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2020 DIGILAW 272 (KAR)

Siddaling v. State

2020-01-30

MOHAMMAD NAWAZ, SREENIVAS HARISH KUMAR

body2020
JUDGMENT 1. This appeal is by accused No.1, challenging the Judgment and Order dated 10.02.2012 passed by the Court of the I Additional Sessions Judge, Kalaburagi in S.C. No.89/2011, convicting and sentencing him for the offences punishable under Sections 302 and 201 of IPC. 2. We have heard the learned counsel appearing for the appellant and the learned Additional SPP appearing for the respondent/State. 3. In brief, the case of the prosecution is as under: The younger sister of the first informant viz., Manjula [deceased] was given in marriage to accused No.1 about 2 years prior to the date of incident. The couple had a male child aged one year. Accused No.1 was a registered Medical Practitioner and both Manjula and accused No.1 were on cordial terms for about one year after the marriage. Thereafter, accused No.1 started illicit relationship with other women and this was being objected by the deceased. The accused used to quarrel with Manjula and this fact was brought to the notice of her mother-in-law, but she did not heed to her words. Whenever Manjula used to visit her parents house, she was informing the said fact to the first informant and he used to console her. About 6 months back, due to difference of opinion with the mother of accused No.1, Manjula and accused No.1 started living in Ankalaga village. Even thereafter, accused No.1 continued illicit relationship with other women and he did not stop ill-treating Manjula. About 4 months prior to the date of incident, when Manjula was proceeding to Ankalaga from Kalaburagi via Deval Ghanagapur along with P.W.11-Jayaprakash on a two-wheeler, accused No.1 sent someone in a jeep to cause accident to their vehicle in order to commit her murder, which effort failed. It is the further case of the prosecution that accused No.1 took LIC policies for a sum of Rs.2 lakhs in the name of Manjula with an intention to get that amount by murdering her and to pay Rs.50,000/- each to other accused. In furtherance of their common intention, on 19.05.2010, at about 10.00 p.m. on Jewargi-Sindagi road, near the land of one Shivamurteppa Kalaburagi, while accused Nos.1, 2 and 4 were coming back from Kalaburagi towards Ankalaga along with Manjula in a Tata indica car bearing reg. In furtherance of their common intention, on 19.05.2010, at about 10.00 p.m. on Jewargi-Sindagi road, near the land of one Shivamurteppa Kalaburagi, while accused Nos.1, 2 and 4 were coming back from Kalaburagi towards Ankalaga along with Manjula in a Tata indica car bearing reg. No.KA-35/MB- 45, they stopped the said car on the pretext that tyre of the car was punctured and after stopping the car assaulted Manjula with an iron rod and iron tommy on her head and committed her murder. Thereafter, the aforesaid accused telephoned to accused No.3 and informed him to come to the spot in his cruiser jeep bearing reg. No.KA-28/M-3791 and in furtherance of their common intention, accused No.3 dashed the cruiser jeep against the Tata indica car, to make it appear that Manjula died in a road accident and in order to cause disappearance of evidence of murder with an intention of escaping themselves from legal punishment. Charges were framed against accused Nos.1 to 4 for the offences punishable under Sections 302, 201 r/w. 34 of IPC. Before the trial Court, the prosecution got examined P.Ws.1 to 20 and got marked Exs.P1 to 24 and M.Os.1 to 13. The defence got marked Exs.D1 to 5, however, did not choose to lead any evidence. The learned trial Judge after considering the evidence and material on record, found accused Nos.2 to 4 not guilty of the charged offences and acquitted them. The learned trial Judge convicted accused No.1 having found him guilty for the offences punishable under Sections 302 and 201 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for 3 years for the offence punishable under Section 302 of IPC. Further, to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo simple imprisonment for one year for the offence punishable under Section 201 of IPC. 4. Aggrieved by the aforesaid Judgment and Order of conviction and sentence passed by the trial Court, the present appeal has been preferred by accused No.1. 5. It is the contention of the learned counsel appearing for the appellant that the entire case of the prosecution is based on circumstantial evidence but none of the circumstances relied upon by the prosecution has been proved. 5. It is the contention of the learned counsel appearing for the appellant that the entire case of the prosecution is based on circumstantial evidence but none of the circumstances relied upon by the prosecution has been proved. The learned Sessions Judge acquitted accused Nos.2 to 4, as such, committed an error by convicting accused No.1 alone without there being sufficient evidence on record to show that it is accused No.1 and he alone committed the offence. He submits that the prosecution has failed to prove that the appellant was having illicit relationship with other women which was supposed to be one of the motives for committing the crime. He submits that the witnesses who have given evidence against the accused are all interested witnesses and there is no independent witness examined by the prosecution. Mere fact that the appellant obtained LIC bonds in the name of Manjula [deceased] itself does not suffice to hold that he has taken it with an intention to do away with the life of deceased. The allegation that the appellant made an attempt to do away with the life of Manjula on an earlier occasion by causing an accident is also not proved by the prosecution. He submits that acquittal of accused Nos.2 to 4 itself shows that the entire case of the prosecution is cooked up. The appellant has been convicted on mere suspicion. The forensic expert has not been examined to prove that the alleged weapons M.Os.1 and 2 are the objects used to assault Manjula. The learned counsel further submits that there are several inconsistencies in the evidence of the prosecution witnesses and the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly, he seeks to allow the appeal. Per contra, the learned Additional SPP has contended that the prosecution has been able to establish that Manjula died a homicidal death. He submits that the doctor has opined that the cause of death is due to neurogenic shock caused by head injury and the doctor has further opined that if a person is hit by a hard object like rod, the above said injuries are likely to be caused. Therefore, he submits that the claim of the appellant that Manjula died in a road traffic accident is far from truth and that is one of the circumstances against the accused. Therefore, he submits that the claim of the appellant that Manjula died in a road traffic accident is far from truth and that is one of the circumstances against the accused. He submits that the appellant was having illicit relationship with other women, which was being objected by Manjula and therefore, he wanted to get rid of her for which he engaged accused Nos.2 to 4 and to pay them, he obtained LIC bonds in the name of Manjula for a sum of Rs.2 lakhs. He submits that even on an earlier occasion, the appellant has attempted to commit the murder of Manjula by causing an accident when she was traveling on a motorcycle along with P.W.11-Jayaprakash. He submits that the weapons used for the commission of offence have been recovered at the instance of the accused. Hence, he submits that the prosecution has been able to prove all the circumstances which conclusively prove that it is the appellant/accused No.1, who has committed the murder. Accordingly, he seeks to dismiss the appeal. 6. Having given anxious consideration to the rival submissions and having perused the evidence and material on record including the impugned Judgment and order passed by the trial Court, the following points arise for our consideration: 1) Whether the prosecution has been able to establish the charges leveled against the appellant/accused No.1 beyond all reasonable doubt? 2) Whether the impugned Judgment and Order passed by the trial Court convicting and sentencing the appellant/ accused No.1 is liable to be interfered with? 3) What order? 7. The entire case of the prosecution is based on circumstantial evidence. The prosecution has placed reliance on the following circumstances: 1) Homicidal death. 2) Motive. 3) Last seen incident. 4) Recovery of M.Os.1 and 2. 5) The previous incident wherein accused No.1 attempted on the life of Manjula [deceased] by causing an accident. HOMICIDAL DEATH: 8. To prove that Manjula died a homicidal death, the prosecution has relied on the evidence of P.W.1, who conducted post-mortem examination and issued post-mortem report marked as Ex.P1 and P.W.17-Tahsildar, who conducted the inquest panchanama-Ex.P.5. 9. The following injuries are noted in Ex.P.1: 1. Cut lacerated wound-right parietal region. Fracture of parietal bone present. Brain matter torn and pieces through the wound 10 cms. x 5 cms. 2. Cut lacerated wound-left parietal-occipital region 6 cms. 9. The following injuries are noted in Ex.P.1: 1. Cut lacerated wound-right parietal region. Fracture of parietal bone present. Brain matter torn and pieces through the wound 10 cms. x 5 cms. 2. Cut lacerated wound-left parietal-occipital region 6 cms. x 4 cms., fracture of parietal and occipital bone present; brain matter piercing through the wound. 3. Lacerated-cut incised wound present on right frontal region above eye-brow 3 cms. x cms. x bony deep, wound gaping. 10. P.W.1 has stated that the cause of death was due to neurogenic shock caused by head injury. He has further stated that if a person is hit with an hard object like rod, the above injuries are likely to be caused. In the cross-examination, he has stated that there may be chances of causing injuries not by the same weapon, but by more than one weapon and the rod cannot cause incised injury. He has denied the suggestion that if an inmate of a vehicle has met with an accident, such injuries may be caused. He has stated that it is an instantaneous death. If the head comes in contact with hard object forcibly, such injuries may be caused. If a sharp edged weapon is used, the incised wound may be caused. He has stated that the Police have not sent any weapon to him for obtaining his opinion. He has seen the rod. If a person is hit by the said rod, the 10 cms. injury may be uniform or may not be uniform. He has stated that if a person is hit by rods shown to him, the said injuries may not be caused. If a person his hit by M.O.1, there will be a depressed fracture. 11. P.W.17 has stated that he conducted inquest mahazar as per Ex.P5 over the dead body. On seeing the dead body, he smelt that the deceased was hit by with some weapon. In the cross-examination, he has stated that apart from P.Ws.6 and C.W.13, there were no other witnesses, who spoke about the incident. He has mentioned in Column No.10 of Ex.P5 that at that time, there were no witnesses, who could give their statements. He has stated that based on the statement made by P.W.6, he has written the contents of column No.11, which is in Ex.P5. 12. He has mentioned in Column No.10 of Ex.P5 that at that time, there were no witnesses, who could give their statements. He has stated that based on the statement made by P.W.6, he has written the contents of column No.11, which is in Ex.P5. 12. The defence taken by the accused is that Manjula [deceased] while traveling in the car, met with an accident on account of which she sustained severe injuries and died. As per the post-mortem report, 3 injuries are noticed over the dead body. According to the prosecution, M.Os.1 and 2 are the weapons viz., iron rods seized at the instance of accused No.1, which are used to commit the murder. It is elicited from P.W.1 that the rods cannot cause incised injuries and there was a gaping in the third injury and if a sharp edged weapon is used, the incised wound may be caused. P.W.1 has also admitted that the Police have not sent any weapon for his opinion. He has also admitted that if a person is hit by the rods shown to him, the third injury may not be caused. If a person is hit with rods and if a person is hit by M.O.1, there will be a depressed fracture. 13. Though P.W.17 has stated that he smelt that Manjula [deceased] was hit by some weapon, however, it is only an assumption expressed by P.W.17. He has stated that at the time of conducting inquest mahazar, P.W.6 and C.W.13 were present. P.W.6 is none other than the brother of the deceased, who on a suspicion lodged the complaint against accused No.1 and others. 14. From the evidence of P.W.1 it cannot be said that all the 3 injuries found on the deceased were caused by the weapons which were seized and marked as M.Os.1 and 2. The incident according to the prosecution has taken place near Nelogi on Jewargi-Sindagi road, while the deceased was traveling in a car from Kalaburagi towards Ankalaga. Dead body was inside the car. When the case of the defence is that the deceased sustained injuries in the accident, a doubt creates in the mind of the Court as to whether the injuries found on the dead body were caused by M.Os.1 and 2. Hence, it cannot be said that the prosecution has established beyond reasonable doubt that Manjula died a homicidal death. MOTIVE: 15. Hence, it cannot be said that the prosecution has established beyond reasonable doubt that Manjula died a homicidal death. MOTIVE: 15. It is the case of the prosecution that after the marriage, accused No.1 was in cordial terms with Manjula [deceased] for about one year and thereafter, he started ill-treating and assaulting her. Accused No.1 developed illicit relationship with other women and when the deceased objected to it, he used to assault her. To establish motive, the prosecution has relied on the evidence of P.Ws.6, 15 and 19. 16. P.W.6 is the first informant and he is the brother of deceased Manjula. He has deposed that it was within their knowledge that accused No.1 had illicit relationship with other women and accused No.1 murdered Manjula for the reason that he had taken LIC policies in her name. 17. P.W.15 is the younger sister of deceased-Manjula. She has deposed that accused No.1 had illicit relationship with other women and there were quarrel with accused No.1 and the deceased often. Manjula [deceased] used to inform her about this fact and also the ill-treatment given by accused No.1 to her. 18. P.W.19 is a relative of deceased Manjula. He has stated that accused No.1 had illicit relationship with some other women and he is a womanizer. The deceased had opposed accused No.1 and for that, accused No.1 used to give physical and mental harassment to her. 19. Though the prosecution alleges that accused No.1 had illicit relationship with other women, it has failed to establish that with whom the accused had illicit relationship. P.Ws.6, 15 and 19 are hearsay witnesses and according to them, it is Manjula who informed them that accused No.1 had illicit relationship with other women. Merely because it was informed to them by Manjula [deceased], it cannot be said that accused No.1 had illicit relationship with other women. It is not the case of prosecution that accused No.1 was seen moving or in the company of any other woman. P.Ws.6, 15 and 19 are interested witnesses. There are no independent witnesses examined to prove that accused No.1/appellant had illicit relationship with other women. P.W.20, the Investigating Officer has admitted in his cross-examination that he has not made any investigation as to whether Accused No.1 had illicit relationship with other women. The prosecution has not examined any such person to establish that accused No.1 had illicit relationship with other women. P.W.20, the Investigating Officer has admitted in his cross-examination that he has not made any investigation as to whether Accused No.1 had illicit relationship with other women. The prosecution has not examined any such person to establish that accused No.1 had illicit relationship with other women. 20. Another motive projected by the prosecution is that accused No.1/appellant with an ulterior motive obtained two LIC policies, each for a sum of Rs.1,00,000/- in the name of his wife Manjula, so that he could get the said amount after committing the murder of Manjula. 21. M.Os.10 and 11 are the LIC bonds purchased by the appellant in the name of Manjula. The said bonds are dated 20.10.2009. The date of issuance of the policy is about 7 months prior to the date of incident. It is nodoubt true that the prosecution has been able to show that the appellant obtained the said LIC policies in the name of his wife Manjula about 7 months prior to the date of incident. However, merely because he has obtained the said policies in the name of his wife Manjula, it cannot be presumed or held that with an intention to get the amount mentioned in the policies, he has committed the murder of his wife. Hence, we are of the opinion that prosecution has failed to establish the motive for the appellant to commit the murder of his wife Manjula. LAST SEEN INCIDENT: 22. The prosecution has got examined P.Ws.13 and 14 to establish that accused No.1/appellant and his wife Manjula [deceased] were traveling together in the car on the night of 19.05.2010 on Jewargi Road and the said witnesses had a talk with the appellant. However, both these witnesses have turned hostile and they have not supported the prosecution case. Hence, the said circumstance of deceased last seen in the company of the appellant is not proved by prosecution. RECOVERY OF M.Os.1 AND 2: 23. According to prosecution, on 26.05.2010 accused Nos.1 and 4 were arrested and P.W.20-Investigating officer recorded their voluntary statements. The voluntary statement of accused No.1 is marked as Ex.P16. Accused No.1 produced two iron roads from a gutter by the side of the road and the said iron rods-M.Os.1 and 2 were seized in the presence of panchas under Ex.P8. 24. P.W.8 and C.W.6 are panchas to Ex.P8, under which M.Os.1 and 2-iron rods are said to be seized. The voluntary statement of accused No.1 is marked as Ex.P16. Accused No.1 produced two iron roads from a gutter by the side of the road and the said iron rods-M.Os.1 and 2 were seized in the presence of panchas under Ex.P8. 24. P.W.8 and C.W.6 are panchas to Ex.P8, under which M.Os.1 and 2-iron rods are said to be seized. P.W.8 has stated that the Police took him to the spot along with accused No.1 who produced two iron rods hidden near the bush by the side of nala. It is elicited in the cross-examination that deceased Manjula is his younger sister. 25. According to the Investigating Officer-P.W.20, accused No.1 produced iron rods from a gutter by the side of the road and there was no flow of water in the gutter. According to P.W.8, two iron rods were hidden near the bush by the side of nala. P.W.8 has stated in the cross-examination that M.Os.1 and 2 were placed at a distance of km. from the car i.e., from the spot and it was at a distance of 5 ft. away from the road. 26. P.W.20 has stated that accused No.1 produced two iron rods from a distance of nearly 300 ft. from the spot towards Jewargi road. As noted above, P.W.8 is a close relative of Manjula [deceased]. There are discrepancies in the evidence of P.Ws.8 and 20 with regard to recovery of M.Os.1 and 2-iron rods. Hence, the recovery of weapons- M.Os.1 and 2 at the instance of accused No.1/appellant cannot be held to be proved beyond all reasonable doubt. Hence, the subsequent report of the FSL marked as Ex.P24 is inconsequential. PREVIOUS INCIDENT: 27. It is also the case of prosecution that sometime prior to the date of incident, accused No.1/appellant made an attempt on the life of Manjula by causing an accident. In this regard, prosecution has examined P.W.11. He has deposed that about 2 months prior to the incident, he had taken Manjula to Ankalaga from Kalaburagi on a motorcycle. When they crossed Ghanagapur, a vehicle came from the opposite direction and due to its light, he took his vehicle by the side of the road and at that time, it was dark. The opposite vehicle was the cruiser vehicle and it touched to his two wheeler. When they crossed Ghanagapur, a vehicle came from the opposite direction and due to its light, he took his vehicle by the side of the road and at that time, it was dark. The opposite vehicle was the cruiser vehicle and it touched to his two wheeler. The same cruiser vehicle again came back and dashed against his motorcycle and at that time, they were not on the motorcycle but standing by the side of the road. The cruiser went away. He has further stated that he informed the said fact to accused No.1. In the cross-examination, he has stated that after knowing about the said incident, accused No.1 was also shocked. P.W.11 has admitted that he has not stated before the Police that again the cruiser vehicle came back and dashed against the motorcycle. He has admitted that till today, he does not know as to who is the owner of the said cruiser and who was driving it on that day. 28. In the evidence of P.W.6, he has stated that, accused No.1 informed C.W.9 [P.W.11] to come to Ankalaga along with Manjula as he wanted to purchase a television. When C.W.9 was proceeding from Kalaburagi to Ankalaga with Manjula on motorcycle and when they reached Ankalaga, a cruiser vehicle came and hit their two-wheeler in order to kill them, however, both of them escaped. In the First Information Report, C.W.9 has not stated that it is accused No.1, who informed P.W.11 to come to Ankalaga along with Manjula. Even P.W.11 in his evidence has not stated that accused No.1 asked him to go along with Manjula on a motorcycle. P.W.11 has clearly stated that he has not seen the cruiser driver and he do not know as to who is the owner of the said cruiser. It is not the case of the prosecution that accused No.1 himself drove the cruiser and attempted to commit murder of Manjula by dashing the said vehicle against the motorcycle, in which Manjula [deceased] and P.W.11 were traveling. P.W.11 has also admitted that he has not stated before the Police that again the cruiser came back and dashed against the motorcycle. P.W.11 has also admitted that he has not stated before the Police that again the cruiser came back and dashed against the motorcycle. From the evidence of P.W.11, it can be seen that when he was going along with Manjula [deceased] from Kalaburagi to Ankalaga, a cruiser vehicle came from the opposite direction and due to its light, he took his vehicle by the side of the road and at that time, the cruiser vehicle touched his two wheeler. From this evidence, it cannot be said that accused No.1, had sent his person/s in the said vehicle to commit the murder of Manjula by causing an accident. Neither the driver nor the owner of the said cruiser vehicle have been traced. As such, the prosecution has failed to prove the said circumstance. 29. The learned Sessions Judge has strongly placed reliance on the evidence of P.W.6, 15 and 19 coupled with the averments made in Ex.P4-complaint to hold that accused No.1/appellant had illicit relationship with some other women and Manjula [deceased] was opposing him for having developed illicit relationship with other women, for which accused No.1/appellant used to ill-treat her. The learned Sessions Judge has come to the conclusion that there was a strong motive for accused No.1/appellant to commit the murder of Manjula, so as to get rid of her and also to get the insurance amount. However, for the reasons stated supra, the evidence of P.Ws.6, 15 and 19 are not sufficient to hold that accused No.1/appellant had a strong motive to commit the murder of Manjula since she was opposing the illicit relationship of accused No.1 with other women. 30. The learned Sessions Judge was of the firm opinion that accused No.1/appellant was along with his wife Manjula [deceased] at the time of incident. The said finding is based on assumption and presumption and not on the basis of any legal evidence. The two witnesses viz., P.Ws.13 and 14, who are supposed to have seen Manjula [deceased] in the company of accused No.1 in the car on the night of incident have not supported the case of the prosecution. In the absence of any cogent evidence in this regard, it cannot be held that accused No.1 was along with Manjula [deceased] at the time of incident. 31. It is well settled that circumstantial evidence by itself is enough to form the basis of conviction. In the absence of any cogent evidence in this regard, it cannot be held that accused No.1 was along with Manjula [deceased] at the time of incident. 31. It is well settled that circumstantial evidence by itself is enough to form the basis of conviction. However, the circumstances must be conclusive in nature. There should not be any missing link in the chain of evidence. The chain of events must be complete in such a way so as to point to the guilt of the accused person. It is not a mere matter of surmise or conjecture but the events ought to be so tell-tale that one cannot but come to the conclusion that the accused is the guilty person. In the event there is a snap in the chain and the conclusion may not steadfastly point or reach the accused, the latter is entitled to benefit of doubt [ (2013) 7 SCC 192 ; Majendran Langeswaran v. State (NCT of Delhi) ]. 32. The reasons assigned by the learned Sessions Judge to convict the accused for the charged offences in a case of this nature where the prosecution case is based on circumstantial evidence, cannot be said to be legal and proper. On an overall appreciation of the entire evidence and material on record and having dealt with each circumstance, we find that the prosecution has not been able to establish the guilt of accused No.1/appellant beyond all reasonable doubt. Hence, we proceed to pass the following: ORDER The appeal is allowed. The Judgment and Order of conviction and sentence dated 10.02.2012 passed in S.C. No.89/2011 by the Court of the I Additional Sessions Judge, Kalaburagi, is hereby set aside. Accused No.1/appellant is acquitted of the offences punishable under Sections 302 and 201 of IPC and he shall be released forthwith, if not required in any other case.