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2007 DIGILAW 147 (KAR)

CHAND BASHA v. STATE

2007-03-01

C.R.KUMARASWAMY, K.SREEDHAR RAO

body2007
SREEDHAR RAO, J. ( 1 ) THE case of the prosecution discloses that one Ganesh (deceased) and the accused are masons by avocation, and were working together. PW-4 is sister of the deceased. PW-3 is father of the deceased. The accused used to visit the house of the deceased and on some occasions misbehaved with PW-4. The accused intended to marry PW-4 but deceased and PW-3 were not willing to give PW-4 in marriage to the accused. It is said that there was a quarrel between the deceased and his family on one part and the accused on the other part with regard to the misbehaviour of accused with PW-4. The accused was bearing grouse against the deceased for preventing his marriage with pw-4. Therefore, on 16-1-2001 the accused lured deceased with a wet party in Sindhur bar in Lingarajapuram. Accused consumed only beer and made the deceased to consume liquor heavily to the extent of total intoxication. The accused and the deceased after taking liquor come out. On the way the accused finds the deceased was totally unconscious of his actions. The accused take advantage of the position, made the deceased to fall down, the hands were tied with a saree piece lying nearby, tied a boulder to the waist of the deceased and threw him in the well nearby. PW-3 (father of the deceased) on the next day finds that his son has not returned home. PW-12 (friend of the deceased) on an enquiry informs pw-3 that the accused had taken the deceased for a wet party. The dead body was found floating. PW-1 (stranger) noticed and reported the matter to police. ( 2 ) IN the course of investigation, the police had taken photographs of the body. The pw-3 identifies the person in the photograph as his son. The investigation further reveals that the accused and deceased consumed liquor in Singhur Bar at Lingarajapuram. PW-6 (owner of the bar ). PW-5 (the Bar-Boy)testifies to the fact of visit of accused and the deceased to the Bar. The medical evidence discloses that the death is a homicidal. ( 3 ) THE trial Court on the following circumstances holds the accused guilty and convicts him for an offence u/s. 302 IPC. (a) The trial Court finds that the prosecution has proved the motive for the commission of offence on the basis of evidence of pw-3, PW-4, and PW-12. The medical evidence discloses that the death is a homicidal. ( 3 ) THE trial Court on the following circumstances holds the accused guilty and convicts him for an offence u/s. 302 IPC. (a) The trial Court finds that the prosecution has proved the motive for the commission of offence on the basis of evidence of pw-3, PW-4, and PW-12. (b) The trial Court relies upon the evidence of PW-5 to believe that the accused and deceased visited the bar and that the deceased was last seen in the company of the accused before his death. (c) The trial Court observes that the accused in his answer to the questions put to him under Section 313 Cr. P. C. does not give any convincing explanation to get over the incriminating last seen circumstance spoken to by PW-5. (d) At the voluntary instance of the accused, IO had recovered a shoe-lace from the house of the accused. It is the case of the prosecution that one of the lace in the pair was tied to the hands and legs of the deceased. The fsl report discloses that the shoe lace recovered from the body of the deceased at MO-2 and MO-4 and the shoe lace produced by the accused are similar in colour, thickness and pattern in the microscopic examination on the ultra violet light. (e) The accused had voluntarily produced a piece of saree lying near the well to show that a part of the saree was torn and used for tying the boulder to the waist of the deceased. The FSL report shows that the saree piece recovered at the voluntary instance of the accused and the saree piece tied to the dead body are similar in their colour, design, weaving and pattern. It is held that both the pieces together form part of the same cloth. ( 4 ) THE evidence relating to last seen circumstance relied upon by the prosecution appears to be the most crucial evidence to appreciate the guilt of the accused. PW-6 (Bar owner) identifies the accused and states that the accused had come on 16-1-2001 to the bar along with one another person. PW-5 (bar boy) also testifies to the facts that accused and another person both had come and consumed liquor. PW-6 (Bar owner) identifies the accused and states that the accused had come on 16-1-2001 to the bar along with one another person. PW-5 (bar boy) also testifies to the facts that accused and another person both had come and consumed liquor. PW-5 says that later on he comes to know that the other person who had accompanied the accused is by name Ganesh. It is not in the evidence of PW-5 to show that the deceased is familiar with PW-5. The photograph of the deceased is also not shown to pw-5 to prove that the deceased was the person who had accompanied the accused on 16-1-2001. The evidence of PW-5, that accused had come along with another person and had consumed liquor on 16-1-2001 cannot be considered as an incriminating circumstance to prove that the deceased was last found in the company of the accused. The I O has not shown the photograph of the deceased to PW-5 and PW-6 for identification. Therefore, the evidence of PW-5 and PW-6 cannot prove that the deceased was last seen in the company of the accused at Sindhur Bar before his death. ( 5 ) THE evidence of PW-4 in the cross-examination discloses that the accused confessed to her on Saturday i. e. , 22-1-2001 that he had killed her brother Ganesh and threw him in the well. This part of the evidence suggests that accused had made an extra judicial confession before PW-4. It is admitted by PW-4 that she did not inform the police about this fact but states that she informed her father. That means to say that PW-3 had come to know above extra judicial confession made to PW-4, yet, he does not report the same to police. Therefore, whatever evidence given by PW-4 with regard to extra judicial confession is unconvincing and incredible. ( 6 ) THE discovery of lace appears to be an artificial theory. The length of lace is 17 inches. The accused had pair of lace with him on his boots. It looks very artificial for the prosecution to contend that the accused cut one lace into two pieces for tying the legs and hands separately and other lace was safely preserved by him in his house. The length of lace is 17 inches. The accused had pair of lace with him on his boots. It looks very artificial for the prosecution to contend that the accused cut one lace into two pieces for tying the legs and hands separately and other lace was safely preserved by him in his house. When accused intended to cause murder by drowning, it is quite natural, accused should have used pair of lace for tying hands and legs separately to make sure that he ties the legs and hands firmly without a scope for escape in any manner. The theory that there is a saree piece lying near the well and he tore the saree piece and used one for tying the boulder to the body is also an artificial circumstance. If one saree piece was there, it is quite natural that the accused should have used entire piece for tying. Therefore, on overall consideration, we find that the discovery of shoe lace and the saree piece is an artificial version. ( 7 ) THE evidence of PW-12 in the Examination in chief discloses that Chand Pasha invited the deceased to a wet party on 16-1-2001. But in the cross examination he admits that it is one Raju who is the Mestry under whom the deceased was working and that the mestry obviously should be Raju who hosted the party on 16-1-2001 and not Chandpasha. ( 8 ) THE prosecution might have proved successfully the motive but has miserably failed to prove the incriminating last seen circumstance and has failed to successfully prove the discovery evidence. The death may be a homicidal but there is no evidence to connect the accused with the crime. ( 9 ) IN view of the above discrepancies, the order of conviction recorded by the trial Court is bad in law. The same is set aside. The accused is set at free, if not required in any other case. Criminal Appeal is allowed. ( 10 ) STATE shall pay a fee of Rs. 5,000/- to amicus Curiae Sri Ravish Benni.