Thipperudra and Others vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned Additional State Public Prosecutor.

The appellants were accused 1 and 2 along with one other who was arrayed as accused No. 3.

The case of the prosecution before the Court below was that the complainant Prahallad had three brothers and five sisters. All of them were residing separately. However, PW-1 Prahallad and Ram Murthy, his younger brother were living jointly. The complainant''s elder brother one Nmgaraja was said to be a close friend of accused No. 1 and infact they were assisting each other in their agricultural operations of their respective lands and it transpires that Ningaraja would visit the house of accused No. 1, often.

PW-1 who was residing in the neighbouring house of his brother Ningaraja, heard that on 23.10.2008 at about 8 p.m., one Thipperudra-accused No. 1 had come to the house of Ningaraja and called him to go to their lands to water the crops. They were seen talking to each other near the shop of PW-2 Boraiah. He had thus seen them together at about 8 p.m. on that day and at 2.15 a.m. on 24.10.2008 when he was asleep, one Jogi Boaraiah, whose statement was recorded as CW-16, had come there and had informed him that accused 1 and 2 had committed the murder of his elder brother right in front of their house. And that he had heard commotion, while he was easing himself outside his house, and therefore, he had seen his brother being murdered.

Immediately, the complainant is said to have rushed to the house of accused No. 1 and found the dead body of his brother Lingaraj and he had noticed that he had suffered serious injuries on his neck, apparently caused by a sharp weapon. He, then looked for accused No. 1 and 2, but could not find them. It was his belief that accused No. 1 on suspicion of his brother having an affair with accused No. 2 and on hearing rumours of his brother having such a relationship, from the other villagers had possibly taken the extreme step of murdering his brother and he is also said to have heard that accused No. 3 who was a school teacher had actively participated along with accused 1 and 2 in committing the murder. It is on these premises and in the above circumstances, that a complaint was lodged before the Gudekote Police Station at about 11.45 p.m. on 24.10.2008. On the basis of the complaint, a case was registered in Cr. No. 93/2008 and the first information report was dispatched to the jurisdictional Magistrate at Kudligi and on further investigation, an inquest mahazar was drawn up in the presence of witnesses. Thereafter, a spot mahazar having been conducted, material objects and other materials were seized. Accused 1 to 3 were taken to custody and on enquiry, it transpires that accused 1 and 2 had made voluntary statements as per Ex. P.12 and Ex. P.13 and on the basis of those statements, accused No. 1 was taken to his house and at his instance a sickle and a knife were said to have been found hidden amongst the fire-wood by the side of his house which accused No. 1 handed over to the police. They were seized under a mahazar Ex. P.4 and clothes of accused 1 and 2 were also seized, as well as, the clothes of the deceased were brought after the Post Mortem and statements of several witnesses were recorded and consequently, a charge-sheet was filed before the Magistrate who took cognizance of the offences and registered a case in C.C. No. 80/2009. The case was then committed to the Court of District and Sessions Judge, Bellary. The case was registered as S.C. No. 32/2009 and then made over to the Fast Track Court, for disposal. The Court below, had framed the charges against the accused for the offences punishable under Sections 302, 114 read with Section 34 of the Indian Penal Code, 1860, (hereinafter referred to as ''the IPC for brevity). The accused had pleaded not guilty and claimed to be tried. The prosecution had then examined 14 witnesses and marked several exhibits and material objects. After recording of the statement of the accused under Section 313 of the the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C, for brevity) and on their denial of the incriminating evidence appearing against them is false, the Court below after having heard arguments for the parties had framed the following points for consideration:

"i) Whether the prosecution proves that the deceased Ningaraja met with homicidal death on 24.10.2008 at about 2.00 a.m., in front of dwelling house of accused No. 1 at Gaddada Boraiahna Hatti?

ii) Whether the prosecution further proves beyond reasonable doubt that on the afore said date, time and place accused No. 1 and 2 in furtherance of their common intention did commit murder of Ningaraja, thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code?

iii) Whether the prosecution further proves that the accused No. 3 on the aforesaid time and place in the early morning assisted accused No. 1 and 2 to escape from the scene of offence after commission of murder of Ningaraja on his motor cycle thereby committed an offence punishable under Section 114 read with Section 34, 302 of Indian Penal Code?

iv) What order?"

The Court below held point numbers 1 and 2 in the affirmative and point number 3 in the negative and convicted accused 1 and 2 and sentenced them to suffer imprisonment for life and also to pay a fine of Rs. 5,000/- each. In default, to suffer rigorous imprisonment for six months for the offence punishable under Section 302 read with Section 34 of the IPC and the period of detention spent by the accused was given set off Accused No. 3 was, however, acquitted for the offence punishable under Section 114 of the IPC. It is the conviction and sentence imposed against accused 1 and 2 which is under challenge in the present appeal. The State has not chosen to challenge the acquittal of accused No. 3.

The learned counsel for the appellants, while taking this Court through the record, would contend that the entire case of the prosecution is based on circumstantial evidence. Though there was one witness who was claimed to be a direct witness to the incident, namely, Jogi Boraiah, whose statement was recorded as CW-16, had not been examined as a witness for he died during the pendency of the trial and therefore, the entire case of the prosecution is based on circumstantial evidence. In that, firstly, a motive is alleged, namely, that there were rumours in the village, of the deceased having an affair with the wife of accused No. 1 and therefore, in order to prevent any further relationship, along with accused 2 and 3, had murdered the brother of the complainant and that this had been witnessed by CW-16 who saw accused 1 and 2 murdering his brother in front of their house at about 2 a.m. and CW-16 had immediately rushed to the house of the complainant to inform him about the same and it is further stated by PW-1 that he had gone there to see his brother who was lying dead in front of the house of the accused and when he could not trace accused 1 and 2, it transpires that he had immediately gone to the police station to inform the police. The police are said to have arrived at the scene at 6 a.m. but inexplicably, the complaint was registered only at 11.45 a.m. This delay in lodging the complaint is left unexplained.

In any event, it is, therefore, that the accused have been arrested and on the basis of their voluntary statements, certain weapons are said to have been recovered from the house of accused No. 1 and it is on that basis that the entire case of the prosecution is sought to be made out in further alleging that the blood stains found on the clothes of accused No. 2 and murder weapons that were marked as M.Os.7 and 8, were found to be belonging to the blood group ''O''. It is pointed out that though the blood stains found on the clothes as well as the alleged murder weapons was certified as being the blood group ''O'', there is no connection with the alleged murder having been committed with the said weapons. In that, the particulars of the blood group of the deceased which was significantly missing and therefore to claim that the blood stains on the clothes, as well as, the weapons would clinch the case of the prosecution that the said murder had been committed with the said weapons and during the course of the commission of the offence, blood had also split on their clothes and this would establish the commission of the offence, is not at all tenable and cannot stand the scrutiny of the Court.

However, the learned counsel would submit that the trial Court has readily accepted the said evidence as establishing the charges beyond all reasonable doubt. The learned counsel would however submit that when the entire case is based on disjointed circumstantial evidence, it was very essential that the motive alleged against the accused be established with cogent evidence. Except for the statement of the complainant, that there were rumours in the village of his brother having an affair with the wife of accused No. 1, namely accused No. 2. There is no other independent evidence to establish that there was any such illicit affair.

It is further pointed out that one eye witness who claims to have seen accused 1 and 3 moving on a motorcycle at 4.30 a.m. immediately after the alleged murder along with another woman, who is not identified, there is no indication that on account of the illicit affair between accused No. 2 and the deceased, the murder had been committed. It is also unclear as to how accused No. 2 has joined accused No. 1 in murdering the deceased, if, she was indeed having an affair with the deceased.

The learned counsel would contend that it is also inexplicable that accused 1 and 2 were together, in spite of accused No. 1 having found that accused No. 2 might have been having an affair with the deceased. The behaviour and conduct of the husband who is said to have been cheated by his wife to be amiably moving with her and also she having joined him in committing the murder of the deceased, are circumstances which are not readily explained. However, the trial Court having accepted the theory that there was a motive for the accused to have committed the murder and also having held that the charges against the accused had been established beyond all reasonable doubt, is not based on cogent and acceptable evidence and therefore, has lead to a miscarriage of justice.

The learned counsel would then draw attention to the evidence of other witnesses who are formal witnesses in seeking to substantiate the progress in the investigation and the gathering of material by the police in order to lay charges against the accused. The evidence of those witnesses is hardly material in the prosecution being able to demonstrate that it was indeed accused 1 to 3 who had committed the murder of the deceased and therefore, he would emphasize that in the absence of a motive having been established with reference to independent witness, apart from the say of the complainant, it could not be said that the accused had a motive to commit the murder of the deceased.

Secondly, it is emphasized that in claiming that the circumstantial evidence was sufficient to bring home the charges, should also be acceptable and there should be no missing links in the chain of events, that is sought to be established by recourse to circumstantial evidence. It is further pointed out that in the present case on hand, there are no chain of events which are sought to be established except the say of PW-1, the complainant. There are no other witnesses who could speak about the relationship and the motive in the accused allegedly having committed the murder of the deceased. The last seen theory sought to be propounded with reference to the evidence of Boraiah, the shop-keeper and Kannappa-PW-9 who is said to have seen accused 1 and 3 along with a woman riding on a motorcycle at 4.30 a.m. on the fateful morning immediately after the murder, the evidence of these witnesses cannot be said to recreate a chain of events with no missing links, to establish that the commission of murder was a concerted act of the accused.

It is further pointed out that, insofar as, the discovery of the alleged murder weapons on the basis of voluntary statements would have to fall to the ground, for the reason that voluntary statement cannot be used against the accused and the alleged discovery made on the basis of the statements of the accused, was not in compliance with Section 27 of the Evidence Act, 1872, and therefore, the reliance sought to be placed on the discovery of the alleged murder weapons at the instance of accused No. 1, cannot also be sustained. PW-9, incidentally does not identify accused No. 2 as being seen along with accused 1 and 3 at 4.30 a.m. on 24.10.2008 and if, she was indeed going along with accused 1 and 3, it is hardly the conduct expected of a jilted husband going along with the wife who had cheated him and immediately, after commission of a murder of her illicit lover and this again is a circumstance which is perplexing and could not support the case of the prosecution, at all. In this vein, the learned counsel for the appellants would seek to demonstrate that the prosecution had certainly not established its case beyond all reasonable doubt.

The learned Additional State Public Prosecutor, on the other hand, seeks to justify the judgment of the Court below. It is pointed out that there was a homicidal death is not in doubt. As, this has been established from the material on record. Insofar accused 1 and 2 along with accused No. 3 having committed the murder of the deceased is concerned, there was a direct eye witness in CW-16, unfortunately, he had died during the course of the trial, but, however it was on his information given to the complainant, that he had immediately proceeded to the house of the accused and had seen the dead body of his brother lying in front of their house and thereafter, he had lodged a complaint against the accused, specifically, indicating that the motive for the murder was the illicit affair his brother may have had with the wife of accused No. 1, namely accused No. 2, and the fact that accused No. 1 was last seen along with the deceased by atleast two witnesses, namely, PWs-1 and 2 is certainly significant and the fact that he had also stated that accused No. 1 had specifically called upon his brother, the deceased to join him for watering the crops and thereafter, he having received information at 2 a.m. of the murder of his brother, would clearly point to the involvement of accused No. 1 in the commission of the murder.

The further information that he had received of the presence of accused 2 and 3, at the time of commission of murder, is not to be disbelieved as there was indeed a murder and there were no other persons involved apart from the accused in the affairs of his brother and this lead to the unerring conclusion that the murder had been committed on account of the above motive.

The contention that the circumstantial evidence should be of such a nature that there are no missing links in the chain of events and the evidence should indeed relate the continuous sequence of events to establish the role of the accused in the commission of the act, is a tall order in all circumstances and situations and therefore, the case of the prosecution as sought to be made out is the best possible version that could be established with the available material evidence which cannot be brushed aside when the homicidal death of the deceased is not in dispute.

Hence, he would contend that the prosecution has established a case in accordance with law in having examined the several witnesses in support of the procedural compliance and the factual particulars and therefore, the trial Court having found that the charges were established beyond all reasonable doubt cannot be faulted and seeks dismissal of the appeal.

Insofar as, the acquittal of accused No. 3, the State not having chosen to file any appeal was for the reason that there were no direct allegations against accused No. 3 except the statement of CW-16 who was not examined as a witness on account of his death during the pendency of the trial. Therefore, the State, found it to be an exercise in futility in filing any such appeal against the acquittal of accused No. 3. This ought not to be construed as being a failure on the part of the prosecution in establishing its case beyond all reasonable doubt and it is in this vein, that the learned Additional State Public Prosecutor seeks to justify the judgment of the Court below.

Having given our anxious consideration to the material on record and the rival contentions, the significant requirement in a case which rests entirely on circumstantial evidence, would be the motive attributed. Except the say of the complainant that there were rumours in the village of his brother having an affair with accused No. 2, the wife of accused No. 1, there is no other material placed on record, nor is there any evidence of other independent witnesses who could speak to any such illicit affair between deceased and accused No. 2. If, indeed, there was an affair between accused No. 2 and the deceased and it had enraged accused No. 1 to such an extent that he had committed the murder of the deceased, it is inexplicable that accused No. 2 had joined him in committing the murder. According to CW-16, who is said to be a direct witness but was not examined as a witness, because he had died during the course of the trial, this is an inexplicable circumstance. Further, the role of accused No. 3 is also not clearly explained. If the motive, as projected, was the cause for the murder, the role of accused No. 3, then becomes difficult to be understood for there is no such animosity or other relationship established between accused No. 3 and the deceased. Therefore, the manner in which the prosecution has sought to attribute the motive and the relationship of the parties and their conduct, is not in consonance with the motive sought to be attributed. When there is a failure on the part of the prosecution to establish the very motive, it becomes further more difficult for the prosecution to sustain its case on the basis of the circumstantial evidence.

It is again a settled principle of law that when the prosecution case rests on entirely circumstantial evidence, it is required of the prosecution to produce such circumstantial evidence which could be acceptable and which, if, read together would recreate the sequence of events leading to the commission of the offence with unerring detail and without any missing links. In the present case on hand, when the evidence of the witnesses is examined, the prosecution seeks to project the last seen theory in connecting accused No. 1 in the commission of the murder of the deceased. There is no evidence forthcoming of the manner in which the murder was conducted, except vague details as said to have been furnished by CW-16. Therefore, in the absence of the evidence of CW-16 at the trial, the information on which the complainant has proceeded, can at best be, termed as hear-say evidence and not direct evidence.

The other witness examined to demonstrate that accused No. 1 was seen along with the deceased was PW-2, who has merely stated that they came to his shop for beedies and left the place and they were walking away as friends and not as foes. As to when the friends became enemies and when the deceased was attacked and how he was attacked, was not indicated by any witness, other than CW-16, who was not examined at the trial. The other witness who is said to have seen accused 1 and 3 along with the woman on a motor cycle, was after the alleged incident namely at 4.30 a.m.

The counsel for the accused would submit that this is an admitted circumstance in accused No. 1 along with accused 2 and 3 having gone on their motorcycle to the police station to lodge a complaint. They had done so at about 5 a.m., but the police had refused to register the case. This has been stated by the accused themselves while being examined in terms of Section 313 of the Cr.P.C. Hence, the theory that there was an affair between accused No. 2 and the deceased and that it is out of rage that the murder had been committed by accused No. 1, becomes doubtful when accused 1 and 2 have remained together, in spite of, the dastardly act of murder committed on account of the alleged conduct of accused No. 2.

Therefore, it cannot be said that the prosecution had established the motive alleged or the chain of events by recourse to the circumstantial evidence and the material evidence produced or the discovery made on the basis of the voluntary statements of the accused could be accepted. Therefore, the prosecution seeking to contend that there was evidence which established the case of the prosecution beyond all reasonable doubt cannot be accepted.

In the above circumstances, we find that the Court below was in error in having accepted the case of the prosecution and having convicted and imposed the sentence of life imprisonment on accused 1 and 2, apart from a fine of Rs. 5,000/-, each. The judgment of the court below cannot be sustained.

Consequently, the appeal is allowed. The judgment of conviction and sentence dated 31.12.2010 passed by the Fast Track Court-III, Hospet, in S.C. No. 32/2009 is set aside. The accused are acquitted and they shall be set at liberty, forthwith.

The operative portion of this judgment be transmitted to the Jail Authorities for the immediate release of the accused.