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2017 DIGILAW 557 (KAR)

Sukhadev v. State of Karnataka

2017-03-06

ANAND BYRAREDDY, K.SOMASHEKAR

body2017
JUDGMENT : Anand Byrareddy, J. Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor. 2. The present appeal is by the accused who stood trial for an offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) and he has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/-. 3. It was the case of the prosecution that on 18.07.1997 at about 10:00 a.m., the accused, who was the husband of one Kasturevva had been suspecting her fidelity over a period of time and that he had committed her murder by assaulting her with an axe in Yadahalli of Bilagi Taluk, Bagalkot District. 4. It transpires that they were residing in a house adjacent to the house of P.W.1. It further transpires that accused No.1, against whom a charge sheet was sought to be filed, was absconding for over 14 years and it is after securing his presence that he stood trial. It is in this background that the 15 witnesses were examined and the material documents and other exhibits produced have been analysed by the Court below and the Court has come to a conclusion that the prosecution had established its case beyond all reasonable doubt. It is that which is under challenge in this appeal. 5. It is contended by the learned counsel for the appellant that of the witnesses, P.W.1 is shown to be the complainant and P.Ws.1, 4, 5 and 10 were examined as witnesses to establish the circumstances to point the finger of suspicion at the accused and seek to proceed on the basis of the last seen-theory. In this regard, it cannot be said that the evidence was of unimpeachable character which had established the chain of events with unerring certainty for the Court to have come to such a conclusion. This is apparent from a plain examination of the evidence of the said witnesses. It is pointed out that P.W.1 who is the complainant, has not stated that there are any eye-witnesses to the alleged incident and the incident is claimed to have taken place during the daytime. This is apparent from a plain examination of the evidence of the said witnesses. It is pointed out that P.W.1 who is the complainant, has not stated that there are any eye-witnesses to the alleged incident and the incident is claimed to have taken place during the daytime. Hence, it is only on the suspicion that the appellant was indeed, the assailant and that he might have committed the murder and had run away, that the prosecution has sought to file the case against him on the basis of the complaint, which is not justified. 6. It is further pointed out that there are no independent witnesses to the incident. It is only on the statements of above said witnesses, who are all shown to be relatives of the complainant that the conclusions have been arrived at. It is significant that none of the neighbourers of the appellant and the deceased have been examined to lay the foundation for the motive alleged against the accused. The so called murder weapon M.O.1 that was claimed to be the axe with which the murder had been committed, is not established as belonging to the appellant. The appellant was brought to trial, 14 years after the incident and this is not a circumstance that could be held against the accused. As the Apex Court in similar circumstances, has expressed that a mere abscondance of an accused from a place of an incident cannot form the fulcrum of guilt and it is quite possible that even an innocent man out of fear of arrest and suspicion that he may have committed murder and of the need for self preservation might have absconded. Therefore, it could not be a circumstance that could be held against the accused. 7. It is emphasized that the entire case of the prosecution rested on so called circumstantial evidence. It was necessary for the Trial Court to test such evidence on the touch stone of the established legal principles, as to the manner in which circumstantial evidence is to be accepted. Particularly, the chain of events which would firmly establish that the accused was clearly involved in the commission of offence. This crucial aspect cannot be established, on a plain examination of the testimony of the sole witnesses on the basis of which the prosecution has sought to establish the charges against the accused. 8. Particularly, the chain of events which would firmly establish that the accused was clearly involved in the commission of offence. This crucial aspect cannot be established, on a plain examination of the testimony of the sole witnesses on the basis of which the prosecution has sought to establish the charges against the accused. 8. Coupled with this, the evidence of P.Ws.1 and 4 is not consistent with their statements originally recorded and that is yet another circumstance which would further dilute the case of the prosecution. In the absence of any direct evidence to demonstrate that the accused had indeed committed the murder, the Trial Court was not justified in arriving at the conclusion that it was the accused who had committed the murder. Even the medical evidence that was tendered is not free from inconsistencies. As regards the time of death of the deceased and when that is not established, it is even more difficult to accept the finding of the Court below. In this case, the learned counsel for the appellant would point out that neither the motive or the alleged preparation by the accused to commit the murder or the intention to do so has been established by reference to independent evidence duly corroborate by other acceptable evidence. 9. The further circumstance that the appellant did not belong to the village where the incident had taken place is completely over looked by the Trail Court. Further the owner of the land on which the dead body of the deceased was found has not even been examined. It is only on the evidence that P.Ws. 18, 9 and 14, who are Police officers, who had investigated the crime and taken further proceedings and on whose opinion that the accused was absconding has proceeded to hold that the accused after having committed the murder had absconded and that itself was a pointer to his guilt. This conclusion is wholly prejudicial to the accused and has resulted in the accused being visited with the serious punishment of life imprisonment, which is a gross miscarriage of justice. It is thus contended that viewed from any angle, it could not be said that the Court below was justified in arriving at its conclusion on the basis of the evidence on record. 10. It is thus contended that viewed from any angle, it could not be said that the Court below was justified in arriving at its conclusion on the basis of the evidence on record. 10. Though the learned Additional State Public Prosecutor would seek to justify the judgment of the Trial Court, it is indeed found that there was little substance in the case of the prosecution for the Court below to have come to its conclusion. Particularly of the motive behind the murder and the commission of the murder itself, as alleged by the accused. The testimony of P.W.1 is to the following effect, that about six months prior to the incident, the accused and his wife had come to Yadahalli and they were living in a hut by the side of his house and that about 14 years prior to the date of the incident, the accused and the deceased had gone out to work as usual, but they failed to return by 07:00 p.m., as they would usually do. Therefore, he was curious as to why they had not returned and that is how he had found the dead body of the deceased, with bleeding injuries on the shoulder, back and other parts of the body and since he did not see the accused in the vicinity and though he noticed a blood stained axe namely M.O.1, it was his surmise, that the accused had committed murder and had run away. It is in this belief that he lodged the complaint. The evidence of P.W.1 is followed by P.W.14, the Investigating officer, who has stated that on 19.07.1997, he had received a complaint which has reduced to writing and it has been duly signed by P.W.1 and of having registered a criminal case and had taken further proceeding. 11. Though P.W.1 has stated that accused was suspecting the fidelity of his wife, it is noticed that it was rightly contended by the counsel for the appellant that he had not stated so in the first round when he was examined initially before the Court. It was certainly an improvement sought to be made in the second instalment of his evidence by way of examination-in-chief which the Court below had overlooked in holding that circumstance need not discredit the testimony of P.W.1 in its entirety and that the Court has chosen to read the evidence as a whole. It was certainly an improvement sought to be made in the second instalment of his evidence by way of examination-in-chief which the Court below had overlooked in holding that circumstance need not discredit the testimony of P.W.1 in its entirety and that the Court has chosen to read the evidence as a whole. Though it is only after an interval on a subsequent date that P.W.1 is sought to supplement the complaint that the accused was suspecting the fidelity of his wife which could have been narrated by the witness when he was seeking to support the case of the prosecution which proceeds entirely on that basis. Therefore, it was definitely a course correction by the prosecution in ensuring that P.W.1 supported its case by supplementing his statement on a subsequent date of hearing. 12. The Court has also sought to justify that Ex.P-1, the complaint did not also contain any such allegation by the complainant of he being aware of the accused suspecting the fidelity of the deceased. The Court has however been impressed by the circumstance that the complaint has in passing towards the end of it, has mentioned that the accused was suspecting the fidelity of his wife. However, the testimony of P.W.1 before the Court below required him to emphasize this aspect which has been stated only as an after thought, as it were. Therefore, the contention of the learned counsel for the appellant that this was not uttermost in the mind of P.W.1 in supporting the case of the prosecution, that the motive for the murder was the strong suspicion of the fidelity of the deceased which had prompted the accused to commit the murder is certainly not glaring. 13. It is further fortified by the decision of the Supreme Court in the case of Sampath Kumar v. Inspector of Police, (2012) 4 SCC 124 : ( AIR 2012 SC 1249 ), that when the prosecution seeks to rely upon the testimony of a material witness, who has sought to make material improvement in his version, unless corroborated by some other independent evidence, the conviction of the accused on the sole testimony or the Court accepting the motive, as being established on the said testimony would be unfair to the accused. Though the testimony of relatives of the complainant or others cannot be discarded merely on the ground that the testimony is of such relatives. Though the testimony of relatives of the complainant or others cannot be discarded merely on the ground that the testimony is of such relatives. In the facts and circumstance of each case, the veracity or the genuineness of such evidence would have to be certainly tested as to whether the same could be accepted and not discarded merely because they are the relatives of either the accused or the deceased. 14. The reasoning of the Court below that the accused was the son-in-law of P.Ws.1 and 4 and therefore, it cannot be readily accepted that they would be keen on implicating the murder is again a conclusion when is not justified. The apparent reason for such suspicion on the ground that the accused had absconded and therefore, it unerringly lead to the presumption that the accused had committed the murder, is again not welcome reasoning in the absence of other incriminating evidence, on which it could proceed. 15. The reasoning of the Trial Court that the testimony of P.W.1 could not be disbelieved and it was for the accused to have tendered evidence capable of throwing light on the defence. While also observing, that the Court was very conscious of the fact that the burden of proof was entirely upon the prosecution, is again a fallacious approach which cannot justify the finding of the guilt of the accused. The further reasoning that the evidence of P.W.1, finds support from the evidence of P.Ws.4, 5, 10 and 12, who have consistently supported the evidence of P.W.1, is again ignoring the fact that such consistency itself would establish that they were all intent on supporting the case of the prosecution and particularly, as stated by P.W.1. It is difficult to accept that all of them would show accurately mirror each other testimony unless it was premeditated and they were actively tutored to tender such similar evidence. 16. The Court has also conceded that P.W.1 had stated that he was not knowing the reason for the quarrel between the accused and the deceased in the first instance. Even P.W.4 had also stated that he was ignorant about the reason for the murder and this being pointed out by the Court below, has been side lined by reference to the subsequent change in the testimony to plead the suspicion which the accused allegedly had of the fidelity of the deceased. 17. Even P.W.4 had also stated that he was ignorant about the reason for the murder and this being pointed out by the Court below, has been side lined by reference to the subsequent change in the testimony to plead the suspicion which the accused allegedly had of the fidelity of the deceased. 17. The insistence of P.W.4 that the accused had committed the murder and had run away and standing from by such a statement without any basis, as she was not admittedly an eye-witness to the incident is difficult to sustain that the Trial Court was not justified in proceeding to hold that the said witness was sufficient to bring home the charges against the accused. The Trial Court also having held that having regard to the consistent evidence of P.Ws.1, 4, 5, 10 and 12 which has neither proved the motive nor of any overt act committed by the accused, the Court having proceeded to hold that the case was established against the accused is not sustainable. 18. P.W.15, who was set up as an independent witness, significantly was treated as a hostile witness by the prosecution. Though he was cross-examined at length, the prosecution has not gained any mileage from the same. However, the Trial Court has expressed displeasure on the conduct of the said witness, in any event, however no independent evidence against the accused. 19. Ex.P-7, was not supported by P.W.7, who was treated as a hostile witness, has still been accepted by the Court below. While expressing that P.W.7, who has denied that he knew P.W.1 has been frowned upon by the Court below and has proceeded to hold that Ex.P-7 would yet be proved by the testimony of P.W.14. The evidence of other witnesses who had been examined formally in respect of material documents that were produced would have no bearing on the case. 20. Therefore, the entire case of the prosecution rests on circumstantial evidence, certainly not brought home in the manner, as it is required to be done, as laid down by the Supreme Court in a catena of decisions and the some of which have been discussed and reiterated in Sheikh Yusuf v. State of West Bengal, 2011 AIR SCW 3748 : ( AIR 2011 SC 2283 ), wherein it has held as under: "26. Circumstantial evidence: Undoubtedly, conviction can be based solely on circumstantial evidence. Circumstantial evidence: Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , Krishnan v. State, represented by Inspector of Police, (2008) 15 SCC 430 : (AIR 2008 SC (Supp) 2010); and Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306 ) : (AIR 2011 SC (Cri) 518)." 21. Further, in so far as abscondance is concerned, the Supreme Court also reiterated the legal position thus: "25. with the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru alias Girish Chandra v. The State of U.P., AIR 1971 SC 1050 ; Paramjeet Singh alias Pamma v. State of Uttarakhand, AIR 2011 SC 200 ; and Rabindra Kumar Pal alias Dara Singh v. Republic of India (2011) 2 SCC 490 ) : ( AIR 2011 SC 1436 ). (Vide: Matru alias Girish Chandra v. The State of U.P., AIR 1971 SC 1050 ; Paramjeet Singh alias Pamma v. State of Uttarakhand, AIR 2011 SC 200 ; and Rabindra Kumar Pal alias Dara Singh v. Republic of India (2011) 2 SCC 490 ) : ( AIR 2011 SC 1436 ). Thus, in view of the law referred to herein above, mere abscondance of the appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him." 22. Therefore, in the light of the above facts and circumstances and the legal position which is well settled, we find substance in the appeal and the grounds raised herein. 23. Accordingly, the appeal is allowed. The judgment and conviction of the Trial Court is set aside. The appellant is acquitted. He shall be set at liberty forthwith. 24. The operative portion of the Judgment shall be communicated to the concerned Jail authorities forthwith, for immediate compliance.