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2016 DIGILAW 237 (KAR)

STATE OF KARNATAKA v. KANTHARAJ

2016-03-04

A.V.CHANDRASHEKARA, S.ABDUL NAZEER

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JUDGMENT : This appeal filed under Section 378(1) and (3), Cr.P.C. is directed against the judgment of acquittal passed by the I Additional Sessions Judge, Davanagere, in S.C.37/01. The respondent herein will be referred to as accused as per his ranking before the trial court. He had faced trial for the offence punishable under Section 302, I.P.C. and is ultimately acquitted by the trial court by a considered judgment dated 10.2.2007. 2. The matter is already admitted. The facts leading to the filing of the appeal are as follows: a) Accused is a resident of Machogondanahalli village, Honnali Taluk, Davanagere. On 11.9.2010 at about 8.00 p.m., deceased Mahesh left his house and did not return. On 12.9.2010 at 8.30 a.m., the father of the deceased found his dead body in the land of Karibasappa. He found that his son had been murdered by using a sharp edged weapon. b) He chose to lodge first information at 10.30 a.m. on 12.9.2010, on the basis of which a case came to be registered in Crime No.158/10 for the offence punishable under Section 302, I.P.C. According to the prosecution, the accusedKantaraj, son of Baswanthappa was the accused and he was arrested at 2.30 p.m. on the same day and subjected to custodial interrogation. On the information allegedly given by him to the police while in police custody, incriminating material came to be recovered at his instance. c) According to the prosecution, accused showed the place where he had thrown the chopper with which he had allegedly assaulted the deceased and committed his murder. The said recovery was made in the presence of Panchas and mahazar was drawn to that effect. According to the prosecution, accused had committed theft in the house of the deceased earlier and was caught redhanded. On convening Panchayat, he was admonished and ordered to pay a fine of Rs.500/. It is stated that the deceased was often insulting this petitioner as a thief and this was not liked by the accused. Therefore, he wanted to eliminate the deceased, and it is in this regard he took the deceased to a secluded place near the tank of the village and murdered him by assaulting with a chopper, that too, after making him to drink liquor. Therefore, he wanted to eliminate the deceased, and it is in this regard he took the deceased to a secluded place near the tank of the village and murdered him by assaulting with a chopper, that too, after making him to drink liquor. d) According to the prosecution, the circumstances relevant are: (i) motive, (ii) deceased being last seen in the company of the accused and (iii) recovery of incriminating materials like chopper and mobile of the deceased. 3. What is argued before this court by the learned SPP, Mr.P.M.Nawaz is that the trial court has not properly analyzed the oral and documentary evidence and has not adopted right approach to the real state of affairs. He has argued that the initial burden cast on the prosecution has been effectively discharged and the onus had shifted on the accused and the same is not properly explained. It is further argued that though the prosecution case is to be proved beyond reasonable doubt, the learned judge has blown out of proportion some inadequacies found in the prosecution case and thus the accused has been given the benefit of doubt. 4. Per contra, learned counsel for the accused has argued that the circumstances relied upon by the prosecution have not been proved to the hilt and that they have only remained as circumstances. There are inherent inconsistencies in the version of material witnesses relating to the recovery of incriminating materials and the aspect of the deceased being last seen in the company of the accused, apart from the failure to prove motive. It is argued that the trial court has rightly assessed the entire evidence in right perspective and has given the benefit of doubt on the basis of serious inconsistencies found in the case of the prosecution. 5. After going through the records and hearing the learned Spl. Public Prosecutor, Mr.P.M.Nawaz and learned counsel for the respondentaccused, following points arise for consideration of this court: (1) Whether the learned sessions judge is justified in coming to the conclusion that the prosecution has failed to prove all the circumstances relied upon by it beyond reasonable doubt? (2) Whether any interference is called for, and if so, to what extent? 6. (2) Whether any interference is called for, and if so, to what extent? 6. A Constitutional Bench of the Hon’ble apex court in the case of M.G.AGARWAL .v. STATE OF MAHARASHTRA reported in ( AIR 1963 SC 200 ) has laid down the factors to be kept in mind by the first appellate court dealing with an appeal against conviction. Paragraph 18 of the said decision is relevant and it is reproduced below: ‘18. There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No.1 rests on circumstantial evidence. The main charge of conspiracy under section 120B is sought to be established by the alleged conduct of the conspirators and so far as accused No.1 is concerned, that rests on circumstantial evidence alone. It is well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person’s conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with the guilt, then the accused is entitled to the benefit of doubt. Thee is no doubt or dispute about this position. But in applying this principle, it is position. But in applying this principle, it is necessary to distinguish between the facts which necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn fro them on the other. In regard to the proof of basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has be appreciated.’ What should be the right approach in the matter of assessment of evidence relating to circumstantial evidence is dealt with at length by the Hon’ble apex court in the case of INSPECTOR OF POLICE, TAMILNADU .v. JOHN DAVID ([2011] 5 SCC 509. According to the Hon’ble apex court, every incriminating circumstance has to be established by cogent evidence and the court must be cautious in corroboration. Further it is reiterated that each incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. It is true that minor loopholes and irregularities cannot defeat conviction. 7. Learned Spl. Public Prosecutor, Mr.P.M.Nawaz has argued that even in an appeal against acquittal, the first appellate court is not inhibited to reconsider the entire evidence. If the lower court has ignored material facts or misread the evidence or has overlooked the scientific evidence, the decision of the lower court can definitely be set aside while dealing with an appeal filed under Section 378, Cr.P.C. He has relied upon the decision of the Hon’ble apex court in the case of CHANDRAPPA .v. STATE OF KARNATAKA ([2007] 2 SCC (Crl.) 325) in which the following five principles are reiterated: 1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of appellate court “to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly , the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. 5. If two reasonable views are possible on the basis of evidence on record and one favorable to the accused has been taken by the Trial Court, it ought not be disturbed by the appellate Court. There is no second opinion about the principles enunciated by the Constitutional Bench and reiterated subsequently in the case of CHANDRAPPA. 8. The first circumstance relied upon by the prosecution is ‘motive.’ Admittedly accused was found committing theft in the house of the deceased and a Panchayat had been convened in the village and on being found guilty, accused had been directed to pay a sum of Rs.500/by the Panchayatdars. It is the case of the prosecution that the deceased was found taunting this accused in regard to his involvement in the theft committed in their house and also fine of Rs.500/, often. It is this attitude of the deceased which, according to the prosecution, was not liked by the accused and therefore, he had decided to eliminate the deceased. Thus it is contended that motive is the circumstance which could be definitely taken into consideration. The Panchayat had been convened 812 months prior to the alleged murder and the taunting continued for quite some time. Hence a doubt arises as to whether such a taunting could really be the ‘motive’ to commit a heinous crime like murder. 9. Thus it is contended that motive is the circumstance which could be definitely taken into consideration. The Panchayat had been convened 812 months prior to the alleged murder and the taunting continued for quite some time. Hence a doubt arises as to whether such a taunting could really be the ‘motive’ to commit a heinous crime like murder. 9. Admittedly the alleged theft stated to have been committed by the accused in the house of the deceased was 812 months prior to the incident in question. Whether such a long delay would further strengthen the aspect of motive, needs to be looked into. Motive is a doubleedged weapon. If one edge of the weapon is a blade, judicial process cannot sharpen it, is the decision of the Hon’ble apex court. Whenever a serious allegation like murder is made, the circumstance of motive needs to be proved by placing all cogent and acceptable evidence. Apart from this, the deceased and the accused were distant relatives and whether such taunting by the deceased to the accused would really be the motive for committing murder appears to be very doubtful. 10. The next circumstance relied upon by the prosecution is the deceased ‘being last seen in the company of the accused.’ Shantaraj aged 15 years is examined as PW6. He is also a resident of Machogondanahalli village. He has stated that 8 months earlier to the incident, at about 7.30 p.m. he was proceeding towards the tank in the village to attend to nature call and saw the deceased and accused going together and later on he came to know that Mahesh was murdered in the vicinity of the tank and he did not go there. During the course of crossexamination, PW6 has admitted that he was not enquired by the police either in the police station or his house. Hence, it is un-understandable as to how he has been cited as a witness. 11. In fact, PW6 has deposed that his name was given as a witness by his own father. He has admitted that his house has all the facilities of toilet and bathroom and they use the same. If his house had toilet and bathroom facilities, it is un-understandable as to why a fifteen year old boy would go towards the village tank at 7.30 p.m. in the night. He has admitted that his house has all the facilities of toilet and bathroom and they use the same. If his house had toilet and bathroom facilities, it is un-understandable as to why a fifteen year old boy would go towards the village tank at 7.30 p.m. in the night. Evidence of this nature will have to be tested on the touchstone of intrinsic probabilities. On doing so, it is found his evidence does not inspire the confidence in the mind of the court. This is further supported by his own deposition that he was not enquired by the police either in the police station or his house. 12. The next aspect relied upon by the prosecution is recovery of chopper (M.O.3) with which the accused allegedly assaulted the deceased and committed his murder in the vicinity of the village tank in Machogondanahalli village and the mobile of the deceased. Prosecution has relied on the evidence of PW - 3. Ex.P4 is stated to have been written by the inspector of police on 12.9.2010 between 5.00 p.m. and 6.00 p.m. in the vicinity of the village tank in the presence of Ganeshachari (PW2) and Bhojanayaka (PW25). This recovery is stated to have been made at the instance of the accused consequent upon the disclosure made by him while he was in police custody. Ex.P22 is the relevant portion of the disclosure allegedly given by the accused which is relevant under Section 27 of the Evidence Act. In his examination-in-chief in paragraph 3, accused has referred to it. According to the prosecution, recovery of M.O.3 was made at the instance of the accused and this is evident from Ex.P4. PW2, Ganeshachari (father of PW6) is stated to be the attestor to Ex.P4, and he has identified his signature at Ex.P4(a). In his examination-in-chief, he has deposed that one chopper was in the tank and two persons, namely Kumar (PW4) and Dhananjay got into the tank and took out the said chopper and police drew up mahazar at the spot. PW2 has been crossexamined at length in regard to the alleged recovery. In page 7, he has feigned ignorance as to the contents of the mahazar drawn by the police in his presence. He has further deposed that he did not read the contents of the same and they were not read over to him. PW2 has been crossexamined at length in regard to the alleged recovery. In page 7, he has feigned ignorance as to the contents of the mahazar drawn by the police in his presence. He has further deposed that he did not read the contents of the same and they were not read over to him. Therefore, it is useful to scan the evidence of PW25. 13. PW4, Kumar who is also known as Thambi, helped the police in taking out the chopper from the tank. In his examination-in-chief, he has deposed that one year prior to his deposition, he took out the chopper from the tank at the instance of the police and he has identified the said weapon as M.O.3. But during crossexamination, he has given a goby to his version, stating that CWs1 and 2 were grazing cattle and that police had brought the chopper and he was asked to be in the water for some time and police gave the said chopper to him and took a photo. 14. Evidence includes crossexamination. If the crossexamination portion of PW4 were to be looked into, it stares at his examination-in-chief and it is ununderstandable as to why the prosecution did not take pains to crossexamine him on this material aspect with the permission of the court. Therefore, we are of the considered opinion that if a witness gives goby in his crossexamination, it is the duty of the prosecution to crossexamine such witness with the permission of the court and if such attempt is not done, it would be nothing but casualty of justice. 15. We have the evidence of PW25, Bhojanayak who has also spoken about othe recovery of MO.3 and drawing up of mahazar as per Ex.P4. He has identified his signature at Ex.P4(b). He is also a resident of Machogondanahalli village. He has deposed that he had gone near the place where the dead body of Mahesh was found and a lot of people had gathered there. After some time, accused was brought there. It is his case that the accused and another boy went into the tank and brought out the chopoper and police took his signature on the mahazar as per Ex.P4. The evidence of this material witness contradicts with the evidence of PW2 and PW4. PW4 has not spoken anything about the presence of Bhojanayak, a resident of the same village. It is his case that the accused and another boy went into the tank and brought out the chopoper and police took his signature on the mahazar as per Ex.P4. The evidence of this material witness contradicts with the evidence of PW2 and PW4. PW4 has not spoken anything about the presence of Bhojanayak, a resident of the same village. If really the accused had taken out othe chopper, as deposed by PW25, PW4, Kumar would have definitely spoken to that fact. In this view of the matter, the oral evidence in regard to the recovery of a vital material like M.O.3 is inherently inconsistent and this aspect has been taken into consideration by the trial court while assessing the entire evidence. 16. Learned counsel for the respondent-accused has brought to the notice of this court the material discrepancy in regard to the actual time of arrest of the accused and the time of arrest shown in the police records. If one were to see the evidence of PW25, he had gone near the place where the dead body was found and a lot of people had gathered there, and at that time, M.O.3 was recovered. But the evidence of PW32, investigating officer is that the accused was arrested and produced before him at 2.30 p.m. and later on was subjected to custodial interrogation. Necessarily recovery must have been made after the disclosure made under Section 27 of the Evidence Act. If the evidence of Bhojanayak (PW25) and PW3 (Renukamma), a relative of the deceased, were to be taken into consideration, accused was already there at 8.30 p.m. near the place where the dead body was found. Therefore, the time of arrest of the accused as projected by the police appears to be not convincing. 17. If the first information had been received at 10.30 a.m. and the case was registered 45 minutes later, it is un-understandable as to how the accused could be in the custody of the police even before registration of the case. 18. Learned SPP has relied on a decision of the Hon’ble apex court in the case of G.PARSHWANATH .v. STATE OF KARNATAKA ([2010] 3 SCC 1027) to contend that circumstantial evidence can be more reliable on eyewitness’s account. There is no second opinion about the said aspect. 18. Learned SPP has relied on a decision of the Hon’ble apex court in the case of G.PARSHWANATH .v. STATE OF KARNATAKA ([2010] 3 SCC 1027) to contend that circumstantial evidence can be more reliable on eyewitness’s account. There is no second opinion about the said aspect. But the question is: whether the circumstances relied upon by the prosecution have been established beyond all reasonable doubt and if so, what is the reasonable inference that could be drawn from such proved circumstances. 19. As already discussed, the main link in the present case is the deceased being last seen in the company of the accused on the previous night and the prosecution has relied on the evidence of PW6. On thoroughly scanning of the evidence of PW6, this court is of the considered opinion that it does not inspire confidence in the mind of the court to be considered as an important circumstance proved beyond reasonable doubt. In the case of G.PARSHWANATH (supra), the Hon’ble apex court has held that while drawing inference from poroved circumstances, natural events and human conduct must be considered. On reassessment of the entire evidence in the background of natural events and human conduct, this court is of the opinion that the evidence of PW6 relating to the aspect of last seen theory does not inspire confidence and therefore, the trial court has held that an important link in the chain of circumstance is missing. 20. In regard to the recovery of incriminating material, M.O.3, there are inherent and contradictory versions and there is no possibility of finetuning those inherent inconsistencies pointed out on behalf of the accused. The same cannot be considered as either minor or inconsequential inconsistencies; but are glaring enough to go to the root of the prosecution case. 21. Learned SPP, Mr.P.M.Nawaz has relied on the recovery of mobile phone purported to be belonging to the deceased, from the accused. It is true that if one were to accept that the phone was recovered at the instance of the accused, there must be clinching evidence to show that the mobile belonged to the deceased. It is true that the wife of the deceased who is examined as PW-30 has identified the said mobile as that of her husband. Identification of the mobile can be conclusively established only with reference to IMIE number. It is true that the wife of the deceased who is examined as PW-30 has identified the said mobile as that of her husband. Identification of the mobile can be conclusively established only with reference to IMIE number. We do not know whether the SIM card found in the mobile actually belonged to the deceased. In fact, police have not collected any materials to that effect and therefore this court is unable to accept that as a material circumstance to link the accused with the murder of the deceased. 22. One more important aspect noticed by this court is sending M.O.3, chopper alleged to have been recovered at the instance of the accused, to FSL. It is mentioned that it had contained some blood over the blade. If the FSL report marked as Ex.P15 were to be true, it is un-understandable as to how the chopper which was in the tank water for quite some time could stil retain blood stains. This can also be viewed from another angle. Ex.P4mahazar drawn in connection with M.O.3 is at the instance of the accused. If really it had blood stains, nothing came in the way of the IO to have mentioned about it. In the absence of such mention in Ex.P4, the opinion found in Ex.P15FSL report cannot be given much credence. 23. The case of the prosecution is that the accused had taken with him some alcohol so as to give it to the deceased and a bottle was found near the dead body. If really deceased had consumed alcohol and thereafter he was assaulted, nothing came in the way of the doctor in preserving viscera and the police sending it for examination to FSL to find out as to whether he had consumed alcohol just prior to the incident in question. In fact, the learned judge has come to the conclusion that no convincing and cogent evidence, much less, proper documentary evidence in regard to the imposition of Rs.500/at an earlier point of time. Therefore, in paragraph 16 of the judgment, it is held that the alleged motive is very vague and not sufficient to commit such a grave offence of murder. 24. The learned judge of the trial court has held the theory of deceased being last seen in the company of the accused as a very weak link and therefore, much credence is not attached to the same. 24. The learned judge of the trial court has held the theory of deceased being last seen in the company of the accused as a very weak link and therefore, much credence is not attached to the same. The learned judge has referred to the evidence of all witnesses in the background of the principles enunciated by the Hon’ble apex court relating to the assessment of evidence based on circumstances. In the case of SUJIT BISWAS V. STATE OF ASSAM reported in [2013] 2 SCC 406, the Hon’ble apex court has held in paragraph 18 as follows: ‘18. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The court must draw an inference with respect to whether the chain of circumstances in complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.’ 25. The learned judge of the trial court has, while analyzing the materials on record, kept in mind the principles reiterated by the Hon’ble apex court in the above decisions and has considered all the materials placed on record in right perspective and has come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Viewed from any angle, we find no reason to interfere with the well considered judgment of acquittal passed by the trial court. 26. In the result, the following order is passed: ORDER The appeal filed under Section 378(1) and (3), Cr.P.C. is dismissed, confirming the judgment of acquittal passed in S.C.37/11.