Engineer etc. So, ultimately, it is the question as to whether the evidence of PW-8 is sufficient to link the accused with the crime or not.

We have gone through the evidence of PW-8, the daughter of the deceased, she states in her evidence that on a day, earlier to the incident, the accused had came to her house, he used to come to their house now and then. Her father used to stay in Hyderabad and was visiting the house now and then. She states that a day earlier to the incident the accused quarreled and assaulted her mother, due to which she sustained bleeding injuries. On the next day, he took her mother saying that he would take her to the hospital. According to PW-8 he did not return since then and on the next day he came and informed that her mother has died and asked not to disclose this incident to the police. The perusal of the evidence of PW-8 appears to be inconsistent as against the evidence of PW-5 Venkatesh the brother of the deceased.

PW-5 Venkatesh states in his evidence that on 09.05.2010 PW-8 called him on phone and informed that her mother has not returned to the house. After receiving this information PW-5 comes to Gulbarga from Bangalore and makes search for two days for the deceased. It is only on 12.05.2010 after seeing the newspaper and the photograph that he went to the hospital and found the dead body and enquired with PW-8. So this evidence of PW-5 is inconsistent with the evidence of PW-8 for the sole reason that PW-8 states in her evidence about the assault made by the accused on her mother and did not inform this fact to PW-5. If PW-8 had informed that her mother went with the accused, there was no reason for PW-5 to make a search of the deceased. That apart, though PW-8 had seen the accused assaulting her mother and was informed by the accused, he having killed her mother, she could have immediately approached the police on 10th itself. But till 12.05.2010, neither PW-8 nor PW-5 approached the police. So this creates a serious doubt with regard to acceptance of the evidence of these two witnesses which are inconsistent. This evidence has been relied upon by the Trial Court in order to convict the appellant for the offence punishable under Section 302 of IPC. The scrutiny of the evidence of these witnesses particularly, PW-8, who was a girl aged about 14 years at the time of the incident, in the absence of any corroboration, cannot be accepted. That apart, her evidence is inconsistent with the evidence of PW-5 and therefore we feel that this evidence cannot be accepted to prove the incident of last seen.

So far as the motive put forth by the prosecution is concerned, it is relevant to note that PW-8 the daughter of the deceased only states that the accused was visiting their house now and then. There is nothing in the evidence about the illicit relationship between the deceased and the accused. Even from looking to the evidence of other witnesses, there is no satisfactory evidence to prove the motive. In the absence of such evidence and solely on the basis of the evidence of PW-8 a conviction under Section 302 cannot be sustained.

The only circumstances which are brought on record are the homicidal death, the last seen as appreciated above and the motive. There are no such strong circumstances so as to form a chain to convict the accused for the offence punishable under Section 302 of IPC.

PW-10 to PW-12 are the police officials who assisted the Investigating Officer in the search of the accused. PW-13 is the Police Constable who carried the seized articles to the expert. PW-15 is the Head Constable who carried the FIR to the Magistrate. PW-16 is the Assistant Engineer who drawn the sketch Ex. P-8. PW-17 is the PSI who registered the crime and PW-18 is the Investigating Officer. Scrutiny of the aforesaid materials placed on record does not reveal any such strong circumstance so as to form a chain to affirm conviction of the appellant for the offence punishable under Section 302 and 201 of IPC.

In the absence of any such evidence, the conviction and sentence ordered by the Court below cannot be sustained. In the result, we pass the following:

"ORDER

The appeal is allowed. The judgment and order of conviction of the appellant for the offences punishable under Sections 302 and 201 of IPC and the sentence thereon are set aside. The appellant is acquitted of the aforesaid charges. The appellant shall be set at liberty forthwith."