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2016 DIGILAW 512 (KAR)

State By Bilichodu Police v. Lokeshwarappa

2016-07-04

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

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JUDGMENT : Mohan M. Shantanagoudar, J. The judgment and order dated 9-1-2013 passed by the Prl. Sessions Court, Davangere in S.C. No. 135 of 2011 is called in question in this appeal by the State. The Trial Court, by the impugned judgment acquitted the accused of the offences punishable under Sections 302 and 201 of Indian Penal Code, 1860 and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Case of the prosecution in brief is that the deceased was teasing the sister's daughter of the accused while she was going to school; despite repeated requests, such habit of the deceased was not rectified; the accused in order to commit the murder of the deceased, took the deceased with him on 14-11-2011 at about 10.45 p.m. and assaulted him with club and thereafter caused his murder by smothering; the incident of murder has taken place in the land of the accused; however the dead body was taken to the adjoining land of P.W. 1 and the dead body was buried in the said land. P.W. 1 while attending the routine agricultural operations in his land saw a leg protruding out of the land; immediately he informed the Police by lodging the complaint as per Ex. P. 1 on 22-11-2011, which came to be registered at 9.15 a.m. on the same day in UDR No. 19 of 2011 of Bilichodu Police Station under Section 174(c) of Criminal Procedure Code, 1973; the Police and the panchas visited the spot and exhumed the dead body from the land of P.W. 1; since the body was identified as that of son of P.W. 2, thereafter P.W. 2 lodged the information as per Ex. P. 2 on 22-11-2011, which came to be registered in Crime No. III of 2011 of Bilichodu Police Station for the offences under Sections 302 and 201 read with Section 34 of IPC. P.W. 26-the Deputy Superintendent of Police completed the investigation and laid charge-sheet. 3. In order to prove its case, the prosecution in all examined 26 witnesses and got marked 28 exhibits and 12 material objects. On behalf of the defence, no witness is examined. 4. As mentioned supra, the Trial Court on evaluation of the material on record acquitted the accused. 5. 3. In order to prove its case, the prosecution in all examined 26 witnesses and got marked 28 exhibits and 12 material objects. On behalf of the defence, no witness is examined. 4. As mentioned supra, the Trial Court on evaluation of the material on record acquitted the accused. 5. Sri Rachaiah, learned High Court Government Pleader taking us through the material on record submits that the case of the prosecution rests on circumstantial evidence; the prosecution has proved all the circumstances relied upon by it; the circumstances so proved will complete the entire chain of circumstances, which does not leave any doubt in the mind of the Court about the involvement of the accused in the crime; the Trial Court is not justified in acquitting the accused inasmuch as the material on record is wholly sufficient to prove the guilt of the accused. According to him, the reasons assigned and the conclusion arrived at by the Trial Court is improper and incorrect. Per contra, Sri K.V. Keshava, learned Advocate for the respondent argued in support of the judgment of the Court below. 6. There are no eye-witnesses to the incident in question. The case of the prosecution rests on circumstantial evidence. The four circumstances relied upon by the prosecution are: 1. Motive for commission of the offence. The prosecution relied upon the evidence of P.Ws. 2 and 14 in respect of the said circumstance. 2. The accused was seen last with the deceased by P.Ws. 12 and 13. 3. The recovery of club, spade and towel from the place near the scene of occurrence. The recovery was based on the voluntary statement of the accused as per Section 27 of the Indian Evidence Act, 1872. Exs. P. 7 and P. 8 are the recovery panchanamas. P.W. 8 has deposed about the aspect of recovery. 4. The accused posing himself as Police attached to Tumkur Police Station called his mother (Chandramma) over phone and informed that Pradeep was murdered and his dead body is buried in the land of P.W. 1 (Jyothikumar) and that there is threat for life of the accused also. The prosecution relied upon the evidence of P.Ws. 5, 8, 11,15 and 16 in support of the said circumstance. 7. Before proceeding to discuss further, it would be relevant to note the versions of each of the witnesses in brief. P.W. 1 is the informant. The prosecution relied upon the evidence of P.Ws. 5, 8, 11,15 and 16 in support of the said circumstance. 7. Before proceeding to discuss further, it would be relevant to note the versions of each of the witnesses in brief. P.W. 1 is the informant. The information of P.W. 1 is at Ex. P. 1, based on which UDR case was registered by the Police. The dead body was buried in the land of P.W. 1. P.W. 2 is father of the deceased. He lodged the complaint as per Ex. P. 2 on 22-11-2011, based on which crime came to registered. P.W. 3 is the scribe of Exs. P. 3, P. 4 and P. 5. Ex. P. 3 is the mahazar relating to the place wherein the dead body was found. Ex. P. 4 is the mahazar relating to the place wherein the dead body was taken. Ex. P. 5 is the inquest report. P.W. 4 is the witness for mahazar-Ex. P. 4 under which the clothes of the deceased were seized. As mentioned supra, the said mahazar is relating to exhumation of the dead body. P.W. 5 has deposed that he saw Chandramma (mother of the accused) speaking with someone over phone and the phone was handed over by Chandramma to him. He heard from the other end of the phone that Tumkur Police had called Chandramma to inform her that the dead body of the deceased Pradep is buried in the land of P.W. 1 and that the life of the accused was also endangered. He was also present at the time of exhumation of the dead body. He had informed about the said fact to the parents of the deceased. P.W. 6 is one of the witnesses for panchanama-Ex. P. 6 (seizure mahazar of clothes of the deceased). P.W. 7 is the witness for mahazars-Exs. P. 6 and P. 8. Ex. P. 8 is the scene of offence mahazar. P.W. 8 is mother of the deceased. She has identified the dead body. P.Ws. 9, 10 and 11 also identified the dead body of the deceased. P.Ws. 12 and 13 are the witnesses who have deposed about the last seen circumstance. P. 6 and P. 8. Ex. P. 8 is the scene of offence mahazar. P.W. 8 is mother of the deceased. She has identified the dead body. P.Ws. 9, 10 and 11 also identified the dead body of the deceased. P.Ws. 12 and 13 are the witnesses who have deposed about the last seen circumstance. Both of them have deposed that they saw the accused and the deceased going near the land of the accused on 14-11-2011 at 10.45 p.m. P.W. 14 is the sister's daughter of the accused who was alleged to have been teased by the deceased. She has turned hostile to the case of the prosecution. P.W. 15 is the owner of the shop called Srinidhi Store. She has sold the sim card to the accused. P.W. 16 is the friend of the accused. He has deposed that accused was taken by him to Salaghatta. P.W. 17 was present at the time of exhumation of the dead body. He has conducted the inquest and recorded the statements of certain witnesses during the inquest. P.W. 18 is the Engineer who drew the sketch of scene of offence. P.W. 19 is the doctor. He conducted autopsy over the dead body. The autopsy report is at Ex. P. 12. P.W. 20 is the Village Accountant who has given the revenue extract pertaining to the land wherein the dead body was found. P.W. 21 is the Scientific Officer. He has deposed that he examined the articles sent by the Investigating officer and gave the report as per Ex. P. 14. The report discloses that Articles 1, 2, 3, 5 and 7 sent for examination were stained with 'O' Group human blood. But the said report will be of no use to the case of the prosecution because none of the bloodstained articles belonging to the accused were sent for FSL examination. Articles 1 to 3 are clothes of the deceased and Articles 4 to 7 are the bloodstained mud at the place wherein the dead body was lying. All such articles which were sent for Forensic Science Laboratory contain the same blood group i.e., 'O' blood group. P.W. 22 is the Assistant Director of FSL. He has examined the contents of the dead body. His report is at Ex. P. 16. P.W. 23 is the Head Constable. He registered the UDR Crime No. 19 of 2011. All such articles which were sent for Forensic Science Laboratory contain the same blood group i.e., 'O' blood group. P.W. 22 is the Assistant Director of FSL. He has examined the contents of the dead body. His report is at Ex. P. 16. P.W. 23 is the Head Constable. He registered the UDR Crime No. 19 of 2011. P.W. 24 is the Sub-Inspector of Police. He conducted part of the investigation and handed over the same to P.W. 25. The Inspector of Police (P.W. 25) also conducted partial investigation and handed over the same to P.W. 26, who completed the investigation and laid the charge-sheet. 8. As mentioned supra, the prosecution relies upon the four circumstances. 9. The 1st circumstance is motive for commission of the offence. The evidence of P.Ws. 2 and 14 is relied upon by the prosecution to prove the said circumstance. Among them, P.W. 14 (sister's daughter of the accused) has turned hostile to the case of the prosecution. She has not deposed about the motive for commission of the offence. She has also not whispered about the alleged teasing by the deceased. Hence the evidence of P.W. 14 is of no consequence to the case of the prosecution. P.W. 2 is father of the deceased. Though a detailed complaint came to be lodged as per Ex. P. 2 by the father of the deceased, he has not mentioned anything with regard to the motive in the said complaint. The said complaint is lodged against an innocent person and he did not suspect anybody. Even during the deposition before the Court, P.W. 2 has not stated that the deceased was teasing the sister's daughter of the accused and hence the murder has taken place. In the examination-in-chief itself, P.W. 2 has deposed that the Police had told before him that the accused confessed before the Police about the alleged teasing of the sister's daughter of the accused by the deceased, which means that P.W. 2 did not have any first hand knowledge or information about the motive for commission of the offence. On the other hand P.W. 2 came to know about the motive only through the Police who is investigating the crime. Consequently, the evidence of P.W. 2 is ; hearsay and the same cannot be relied upon. On the other hand P.W. 2 came to know about the motive only through the Police who is investigating the crime. Consequently, the evidence of P.W. 2 is ; hearsay and the same cannot be relied upon. In view of the same, in our considered opinion, the Trial Court is justified in concluding that the circumstance of motive is not proved by the prosecution. 10. The second circumstance is relating to the accused being last seen with the deceased at about 10.45 p.m. on 14-11-2011. The incident has taken place immediately thereafter. The prosecution has relied upon the evidence of P.Ws. 12 and 13 to prove the said circumstance. P.W. 12 has deposed that he saw the deceased - Pradeep going along with the accused at 10.30 p.m. about eight days prior to the exhumation of the dead body; he had been to some other village and he came to the native place only on the date when the dead body was exhumed. He has deposed that he has talked with the deceased while the deceased was going along with the accused. Thus it is clear from the evidence of P.W. 12 that he was alone when he saw the accused and the deceased going together near their land. Though he has deposed that he had been to his father-in-law's house after seeing the deceased with the accused, he has clearly admitted that the said village is 35 kilometers away from his native place and he came back to the village only on the date when the dead body was exhumed. He has further admitted that generally the villagers in these villages sleep at 10.00 p.m. P.W. 12 has not mentioned about the presence of P.W. 13 at all when he saw the deceased with the accused. However P.W. 13 though has deposed that he has also seen the accused with the deceased during the night of about eight days prior to the exhumation of the dead body, he has clarified that himself and P.W. 12 were coming back to the native place from Guttedurga Village. According to him, himself and P.W. 12 had gone to Guttedurga Village and both of them together came to their native place. If really P.W. 13 had accompanied P.W. 12 or if really P.Ws. According to him, himself and P.W. 12 had gone to Guttedurga Village and both of them together came to their native place. If really P.W. 13 had accompanied P.W. 12 or if really P.Ws. 12 and 13 had gone to Guttedurga Village and were coming back together to their native place, P.W. 12 would not have missed to state the said fact during his deposition. As mentioned supra, P.W. 12 has not whispered that P.W. 13 was also present along with him. P.W. 12 completely excludes the presence of P.W. 13. Since it is the version of P.W. 12 that he alone went and it is the version of P.W. 13 that himself and P.W. 12 went together and came back together, their versions need to be rejected in to inasmuch as both of them appear to have not deposed truly. Moreover both of them have not whispered about the accused going along with the deceased eight days prior to exhuming of the dead body, before anybody including mother and family members of the deceased. It is admitted by P.W. 13 that the mother of the deceased was telling that the deceased had not come back to his house after he left the house. Despite the same, neither P.W. 12 nor P.W. 13 had told before the mother of the deceased about the accused going with the deceased just prior to the incident in question. It is the case of the prosecution, which is amply clear from the charge-sheet framed by the Trial Court that the accused took the deceased along with him during the night of 14-11-2011 and committed his murder. Thus it may be presumed that P.Ws. 12 and 13 must have seen the deceased with the accused during the night of 14-11-2011. However Ex. P. 2, the complaint lodged by P.W. 2 (father of the deceased) discloses that the deceased left the house on the evening of 15-11-2011 which happens to be Tuesday. On the next day i.e., on Wednesday (16-11-2011), the telephone of the deceased was switched off. Thus according to father of the deceased, till the night of 15-11-2011, the deceased was very much in his house and he left the house during the night of 15-11-2011. If it is so, there is no occasion for P.Ws. 12 and 13 seeing the accused with the deceased going elsewhere in the evening of 14-11-2011. Thus according to father of the deceased, till the night of 15-11-2011, the deceased was very much in his house and he left the house during the night of 15-11-2011. If it is so, there is no occasion for P.Ws. 12 and 13 seeing the accused with the deceased going elsewhere in the evening of 14-11-2011. Even assuming that the accused and the deceased were going elsewhere together on 14-11-2011, the deceased must have come back to his house and stayed there for one day and once again left the house in the evening of 15-11-2011. The aforementioned discussion of us leads us to the only conclusion that the evidence of P.Ws. 12 and 13 relating to the last seen circumstance will be of no help to the case of the prosecution. Thus the said circumstance is also not proved by the prosecution. 11. The 3rd circumstance is recovery of M.Os. 10, 11 and 12 at the instance of the accused under panchanamas-Exs. P. 7 and P. 8. Firstly neither the club nor the spade were bloodstained inasmuch as there is no material to show that those two articles were stained with blood. The post-mortem report-Ex. P. 12 reveals that the clotted blood was present in the nose of the deceased and the teeth was also stained with clotted blood. Thus at least to certain extent there was bleeding from the body of the deceased. However not even a drop of blood is found either in the towel seized or on the club as well as spade. None of these articles were sent to FSL examination to find out as to whether those articles were used for commission of the offence. The evidence of P.W. 7 reveals that the club, spade and towel were found in the nearby place. There is nothing uncommon in the village to have towel, spade and club. Every villager uses club and spade for agricultural purposes and towel is usually cloth which is being carried by an agriculturist in this part of the State whenever he goes to agricultural land. Though the panchanamas-Exs. P. 7 and P. 8 and the evidence of P.W. 7 reveal that the said articles were seized from near the scene of offence, there is nothing on record to show that the accused has got any connection with the said articles. The link between the seizure of M.Os. Though the panchanamas-Exs. P. 7 and P. 8 and the evidence of P.W. 7 reveal that the said articles were seized from near the scene of offence, there is nothing on record to show that the accused has got any connection with the said articles. The link between the seizure of M.Os. 10 to 12 and the accused is absent. In this view of the matter, the so-called recovery also fails. 12. The last circumstance is that the accused informed his mother over phone that the dead body of Pradeep (deceased) is buried in the land of P.W. 1 and that the life of the accused is also in endanger. Curiously though Chandramma, mother of the accused is a prime witness for this circumstance, she is not even cited as a charge-sheet witness. His statement is not at all recorded by the Police for the best reasons known to them. If really Chandramma had received the telephone call from anybody including Tumkur Police, the Investigating Officer would not have missed to refer her statement. According to the prosecution case, Chandramma was running a coin booth and that the accused calling himself as Tumkur Police has informed the aforementioned facts to Chandramma by making call from telephone booth. It is the further case of the prosecution that P.W. 5 came there and Chandramma sought his assistance for hearing the telephone call. Though the evidence of P.Ws. 5, 8,11,15 and 16 is relied upon by the prosecution to show that there was conversation by the accused from his mobile phone through the coin phone maintained by Chandramma (mother of the accused), the prosecution has failed to obtain the all records duly certified by the appropriate authority as required under Section 65-B of the Indian Evidence Act. It is by now well-settled that certification of the call details is absolutely necessary and in the absence of such certification, the call details collected by the Investigating Officer cannot be looked into. Firstly, there is no certification of the call details by the appropriate authority. Secondly, there is nothing to show that the sim card, of which the call details are collected by the Investigating Officer belongs to the accused. Though P.W. 15, the shopkeeper who has allegedly sold the sim card to the accused is examined before the Court, his evidence does not disclose number of sim card sold by him to the accused. Secondly, there is nothing to show that the sim card, of which the call details are collected by the Investigating Officer belongs to the accused. Though P.W. 15, the shopkeeper who has allegedly sold the sim card to the accused is examined before the Court, his evidence does not disclose number of sim card sold by him to the accused. P.W. 15 has also admitted that he has not given any document to the Police during the course of investigation. The Police have not seized the register maintained by the shopkeeper to show that the particular sim card was sold by him to the accused. Even the telephone instrument maintained by Chandramma which was being used as coin booth is also not seized by the Investigating Officer. In the absence of such admissible material, it would be very difficult for the Court to believe the case of the prosecution. Hence the 4th circumstance also fails. 13. The aforementioned discussion leads us to the only conclusion that the prosecution has failed to prove any of the four circumstances relied upon by it. Since it is a case based on circumstantial evidence, the prosecution ought to have proved all the circumstances beyond reasonable doubt so as to complete the chain of circumstances. As none of the circumstances are proved beyond reasonable doubt by the prosecution, the. Trial Court is justified in acquitting the accused. The view taken by the Trial Court is one of the possible views under the facts and circumstances of the case. Hence no interference is called for.