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2002 DIGILAW 385 (KAR)

Jaya alias Jayaram v. State of Karnataka

2002-06-17

M.F.SALDANHA, N.K.PATIL

body2002
JUDGMENT M.F. Saldanha, J.--We need to prefix this judgment with certain observations as they are extremely pertinent. The two Appellants before us are Jaya Poojari and Smt. Leela alias Anitha who have been convicted of the offences punishable under Sections 302 and 201 Indian Penal Code and have been awarded sentences of RI for life and a fine of Rs.1,000/- each, in default to undergo SI for one month under the first head and a sentence of RI for 7 years and to pay a fine of Rs.1,000/- each, in default to undergo SI for one month under the second head of charge. The record indicates that the two accused were arrested on 5.2.1997 and that they have been in custody right through. They come from a relatively poor strata of society. After their conviction they have filed an appeal through the jail and since they were unrepresented this Court appointed learned Advocate Sri Somashekhar Angadi as amicus curiae Counsel on their behalf. We need to record here our appreciation for the fact that in view of the special circumstances of the case, Sri Angadi was requested to peruse the record and get ready with the appeal on merits which he has done. As was evident in the course of the arguments he has done a meticulous study of the record and has argued the case extremely well on behalf of the Appellants. 2. This appeal was placed before the Division Bench for hearing on 17.4.2002. The Appellants had pointed out to the High Court that they have been in custody for 5 years and the additional circumstance pointed out by the Appellant No. 2 was that she is the mother of two children and that having regard to the nature of the record that the chances of success in the appeal are extremely good and the prayer was that the Court should dispose off the appeal on an out of turn basis. Though this is a conviction under Section 302 Indian Penal Code, in keeping with our responsibilities we had carefully perused the judgment and what we noticed was that though the learned Sessions Judge has extensively referred to the case law, infact the greater part of the judgment reads almost like a legal treatise, we are certainly not critical of situations in which lawyers and judicial officers do research but the point that struck us was that if the discussion with regard to various legal niceties is brushed aside, that there is precious little material against the accused to support the conviction. This aspect having come to our notice, we opined that the High Court would have to seriously consider, particularly in a case of the present case, where interim bail is normally refused during the pendency of the appeal, whether the accused should be retained in jail for a relatively long period of time until all the formalities are completed and the appeal comes up for hearing in the normal course. Having prima facie found that the validity of the conviction appears to be extremely doubtful and having regard to the human factor, namely, that both the accused are relatively younger, that A2 is a lady and the mother of two children, we considered that out of turn disposal of the appeal was genuinely justified. It was for this reason that the learned Counsel on both sides were directed to get ready with the case and argue the same on merits. 3. We will briefly recount the relevant facts because these are of some significance. The deceased Vasu was married to Accused No. 2 some years back. Accused No. 2 was residing in Kemral village, Mangalore Taluk, whereas her husband was apparently employed in Bombay. The couple had two children, a son and a daughter both of whom were school going. Accused No. 1 is the younger brother of Vasu i.e. the husband of A2 and A1 was residing in the village itself. The prosecution alleges that A1 was carrying on an illicit affair with A2 possibly taking advantage of the absence of her husband Vasu. The husband had visited the village sometime in the month of June 1996 and it does appear that some quarrel ensued between the brothers obviously because of Vasu coming to know of the friendship between the two accused. The husband had visited the village sometime in the month of June 1996 and it does appear that some quarrel ensued between the brothers obviously because of Vasu coming to know of the friendship between the two accused. The husband thereupon took a decision to take the wife accused No. 2 with him to Bombay. In order to avoid this happening accused-1 is alleged to have killed deceased Vasu and A1 and A2 are alleged to have carried the body in a gunny bag to a forest close-by and disposed off the same. It is not very clear from the record as to whether the body was merely left there or whether some attempt was made to cover it with soil. In any event, after the lapse of about 8 months i.e. on 31.1.1997 the skeleton was noticed by some persons who informed the police. The police recovered the greater part of the skeleton and certain clothes and a belt from that place. There was also a ring and all these have been identified as belonging to deceased Vasu. No postmortem could be conducted but the only forensic evidence that was available is the conclusion that the death must have taken place about 6 to 8 months earlier and secondly that since there were some fractures of the bones that the death in all probability was homicidal. Four days later PW-2 Shailesh who is a social worker alleges that A2 confessed to him that he had murdered his elder brother and that he and A2 had taken the body in a gunny bag and put it in the forest from where the bones had been found. Apart from this, there is hardly any evidence except for the fact that a watch and a suitcase belonging to the deceased were recovered from accused No. 1 and the learned Trial Judge has also drawn an adverse inference from the last circumstance, namely, that accused Nos. 1 and 2, after the incident had gone away to Anr. place and were living together. As far as the motive is concerned, the prosecution alleges that 3 handwritten letters which are undated and are not addressed to anybody which are Exhibits P3, P4 and P5 were recovered from a bag in the house of accused No. 2. These letters purport to be love letters from A1 to A2. place and were living together. As far as the motive is concerned, the prosecution alleges that 3 handwritten letters which are undated and are not addressed to anybody which are Exhibits P3, P4 and P5 were recovered from a bag in the house of accused No. 2. These letters purport to be love letters from A1 to A2. They were sent to the handwriting expert along with the admitted handwritings of the A1 and the opinion which is at Exhibit P-22 is to the effect that these letters are in the handwriting of accused No. 1. Relying on all this material the learned Sessions Judge has convicted both the accused under both the heads of charge and it is against this conviction and sentence that the present appeal has been directed. 4. With the assistance of the learned amicus curiae Counsel Sri Angadi, and the learned Additional State Public Prosecutor we have done a total and complete review of the record and have also carefully reconsidered the judgment of the trial Court. On the first question, namely, as to whether the deceased Vasu met with a homicidal death and if so when, the learned trial Judge has accepted the evidence regarding recovery of the skeleton and skull on 31.1.1997 and the opinion of the doctor that the death must have occurred 6 to 8 months earlier and from the fact that some of the bones appeared to be fractured that it could safely be concluded that Vasu met with a homicidal death. First of all, what we find rather unsatisfactory in this case is the identification evidence. There are no conclusive distinguishing features with regard to the pant, shirt and the belt or for that matter with regard to the ring that is alleged to have been found along with the bones. The identification has been done by PW-2 who is the star witness for the prosecution, but the reason why we are critical of this identification is because PW-2 is not a family member, he is not a spouse, there is nothing to indicate as to how often he saw the deceased Vasu when he had visited the village, on what basis he was able to identify the clothes and from all of this, what emerges is that the identification itself is very weak and unsatisfactory. At the highest, it could be said that the skeleton could belong to Vasu but nothing beyond that. As far as the time of death is concerned which is crucial in this case for the reasons that we shall point out, there is a very wide margin of 6 to 8 months as indicated by the doctor but no reasons have been set out for this except the obvious fact that the decomposition of the flesh was total. Most of these factors seem to have been overlooked in this case by the prosecution and the doctor because it is the experience of the Courts that when bodies are left in forest areas that they are subject to very fast decomposition because of the elements but as far as the flesh and the tissue is concerned, that anything from wild animals to birds and to insects feed on the corpse as a result of which the normal process of decomposition gets heavily accelerated. It is in the course of this sad but inevitable result when a body is left in a forest that a lot of damage also takes place because if the corpse has been attacked by wild or domestic animals, damage even to the skeleton is not unusual. In this background, the doctor concluding that because there was some damage to the bones that it will have to be held that the deceased met with a homicidal death, is again a mere matter of conjecture and not a conclusive finding which a Court can accept for the purposes of establishing the offence of murder. The prosecution ought to have led better and more reliable evidence both with regard to the identification but more importantly the time and cause of death because this is really the foundation or the basic requirement for a conviction under Section 302 Indian Penal Code. In our considered view, this evidence is too weak and unsatisfactory to establish beyond reasonable doubt either the identity or for that matter the time and cause of death. 5. Sri Angadi has then submitted that the strongest piece of evidence in this case is the so-called extra judicial confession which A1 is alleged to have made to PW-2 on 3.2.1997. As indicated by us earlier PW2 is a social worker. 5. Sri Angadi has then submitted that the strongest piece of evidence in this case is the so-called extra judicial confession which A1 is alleged to have made to PW-2 on 3.2.1997. As indicated by us earlier PW2 is a social worker. Sri Angadi submits that there is virtually no conceivable reason why A1 would go to PW-2 and make such an incriminating admission in the form of a confession when there is nothing on record to indicate that PW-2 suspected anything or for that matter that PW-2 had even so much has asked A1 anything about deceased Vasu. The learned Advocate further points out to us that even assuming for arguments sake that A1 was the assailant, that several months had elapsed, that the crime had not come to the notice of anybody and when the skeleton was found with the clothes nobody would have ever been able to really establish as to how and when Vasu died and his body ended up in the forest and in this background, it is more than inconceivable that A1 would ever approach PW2 and make a confession. PW-2 seems to suggest that A1 confessed to him that he had strangulated deceased Vasu whereas the doctor appears to conclude that deceased died because of head injuries sustained through fracture of the skull. This is also Anr. very serious infirmity and it is on these grounds that the extra judicial confession has been seriously assailed. The learned Additional State Public Prosecutor has on the other hand pointed out that even if the murder had gone unnoticed, as soon as the skeleton was recovered and from the clothes and the ring, etc. that it was identified as being that of Vasu who is none other than the brother of A1, that A1 realised partly out of a sense of guilt but more importantly out of a sense of remorse that between the police and the villagers he would be brought to book and this is why he came and made a clear breast of everything. The learned Counsel submits that PW-2 is an independent person and that nothing is established by the defence to indicate that he was inimical to A1 or A2 for that matter and that consequently, the evidence of PW-2 must be accepted and that the learned Trial Judge has rightly relied on this evidence. 6. The learned Counsel submits that PW-2 is an independent person and that nothing is established by the defence to indicate that he was inimical to A1 or A2 for that matter and that consequently, the evidence of PW-2 must be accepted and that the learned Trial Judge has rightly relied on this evidence. 6. After a very careful consideration of the record of this case, the facts and more importantly having virtually recreated the situation in that village as on 3.2.1997 what we need to hold is that even if the police had been called in when the skeleton was recovered and the identification appeared to point to the fact that it belonged to deceased Vasu, that there were no other leads of any type and consequently, at the point of time when A1 is alleged to have made the confession there were no pressures on him nor is there any evidence that even suspicion has been cast on him by anyone right upto the police authorities. Had these factors been present perhaps there would have been some semblance of a justification for the argument advanced by the learned State Public Prosecutor. In the facts of the present case, we find it not only unnatural but we find it totally and completely absurd to suggest that for absolutely no reason that A1 would go and confess to a murder, even if he was secretly guilty. We find it impossible to accept that in the absence of his being arrested, in the absence of any other factors, that he would go and incriminate himself in a murder case and that too to a total stranger, viz., PW-2 who is only a social worker and as appears from the record a local busy body. Such extra judicial confessions require very deep and very meticulous scrutiny by the Courts because it has become the habit of the investigating officers to attribute confessions to the accused and where it is an oral extra judicial confession it becomes even more suspect. In the present case it is very clear to us that since no evidence of any type was forthcoming that the so-called extra-judicial confession has been fabricated only in order to implicate the accused Nos. 1 and 2. This head of evidence on which the learned trial Judge has relied will also have to be discarded. 7. In the present case it is very clear to us that since no evidence of any type was forthcoming that the so-called extra-judicial confession has been fabricated only in order to implicate the accused Nos. 1 and 2. This head of evidence on which the learned trial Judge has relied will also have to be discarded. 7. The trial Court has relied on the recovery evidence in this case. There is a wristwatch that has been recovered from the custody of A1 as also the suitcase containing certain personal items, which has been recovered from his custody. The factum of recovery can hardly be disputed and the learned trial Judge has held that this circumstance is a very strong circumstance against the accused because it is on par with several cases in which an accused person is found in possession of property belonging to the deceased and in the absence of a cogent explanation the Courts invariably draw an inference that it is as a result of the commission of the offence that the accused secured the property, notably in this category of cases items like personal jewelry or items that are removed from the person of the deceased figure prominently. While Mr. Angadi vehemently submits that this case presents an unusual situation whereby the deceased Vasu was a resident of Bombay and that he used to make visits to his village and go back to his work place at Bombay whereas his younger brother who is A1 continued to reside in the village and he submits that in this background, after deceased Vasu left the place that it is neither unusual nor suspicious for A1 who was his own brother to be found in possession of personal items belonging to him. Once again, the real snag is with regard to the identification because Mr. Angadi is perhaps justified when he submits that a spouse or family member identifying these items would provide some reliability whereas PW-2 who is only a social worker is certainly not really competent to be able to identify items like watch or personal suitcase, clothes and the like. Angadi is perhaps justified when he submits that a spouse or family member identifying these items would provide some reliability whereas PW-2 who is only a social worker is certainly not really competent to be able to identify items like watch or personal suitcase, clothes and the like. The learned Additional State Public Prosecutor did vehemently submit that the finding of the watch is a very strong circumstance which binds A1 with the offence for the watch is normally worn by a person on his wrist and if that watch has been removed and is found with the accused it could only happen after the victim has been killed. In any event, he submitted that if the A1 had lawfully acquired these properties that he should have said so and the non-explanation must give rise to an adverse inference. All that we need to say with regard to this head is that the evidence is relatively weak both as regards the identification as also with regard to the level of culpability that the Court would attach to the evidence because we are not satisfied from the limited material produced by the prosecution that these items were in the possession of the deceased, least of all that they were there at or around the time of his death. 8. On the question of complicity between A1 and A2 on the aspect of very strong motive to finish off deceased Vasu and thirdly on the aspect of complicity between A1 and A2 in the commission of the offence, the prosecution has alleged that the recovery of 3 letters from the custody of A2 is indicative of a very strong love affair having been in existence between A1 and A2. The principal reason for this is because these letters along with certain admitted handwritings have been sent to the hand-writing expert who has opined that these letters are in the hand writing of A1. The Appellant's learned Advocate submitted that these letters are not addressed to anybody nor are they signed and consequently, the Court cannot conclusively hold that they were written by A1 to A2. The Appellant's learned Advocate submitted that these letters are not addressed to anybody nor are they signed and consequently, the Court cannot conclusively hold that they were written by A1 to A2. Secondly, he points out that there is no date to these letters and that this is very crucial because the prosecution must establish that assuming they rely on these documents for purposes of proving that the love affair between A1 and A2 was what led to the murder, that it will have to be established that this was the state of affairs prior to the month of June 1996 when the murder has taken place. The timing is of extreme importance and Mr. Angadi submits that in the absence of this, the circumstance become totally innocuous because for arguments sake if the love affair developed between A1 and A2 at any point of time after Vasu had met with his end, that it would have no bearing whatsoever on the commission of the offence. In reply to this submission the learned Additional State Public Prosecutor vehemently contended that it may be that the letters did not indicate to whom they are addressed and who has written them but the fact that the handwriting expert has established that they are in the handwriting of A1 is sufficient to establish the author, apart from which he relies on the reference to the word 'Jaya' that appears in the letters in order to conclusively establish that he was the author. Since the recovery is from A2 and further more since it is demonstrated that after the incident A2 shifted her children out of the school and went to reside along with A1, the learned Counsel submits that it is more than conclusively established that these letters were exchanged between the two accused. As regards the timing, the learned Counsel submits that from the contents of the letters it is very clear that there was a torrid love affair going on between the two accused and that this was the real motive or cause for the murder and it is his submission that the Court must view the circumstance in conjunction with the general background and not in isolation. The submission that follows is that these letters provide the key to the murder and that the learned trial judge has justifiably placed heavy reliance on them. The submission that follows is that these letters provide the key to the murder and that the learned trial judge has justifiably placed heavy reliance on them. We need to mention here that on a careful appraisal of this head of evidence it would be difficult to get away from the position that these were the letters exchanged between A1 and A2 and secondly that they demonstrate the existence of the love affair between the two of them. In the letters there is no reference whatsoever to deceased Vasu and consequently, he crucial aspect as to whether the parties considered him as an obstacle and whether as a necessary consequence they decided to do away with him or whether, there is an equal possibility that after he left or disappeared from the scene A1 and A2 developed the infatuation for each other is a gray area. The absence of the date and more importantly the absence of any details that could indicate the point of time when the letters were written and the further difficulty in this case, namely, that it is impossible to conclusively fix the time of the murder even approximately, are all factors that ultimately add up to a position whereby it would be difficult for us to hold conclusively that all of this happened prior to the death of Vasu. While we accept this evidence, we still find it impossible to use it as an incriminating circumstance. 9. Lastly, the prosecution has produced the neighbours who are P Ws. 3, 4 and 6 in support of the contention that on the night between 8th/9th June, 1996 these persons heard a commotion in the house of the deceased. They also heard him crying out and they found that A1 and A2 were also in the house at that time. The prosecution suggestion is that it was on this particular night that the Accused had killed Vasu and that the commotion was a fallout of that incident. Though the learned Trial Judge has accepted this evidence on the ground that the neighbours are independent persons and would have no reason to fabricate and has thereby fixed the date of the murder and the time of the murder on this basis, we are not willing to accept those conclusions. Though the learned Trial Judge has accepted this evidence on the ground that the neighbours are independent persons and would have no reason to fabricate and has thereby fixed the date of the murder and the time of the murder on this basis, we are not willing to accept those conclusions. One of the principal reasons for it is that while these 3 witnesses seek to solemnly state that they heard the commotion and the hue and cry of the deceased it is totally against human conduct that they would not have gone there to find out what was happening as this is the normal reaction of any villager to a commotion. Secondly, they would have certainly made inquiries later on, particularly the next day and if no satisfactory reply was received and deceased Vasu had also disappeared on the same night the matter would not have rested there and would in all probability would have even gone to the police. The fact that none of this happened very clearly indicates to us that it is the prosecution which has got up this evidence for the purposes of supporting the murder theory. 10. Lastly, with regard to the charge under Section 201 Indian Penal Code the prosecution has gone to the extent of relying on the extra judicial confession wherein A1 is alleged to have stated that after they had killed Vasu, A1 and A2 had put the body in a gunny bag, carried it to the forest and tried to dispose off it there. We have had occasion to elaborately deal with the evidence relating to the extra-judicial confession and we have totally rejected this evidence on the ground that it is impossible to believe that such a confession had infact been made. This is the only evidence that incriminates A1 and A2 as far as the charge under Section 201 Indian Penal Code is concerned and in our considered view, this evidence is of no avail in establishing the charge. 11. It is true that the record of the case indicates that Vasu who was a perfectly healthy person suddenly disappeared and that in all probability, he had been killed. 11. It is true that the record of the case indicates that Vasu who was a perfectly healthy person suddenly disappeared and that in all probability, he had been killed. Secondly, there certainly does rise a suspicion, particularly from the letters, that something was going on between A1 and A2 and if Vasu had come to know about it or suspected it and had decided to take A2 away to Bombay then certainly, it would have provided a possible motive for the offence. The real difficulty that we experience in this case is that all the heads of evidence lead only to a possibility, probability or a suspicion, whereas the law with regard to circumstantial evidence is that every circumstance must be individually and conclusively established beyond reasonable doubt and thereafter that the chain of circumstances or the web of circumstances must lead to one and only one conclusion that is compatible with the guilt or the accused. In this case, circumstances taken individually have not been established beyond reasonable doubt and taken cumulatively, they still fall short of the aforesaid requirement. Under these circumstances, the only possible conclusion is that the accused would be entitled to the benefit of doubt. 12. In the result, the appeal succeeds. The conviction and sentence recorded against Accused Nos. 1 and 2 are set aside. The fine if paid is directed to be refunded to them. Since the accused are in custody it is directed that they be set at liberty forthwith, if not required in connection with any other offence. 13. As indicated earlier the learned Counsel who has appeared amicus curiae has done so at short notice, that he has studied the record and argued the case well and we direct the office to pay him a sum of Rs.1,500/- which is quantified as professional charges. 14. The appeal accordingly succeeds and stands disposed off.