State of Mysore v. Manjegowda — 1973 DIGILAW 392 (MAD)

Santhosh, J.-This is an appeal by the State against the acquittal of the respondent of the charges under sections 447, 302 and 392, Indian Penal Code by the learned Sessions Judge, Hassan, in S.C. No. 2 of 1971. 2. After the trial, the learned Sessions Judge acquitted the respondent (who will be hereinafter referred, to as the accused) of the above mentioned charges, but convicted him of the offence under section 379, Indian Penal Code, and sentenced to suffer 18 months rigorous imprisonment. In this appeal the State has challenged the acquittal of the accused for the above mentioned charges. It may be mentioned that the accused has not filed any appeal against his conviction under section 379, Indian Penal Code. 3. Deceased Garudamma and P.W.19 Janakamma were sisters. Garudamma though married was not living with her husband but had been living with P.W.19 Janakamma for the last 10 or 12 years. P.W.19 Janakamma was a widow and she owned some lands. The deceased was helping P.W.19 Janakamma in the management of the above said lands. The prosecution case is that on the evening of 19th November, 1970 the deceased left the house of P.W.19 Janakamma stating that she would go to P.W.19’s land and bring the cattle. P.W.8 Veeramma, on the evening in question, saw the accused who was a resident of the same village going towards the garden lands of Janakamma. Shortly thereafter she also noticed Garudamma proceeding to her garden. P.W.9 Rama stated that at about 4 p.m. he saw the accused going in the direction of the land of Janakamma with a sickle in his hand and when questioned he told him that he was going to Janakamma’s land to bring fuel. P.W.7 Ranga Iyengar another witness examined by the prosecution stated that on the evening in question at about 5 p.m. he saw the accused coming from the direction of the garden land of Janakamma and his face was pale. As Garudamma did not return home that evening, P.W.19 Janakamma asked P.W.23 Janardhana Iyengar to go to the garden and find out why Garudamma had not returned. P.W.23 Janardhana Iyengar accompanied by some others, took a petromax light and went to the land of P.W.19 Janakamma and found Garudamma lying dead in the said land. She had an injury on the right eye lid and bleeding from the nose. P.W.23 Janardhana Iyengar accompanied by some others, took a petromax light and went to the land of P.W.19 Janakamma and found Garudamma lying dead in the said land. She had an injury on the right eye lid and bleeding from the nose. He immediately returned to the village, went and reported the matter to P.W.2 Patel Nanjegowda at about 8 or 8-30 p.m. P.W.2 then collected Kulavadies and proceeded to the land of Janakamma and found the dead body of Garudamma lying in the said land. He kept Kulavadies to watch the dead body, returned to the villags and sent his report Exhibit P-2 through a Kulavadi to the Hassan Rural Police Station. The same was received by P.W.24 Sub-Inspector of Police, Hassan at about 10 a.m. on 20th November, 1970. He registered the case under section 302, Indian Penal Code, and after submitting first information report to the Court and his superiors went to the scene of occurrence which is about 10 to 12 miles away. He held inquest over the dead body and found that there was only one gold ear ring of seven white stones on the left ear and the other ear ring was missing; there were two gold bangles on the two hands and one nose ring on the left nostril. The other jewels which were on the person of Garudamma were missing. Thereafter P.W.25 Circele Inspector of Police Karayappa came to the scene of occurrence and took over further investigation. He recorded the statement of P.Ws. 2, 3, 4, 14 and 23. On 24th November, 1970 the Inspector examined P.W.7, 8 and 16. On 25th November, 1970 the Inspector secured the accused and arrested him. When he questioned the accused the accused volunteered information as per Exhibit P-15 (a) and P-15 (J) that he had kept the jewels in his house and he will produce the same. The accused rook the Inspector and the panch witnesses to his house and produced a cloth bundle from the thatched roof on the earstern side of the hut. The bundle contained two Mangalyas, 1 earring, sixteen gold beeds and one Lakshmi Casu roped in a thread which was cut, which have been marked as M.Os. 4 to 8 respectively. These articles were all tied in the cloth M.O. 9. The accused also produced M.O. 10 lungi cloth, from which this cloth piece M.O. 9 has been torn. The bundle contained two Mangalyas, 1 earring, sixteen gold beeds and one Lakshmi Casu roped in a thread which was cut, which have been marked as M.Os. 4 to 8 respectively. These articles were all tied in the cloth M.O. 9. The accused also produced M.O. 10 lungi cloth, from which this cloth piece M.O. 9 has been torn. All these were seized by the Inspector as per the Mahazar Exhibit P-6. M.Os. 4 to 8 have been identified by P.W.19 Janakamma and P.W.11 Sriranga Naik. After completing the investigation, the Inspector filed a charge-sheet against the accused in the Court of the First-Class Magistrate, Hassan. 4. The learned Sessions Judge has not relied on the evidence of P.Ws. 7, 8, 9, and 18 of the witnesses examined on behalf of the prosecution who speak to the movement of the accused and the deceased on the evening in question. He has held that the evidence of these witnesses is highly artificial and it is not safe to rely on their evidence. The learned Sessions Judge has accepted the evidence regarding the information given by the accused and the recovery of the jewels (M.Os. 4 to 8) from the house of the accused. He has also held that M.O.s 4 to 8 belonged to the deceased. After discussing the various decisions cited before him, both on behalf of the prosecution and the defence, the learned Sessions Judge cams to the conclusion that as the only evidence against the accused was that he was found in possession of the jewels belonged to the deceased six days after the occurrence and as there was no other evidence to connect him with the crime, it is unsafe to convict him for the offence of murder and robbery. The learned Sessions Judge in the circumstances mentioned above, thought it safe to convict the accused of the offence under section 379, Indian Penal Code, and acquitted him of the charges under sections 447, 302 and 39.1, Indian Penal Code. 5. The learned High Court Government Pleader appearing on behalf of the State has argued that the order passed by the learned Sessions Judge acquitting the accused of the charges framed against him is erroneous and deserves to be set aside. It is urged that the learned Sessions Judge erred in rejecting the evidence of P.Ws. 5. The learned High Court Government Pleader appearing on behalf of the State has argued that the order passed by the learned Sessions Judge acquitting the accused of the charges framed against him is erroneous and deserves to be set aside. It is urged that the learned Sessions Judge erred in rejecting the evidence of P.Ws. 7, 8, 9 and 18 who speak to the movements of the accused and the reasons given by the learned Sessions Judge for disbelieving their evidence is not sound and cogent. It is argued that the learned Sessions Judge should have accepted the evidence of these witnesses as the evidence of these witnesses would connect the accused directly with the crime. Since the learned Sessions Judge has accepted the evidence with regard to the recovery of the jewels (M. Os. 4 to 8) from the possession of the accused, it is argued that the only conclusion that can be drawn is that the accused had committed robbery of the jewels after murdering the deceased. The accused has not given any explanation as to how he came to be in possession of the jewels belonging to the deceased person. In the absence of any explanation from the accused, the only inference that can be dawn from the facts and circumstances of the case is that the accused murdered the deceased and robbed the jewels. The learned Government Pleader has relied on Shivappa and others v. The State of Mysore1 and Kanbi Karsan Jadav v. State of Gujarat2in support of his contentions. 6. P.W.15 Dr. Srinivasr Murthy conducted the post mortem examination on the body of the deceased Garudamma in the village in between 4 and 6 p.m. on 20th November, 1970. In Exhibit P-8 the doctor has described the injuries found on the dead body. The doctor has stated that on examination he found that there were blood-stains through both the nostrils and there was ecchymosis of the right eye. There were multiple abrasions all round the neck. It is not necessary to refer to the multiple abrasions found around the neck and the right thigh, as the doctor has opined that these abrasions are of post mortem nature and due to insect bites. There were multiple abrasions all round the neck. It is not necessary to refer to the multiple abrasions found around the neck and the right thigh, as the doctor has opined that these abrasions are of post mortem nature and due to insect bites. On dissection the doctor found a fracture of the second rib that there was corresponding injury to the pleura and left lung and the injury on the Jung measured 1½" X ½" X ½". There was haematoma in the left pleural cavity. This injury and injury on the right eye, according to the doctor, are ante-mortem injuries. The doctor has also opined that this fracture of the second rib mentioned above could be caused by a strong fist blow. The doctor stated that the death was due to syncope as a result of shock and haemorrhage due to injury to the vital organ left lung. In cross-examination the doctor stated that there was a contusion on the left side of the chest, corresponding to the internal injury and he had not noted this contusion as an external injury. The doctor further stated that this contusion could have been caused by a kick of the hind leg of a buffalow, or a cow or even a calf, or that injury might have been also caused by a fall on that particular portion of the body coming in close contact with rough surface. The doctor has also stated that there was no evidence of any inter-course between that lady and a man just prior to the death. It may be pointed out that it has not been elicited from the doctor that any of the injuries found on the deceased were sufficient to cause death in the ordinary course of nature. From what has been stated above, there is force in the contention urged on behalf of the defence that the prosecution has not established by satisfactory evidence that the offence made out in the instant case is one of murder. All that can be said is that the deceased Garudamma met with her death as a result of the injuries sustained by her. 7. P.Ws. 8 and 9 who have been examined by the prosecution to speak to the movements of the accused on the evening in question. All that can be said is that the deceased Garudamma met with her death as a result of the injuries sustained by her. 7. P.Ws. 8 and 9 who have been examined by the prosecution to speak to the movements of the accused on the evening in question. P.W.8 Veeramma has stated that when she was in her land on Thursday, the day in question, at about 4 or 4-30 p.m., she saw the accused coming from the northern side and going towards the garden lands of Janakamma. About 15 minutes later, when she was returning to the village she noticed Garudamma proceeding to her garden. P.W.9 Rama has stated that when he was gazing cattle on the evening in question, he saw the accused coming from the side of the katte at about 4 p.m. and the accused had a sickle in his hand; when he questioned him where he was going, the accused told him that he was going to the garden land of Janakamma to bring fuel. The accused thereafter went towards Janakamma’s garden. In paragraph 11 of the judgment the learned Sessions Judge gave reasons why he thought it unsafe to rely on the evidence of P.W.8. He has pointed out that there is no evidence or material before the Court as to where the land of P.W.8 was located and the distance between this lady’s land and the land of Janakamma. He has also pointed out that P.W.8 has admitted that at that particular time she had no work in that land and she has gone to the land without any reason. She has also admitted that there was no crop at all in the land at that time. Because of these reasons mentioned above, the learned Sessions Judge has not believed the evidence of P.W.8 Veeramma. It may also be pointed out that this witness has been examined by the police only on the 24th of November, 1970, 5 days after the occurrence. 8. In paragraph 12 of the judgment the learned Sessions Judge has discussed the evidence of P.W.9 Rama and pointed out that it is not safe to rely upon his evidence. P.W.9 has deposed that on the evening in question, the accused and Ramegowda were watering the land of Ramegowda till about 5 p.m. i.e., till the evening. 8. In paragraph 12 of the judgment the learned Sessions Judge has discussed the evidence of P.W.9 Rama and pointed out that it is not safe to rely upon his evidence. P.W.9 has deposed that on the evening in question, the accused and Ramegowda were watering the land of Ramegowda till about 5 p.m. i.e., till the evening. The learned Sessions Judge has pointed out that this evidence falsifies the evidence of P.W.8 observing the accused going towards the land of Janakamma at about 4 or 4-30 p.m. It may also be pointed out that the statement of this witness has been recorded by the police as late as 20th November, 1970. 9. Similarly, the learned Sessions Judge has not accepted the evidence of P.Ws. 7 and 18, who have been examined by the prosecution to speak about the movements of the accused after the offence. P.W.7 Ranga Iyengar has stated that at about 5 p.m. on the evening in question when he left for his garden, he noticed the accused coming from the passage of Janakamma’s garden and the accused’s lace was pale. P.W.18 Nanjundappa has stated that he and the accused were practising a drama in the village and on the night in question, at about 8 p.m., the accused came to practice drama and the face of the accused appeared pate. The learned Sessions Judge, in our opinion, has rightly rejected the evidence of these witnesses as highly artificial. P.W.7 has admitted that he saw the accused from a distance of 50 yards and that the face of the accused was pale. The learned Sessions Judge has pointed out that if really the accused had committed the murder, it is not at all likely that he would go on that night to practice drama at about 8 p.m. The evidence of the Inspector indicates that P.W.7’s statement was recorded on the 24th of November, 1970 and the Inspector has not stated when he recorded the statement of P.W.18 Nanjundappa. After going through the evidence of these witnesses i.e., P.Ws. 7, 8, 9 and 18, it is not possible for us to agree with the learned Government Pleader that the learned Sessions Judge was not justified in rejecting their evidence. After going through the evidence of these witnesses i.e., P.Ws. 7, 8, 9 and 18, it is not possible for us to agree with the learned Government Pleader that the learned Sessions Judge was not justified in rejecting their evidence. We agree with the learned Sessions Judge that it is highly unsafe to rely on the evidence of these witnesses who speak to the movements of the accused on the evening in question. 10. Coming next to the evidence of the recovery of the jewels (M.Os. 4 to 8) on the information furnished by the accused, we agree with the learned Sessions Judge that the prosecution has established by satisfactory evidence that on the information of the accused these jewels were traced, which were in possession of the accused. P.W.25 Inspector Kariappa has deposed that after arresting the accused at 3 p.m. he questioned him and the accused volunteered the information that he had kept the concerned jewels in his house and that he would produce the same. He reduced this information given by the accused in his case diary as per Exhibit P-15 (a) and Exhibit P-15(b). Thereafter the accused took the Inspector and the panch witnesses, P.W.12 Chandrasekara and P.W.23 Janardhana Iyengar, to his hut and produced a cloth bundle from the areca thatched roof and the bundle contained M.Os. 4 to 8. These jewels were seized under the mahazar Exhibit P-6. P.Ws. 12 and 23 have corroborated the evidence of the Inspector with regard to the production of the jewels by the accused, P.W.11 Sriranga Naik and P.W.19 Janakamma have identified the jewels as belonging to the deceased Garudamma which she was in the habit of wearing every day. That the jewels have been recovered from the possession of the accused on his own information has not been challenged before us by the learned Counsel appearing on behalf of the accused. 11. The important question for consideration is, what inference is to be drawn from the fact that the accused was found in possession of the jewels belonging to the deceased. The contention of the learned Government Pleader is that as the accused has been found in possession of the jewels belonging to the deceased within 6 days, the necessary inference to be drawn is that the accused came into possession of these jewels by committing the murder of the deceased and robbing her. The contention of the learned Government Pleader is that as the accused has been found in possession of the jewels belonging to the deceased within 6 days, the necessary inference to be drawn is that the accused came into possession of these jewels by committing the murder of the deceased and robbing her. It is stressed by the learned Government Pleader that in the instant case the accused has not given any explanation how he came into possession of the jewels belonging to the murdered person. In the absence of any explanation given by the accused, it is argued that the only reasonable conclusion is that the accused must have robbed the jewels after committing the murder of the deceased. 12. In Shivappa and others v. The State of Mysore1their Lordships have pointed out that: “If there is other evidence to connect an accused with the crime of dacoity itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him.” Their Lordships have stated that the presumption under section 114 is stronger when the discovery of the fruits of crime is made immediately after the crime is committed as there would be no sufficient time to dispose of the property. Their Lordships have also pointed out that inference to be drawn depends upon the facts of each case and it depends upon the nature of the property and whether it could be disposed of quickly. 13. In Kambi Karsan Jadav v. State of Gujarat2there was the evidence of the approver which the Court had accepted. Apart from the evidence of the approver there was other circumstances which connected the accused with the commission of the offence. The accused in that case pointed out the dead body, and the silver buttons of the deceased which were stained with human blood, and further the hairs of the deceased were found on a pania (scarf) of the accused. Accepting all these evidence referred to above their Lordships came to the conclusion that the accused was guilty of the offence. The facts of that case are totally different from the facts in the instant case, where the only accepted evidence is that of the recovery of the deceased jewels. 14. Accepting all these evidence referred to above their Lordships came to the conclusion that the accused was guilty of the offence. The facts of that case are totally different from the facts in the instant case, where the only accepted evidence is that of the recovery of the deceased jewels. 14. Sri P. Ramachandra Rao, learned Counsel appearing as amicus curiae on behalf of the accused, has argued that there is no evidence except recovery of the jewels to connect the accused with the crime, it is not safe in the circumstances of the case, to convict the accused of the offences under sections 302 and 392, Indian Penal Code. He has pointed out that the Courts have convicted the accused, if, along with the recovery of the deceased’s jewels, there was some other reliable evidence to connect the accused with the crime. He strongly relied on the decision of the Supreme Court in Sanwant Khan and another v. State of Rajasthan3. The learned Counsel has also relied on I.e. Thangaswami4where the Madras High Court has elaborately discussed the various decisions on the point whether an inference of murder and robbery can be drawn by the mere fact that the accused was in possession of jewels or articles of the victim after the crime. It is urged that this is an appeal against the acquittal and unless the High Court finds that the judgment of the lower Court is unreasonable or manifestly erroneous, this Court would not interfere with the order of acquittal. 15. In Sanwant Khan and another v. State of Rajasthan3their Lordships have held: “No hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Where, however, the only evidence against an accused person is the recovery of stolen property and the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.” After reviewing the various authorities on this point, their Lordships of the Supreme Court referred to the judgment in Bhikka Gobar v. Emperor1and stated that it was rightly held in that decision that the mere fact that an accused produced, shortly after the murder, ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder. It was further pointed out that there must be some other material to connect the accused with the murder in order to hold him guilty of that offence. In that case the accused was found guilty only of the offence under section 380, Indian Penal Code, and their Lordships set aside the conviction of the accused of the offence of murder. 16. In Re. Thangaswami2the Division Bench of the Madras High Court after reviewing the various decisions on this point held that: “The inference or presumption of guilt, upon the charge of murder can be safely drawn, where the accused is in unexplained possession of the jewels or articles of the victim after the crime, and where in addition, there is some evidence atleast connecting the movements of the accused with those of the victim, either before or after the crime, and in some manner or another establishing a nexus between the accused and the offence. The mere unexplained possession or production of the jewels of the victim by the accused may not constitute a safe basis for a conviction upon a charge of murder, when that is the only bare circumstance proved in evidence. The reason for that is fairly obvious. The test of circumstantial evidence must be satisfied; the chain of links in that evidence must lead to only one reasonable inference, namely, that the accused was the murderer and all other probable hypothesis must be excluded. Something might depend upon the time interval between the crime, and the recovery of the jewels from the accused. But it is quite probable that, even during the lapse of a few hours, the jewe1s might have changed hands. Something might depend upon the time interval between the crime, and the recovery of the jewels from the accused. But it is quite probable that, even during the lapse of a few hours, the jewe1s might have changed hands. Before it could be held that the circumstantial evidence establishes the guilt of the accused upon the charge of murder, some further evidence is necessary, establishing some connection between the accused and the victim, in relation to the, time and locality of offence, or to the crime itself.” We are in respectful agreement with what has been stated in the above said decision. 17. As, in the instant case, the only evidence against the accused is the recovery of the deceased’s jewels from his possession, and there is no other evidence connecting the accused with the crime, we consider it not safe to convict the accused for both murder and robbery, as has been laid down in Sanwant Khan’s, case3cited above. It may also be pointed out that we are dealing with the appeal against acquittal. Unless we come to the conclusion that the judgment of the learned Sessions Judge is unreasonable or manifestly erroneous, this Court should not interfere with the order of acquittal passed by him. 18. After carefully re-assessing the evidence in the case, it is not possible for us to say that the view taken by the learned Judge is unreasonable or manifestly erroneous. There are no good grounds to set aside the order of acquittal of the respondent-accused passed by the learned Sessions Judge. 19. In the result, for the reasons stated above, there is no merit in this appeal and the same is dismissed. S. V. S. ----- Appeal dismissed.