William vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction passed by the FTC dated 28.11.2011 passed in S.C. No. 121/11 is subject matter of this appeal.

The appellant herein was accused No. 1 in S.C. No. 121/11. Two accused including the appellant herein were tried for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code before the Court below. By the impugned judgment, the trial Court acquitted accused No. 2 and convicted accused No. 1 for the offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life.

The case of the prosecution in brief is that the deceased Ramya is wife of accused No. 1/appellant herein; the deceased and the accused No. 1 were loving each other and their marriage was performed about 10 years prior to the incident in question; none of the family members of the accused as well as the deceased attended the marriage of the accused No. 1 and the deceased inasmuch as the family members of both accused No. 1 and the deceased were opposed to the marriage; the deceased is a Hindu and accused No. 1 is a Christian by caste; they were living happily for about 5 to 6 years after their marriage and thereafter, the deceased started visiting the house of her parents very often; however, just three months prior to the incident in question, she stopped residing in the matrimonial house along with accused No. 1 and she started living in the house of her mother (PW2); the accused No. 1 used to quarrel with the deceased coming to the house of PW2 in the matter of custody of the child, (born out of the wedlock between accused No. 1 and the deceased); accused No. 1 also started suspecting the fidelity of the deceased and in that regard also he used to quarrel with the deceased.

At about 12.45 p.m. on 12.06.2010, when the deceased came to Shabri Juice Center for drinking juice after finishing her teaching work in the school, both the accused came on a motor cycle; with a common intention to commit murder of the deceased, accused No. 1 took out the knife and stabbed the deceased repeatedly, consequent upon which, the deceased fell down; immediately thereafter, the owner of the Shabri Juice Center (PW9) called the police of Ulsoor Police Station over the phone and informed about the incident, consequent upon which, the police arrived at the spot within five minutes, but by then, the accused had fled away from the scene; the victim was taken to hospital immediately by the police for treatment wherein she was declared dead.

In the meanwhile, a complaint came to be lodged by PW9 as per Ex. P6 at 1.45 p.m. on 12.06.2010 before the Inspector of Police, Ulsoor Police Station (P.W. 12), which came to be registered in Crime No. 249/10 of Ulsoor Police Station; PW25-the Inspector laid the charge sheet after completion of the investigation.

In order to prove its case, the prosecution in all examined 25 witnesses and got marked 28 exhibits and 13 Material Objects. On behalf of the defence, no witness is examined and no document is exhibited. As aforementioned, the trial Court acquitted accused No. 2 and convicted accused No. 1 for the offence punishable under Section 302 of Indian Penal Code.

Sri. P.N. Hegde, learned Advocate appearing on behalf of the appellant taking us through the material on record submits that the trial court is not justified in convicting the accused merely on assumptions and conjectures; none of the eye-witness has supported the case of the prosecution; the evidence of PW5 who has deposed about the last seen circumstance also cannot be believed inasmuch as his version appears to be artificial and he appears to be a chance witness; there was no occasion for PW5 to come near the school of the deceased wherein she was working as a teacher; there is nothing on record to show that the blood sample of the accused was drawn and the same was subjected to test to verify the correctness of the version of the prosecution and in order to match the blood groups; only on the basis of motive, the accused cannot be convicted for the offence punishable under Section 302 of Indian Penal Code. According to him, the presumptions drawn and the conclusions arrived at by the Court below are improper and incorrect. The reasons assigned by the Court below are also improper. The material on record is not evaluated in its proper perspective. On these among other grounds, he prays for acquittal of the accused.

Per contra, Sri. B.T. Venkatesh, learned Additional SPP argued in support of the judgment of the Court below by contending that the evidence of PW9-eye witness fully supports the case of the prosecution; the circumstances such as motive, the accused and the deceased were last seen in a close proximity, recovery of blood stained clothes and knife at the instance of accused No. 1 from his house and the FSL report would clearly prove that it was accused No. 1 who committed the murder. According to him, the trial Court has appreciated the material on record in its proper perspective and has come to a just conclusion.

P.W. 1 is the witness for inquest panchanama-Ex. P1; PWs 2, 3 & 4 are the mother, brother and sister of the deceased respectively; all of them have deposed about the soured relationship between the accused No. 1 and the deceased. PW5 is the maternal uncle of the deceased. He had also deposed about the soured relationship between accused No. 1 and the deceased. He has also deposed about both the accused waiting for the deceased on a motor cycle outside her work place; about the accused following the deceased in their motor bike; about he (PW5) following the accused in an auto rickshaw to certain extent. In effect he has deposed that he has seen both the accused in closed proximity with the deceased just prior to the incident; PW6 is a witness for seizure mahazar-Ex. P2, under which the clothes of the deceased were seized; PW7 is the witness who put his signature on Ex. P3; PW8 is a witness for seizure mahazar-Ex. P4, under which the blood stained clothes worn by the accused, the knife-M.O. 10 used by accused No. 1 and the motor bike used by the accused for following the deceased and running away from the scene were seized; the recovery has taken place at the instance of accused No. 1 at his residence; PW9 is an eye-witness to the incident, he is the first informant. The complaint lodged by him is at Ex. P6, based on which, the crime came to be registered. However, he has failed to identify the accused when accused No. 1 was brought before him in the evening of the same day. He has also failed to identify accused No. 1 during the test identification parade; PWs 10, 11, 16 & 19 though are stated to be the eye-witnesses to the incident in question, they turned hostile. They did not support the case of the prosecution; PWs 12 & 13 are the Sub-Inspectors of Police who participated in the investigation at different levels; P.W. 14 is the owner of the hair cutting saloon. He is examined to prove that accused after committing the crime tonsured his head in the saloon of P.W. 14 in order to conceal his identity. However, he has turned hostile to the case of the prosecution; PWs 15 & 23 are the police constables, they have deposed about the apprehensions of accused 1 and 2 on the very day of the incident at 7.30 p.m.; P.W. 17 is the aunt of the deceased and P.W. 18 is the husband of P.W. 17. They were supposed to depose about the family discord between the accused No. 1 and deceased, but both of them have turned hostile; PW20 is another police constable who handed over the dead body to the relatives of the deceased after post mortem examination; PW21 is a Doctor who has deposed that the deceased was brought dead to the hospital by the police; PW22 is the head constable, he delivered the seized material to the Forensic Science Laboratory for examination; PW24 is an officer of Forensic Science Laboratory. She has deposed about the FSL report Ex. P22; PW25 is the inspector who registered the case based on the complaint lodged by PW9 as per Ex. P6 and sent FIR to the jurisdictional magistrate. He completed the investigation and laid the charge sheet.

According to the case of the prosecution, the incident has taken place at 12.45 p.m. on 12.06.2010 in front of Shabri Juice Center owned by PW9. The complaint came to be lodged by PW9 at 1.45 p.m. before Ulsoor Police Station. The FIR as per Ex. P23 is prepared based on Ex. P6 and the same was sent to JMFC. The FIR reached the Magistrate at 10.45 p.m. on 12.06.2009 with a delay of about 9 hours. Absolutely, no explanation is forthcoming for such long delay in delivering the first information report to the Magistrate.

It is also relevant to note that the evidence of PW9 makes it clear that accused No. 1 was apprehended prior to 6.00 p.m. and was taken in front of PW9 for identification. However, PW9 did not identify accused No. 1. It is specifically deposed by PW9 that the person whom he had seen at the time of the incident was having full hairs, but the person who was brought in front of him by the police at 6.00 p.m. had got short hairs, which could have grown within 10 to 15 days. In effect, PW9 did not identify accused No. 1 within about 5 hours of the incident.

It is also relevant to note that the complaint came to be filed at 1.45 p.m., but the police had already arrived at the spot within 5 minutes of the incident. The incident has taken place at 12.45 p.m. Thus, the police must have come at 12.50 or 12.55 p.m. Immediately thereafter, the police took the victim to the hospital for treatment. At that point of time, no complaint came to be recorded. As aforementioned, it is specified by PW9 that police came to him only at 6.00 p.m. along with one person for identification and thereafter, his complaint came to be recorded as per Ex. P6. Hence, it is clear that the complaint must have come into existence only at 6.00 p.m. The same cannot be treated as First Information Report inasmuch as by that time, the police had arrived at the spot, had made enquires and had taken the victim to the hospital for treatment.

In addition to the same, as is clear from the evidence of P.W. 15-the Police Constable who apprehended the accused that they apprehended the accused only at 7.30 p.m. on that day. Therefore, it is amply clear that the Investigating Officer has not given the correct picture about the investigation before the Court. Even according to the police witnesses (constables), the accused were apprehended between 7.00 to 7.30 p.m. If the evidence of PW9 is to be believed, then the accused must have been brought before PW9 only after 7.30 p.m. and thereafter, the complaint of PW9 must have been recorded.

All the aforementioned facts clearly reveal that the origin and genesis of the case of prosecution has been suppressed by the Investigating Officer. Lot of confusion is created in the mind of the Court by the Investigating Officer as to when exactly the first information came to be lodged and against whom.

The first information Ex. P6 also does not disclose the names of any of the accused specifically. It is vaguely stated in Ex. P6 that two unknown persons came on a motor cycle and stabbed the deceased with a knife and fled away from the scene. Hence, it is clear that even at the time of lodging the first information, be it at 6.00 p.m. or be it at 7.30 p.m. as mentioned supra, it was not clear with the names of any of the accused.

The prosecution has relied upon the following circumstances to bring home the guilt against the accused:--

"A. Motive deposed by PWs-2, 3 and 4;

B. The accused and deceased were seen last in a closed proximity-deposed by PW-5.

C. Recovery of blood-stained clothes of accused and the knife - as deposed by PW-8 (the witness for recovery mahazar -Ex-P4) supported by the evidence of Officer of the Forensic Science Laboratory-PW-24 and the Forensic Science Laboratory report-Ex-P22.

D. Ocular testimony of PW-9 coupled with test identification parade-Ex-P28."

Re-circumstance A:

PWs-2 and 3 have deposed that there used to be frequent quarrel between the deceased and her husband (accused No. 1) on their matrimonial issues; they lived happily for about six years in their matrimonial home, thereafter deceased started coming to the house of her parents; three months prior to the incident in question, the deceased stopped living in her husband''s place and started residing with her mother; even while she was in the house of her mother, the accused No. 1 used to come to her mother''s house and quarrel with her relating to the custody of the child. PW-4 has deposed that accused was suspecting the fidelity of the deceased and in that regard there used to be quarrel between the two. The evidence of these witnesses hence disclose that there was matrimonial discord between the deceased and her husband; they used to quarrel frequently prior to the incident on the question relating to the custody of the child or on the point of fidelity of the deceased. However, we find that such quarrel was not so grave or serious so as to push accused No. 1 to commit murder of his wife. Even assuming that the prosecution was to prove the aspect of motive, the said proved circumstance alone may not be sufficient to conclude against the accused for the following reasons:--

Re-circumstance (B):

According to the case of the prosecution, PW-5 was always suspecting accused No. 1 that he would do away with the life of the deceased since there used to be quarrel between the deceased and accused No. 1. During the course of evidence, it is suggested by the defence to PW-5 that he wanted to marry the deceased all through, but was not successful. However, such suggestion was denied by PW-5. According to PW-5, since he was suspecting that deceased would be done to death by accused No. 1, on the date of the incident, he went to the school, wherein, the deceased was a teacher; at that point of time, both the accused were also there with a motor cycle in front of the gate of the school; the distance between the accused and PW-5 was about 30 ft; after closure of the school, deceased came out of the gate of the school and boarded an autorickshaw; the accused followed the said autorickshaw; PW-5 also took another autorickshaw to in turn follow the accused and the deceased; after following them to certain extent, PW-5 did not proceed further since it was raining. However, subsequently, he came to know that the deceased was murdered by accused. Firstly, we find that PW-5 is a chance witness. There is nothing on record to show that he was watching the accused everyday in front of the school. We are astonished to note as to what made PW-5 to watch the accused and the deceased on that day in front of the school. Even assuming that PW-5 was in front of the school of the deceased incidentally or that he had deliberately come to the school with an intention to guard the interest of the deceased from the hands of accused No. 1, he would not have left proceeding further till the spot of the incident. As aforementioned, PW-5 has proceeded further only to certain extent, but did not proceed further. If PW-5 was of the impression that accused would take away the life of the deceased, he would have atleast called the mother of the deceased over phone or informed the police. He could have warned the deceased herself that the accused was following her. However, according to PW-5, he simply followed the accused who were following the deceased. Even assuming that it was raining, after some time, there was no reason as to why he would change the route, since he was covered under the autorickshaw, he could have proceeded further. All these aspects would clearly reveal that the version of PW-5 is artificial and he is got up witness.

It is also necessary to note that PW-5 knew very well accused No. 1; so also, accused No. 1 was knowing PW-5 fully well. If accused were standing just about 30 ft away from PW-5, they could have talked with each other or otherwise by suspecting the presence of the accused in front of the school, PW-5 could have called the police. However, till next day of the incident, he did not inform the aforementioned aspect of accused following the deceased to anyone. He came to know about the incident immediately thereafter. Despite the same, his statement is recorded on 13.6.2010 by the police. Therefore, we are of the opinion that PW-5 is a got up witness and that the prosecution is not able to prove beyond reasonable doubt the circumstance relating to deceased last seen.

Re-circumstances (C):

The next circumstance relied upon by the prosecution is recovery of blood-stained clothes worn by the accused and the knife used by accused for commission of offence coupled with the report of Forensic Science Laboratory Ex-P22 and the evidence of Forensic Science Laboratory expert-PW-24. PW-8 is the panchanama for recovery of blood stained clothes and knife vide Ex-P4. He has supported the case of the prosecution in all material particulars. His version is fully supported by the version of PW-24 - Officer of Forensic Science Laboratory as well as the Forensic Science Laboratory report Ex-P22. The aforementioned material collected by the Investigating Officer would reveal that the blood-stained clothes of the deceased, blood-stained clothes of accused No. 1 and the knife used by the accused No. 1 for commission of the offence are containing ''O'' group of blood. But there is nothing on record to show as to whether the Investigating Officer has tried to get the blood-group of the accused No. 1 examined at any point of time during the course of investigation.

There is nothing on record to show as to which is the group the blood of the accused No. 1. As has been held by the Apex Court in the case of Prakash Vs. State of Karnataka, , recovery of blood-stained clothes of the accused do not advance the case of the prosecution any further. The reason is that all that the prosecution sought to prove thereby is that the blood group of deceased Ramya was ''O'' and blood stains on the seized clothes of the deceased also belong to blood group ''O''. In our considered opinion, this does not led to any conclusion that the bloodstains on the clothes of the accused were those of Ramya''s blood. In the said judgment, it is observed that they are millions of people who have the ''O'' blood group and it is quite possible that even the blood group of the accused No. 1 is ''O''. In the absence of any material to show as to the exact blood group of the accused No. 1, the defence is justified in relying upon the aforementioned judgment. Since there is no proof with regard to tallying of blood group of accused by comparing his blood, the aspect of recovery also cannot be said to have been proved by the prosecution beyond reasonable doubt.

Re-circumstances-(D):

The next important material collected by the prosecution is the evidence of the eye-witnesses. Except the eye-witness PW-9, all other so-called eye witnesses PW-10, PW-11, PW-16 and PW-19 have turned hostile, inasmuch as, they have not deposed anything against the accused. Though they have deposed that they have seen the incident or that they came to the spot immediately after the incident, they have not deposed about the presence of the accused No. 1 on the spot, so also they have also not deposed about the overt acts of the accused No. 1.

The version of PW-9 may not also be helpful for the case of the prosecution to bring home the guilt of the accused No. 1. He is the first informant. His first information is at Ex-P6. In the complaint, he has stated that two persons came on a motor cycle, stopped in front of his shop; he is the owner of ''Shabari Juice Centre''. At that point of time, the deceased was drinking the juice, among two persons who came on the motor cycle, one came to the front of the shop and stabbed the victim number of times and both the accused fled away from the scene. At that point of time, the victim who had sustained grievous injuries was pronouncing in Tamil language meaning thereby in English "William don''t assault". Immediately thereafter, the police came to the spot and shifted the victim to the hospital. In the very complaint, it is stated that both the accused were having black hairs and that he would identify the assailants, if shown to him.

It is further stated in the complaint Ex-P6 that the person who assaulted the victim was telling that ''Are you cheating your husband?. Based on the complaint Ex-P6, the police have suspected the hand of accused No. 1, who is the husband of the deceased, in the crime. It is no doubt true that the name of accused No. 1 is William. It is also not in dispute that accused No. 1 is the husband of the deceased. However, in the evidence before the Court, PW-9 has deposed in a different manner. His deposition (in examination-in-chief itself) before the Court is to the effect that while the deceased was drinking juice, at about 12.30 p.m. on 12.06.2010, there were eight to nine persons in the juice shop; at that point of time, one person came in front of his shop and took the deceased near a neighbouring shop i.e., shop wherein the travels business was being conducted. After five minutes, said lady came and fell on a table which was kept in front of the shop of PW-8 by pronouncing that she should be saved. Immediately, he informed the police over phone and consequently, police came to the spot within five minutes and shifted the victim to the hospital. It is further deposed by PW-9 in the examination-in-chief that at about 6.00 p.m., the police brought accused No. 1 to his shop and showed him to PW-9. However, the person who was brought by the police was not the assailant at all. It is specified by PW-9 that the assailant who stabbed the deceased was having thick hairs all over his head, whereas the person who was brought before his shop at 6.00 p.m. by the police had short hairs which could have been grown within 10-15 days after shaving the head fully. It is also specified by PW-9 that the victim cried for her saving in Kannada language. Further, PW-9 has admitted in the examination-in-chief that he could not identify the accused even at the time of test identification parade.

It is relevant to note that PW-9 is not treated as a hostile witness and he is not cross-examined by the prosecution. The prosecution has accepted the version of PW-9 as deposed by him before the Court. If entire version of PW-9 is assumed to be correct, nothing can be attributed against accused No. 1 from that evidence. PW-9 has not only identified the accused No. 1 at 6.00 p.m. on the very day of the incident, but also in the test identification parade conducted during investigation. Therefore, it is amply clear that accused No. 1 was not one among two persons who had come in front of the shop of PW-9 and assaulted the deceased. Test identification parade report Ex-P28 also clarifies that two witnesses PW-9 and PW-10 were taken for identifying the accused. But both of them have not identified any of the accused. Hence, the version of the eye-witness-PW-9 is also of no help to the case of the prosecution.

In view of the above, we are of the opinion that the prosecution has not proved its case beyond reasonable doubt. On going through the judgment of the Court below, we find that the trial court has proceeded merely on assumptions. The material on record at least creates suspicion in the mind of the Court as against accused No. 1, but the material is not sufficient to conclude that the prosecution has proved its case beyond reasonable. We find that the trial Court has not assigned proper reasons while coming to the conclusion. So also, we find that the conclusion arrived at is not correct and proper.

On re-appreciating the entire material on record, we are of the opinion that the prosecution has not proved its case beyond reasonable doubt as against accused No. 1 also. Hence, the judgment and award of conviction passed against accused No. 1 is liable to be set-aside.

Accordingly, the following order is made:--

"The appeal is allowed. The judgment and order of conviction convicting appellant/accused No. 1 in S.C. No. 121/2011 passed by the Presiding Officer, Fast Track Sessions Court XVI, Bangalore City dated 28.11.2011 stands set-aside.

The appellant/accused No. 1 is acquitted of the charges leveled against him.

It is needless to observe that the order of acquittal passed by the trial Court acquitting accused No. 2 remains undisturbed, inasmuch as, no appeal is preferred by the State against the said order.

The appellant/accused No. 1 shall be set at liberty forthwith, if not required in any other case.

The operative portion of this order shall be communicated to the concerned prison authorities immediately."