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2015 DIGILAW 374 (KAR)

K. S. Siddalingaiah v. State of Karnataka

2015-04-01

MOHAN M.SHANTANAGOUDAR, P.D.WAINGANKAR

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of conviction dated 11.7.2011 passed by the Additional Sessions Court, Hassan in SC. No. 53/2010, is called in question in these appeals by the convicted accused. Crl. A. No. 965/2012 is filed by convicted accused No. 1, whereas Crl. A. No. 909/2011 is filed by convicted accused Nos. 2, 3 and 4. All the accused were tried and convicted for the offences punishable under Sections 302and 201 r/w. Section 34 of IPC. Case of the prosecution in brief is that accused No. 1 is the wife of the deceased Nagaraju; the deceased used to quarrel with accused No. 1 frequently by consuming alcohol and used to assault her; for the said reason accused No. 1 hatched the plan in collusion with accused Nos. 2 to 4 to do away with the life of the deceased Nagaraju. Accused No. 2 is the husband of sister of accused No. 1 and co-brother of the deceased; at about 6.00 p.m. on 5.9.2009, accused Nos. 2, 3 and 4 came in a Tata Sumo vehicle bearing Regn. No. KA-05-D-379 to the house of accused No. 1, who in turn has paid Rs. 5000/- and agreed to give golden ring to each of accused Nos. 3 and 4; Accused No. 1 also gave a plastic rope for committing the murder of the deceased; accused Nos. 2 to 4 accordingly took the deceased in the said Tata Sumo vehicle as per the instructions of accused No. 1; initially they went to Malanad Wine Shop, wherein the deceased was made to consume alcohol; thereafter accused No. 2 to 4 took the deceased near Doddatappalu village on B.M. Road, NH. No. 48 and strangulated the deceased Nagaraju with plastic rope, consequent upon which, the deceased deed in the said vehicle and the dead body was thrown by them in a drainage in order to conceal the offence; P.W. 1, a passer-by saw the dead body on 6.9.2009 and informed the same to Sakaleshapura Police Station by lodging the complaint against unknown persons; the statement of P.W. 1 was recorded as per Ex. Pl and Crime No. 163/2009 came to be registered by P.W. 26, the Sub-Inspector of Police, Sakaleshpura Police Station, based on the complaint lodged by P.W. 1; P.W. 30, the Inspector of Police completed the investigation and laid the charge sheet against the four accused. 2. In order to prove its case, the prosecution in all examined 30 witnesses and got marked 29 Exhibits and 14 Material Objects. On behalf of the defence, no witness is examined and no documents are marked. As aforementioned, the trial Court after hearing, convicted all the accused for the offences punishable under Sections 302 and 201 of IPC. 3. Sri Balan, learned advocate appearing on behalf of accused Nos. 2 to 4 taking us through the entire material on record submits that the Court below is not justified in convicting the accused merely on assumptions; none of the circumstances relied upon by the prosecution is proved, much less beyond reasonable doubt; all the important witnesses who were supposed to depose about recovery of certain incriminating articles etc., have turned hostile to the case of the prosecution; the reasons assigned by the trial Court are improper and incorrect and consequently the conclusion reached by it is incorrect. The said submissions of Sri Balan are supported by Sri K.S. Chandrakanth Gowda, learned counsel appearing on behalf of accused No. 1 and Sri Laksmeesh Mutaguppi, learned amicus curiae. Per contra, the learned Government Pleader argued in support of the judgment of the Court below. 4. P.W. 1, who was a passer-by saw the dead body found in a ditch and informed the same to Sakaleshpura Police Station by lodging the complaint at Ex. P1. Crime is registered against unknown persons. P.W. 1 is also the witness for Ex. P2 and P8, scene of offence mahazar and inquest mahazar respectively. P.Ws. 2, 3 and 4 were supposed to depose about the motive for commission of the offence. P.W. 2 is the father of the deceased and P.W. 3 is the elder brother of the deceased. P.W. 4 who is an independent witness, has deposed that quarrels used to take place between the deceased and accused No. 1. P.W. 5 is the sister of the deceased. Accused No. 1 (the wife of the deceased) went to the house of P.W. 5 after about 2 to 3 days of the incident and told her that deceased took Rs. P.W. 5 is the sister of the deceased. Accused No. 1 (the wife of the deceased) went to the house of P.W. 5 after about 2 to 3 days of the incident and told her that deceased took Rs. 10,000/- from the house and he is missing. Accused No. 1 stayed in the house of P.W. 5 for three days and thereafter she went back to her house. After one month of the incident, accused No. 1 informed P.W. 5 that the dead body of the deceased is found. P.W. 5 was also supposed to depose about the motive for commission of offence. P.W. 6 is the mother of the deceased. She has turned hostile to the case of the prosecution. P.W. 7 is the pawn broker. According to him, P.W. 6 pledged a pair of ear studs and a pair maati (gold ornaments) for Rs. 4,000/-. Based on the voluntary statement of accused No. 1, the said gold ornaments are recovered from his shop by drawing panchanama. P.Ws. 8, 9, 10, 11 and 12 have turned hostile to the case of the prosecution. Their evidence is of no use either to the case of the prosecution or to the case of the defence. Among them, P.W. 8 was supposed to depose about last seen circumstance. P.W. 13 is a Mechanic working in a garage. He has deposed that accused No. 4 had brought Tata Sumo vehicle to the said garage for repairs and he received Rs. 400/- as repair charges. P.W. 14 is the owner of Tata Sumo vehicle. He has deposed that accused No. 4 was the driver of the Tata Sumo vehicle and the said vehicle is attached to a company situated at Bangalore. P.Ws. 15, 16, 17, 18, 19 have turned hostile to the case of the prosecution. P.W. 15 was the witness for seizure of the clothes of the deceased and P.Ws. 16 and 17 were witness for inquest panchanama. P.W. 18 was the witness for recovery of pawn receipt (MO: No. 13) and the tractor keys (MO No. 14) based on the voluntary statement of accused No. 1. P.W. 19 was another witness for seizure mahazar at Ex. P16, under which plastic rope was recovered at the instance of accused No. 2. As aforementioned, all these witnesses have turned hostile. P.W. 19 was another witness for seizure mahazar at Ex. P16, under which plastic rope was recovered at the instance of accused No. 2. As aforementioned, all these witnesses have turned hostile. P.W. 20 is the witness who has deposed about the photographs of Tata Sumo vehicle involved in the incident. P.W. 21 is another witness for seizure of clothes of the deceased under Ex. P11. P.W. 22 is the witness for seizure of watch (MO. No. 6) under panchanama at Ex. P12, based on the voluntary statement of accused No. 3. He has also deposed about seizure of Tata Sumo vehicle (MO. No. 7), based on the voluntary statement of accused No. 4. The recovery panchanama of Tata Sumo vehicle is at Ex. P13. P.Ws. 23 and 24 are the Police Constables who assisted in the Investigating Officer during the course of investigation at different levels. P.W. 25 is the doctor who conducted the post-mortem examination over the dead body. Post-mortem report is at Ex. P21 and the opinion of the doctor is at Ex. P22. P.W. 26 is the Sub-Inspector of Police who registered Crime No. 163/2009 against unknown persons based on the complaint lodged by P.W. 1. P.W. 27 is the lady Police Constable who assisted the Investigating Officer in arresting accused No. 1. P.W. 28 is the Sub-Inspector of Police who received the missing complaint lodged by accused No. 1 as per Ex. P23. P.W. 29 is another witness, who has turned hostile to the case of the prosecution. She was the witness for scene of offence panchanama and seizure panchanama. P.W. 30 is the Investigating Officer who completed the investigation and laid the charge sheet. 5. Case of the prosecution purely rests on the circumstantial evidence. There are no eye witnesses to the incident in question. Prosecution mainly relies on the following circumstances:-- i) Motive. ii) Recovery of tractor keys-MO. No. 14 and pawn receipt-MO. No. 13 under panchanama at Ex. P14. P.Ws. 17 and 18 are the mahazar witnesses. iii) Recovery of plastic rope-MO. No. 8 based on the voluntary statement of accused No. 2 under mahazar at Ex. P16. P.Ws. 19 and 29 are the mahazar witnesses. Voluntary statement of accused No. 2 is at Ex. P26. iv) Recovery of watch-MO. No. 6 under mahazar at Ex. P12 at the instance of accused No. 3. iii) Recovery of plastic rope-MO. No. 8 based on the voluntary statement of accused No. 2 under mahazar at Ex. P16. P.Ws. 19 and 29 are the mahazar witnesses. Voluntary statement of accused No. 2 is at Ex. P26. iv) Recovery of watch-MO. No. 6 under mahazar at Ex. P12 at the instance of accused No. 3. P.W. 22 is the witness for the said mahazar. v) Recovery of Tata Sumo vehicle-MO. No. 7 based on voluntary statement of accused No. 4. Ex. P28 is the recovery panchanama. P.W. 22 is the mahazar witness. vi) The deceased was seen with the accused. P.W. 8 is the witness for the said circumstance. vii) Unnatural conduct of accused No. 1 in not lodging the complaint and not informing the police immediately after missing of her husband. 6. Re. Motive: Prosecution has relied upon the evidence of P.Ws. 2, 3, 4 and 5 to prove Motive. PW 2 is the father and P.W. 3 is the brother of the deceased. P.W. 4 is an independent witness and P.W. 5 is the sister of the deceased. Though the motive projected by the prosecution is that the deceased was drunkard and he used to quarrel with accused No. 1 and being intolerant, accused No. 1 committed the murder of the deceased with the help of accused Nos. 2 to 4, such motive is not practically supported by the prosecution witnesses. P.W. 2 admits in the examination-in-chief itself that there is no motive on the part of the accused to commit the murder of the deceased. P.W., brother of the deceased has also deposed that he did not visit the house of the deceased prior to the incident. However, his version is that he had visited the house of the deceased about 2 to 3 months prior to the incident in question.' Virtually his evidence is not helpful to prove the aspect of motive. P.W. is an independent witness who has deposed that the mother of accused No. 1 had sold her site for Rs. 5 lakhs and for that reason, the deceased was pressurizing accused No. 1 to bring money from her mother's place and that was the reason for accused No. 1 to commit the crime. Such version of P.W. does not find any support from any other witnesses. 5 lakhs and for that reason, the deceased was pressurizing accused No. 1 to bring money from her mother's place and that was the reason for accused No. 1 to commit the crime. Such version of P.W. does not find any support from any other witnesses. It is not the case of the prosecution that the deceased was pressurizing accused No. 1 to bring money. On the other hand, as aforementioned, prosecution has projected the motive that the deceased was drunkard and used to quarrel with accused No. 1 frequently. More over, there is nothing on record to show that a site existed in the name of the mother of accused No. 1 and that such site was sold by her to anybody prior to the incident in question. Hence, we find that the evidence of P.W. 4 may not be helpful to prove the circumstance of motive. P.W. 5-sister of the deceased has admitted that the relationship between the deceased and accused No. 1 was cordial. Thus, from the aforementioned facts, it is clear that none of the aforementioned witnesses has deposed about the motive on the part of the accused to commit the crime. There is nothing on record to show that the deceased and accused No. 1 were not in good terms. So also, these witnesses have not deposed that the deceased used to drink and quarrel frequently with accused No. 1, etc. Hence, in our considered opinion, the prosecution has not proved the circumstance of motive against the accused. 7. Recovery of tractor keys and pawn receipt (MO. Nos. 13 and 14): For proving the said circumstance, the prosecution has relied upon the version of P.Ws. 17 and 18, who are the mahazar witnesses. MO Nos. 13 and 14 were recovered under mahazar at Ex. P14 from the house of accused No. 1 at the instance of accused No. 1. Ex. P14 makes it clear that the same is drawn in the house, of accused No. 1 and at that point of time, the pawn receipt-MO. No. 13 was seized from her house. Such case of the prosecution becomes highly suspicious in view of the admission of P.W. 7 in his examination-in-chief itself that the pawn receipt (MO. No. 13) was handed over by him in his shop to the police. No. 13 was seized from her house. Such case of the prosecution becomes highly suspicious in view of the admission of P.W. 7 in his examination-in-chief itself that the pawn receipt (MO. No. 13) was handed over by him in his shop to the police. According to P.W. 7, he personally handed over the pawn receipt to the police in his shop at the time of recovery of gold ornaments. P.W. 7 is none other than the pawn broker who had allegedly received the gold ornaments and paid Rs. 4,000/- to P.W. 6. Thus, the contents as found in Ex. P14 under which pawn receipt (MO. No. 13) was allegedly seized in the house of accused No. 1, falls to the ground. Moreover, the tractor keys (MO. No. 14) are relating to the tractor of the deceased. The said keys were seized from the house of the deceased and accused No. 1. It is but natural to find the tractor keys in the house of the deceased and accused No. 1 because the deceased was the owner of the tractor and accused No. 1 is the wife of deceased. In addition to the same, the mahazar witnesses (P.Ws. 17 and 18) have turned hostile to the case of the prosecution. Thus, Ex. P14 does not find support from any material on record. Therefore, the recovery of tractor keys and pawn receipt (Mo. Nos. 13 and 14) at the instance of accused No. 1 is not proved by the prosecution beyond reasonable doubt. It is also relevant to note that MO. No. 13 (pawn receipt was issued in the name of P.W. 6 and not in the name of accused No. 1. The pawn receipt-MO. No. 13 clearly reveals that it was P.W. 6 who had pledged the gold ornaments and not accused No. 1. There is nothing on record to show that the gold ornaments pledged in the shop of P.W. 7 by drawing pawn receipt-MO. No. 13 are of accused No. 1 and that she has pledged the said gold ornaments for the purpose of generating funds for commission of the offence. Therefore, the circumstance relating to recovery of tractor keys and pawn receipt under Ex. P14 fails and the same is not proved by the prosecution inasmuch as such circumstance is not proved by the prosecution beyond reasonable doubt. 8. Recovery of plastic rope-MO. Therefore, the circumstance relating to recovery of tractor keys and pawn receipt under Ex. P14 fails and the same is not proved by the prosecution inasmuch as such circumstance is not proved by the prosecution beyond reasonable doubt. 8. Recovery of plastic rope-MO. No. 8: The prosecution has relied upon the versions of P.Ws. 19 and 29 who are the mahazar witnesses. According to the prosecution, the plastic rope was recovered under panchanama at Ex. P16 on 9.1.2010. The panchanama at Ex. P16 discloses that the plastic rope was seized near the scene of offence, i.e., on B.M. Road western ghats on the way to Dharmastala. However, both P.Ws. 19 and 29 have turned hostile to the case of the prosecution. They have deposed that their signatures were taken in the Police Station. No other witness is supporting the aspect of recovery of rope. Hence, the circumstance relating to recovery of plastic rope-M.O. No. 8, also fails. 9. Recovery of watch of the deceased - MO. No. 6: for proving the said circumstance, P.W. 22 is examined by the prosecution as a mahazar witness. He has turned hostile to the case of the prosecution. According to the prosecution, watch of the deceased (MO. No. 6) was seized at the instance of accused No. 3. There is nothing on record to connect the watch with the crime. Absolutely, no material is forthcoming to show that the watch was belonging to the deceased. The watch was allegedly recovered from accused No. 3. It is not uncommon for any person to wear watch now-a-days. There is no connecting material between the watch and crime. Hence, no useful purpose will be served for the prosecution by recovering the said watch-MO. No. 6. Not even a suggestion is made to the effect that such watch is belonging to the deceased. Hence, the said circumstance also fails. 10. Recovery of Tata Sumo vehicle-M.O. No. 7 based on the voluntary statement of accused No. 4 under Ex. P13: For the purpose of proving the said circumstance, prosecution has relied upon the version of P.Ws. 20 and 22, who are the mahazar witnesses. As aforementioned, P.Ws. 20 and 22 have turned hostile to the case of the prosecution. 10. Recovery of Tata Sumo vehicle-M.O. No. 7 based on the voluntary statement of accused No. 4 under Ex. P13: For the purpose of proving the said circumstance, prosecution has relied upon the version of P.Ws. 20 and 22, who are the mahazar witnesses. As aforementioned, P.Ws. 20 and 22 have turned hostile to the case of the prosecution. P.W. 13 who is a mechanic working in the garage has deposed that accused No. 4 had brought Tata Sumo vehicle for repairs to his garage and he repaired the said vehicle by collecting Rs. 400/- as repair charges. P.W. 14 is the owner of Tata sumo vehicle. He has deposed that accused No. 4 was the driver of the said vehicle and that the vehicle is attached to a company situated at Bangalore. It is further deposed by P.W. 14 that the said vehicle has never gone to Dharmastala. As aforementioned, both the mahazar witnesses have turned hostile to the case of the prosecution. Even according to the owner of the vehicle, accused No. 4 was the driver of the vehicle and it was in his possession. According to the prosecution the vehicle (MO. No. 7) was seized from the possession of accused No. 4 when it was parked near his house. Since he was the driver of the said vehicle, it is but natural for him to possess the vehicle. The question still to be decided as to whether the vehicle in question was used by accused No. 4 for commission of offence or not. Merely seizure of Tata Sumo Vehicle under Ex. P13 does not take the case of the prosecution anywhere. Since accused No. 4 was the driver of the vehicle and he was incharge of the said vehicle as driver, it is but natural for him to possess the said vehicle. Therefore, we do not find any unnatural conduct of accused No. 4 to possess the vehicle. However it is necessary to add here itself that the prosecution has failed to connect the link between Tata Sumo vehicle (MO. No. 7) and the crime inasmuch as no reliable material is found on record that the said vehicle was used for commission of offence. 11. Re. last seen circumstance: to prove the aspect of last seen circumstance, the prosecution has projected the evidence of P.W. 8, who is the owner of Malanad Wine Shop. No. 7) and the crime inasmuch as no reliable material is found on record that the said vehicle was used for commission of offence. 11. Re. last seen circumstance: to prove the aspect of last seen circumstance, the prosecution has projected the evidence of P.W. 8, who is the owner of Malanad Wine Shop. According to the prosecution, accused Nos. 2 to 4 took the deceased in a Tata Sumo vehicle on 5.9.2009 and went to Malanad Wine Shop owned by P.W. 8 at 7.00 p.m. and made the deceased to consume liquor. Thus, P.W. 8 is an important witness who was supposed to depose about the last seen circumstance. Unfortunately, he has also turned hostile to the case of the prosecution. Despite the cross-examination by the Public Prosecutor, nothing worth is elicited so as to support the case of the prosecution. Hence, the last seen circumstance relied upon by the prosecution is not proved by it. 12. Re. unnatural conduct of accused No. 1: We fully agree with the submission of the learned Government Pleader that the conduct of accused No. 1 is highly unnatural, inasmuch as she has not lodged any complaint immediately after missing of her husband. The records reveal that accused, No. 1 lodged the complaint only on 12.10.2009, as per Ex. P23, alleging missing of her husband'. Actually, the deceased was missing since 5.9.2009. No attempt was made by accused No. 1 to lodge the complaint or to inform the police immediately. On the contrary, she waited till 12.10.2009 and lodged the complaint as per Ex. P23. It is also relevant to note that the Police Station is situated in Shanthigrama itself wherein the deceased and accused No. 1 were living. Therefore, the natural conduct of accused No. 1 would have been that she being the wife of the deceased, ought to have lodged the complaint with the police immediately after missing of the deceased. This appears to be a highly unnatural conduct of accused No. 1. However, P.W. 5, the sister of the deceased has deposed that immediately after missing of the deceased, accused No. 1 came to her house and informed about missing of the deceased; accused No. 1 stayed in the house of P.W. 5 for three days and thereafter went to back to her house. However, P.W. 5, the sister of the deceased has deposed that immediately after missing of the deceased, accused No. 1 came to her house and informed about missing of the deceased; accused No. 1 stayed in the house of P.W. 5 for three days and thereafter went to back to her house. Hence, it is clear that an attempt is made by accused No. 1 to inform others, including the family members of the deceased. It has also come in the evidence of P.W. 5 that immediately after getting information from accused No. 1 about missing of the deceased, P.W. 2 (father of the deceased) was informed and who in turn has lodged the complaint before the police. However, copy of such complaint is not forthcoming in the prosecution papers. Be that as it may, it is clear from the deposition of P.W. 5 that accused No. 1 made efforts to trace the deceased immediately after his missing. She informed P.W. 5 (sister of the deceased) and P.W. 2 (father of the deceased) who in turn has lodged the complaint. Even otherwise, merely on the sole circumstance of unnatural conduct of accused No. 1, she cannot be convicted for the offence with which she is charged. Looking to the totality of the facts and circumstances of the case, we find that the trial Court was not justified in convicting the accused particularly when none of the circumstances relied upon by the prosecution is not proved beyond reasonable doubt. We find that the trial Court has proceeded mainly on assumption and not based on the legal evidence. Be that as it may, on re-appreciation of the entire material on record, we find that it is not a fit case to convict the accused, inasmuch as none of the circumstances relied upon by the prosecution is not proved by it. Hence, the impugned judgment is liable to be set aside. Accordingly, the following order is made:-- i) The judgment and order of conviction dated 11.7.2011 passed by the Additional Sessions Judge, Hassan, in SC. No. 53/2010, is set aside. ii) Accused - appellants herein are acquitted of all the charges levelled against them. iii) Accused - appellants herein shall be set at liberty forthwith, if they are not required in any other case. Appeals are allowed accordingly. No. 53/2010, is set aside. ii) Accused - appellants herein are acquitted of all the charges levelled against them. iii) Accused - appellants herein shall be set at liberty forthwith, if they are not required in any other case. Appeals are allowed accordingly. We place on record the valuable assistance rendered by Sri Lakshmeesh P. Mutaguppi, learned amicus curiae in the matter. In token thereof, we direct the Registry to pay a sum of Rs. 5,000/- (Rupees five thousand only) to the learned amicus curiae.