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1976 DIGILAW 206 (KAR)

ESWARAPPA v. STATE OF KARNATAKA

1976-11-17

HONNAIH, K.J.SHETTY

body1976
JAGANNATHA SHETTY, J. ( 1 ) THIS appears to be an unfortunate case in which the appellant-accused has been convicted for murdering his brother wholly on irrelevant evidence and purely on surmises. Nageudra (PW. 18), Deputy Superintendent of Police, who conducted the investigation, and the learned Sessions Judge, who tried the case, must bear the blame equally. The investigation conducted by PW18 was casual in nature, and. the judgment of the learned sessions Judge, who tried the case, is no better. We are constrained to make these observations at the beginning, although mere unfolding of the prosecution case itself would justify a serious condemnation. ( 2 ) THE prosecution case to put it briefly, is as follows : Yogappa alias Yogesh the deceased Was a brother of Eswarappa the accused. Siddaramappa (PW1) is their father. Like most of the agriculturists in the villages, the deceased and the accused used to sleep together in their thrashing floor near their lands. On the night of 24th December 1974, as usual, they slept there. Late in the night, the accused got up on hearing the sound of a boulder falling down and saw three or four persons running away. He saw his brother lying dead with his hsad crushed. He then ran to the neighbouring thrashing floor; where Giriyappa (PW6), Ramappa (PW7) and Annappa (PW8) were sleeping. He informed them that, his brother was murdered by seme persons by throwing a boulder on his head. They came and saw the dead body in a pool of blood with a boulder (MOI) beside. Thereafter the accused along with one or two persons went to the village and informed PW1 about the incident. Thereupon, PW1 came to the spot along with others. On seeing his son dead, he scribed a report ext. P1 and delivered it in the Police Station. In the report he had stated that some persons killed his son Yogesh by throwing a stone on his head. Upon that information, a case was registered under S. 302 IPC. ( 3 ) AFTER registering the case, Kushalan, Sub-Inspector of Police (PW16) reached the scene of occurrence and commenced investigation. He could not get any clue of the person who committed the murder. The case was, thereafter, handed over to the Circle Inspector of Police of Tarikere for further investigation. ( 3 ) AFTER registering the case, Kushalan, Sub-Inspector of Police (PW16) reached the scene of occurrence and commenced investigation. He could not get any clue of the person who committed the murder. The case was, thereafter, handed over to the Circle Inspector of Police of Tarikere for further investigation. Even the Circle Inspector could not trace the culprit in spite of his best efforts in that behalf. The ease thus remained without any further progress till 10-10-1975 on which day, Nagendra, deputy Superintendent of Police (PW18) took up the investigation. Crla 398 of 1976 ( 4 ) PW18 examined Giriyappa (PW6) Ramappa (PW7) and Annappa (PW8) and one Chandrasekhar. During the course of investigation, it appears that he got some suspicion against-Eswarappa, who was thereafter arrayed as the accused in the case. On 10-12-75, i. e, nearly one year after the date of occurrence, he filed a charge sheet against the accused. ( 5 ) AT the trial, the prosecution examined as many as 18 witnesses, out of whom, the material witnesses are Basappa (PW2), Rajanna (PW3), basappa (PW4), Doveeramma (PW5), Giriyappa (PW6), Ramappa (PW7), Annappa (PW8), Papanna (PW9), Melleshappa (PW10 ). PW11 to 15 are formal witnesses. PW16 is the Police Sub-Inspector and PW17 is the Junior Engineer who has drawn the sketch Ext. P12 and PW18 is the deputy Superintendent of Police, There was no eye witness to the occurrence. The learned Sessions Judge, however, believing the circumstantial evidence, convicted the accused under S. 302 IPC and sentenced mm for imprisonment for life. In this appeal, the accused has challenged the validity of his conviction and sentence. ( 6 ) BEFORE the trial court, the accused was undefended and so a Standing counsel was appointed on his behalf, and same is the position in this court also, since the appeal has been transmitted through the jail. ( 7 ) THE circumstantial evidence relied upon by the learned Sessions judge consist of : (1) Admitted fact of the accused heving slept by the side of the deceased, sharing the same mat and bed sheet at the time of the incident; (2) The previous bad character of the accused; (3) The alleged strained relationship between the accused and the deceased; and (4) Absence of blood-stains on the person of the accused. ( 8 ) WE may take it that the accused on the date of the incident slept side by side with the deceased, but it is of no consequence in view of his conduct. It was he, in the dead of night, informed PW6, PW7 and PW8 who were sleeping in the adjacent thrashing floor. It was he who went and informed his father about the death of his brother. This conduct on the other hand would point at his innocence. The evidence relating to the bad character of the accused comes from pw. 2, PWs. 3 to PW. 5 and PW. 9 Basappa (PW. 2) is the brother of PW1 and uncle of the accused. He has referred to an incident of theft when the accused was working in the flour mill. PWs. 3 to 5 are petty shop keepers in the village. All that they have stated is that the accused used to buy beedies and match boxes etc. in exchange of food grains and agriculutral produce. The deceased was complaining that these witnesses were making the accused to cultivate the habit of smoking. Their evidence, even if accepted, in substance, does not refer to the bad character of the accused. Assuming that the accused was buying his necessaries, it is nobody's case that he was doing so by stealthily removing the agricultural produce without the knowledge of his father or his deceased brother. ( 9 ) WE may go a step further in assuming that the accused had some bad character, but still we fail to understand how that bad character has any relevance in a criminal case. S. 54 of the Indian Evidence Act provides; "in criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant". It is not the case of the prosecution that they were adducing evidence on the bad character of the accused, to rebut the evidence relating to his good character. Therefore, the evidence of PW2 PW3 to PW5 and PW9 is wholly irrelevant and has nothing to do with the murder alleged. It is surprising that this salutary principle has not been noticed either by the investigating officer (PW18) or by the learned Sessions Judge. Therefore, the evidence of PW2 PW3 to PW5 and PW9 is wholly irrelevant and has nothing to do with the murder alleged. It is surprising that this salutary principle has not been noticed either by the investigating officer (PW18) or by the learned Sessions Judge. ( 10 ) WITH regard to the strained relationship between the accused and the deceased, the father (PW1) has not supported it. The evidence of pw2 is also silent over that matter. PW3 refers to the partition in the family at the instance of the accused, but it was only after the murder complained of PW9 who is the Chairman of the Village Panchayat, only refers to some quarrels between PW1 and the accused as the latter was not taking any interest in the family affairs. This allegation was not supported by the father of the accused. There is no other material to hold that the accused and the deceased were not on good terms. ( 11 ) WE shall now take up the last circumstance on which the learned sessions Judge has relied upon, i. e, absence of blood-stains on the accused. According to the learned Sessions Judge, if the accused was sleeping close to the deceased on the same mat and somebody was to throw a big boulder on the deceased, the blood-stains would have fallen on the accused also. The reasoning of the learned Sessions Judge is purely a figment of imagination. The blood might have fallen on the accused or might not have. It depended upon various factors. Apart from that, the prosecution has not led any evidence in the case that the accused had no blood-stain marks on his clothes. Therefore, there is little substance in the reasoning of the learned Sessions Judge. ( 12 ) THIS is all the evidence in the case which depends wholly on circumstantial evidence. As observed by the Supreme Court in Eradu v. The state of Hyderabad ( AIR 1956 SC 316 ), it is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused. In a recent case, Sarkaria, J. speaking for the supreme Court in Mahmood v. State of Uttar Pradesh (ILR 1976 Kay 417 SC), elaborated the the above principles thus : "in a case dependent wholly on circumstantial evidence the court before recording a conviction on the basis therefore must be firmly satisfied. (a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him". ( 13 ) IN this case, the circumstances narrated above, do not either directly or indirectly connect the accused with the murder; not even a suspicion against the accused. On the other hand, it establishes beyond reasonable doubt the innocence of the accused. It is really astonishing that the learned Sessions Judge has convicted the accused in this state of evidence. ( 14 ) BEFORE parting with the case, we have got to mention one other factor. It seems to us that the learned Sessions Judge has seriously misdirected himself on the type of investigation conducted by the Sub-Inspector of Police (PW16), the Circle Inspector of Police, and Nagendra, Deputy superintendent of Police (PW18 ). The Sub-Inspector and the Circle Inspector who conducted the initial investigation could not find out the culprit with the best of their Investigation. That does not mean that they have failed to discharge their duties promptly and consciously. It is rather surprising that the learned Sessions Judffe has criticised their attitude and given encomium to the Deputy Superintendent of Police, who took up investigation of the case after a long lapse of 10 months, and put up an innocent man for trial on fimsy grounds. We are constrained to observe that the fault lies not with PW16 and the Circle Inspector, but entirety on the Deputy Superintendent of Police. It is clear from the material on record that he besiowed no serious attention to find out the real truth of the case and simply proceeded to put up a case against the accused only because a case of murder had been registered. It is clear from the material on record that he besiowed no serious attention to find out the real truth of the case and simply proceeded to put up a case against the accused only because a case of murder had been registered. The learned Sessions Judge without critical examination of the facts and circumstances of the case, has unnecessarily criticised the conduct of PW16 and the Circle Inspector, and directed a copy of his judgment to be sent to the Inspector General of police for taking appropriate action. The action of the learned Sessions judge is uncalled for and his observations against the Sub-Inspector and circle Inspector of Police are uncharitable. His criticism and the direction on the other hand should have been against the Deputy Superintendent of police. ( 15 ) IN the result, and for the reasons stated above, we allow this appeal, set aside the conviction and sentence passed against the appellant accused and acquit him. We direct that he be set at liberty forthwith. --- *** --- .