The State of Karnataka vs Ajjaiah

Mohan M. Shantana Goudar, J.—1. The judgment and order of acquittal dated 13.2.2012 passed by the Addl. Sessions Judge (Fast Track Court) Chitradurga, in Sessions Case No. 108/2011, is called in question in this appeal by the State.

Case of the prosecution in brief is that on 8.4.2011, P.W.1 (husband of deceased Gowramma) left the house in the morning along with his son for work; another son of deceased and P.W.1 also was not there in the house; in the afternoon of 8.4.2011 at about 1.30 p.m. when deceased Gowramma was alone in the house situated at Medehalli village, Chitradurga Taluk she was murdered by the accused and thereafter he robbed the gold mangalya chain and ear studs of the deceased worth Rs. 80,000/- in toto; at the time of murder, accused had gagged the mouth of the deceased with mosquito net; tied both the hands with the same net and thereafter, strangulated her neck, consequent upon which, deceased died.

The husband of the deceased (P.W.1) came back to the house at about 2.30 p.m.; at that point of time, the front door of the house was open; he entered the house and saw the dead body of the deceased and thereafter, he lodged the complaint as per Ex. P1 before Chitradurga Rural police station at 5.00 p.m. on the very day, which came to be registered in Crime No. 164/2011 for the offence punishable under Section 302 of IPC. After completion of investigation, charge sheet came to be lodged against the accused for the offences punishable under Sections 392 and 302 of IPC.

In order to prove its case, the prosecution in all examined 14 witnesses, got marked 12 exhibits and 10 material objects. On behalf of the defence one exhibit was marked as Ex. D1. As mentioned supra, the trial Court on evaluation of the material on record, acquitted the accused by concluding that the prosecution has not proved its case beyond reasonable doubt.

Sri. Vijaya Kumar Majage, learned Addl. SPP taking us through the material on record submits that the trial Court has erred in disbelieving the version of P.W.7 relating to recovery of gold ornaments at the instance of the accused from his hotel; P.W.2 has deposed that he saw the accused sitting in front of the temple which is situated just opposite to the house of the deceased; according to P.W.2, accused was sitting in the said temple from 11.00 a.m. itself; P.W.3 has seen the accused going away from the scene of offence at Tamatgal road. All these circumstances would conclusively prove that the accused has committed the murder for gain.

Per-contra, both the learned Amicus Curiaes argued in support of the judgment of the Court below.

The complaint came to be lodged by P.W.1, husband of the deceased. In the complaint it is mentioned that some unknown person has murdered his wife and has robbed the mangalya chain measuring about 40 gms and one pair of ear studs; a portion of mangalya chain had fallen on the spot; however the glass bangles worn by deceased were intact; the gold ornaments kept in the cupboard also were intact. It is also mentioned in the complaint that the house of the deceased and P.W.1 is situated just about 100 ft. away from Sri Anjaneya Eshwara Temple and the people would be visiting the said temple.

The averments made in Ex. P1 are supported by P.W.1 before the Court in his deposition. He has reiterated the very averments as are found in Ex. P1. However, he has admitted that some other person had written the complaint and that he had not written the complaint. Be that as it may. His evidence may not be of much help for the prosecution to implicate the accused.

P.W.2 has deposed that he knew the accused and he has seen the accused sitting on the katta of the temple from 11.00 a.m. on the date of the incident. However, in the cross-examination P.W.2 admits that he had not talked with the accused and he had not enquired with the accused as to why he is sitting in the temple for a long time, more importantly, he has admitted in the cross-examination that he has not stated about accused sitting on the katta of the temple, since 11.00 a.m. on the date of the incident, before the police. Thus, the version of P.W.2 as found in the examination-in-chief is a clear case of omission. Since it is a major omission, same may amount to contradiction. The admission of P.W.2 in the cross-examination clearly reveals that he has deposed about the accused sitting on the katta of the temple for the first time before the Court. He has also admitted that the road passing through in front of the house of the deceased is a wide road and number of vehicles and people will pass through the said road in as much as, the said road is a busy road. Since the version of P.W.2 is given for the first time before the Court and as he has not stated so before the police, serious doubt arises in the mind of the Court about the veracity of his evidence.

The evidence of P.W.3 reveals that he saw the accused on that day while the accused was going on Tamatgal road and he was having a smiling face at that point of time. There is nothing on record to show as to what is the distance between the place of incident and the place wherein Tamatgal road is situated. In the absence of such vital information, the evidence of P.W.3 may not be of any use. In order to implicate the accused, it would be necessary for the prosecution to prove that the accused was seen near the scene of offence during the relevant point of time. But there is nothing on record to show that the accused was seen near the scene of offence, in as much as, P.W.3 had seen the accused going on Tamatgal road that too with a smiling face. As mentioned supra, there is nothing on record to show as to what is the distance between the place of incident and the place in which the accused was proceeding.

The evidence of P.Ws.4, 5 and 6 may not be of much use, in as much as, they are the witnesses for either scene of offence panchanama or inquest panchanama. The scene of incident is not in dispute.

The evidence of P.Ws.8, 9, 10, 11, 12 and 13 also may not be of much use, in as much as, none of their versions lead to implicate the accused.

P.W.8 is a Panchayat Officer who has given the khata extract of the house of the deceased. P.Ws.9, 10, 11 and 12 are the police constables and P.W.13 is the Police Sub-Inspector who participated in the course of investigation at different levels. As mentioned, P.W.14 is the Investigation Officer in the case.

The prosecution mainly relies upon the evidence of P.W.7 who is the witness for recovery of gold ornaments. P.W.7 in his examination-in-chief has deposed that the accused admitted in the police station that he had committed the murder of the deceased and that he had hidden certain gold ornaments belonging to the deceased in his hotel and accordingly, he lead the police and panchas to his hotel. P.W.7 being the mahazar witness for Ex. P5(recovery panchanama) went on the motorcycle. In the examination-in-chief itself it is deposed by P.W.7 that when they reached the hotel of the accused, number of persons had gathered there apart from police officials; police did not allow the mahazar witness P.W.7 to enter inside the hotel and consequently, P.W.7 stayed outside the hotel. The police had possessed a piece of gold and a cover in their custody and they showed the said piece of gold to P.W.7 only after they came outside the hotel. Even if the examination-in-chief as stated by P.W.7 is believed in toto, then also, no case has been made out by the prosecution with regard to recovery of gold chain. It is admitted by P.W.7 in examination-in-chief that he did not enter the hotel and did not witness the proceeding relating to seizure or recovery of gold ornaments at the instance of the accused. On the contrary P.W.7 has deposed that he was made to stand outside the hotel and police after coming outside the hotel showed a piece of gold ornament and a cover. Thus, it is clear that the evidence of P.W.7 cannot be relied upon for the purpose of proving the recovery of gold ornaments at the instance of the accused.

In the cross-examination P.W.7 has admitted that he does not know who recorded Ex. P5 recovery panchanama and the police did not weigh the gold ornaments on the spot. The version of P.W.7 as deposed by him before the Court runs totally contrary to the recovery panchanama Ex. P5. In the panchanama it is stated that the police, panchas and the accused went in a police jeep to the hotel whereas, in the deposition P.W.7 has deposed that he went on a motorcycle. Further, Ex. P5 reveals as if P.W.7 has also entered inside the hotel and he also witnessed the aspect of recovery of gold ornaments from the accused. In addition, the panchanama reveals that the gold ornaments were weighted on the spot itself and the same measured 38.600 gms worth Rs. 75,000/-. If Ex. P5 is read in isolation, the same depicts as if P.W.7 is a witness for the aspect of recovery, on the other hand, the evidence of P.W.7 as tendered by him before the Court below is read, the same discloses that he is not the witness for recovery panchanama and that his signature is taken subsequently on the panchanama.

The evidence of P.W.14-the Investigation Officer runs fully contrary to the evidence of P.W.7. P.W.14 has deposed that the accused lead the police and panchas to the hotel and all of them went inside the hotel wherein the police recovered the gold mangalya chain in the presence of the panchas at the behest of the accused and the same was written in the panchanama Ex. P5. Thus it is clear that the evidence on record, more particularly, the evidence of P.W.14 (Investigating Officer) and P.W.7 (mahazar for recovery panchanama) runs totally contradictory to each other, so also, both their version run contrary to the panchanama Ex. P5. In view of the same, in our considered opinion, the trial Court is justified in disbelieving the aspect of recovery also.

From the aforementioned discussion, it is amply clear that the main circumstance of recovery of gold ornament is not proved by the prosecution beyond reasonable doubt. The only mahazar witness P.W.7 has deposed that he had not entered the hotel and he was forced to stay outside the hotel by the police and therefore, he cannot be called as a witness for recovery of gold ornaments at the instance of the accused. We have already clarified that the evidence of P.W.2 who has deposed about the presence of the accused on the katta of the temple during the relevant point of time also cannot be believed, in as much as, such version of P.W.2 has come on record for the first time before the Court. He has not stated so before the police during the course of investigation. Hence, it is a material omission which is brought on record by the defence. In view of the above, in our considered opinion, the trial Court is justified in acquitting the accused. Even reconsidering the material on record, we do not find any ground to disagree with the conclusions arrived at by the trial Court. The view taken by the trial Court is the only view possible under the facts and circumstances of the case.

Accordingly, appeal fails and the same stands dismissed.

We place on record the valuable assistance rendered by both the learned Amicus Curiaes. Registry is directed to pay a sum of Rs. 10,000/- each, as honorarium, to the learned Amicus Curiaes.