Vimala vs The State of Karnataka

N. Ananda, J.—The wife of deceased-Madhi Alagan namely Vimala has filed this appeal against the judgment of acquittal of accused (respondent Nos. 2 and 3) for offences punishable under Sections 364, 302, 201 IPC.

We have heard learned Government Pleader for respondent No. 1 and learned counsel for respondent Nos. 2 and 3. The learned counsel for appellant is absent.

The case of prosecution in brief is as follows:-

P.W. 1-Vimala is the wife of deceased-Madhi Alagan. During the year 2009 and three years prior to 2009, deceased was working as instructor in Gymnasium (Megaflex Aerobics Gym Centre) at Vignananagar. The wife of accused No. 1 namely Savithri Bhai used to attend Gymnasium. The deceased had developed intimacy with Savithri Bhai. Therefore, accused No. 1 bore grudge against deceased. On 19.02.2009 at 1.00 p.m.., accused No. 1 forcibly took deceased to his house cm his motorcycle and strangled him to death. Thereafter, accused No. 2 joined accused No. 1 and both of them packed dead body into a plastic gunny bag and transported dead body in a car belonging to C.W. 10-Rajesh to Shiradi Ghat between Sakaleshpura and Mangalore and threw dead body into gorge to cause disappearance of evidence. Thereby, accused committed offences punishable under Sections 364, 302, 201 r/w Section 34 of IPC.

The case of prosecution rests upon circumstantial evidence. The circumstances being:

i) Motive.

ii) Deceased was last seen alive in the company of accused No. 1 on 19.02.2009 at 1.00 p.m. near ''Megaflex Aerobics Gym Centre'' at Vignananagar.

iii) Accused No. 1 had taken deceased to his house and strangled him to death.

iv) The dead body of deceased-Madhi Alagan in a decomposed state was recovered on information volunteered by accused Nos. 1 and 2 from gorge near Shiradi Ghat between Sakaleshpura and Mangalore

v) Recovery of incriminating articles on the information volunteered by accused.

The prosecution has relied on the evidence of P.W. 1 to P.W. 24 and documents marked as Exs. P1 to P31 and material objects marked as MO-1 to MO-17.

The evidence of wife of deceased namely P.W. 1-Vimala would reveal that wife of accused No. 1 namely Savithri Bhai was coming to Gymnasium where the deceased was working as an instructor. P.W. 24-Subhash has deposed that he was attending Gym (Megaflex Aerobics Gym Centre), where the deceased was working as gym instructor. The wife of accused No. 1 namely Savithri Bhai was also coming to Gymnasium. Deceased Madhi Alagan had an affair with Savithri Bhai. There was quarrel between accused No. 1 and deceased in relation to affair of deceased with Savithri Bhai. Deceased had told P.W. 24 that accused No. 1 had quarreled with him twice in relation to affair of deceased and Savithri Bhai. P.W. 24 had advised deceased to stop his affair with Savithri Bhai.

During cross-examination by learned counsel for accused, he has denied the suggestion that there was no affair between deceased and Savithri Bhai and that P.W. 24 had not advised deceased.

At this juncture, it is relevant to refer to the evidence of P.W. 2-Lokesh G., P.W. 2 has deposed that on 19.02.2009 at 1.00 p.m., deceased and accused No. 1 left Gymnasium centre on the motorcycle of deceased. P.W. 2 asked deceased as to where he was going, deceased told him that accused No. 1 had some problem in the family. Therefore, he is going with accused No. 1.

P.W. 4-John has deposed that on 19.02.2009 at about 12.30 p.m. to 1.00 p.m. (afternoon), when he was near a bakery which is opposite to Gymnasium centre, accused No. 1 and deceased left Gymnasium on the motorcycle of deceased. The deceased while going with accused No. 1 did not talk to P.W. 4. After one hour, P.W. 4 contacted deceased-Madhi Alagan over his mobile phone. But mobile phone of deceased was not reachable.

P.W. 3-Kunjaman has not supported the case of prosecution. P.W. 3 has deposed that on 19.02.2009 at 1.00 p.m., when he was in his fish stall, accused No. 1 took deceased on a Pulsar motorcycle. P.W. 3 has not identified accused No. 1 before the Court.

It is the case of prosecution that deceased had an affair with wife of accused No. 1. Therefore, accused No. 1 bore grudge against deceased. The accused No. 1 had quarreled with deceased on two occasions. In the circumstances, it looks improbable that deceased had accompanied accused No. 1 to solve family problem of accused No. 1. The evidence on record does not disclose that deceased was a close friend or a relative of accused No. 1 to go to the house of accused No. 1 to solve his family problem. Therefore, there is no satisfactory evidence in proof of motive.

P.W. 2-Lokesh G., P.W. 3-Kunjaman and P.W. 4-John have been examined to prove the circumstance that the deceased was last seen alive in the company of accused No. 1. P.W. 2-Lokesh G. has deposed that deceased left Gymnasium centre at about 1.00 p.m. The deceased was proceeding on a motorcycle with accused No. 1. P.W. 2 asked deceased as to where he was going, deceased told P.W. 2 that accused No. 1 had some problem, therefore he is going with accused No. 1. After half an hour, friend of P.W. 2 namely Subhash Shetty received phone call from deceased stating that deceased had some problem with accused No. 1 and his wife. The said Subhash Shetty who is alleged to have received phone call of deceased was not examined before the Trial Court. As already stated there was no cordial relationship between accused No. 1 and deceased. They had quarreled twice. The grievance of accused No. 1 was that deceased had an affair with his wife. In the circumstances, it looks improbable that accused had taken the deceased to solve problem between himself and his wife. The evidence on record does not reveal that deceased was a close friend or a relative of accused No. 1 to solve problem between accused No. 1 and his wife, which according to the prosecution was due to an affair between deceased and wife of accused No. 1. In our opinion, the same reasons would hold good to discredit evidence of P.W. 3 and P.W. 4 that deceased was last seen alive in the company of accused No. 1 at 1.00 p.m. on 19.02.2009.

We also see from the evidence that dead body of the deceased was recovered in gorge near Shiradi Ghat between Sakaleshpura and Mangalore on 13.03.2009, after a period of 3 weeks from the date of incident. At this juncture, it is relevant to state that there was time gap of three weeks between the date on which deceased was allegedly seen in the company of accused No. 1 and date on which his dead body was recovered. It is also relevant to state that as per the evidence of prosecution witnesses (P.W. 2 to P.W. 4), deceased was going with accused No. 1 on the motorcycle of deceased in K.G. Halli Main Road, Bangalore. The distance between the place where deceased had accompanied accused No. 1 and place where dead body of deceased was recovered is more than 250 kilometers. The circumstance of deceased being last seen alive in the company of accused No. 1 should be in close proximity to death. There was inordinate time gap between last seen circumstance deposed by witnesses and knowledge of witnesses about death of deceased. In the circumstances, prosecution was required to rule out possibility that deceased was not seen subsequently with anyone else after he was last seen with accused No. 1. Therefore, circumstance of deceased being last seen alive in the company of accused No. 1 is not proved. The evidence adduced by the prosecution to prove this circumstance is not free from reasonable doubt. The time gap between date on which deceased being last seen alive and the date on which dead body was recovered was about three weeks. The prosecution has not ruled out that deceased was not subsequently seen with anyone else after he was last seen with accused No. 1.

It is the case of prosecution that accused Nos. 1 and 2 were arrested from Kaggadasapura Main Road, Bangalore City, at 11.00 p.m. on 12.03.2009. They volunteered information. On the following day viz. 13.03.2009 accused Nos. 1 and 2 led Investigating Officer and witness to a gorge near Shiradi Ghat between Sakaleshpura and Mangalore and showed the dead body which was in decomposed state. At this juncture, it is relevant to state that distance between HAL Police Station and the place of recovery is more than 250 kilometers. The prosecution has examined P.W. 5-K. Shekar who is the co-brother of deceased. The wife of deceased namely Vimala (P.W. 1) is the sister of wife of P.W. 5. P.W. 5 has deposed that on 12.03.2009, he was called by HAL Police. Therefore, he visited HAL Police Station on 12.03.2009. The police told P.W. 5 that Madhi Alagan is killed and dead body is traced near Sakaleshpura. P.W. 5, his son and one Santhosh accompanied police to Sakaleshpura and reached Sakaleshpura Police Station at 9.00 a.m. on 13.03.2009. Accused Nos. 1 and 2 were present in Sakaleshpura Police Station. Accused Nos. 1 and 2 led Investigating Officer and witnesses to place where dead body was thrown. He identified dead body by seeing ''T'' shirt and other articles. As per the evidence of Investigating Officer, accused were arrested at 11.00 p.m. on 12.03.2009 near Kaggadasapura Main Road within the jurisdiction of HAL Police Station. Accused volunteered information. Therefore, he had taken the accused from Bangalore to Sakaleshpura on the following day viz., 13.03.2009. Thereafter, accused Nos. 1 and 2 led Investigating Officer and witnesses to the place where dead body was thrown. The circumstance of recovery of dead body on the information volunteered by accused Nos. 1 and 2 at about 9.00 a.m. on 13.03.2009 from Ghat near Shiradi Ghat between Sakaleshpura and Mangalore is falsified from the evidence of P.W. 5 who has deposed that on 12.03.2009, he had visited HAL Police Station and police had told him that his co-brother Madhialagan was killed and his dead body was traced near Sakaleshpura. The evidence of P.W. 5 is explicit that police has traced dead body near Sakaleshpura on 12.03.2009. Therefore, evidence adduced by the prosecution that dead body was traced on the information volunteered by accused Nos. 1 and 2 on 13.03.2009 cannot be accepted.

The Investigation Officer has deposed that after accused Nos. 1 and 2 arrested, accused No. 1 took Investigating Officer to his house, they found broken pieces of window panes and blood stains. At this juncture, it is relevant to state that accused No. 1 allegedly committed murder of deceased in his house on 19.02.2009. Accused No. 1 was arrested on 12.03.2009. He had plenty of time to remove blood stains even if blood stains had fallen on the floor of his house. It is difficult to accept that accused had preserved broken glass pieces to provide incriminating evidence to Investigating Officer at the time of spot inspection.

The FSL report and Serology report do not reveal that there were blood stains on incriminating articles. Therefore, evidence adduced by the prosecution to prove circumstance is not conclusive tendency. In our considered opinion, prosecution has not adduced cogent and consistent evidence to prove above circumstances.

The circumstances put forth by the prosecution are not of conclusive tendency. The prosecution has failed to prove that accused Nos. 1 and 2 had transported dead body in Maruthi Van bearing registration No. KA.03-MJ-7816 which belonged to C.W. 10-Rajesh. C.W. 10-Rajesh is dead. Therefore, he was not available for examination before the trial Court. The prosecution should have examined relatives of C.W. 10 to prove whether car, which belonged to C.W. 10 had been misused by accused to transport dead body from Bangalore to Sakaleshpura. Therefore, we find that there are vital missing links in the chain of circumstances put forth by prosecution. The learned Sessions Judge on proper appreciation of evidence has acquitted accused. There are no reasons to interfere with impugned judgment.

The appeal is dismissed.