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2013 DIGILAW 965 (KAR)

STATE OF KARNATAKA v. GANGADHARA SUVARNA

2013-08-21

H.S.KEMPANNA, N.K.PATIL

body2013
JUDGMENT H.S. KEMPANNA, J.-The State has preferred this appeal challenging the legality and correctness of the judgment and order of acquittal of the respondents/ accused of the offences punishable under Sections 302, 201 read with 34 of IPC. 2. The respondents/accused came to be tried on the charges for the offences punishable under Sections 302, 201 read with 34 of IPC. 3. It is alleged that on the intervening night of 11.07.2005 and 12.07.2005 at about 2.00 a.m. in the House bearing No. 1-27 belonging to Sadananda Kundar situated at Bobbaryakombu in Tenka Yarmalu village coming within the jurisdiction of Padubidri police station. The accused in furtherance of their common intention did commit the murder of the deceased Bhavani by smothering and strangulating her and thereafter in order to cause disappearance of the evidence of the said murder to screen themselves from legal punishment carried the body from the said house and threw it on the sea shore and thereby they have committed the aforementioned offences. 4. It is the case of the prosecution, the deceased Bhavani is the cousin of PWs.2, 6 and 7. Accused No. 2 is the wife of PW.7. The deceased, PW6, A.2 and PW.7 were living in the house belonging to PW.7. at Bobbaryakombu in Tenka Yermalu Village. PW.2 was living separately in his house situated in the same village i.e. Tenka Yermalu. PW.7 was a fisherman by occupation. PW.6 was born deaf and dumb lady. The deceased was married, but was living with PW.7. 5. It is the case of the prosecution, accused No1. was living in his house as a neighbour of PW.7 at Tenka Yermalu village. A.1 had developed illicit intimacy with A. 2-wife of PW.7. This was known to the deceased. Therefore, the accused apprehending that the deceased would disclose their illicit connection tothe family members and to others thought of getting rid of her. Accordingly, on the intervening night of 11.07.2005 and 12.07.2005 at about 2.00 a.m. when the deceased was sleeping in the house of PW.7, the accused in furtherance of their common intention smothered and strangulated the deceased, committed her murder and thereafter in order to cause disappearance of the said murder to screen themselves from the legal punishment they carried the body from the house and threw it on the sea shore. 6. 6. It is the further case of the prosecution, on the morning of 12.07.2005 one K. Rajshekar Rao, Secretary of Bada Grama Panchayath, on noticing the dead body of a lady on the sea shore filed a report as per Ex.P1 before PW.1-ASI of Padubidri police station. On the basis of Ex.P.1, PW.1 registered a case in UDR No. 11/2005 under Section 174 of Cr.P.C. and issued FIR as per Ex.P.2 to the Taluka Executive Magistrate. Thereafter, he held inquest over the body of the deceased and drew up inquest panchanama as perEx.P.3. At the time of inquest he recorded the statements of the blood relatives of the deceased including PW.2- sister of the deceased. After completing Ex.P.3, he forwarded the body for subjecting to postmortem examination along with a requisition. In pursuance of the same, one Dr. Mohan Kumar of KMC Hospital, Manipal held autopsy over the body of the deceased on the very day i.e. 12.07.2005 and issued postmortem report as per Ex. P. 11. 7. It is further the case of the prosecution, thereafter the investigation of the case was taken over by PW.11-PSI on 13.07.2005. During the course of investigation, on 19.07.2005 he recorded the statement of PW.7. That statement revealed to him the commission of the offence by the accused. Thereafter, PW. 11 suo motu filed his complaint as per Ex. P. 19 and on the basis of the same, he registered a case in Crime No. 67/2005 for the offences punishable under Sections 302, 201 read with 34 of IPC against the accused and issued FIR as per Ex.P.20 to the Jurisdictional Magistrate. Thereafter, he handed over further investigation of the case to PW. 10-CPI. 8. PW. 10 on taking over the investigation proceeded to the house of PW.7 at Tenka Yermal village. On that day he arrested A.1 and A.2. After completion of their arrest formalities he got them remanded to judicial custody. On the same day he also drew up the spot panchanama as per Ex. P.7 in the presence of panch PW.5. After completion of Ex.P.7 he also prepared a rough sketch of the scene of the occurrence as per Ex.P.14. Thereafter, he recorded the statements of PWs.2 and 4. He could not record the statement of PW.6 as she was deaf and dumb. P.7 in the presence of panch PW.5. After completion of Ex.P.7 he also prepared a rough sketch of the scene of the occurrence as per Ex.P.14. Thereafter, he recorded the statements of PWs.2 and 4. He could not record the statement of PW.6 as she was deaf and dumb. On 21.07.2005 he forwarded the viscera that had been collected and preserved by the Medical Officer for subjecting to chemical examination to the FSL Office, Mangalore. On 05.08.2005 he forwarded PW.6 to deaf and dumb school along with his staff situated at Pambur, Padubelle village along with a requisition Ex.P. 12 accompanied by certain queries and photos of the accused to give a report. On the same day, he received the report as per Ex.P.13 issued by PW.9-one of the teacher of deaf and dumb school. On 25.08.2005 he received the postmortem report and also FSL report-Ex.P15. He forwarded the said FSL report to the medical Officer and obtained his final opinion as to the cause of death in Ex.P.11, which had been issued by the Autopsy doctor. During the course of investigation he also obtained the records pertaining to the house belonging to PW.7 situated at Bobbaryakombu in Tenka Yermalu village. Thereafter, PW.10 on completion of the investigation of the case submitted final report against the accused before the Jurisdictional Magistrate, who in turn committed the case of the accused to the Court of Sessions, which on receipt of the records secured the presence of the accused, framed charges as aforesaid, to which, the accused pleaded not guilty but claimed to be tried. 9. The prosecution in support of its case in all examined PWs. 1 to 11 and got marked Exs. P. 1 to P. 20.The accused during the course of examination of the prosecution witnesses got marked Exs. D. 1 and D.2. 10. After the closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. They denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on their defence and to lead any evidence that they may have in support there of, to which they submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 11. Thereafter, they were called upon to enter on their defence and to lead any evidence that they may have in support there of, to which they submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 11. The learned trial Judge on considering the oral and documentary evidence placed on record held that the prosecution has failed to establish the charges levelled against the accused, accordingly by the impugned judgment and order acquitted the respondents/accused. 12. The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court. 13. Learned High Court Government Pleader assailing the impugned judgment and order of the trial Court contended that the evidence of PW.6 though deaf dumb clearly and clinchingly establishes that the accused are responsible for the murder of the deceased Bhavani and also they have caused disappearance of the evidence of the murder by throwing the body on the sea shore. That evidence of PW.6, which has been translated by PW.9-an expert has not been properly appreciated in its right perspective. He nextly contended, the evidence of PW.6 is fortified from the evidence of PW.2, who is none other than the sister of PW.6. The material on record reveals, admittedly PW.6 was living with PW.7 and the deceased in the house of PW.7. The occurrence has taken place on that night in the early hours in the house of PW.7. Therefore, the presence of PW.7 by no stretch of imagination can be disbelieved. The evidence of PW.2 discloses that she came to know about the accused having committed the murder through PW.6, which has also been testified by PW.6. The learned trial Judge despite this direct evidence being on record without assigning valid reasons has discarded their evidence and thereby has committed an error in acquitting the respondents/accused, which is contrary to the evidence on record, which cannot be sustained. He further contended, insofar as other evidence on record the same also fortifies the case of the prosecution in establishing the charges leveled against the accused, which also has not been properly considered by the trial Court, which has resulted in acquittal of the respondents-accused, which cannot be sustained, therefore a case for interference is made out. 14. He further contended, insofar as other evidence on record the same also fortifies the case of the prosecution in establishing the charges leveled against the accused, which also has not been properly considered by the trial Court, which has resulted in acquittal of the respondents-accused, which cannot be sustained, therefore a case for interference is made out. 14. Per contra, learned counsel appearing for the respondents/accused supported the impugned judgment and order of the trial Court. 15. In view of the aforementioned facts, evidence and documents on record, the point that arises for our consideration is:- "Whether the impugned judgment and order of acquittal calls for any interference?" 16. It is the case of the prosecution, A. 2 is the wife of PW.7. A. 1 is the neighbour of PW.7 and A.2. A. 1 and A. 2 had developed illicit connection with each other. This was known to PW.6 and PW.7, who are her cousins. The accused according to the prosecution apprehending that the deceased would disclose their illicit intimacy committed the murder of the deceased on the intervening night of 11.07.2005 and 12.07.2005 in the house of PW.7 and thereafter threw the body on the sea shore. 17. Homicidal death of the deceased Bhavani is not disputed in the case. That is fortified from the evidence of PW8 Dr. Vrandha J. Bhat and also the post mortem report Ex.P11 to which she has testified. 18. The prosecution in order to connect the accused with the homicidal death of the deceased have mainly relied upon the evidence of PWs 2, 6 and 7. 19. The prosecution in order to establish the charge leveled against the accused has mainly relied upon the evidence of PW.2 and PW.6, who are the sisters and cousins of the deceased. PW.7 is the husband of the A. 2 and also cousin of the deceased. PW.6 in her evidence has stated that on the intervening night of the occurrence she saw the accused committing the murder of the deceased and taking the body from the house and throwing on the sea shore. Admittedly, she is a deaf and dumb witness. The prosecution in order to translate her evidence has examined PW.9-a Teacher from deaf and dumb school. No doubt, the evidence of PW.6 as per the translated version of PW.9 reveals that she is an eyewitness to the occurrence. Admittedly, she is a deaf and dumb witness. The prosecution in order to translate her evidence has examined PW.9-a Teacher from deaf and dumb school. No doubt, the evidence of PW.6 as per the translated version of PW.9 reveals that she is an eyewitness to the occurrence. The evidence of PW.9 discloses that on 05.08.2005 the police gave a requisition to put certain questions to PW.6 and record her statement, which has been done by PW.9 on the instruction of the Principal of the College and has furnished the report as per Ex.P. 13. This goes to show that it is for the first time PW.6 has come out with the version that she having seen the occurrence which took place on the night of the occurrence. Admittedly, the occurrence has taken place on the intervening night of 11.07.2005 and 12.07.2005. The report Ex.P. 13 has seen the light of the day on 05.08.2005 nearly about 22-24 days after the occurrence. Here itself we may point out, before Ex.P 13 came into existence PW. 11-PSI had recorded the statement of PW.7 and on the basis of the said statement, he had suo motu registered a case against the accused on 19.07.2005. That would go to show that this report Ex.P. 13 does not lend any credence to place reliance on the same. 20. Apart from this, PW.2 is none other than the sister of PW.6. Her evidence reveals, on the morning of 12.07.2005 on being informed by the President of Bada Grama Panchayath on phone, she came to the sea shore and identified the body as that of the deceased Bhavani, who is her cousin. Her evidence further discloses that on the very day PW.6 informed that the accused had committed the murder of the deceased. Admittedly, this PW.2 has been examined at the time of Ex. P. 3-the inquest that was held by PW.1 on 12.07.2005. In her statement at the time of inquest she has never whispered a word about PW.6 having informed her that she had seen the accused committing the murder of the deceased on the previous night. 21. The statement of PW2 has been recorded by PW10-CPI on 19.7.2005 implicating the accused in the case. In her statement at the time of inquest she has never whispered a word about PW.6 having informed her that she had seen the accused committing the murder of the deceased on the previous night. 21. The statement of PW2 has been recorded by PW10-CPI on 19.7.2005 implicating the accused in the case. If according to the prosecution accused had committed murder of the deceased on the intervening night of 11.7.2005 and 12.7.2005 and that had been witnessed by PW6, the sole eye witness in the case, since her statement has come to be recorded for the first time on 5.8.2005 after the complaint Ex.P19 has been filed suo motu by PW11-PSI and further as this witness has not come forward of having revealed the same either to PW2- her sister or PW7- her brother, it is very difficult to place any reliance on her testimony. 22. Insofar as PW2 is concerned, though she claim that she came to know about the murder of the deceased through PW6 on 12.7.2005 itself, the day on which inquest was held and report as per Ex.P1 was filed by the Secretary of Bada Grama Panchayath, there is nothing on record to indicate that they had come forward before the police regarding the fact that accused have committed murder of the deceased the previous night. The statement of PW2 has also come to be recorded on 19.7.2005 after the case has been come to be registered by PW11-PSI against the accused. The conduct of these two witnesses in not coming out with the version regarding accused having committed murder of the deceased immediately to the police on 12.7.2005 would go a long way to place reliance on their testimony. In other words, it does not inspire confidence in any manner to place reliance on their testimony. 23. Since these witnesses viz. PWs 2 and 6 have not come out with the version of they having seen the accused committing murder immediately after the occurrence and they having come out with the version on 19.7.2005 and 5.8.2005, we find it very difficult to accept their testimonies as contended by the learned HCGP. 24. Insofar PW7 is concerned, he admittedly is the husband of A2. The material on record reveals as elicited in his cross examination in view of he having turned hostile, he is alleged to be an eye witness to the occurrence. 24. Insofar PW7 is concerned, he admittedly is the husband of A2. The material on record reveals as elicited in his cross examination in view of he having turned hostile, he is alleged to be an eye witness to the occurrence. Admittedly he was in the house which is not disputed on the night of the occurrence. If really the murder has taken place as projected by the prosecution in his house, he would not have failed to take steps to file the complaint against the accused as the deceased is none other than his cousin. 25. The learned trial Judge on an appreciation of the entire evidence of these three witnesses on whom the prosecution has placed reliance, has come to the right conclusion in holding that their testimony does not inspire any confidence to place reliance and accordingly has disbelieved their evidence and has come to the conclusion that the prosecution has failed to establish the charge leveled against the accused. 26. Insofar as the other witnesses examined in the case, they are only panchas for the inquest panchanama and spot panchanama. Their evidence also does not further the case of the prosecution in any manner. One more aspect requires to be considered is the evidence of PW4-Gulabi who is the neighbour of the deceased and PW7. Her evidence reveals on 11.7.2005 at about 5.00 p.m. deceased had met her and had told her that she is proceeding to her husband's place-Uppar. Thereafter she did not see the deceased in the village i.e. Tenka Yermal. Next day she saw the dead body on the sea-shore. This would go to show that the deceased having met with her death in some other circumstance also cannot be ruled out. Any how we are of the clear view that the evidence of PWs 2, 6 and 7 on which the prosecution has relied to connect the accused with the homicidal death of the deceased does not inspire confidence in us to place reliance of their testimonies. The learned Trial Judge on an appreciation of the entire material on record has come to the right conclusion in holding that the prosecution has failed to establish the charge against the accused. The said finding having been based on evidence on record does not does not suffer from any infirmity calling for interference in this appeal. The learned Trial Judge on an appreciation of the entire material on record has come to the right conclusion in holding that the prosecution has failed to establish the charge against the accused. The said finding having been based on evidence on record does not does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not see any merit in the appeal and it is dismissed.