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2021 DIGILAW 47 (KAR)

Dhanayya v. State of Karnataka

2021-01-06

JOHN MICHAEL CUNHA, SHIVASHANKAR AMARANNAVAR

body2021
JUDGMENT : John Michael Cunha, J. 1. This appeal is by the sole accused challenging the judgment of conviction dated 08.11.2016 and order of sentence dated 09.11.2016 in S.C. No. 106/2013 whereby he is convicted for the offence of murder punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. 2. The case of the prosecution is that the deceased Masanamma and the accused were working as cooks in RMN Company at Sangunda village. The deceased was a married woman. It is alleged that she was carrying on illicit affairs with the accused; yet, the accused was suspecting her character and fidelity and in this regard there used to be frequent quarrels between them. According to the prosecution, on 08.01.2013, once again they picked up quarrel, therefore, both were removed from the job. However, on the next day, i.e., on 09.01.2013 the deceased as well as the accused went to the company but they were not allowed to work and hence, it is alleged that the deceased and the accused went to Malingaraya temple at about 12.30 p.m., where a quarrel ensued and during the occurrence, the accused is stated to have dropped stone boulders on the face and head of the deceased leading to her instantaneous death. 3. Further case of the prosecution is that after the occurrence, the accused went to the factory and disclosed the incident to the supervisor and other employees i.e., P.Ws.3, 4 and 13 and thereafter, proceeded to the police station. His statement was recorded by the Station House Officer by name Sri Bandeppa. Based on this statement, P.W.1 the PSI of Narona Police Station interrogated the accused and proceeded to the spot and having found the dead body of the deceased at Malingaraya temple, returned to the police station and lodged the complaint Ex. P.1 and registered the FIR and handed over the case file to P.W.12, the CPI of Narona Police Station who conducted the investigation and laid the chargesheet against the appellant/accused. 4. During trial, the prosecution examined in all 17 witnesses as P.Ws.1 to 17 and relied on 16 documents marked as Exs. P1 to P.16. The stone boulders were marked as MOs.1 and 2, the blood-stained clothes of the deceased as MOs.7, 8 and 9, blood-stained banian recovered from the spot of occurrence was marked as MO.5. 4. During trial, the prosecution examined in all 17 witnesses as P.Ws.1 to 17 and relied on 16 documents marked as Exs. P1 to P.16. The stone boulders were marked as MOs.1 and 2, the blood-stained clothes of the deceased as MOs.7, 8 and 9, blood-stained banian recovered from the spot of occurrence was marked as MO.5. The material witnesses examined by the prosecution including P.Ws.3, 4 and 13 as well as the independent witness who was examined as P.W.17 turned hostile to the prosecution case. However, relying on the testimony of the complainant P.W.1, the pancha witness P.W.7 and the evidence of the scientific officer P.W.15, the trial Court found the accused guilty of murder of the deceased and accordingly sentenced him as stated above. 5. We have heard the learned counsel for the appellant Sri Mahantesh H. Desai and learned Additional SPP on behalf of the State and perused the records. 6. There are no eyewitnesses to the incident. The case of the prosecution is rested on circumstantial evidence. The circumstances relied on by the prosecution are: (i) the statement of the accused recorded by the Investigating Officer namely, Ex. P.12 leading to the recovery of blood-stained banian MO.5; (ii) FSL report matching the blood group found in the clothes of the deceased and the banian of the accused as deposed by P.W.15; and (iii) the statement of the accused recorded under Section 313 of Cr.P.C. 7. Insofar as the first circumstance relied on by the prosecution is concerned, the case of the prosecution is that after commission of the offence, the accused went to the police station and confessed the guilt before the Station House Officer. In the complaint lodged by P.W.1 at Ex. P.1, it is stated that on receiving the information from the police station, P.W.1 who was then participating in a sports meet in the police ground rushed to the police station and came to know that the ASI Sri Bandeppa had recorded the statement of the accused in Kannada language by translating the same from Telugu. P.W.1 is specific in his evidence that on going through the said statement, he came to know that the accused had committed the murder and therefore, he proceeded to the spot and found the dead body. P.W.1 is specific in his evidence that on going through the said statement, he came to know that the accused had committed the murder and therefore, he proceeded to the spot and found the dead body. The statement recorded by Sri Bandeppa is not marked in evidence, instead, in his evidence before the Court, P.W.1 deposed that after reaching the police station, he interrogated the accused and during interrogation, accused admitted to the guilt. 8. The above evidence, apart from being an improvement, is contrary to the very case of the prosecution that at the earliest instance, the statement of the appellant/accused was reduced into writing by the ASI Sri Bandeppa. There is a specific reference to this statement in the complaint Ex. P.1 and even in the cross-examination, P.W.1 admits that it was recorded in Kannada and it disclosed cognizable offence. Under the said circumstance, no option was left with the PSI or the Station House Officer than to register the FIR based on the information given by the accused. The very fact, the prosecution has suppressed the earliest information, the entire case of the prosecution is rendered suspect. Even though an attempt has been made by the prosecution to project the statement recorded by the Investigating Officer as per Ex. P.12 as the very same statement given by the accused, but from the answers elicited from P.W.1 during the course of cross-examination, it is evident that earlier to Ex. P.12, the ASI Sri Bandeppa had recorded the first information regarding the incident which has been withheld by the prosecution leading to doubt the case of the prosecution. 9. Coming to the evidentiary value of Ex. P.12 is concerned, in our opinion it could have been admitted in evidence only under Section 27 of the Act if the same had led to the recovery, but no way it could be treated as a confession made by the accused or an extra judicial confession made to P.W.1 as sought to be made out by the prosecution. It is trite law that a statement made by the accused to the police officer is inadmissible under Sections 25 and 26 of the Indian Evidence Act, except to the extent of recovery permissible under Section 27 of the Act. Undeniably, Ex. P12 was recorded after registration of the FIR when the accused was in the custody of the police. It is trite law that a statement made by the accused to the police officer is inadmissible under Sections 25 and 26 of the Indian Evidence Act, except to the extent of recovery permissible under Section 27 of the Act. Undeniably, Ex. P12 was recorded after registration of the FIR when the accused was in the custody of the police. As a result, this statement, even if it turned out to be incriminatory, would fall foul of Article 20(3) of the Constitution of India and Sections 25 and 26 of the Act. As a result, this statement could not have been accepted by the trial court as a circumstance pointing out the involvement of the appellant/accused in the alleged offence. 10. Coming to the aspect of recovery is concerned, though the prosecution has examined P.W.7 to prove the fact that the blood-stained banian of the accused was recovered at the instance of the accused based on Ex. P12, but, on careful perusal of the evidence of P.W.7, we find that it does not establish either the seizure or the recovery at the instance of the accused. In his evidence, except stating that he was present during the preparation of the panchanama, P.W.7 has nowhere stated that in his presence the accused produced the said banian-M.O.5. Mere identification of the material object by the witness, in the course of his evidence cannot be taken as a proof of recovery connecting the accused to the thing recovered. As such, this evidence in our opinion is not sufficient to establish the factum of recovery or seizure of banian-M.O.5 connecting the accused to the murder of the deceased. 11. No doubt, by examining the Scientific Officer namely, P.W.15, the prosecution has let in evidence to show that the blood-stains found on M.O.5 and on the clothes of the deceased namely, M.Os.7 to 9 contained 'B' group blood, but that by itself cannot lead to the conclusion that the accused committed the murder of the deceased. Moreover, when the recovery itself having not been proved, the opinion of the Scientific Officer in our opinion assumes no significance. 12. It is trite law that when the case is based on circumstantial evidence, each and every circumstance must be proved with cogent evidence and the circumstances proved in evidence must form a complete chain pointing out the guilt of the accused. 12. It is trite law that when the case is based on circumstantial evidence, each and every circumstance must be proved with cogent evidence and the circumstances proved in evidence must form a complete chain pointing out the guilt of the accused. Such evidence in our opinion is totally lacking in the instant case. Apart from failing to prove any of the circumstances connecting the accused to the alleged incident, the evidence adduced by the prosecution in our assessment does not lead to the guilt of the accused beyond reasonable doubt. On going through the impugned judgment, we find that the trial court has failed to consider the legal issues emanating from the evidence adduced by the prosecution and it has failed to apply the correct principles of law to the facts of the case and has misdirected itself by proceeding on the assumption that the burden to prove the circumstances propounded by the prosecution is on the accused. This is evident from the impugned judgment, wherein the trial court in paragraph No. 55 has observed thus; "In the instant case, no explanation is forthcoming from the accused person on the said recovery. Non-explanation of blood recovered from the accused in the absence of injuries on a person of accused is an incriminating circumstance. Though there is contradiction regarding determination of blood group of accused by PW.11 as per Ex. P.11, yet blood group determined by the Scientific Officer PW.15 as per Ex. P.13 denotes that the blood group of the deceased was "B" group. If really the blood group of accused could be 0' positive or otherwise, then what prevented the accused to sought for subjecting him to blood group testing during the course of trial. In fact, nothing has been made out by way of defence on the part of the accused." Further in paragraph No. 56 of the impugned judgment, the trial court has observed thus; "On the other hand, the accused has clearly admitted his presence with the deceased, just at the point of time of occurrence of brutal murder of the helpless woman from his village. The accused has neither denied the motive behind the crime nor gave satisfactory explanation as to why he alone went to the scene of occurrence over the hill and made confession before not only PW.3 & 4 but also before the Police including PW.1." 13. The accused has neither denied the motive behind the crime nor gave satisfactory explanation as to why he alone went to the scene of occurrence over the hill and made confession before not only PW.3 & 4 but also before the Police including PW.1." 13. The above conclusion appears to have been drawn by the learned Sessions Judge based on the statement made by the accused during his examination under Section 313 of Cr.P.C. We have gone through the said statement. But, we do not find anything therein to show that the appellant/accused has admitted his presence during the occurrence. On the other hand, in the said statement the accused has unequivocally stated that: "On the date of incident he woke up in the morning and I started my cooking work, I could not see the Mastanamma after some time, I started searching for her, I went near Malingaraya Temple, I saw Mastanamma lying on the ground in order to see whether she alive or dead, I tried to move her at that time my clothes were stained with blood. I noticed injuries on her face. Thereafter, I went to the police station to inform the police about this. I informed the PSI and other Police Officer that some one has killed Mastanamma I told police officer that I do not know as to who was murdered her." 14. The trial court has misread the above statement. The reading of the impugned judgment indicates that the trial court has proceeded on the assumption that the prosecution case is based on the extra judicial confession made before P.W.3 and P.W.4. In this regard, at paragraph No. 58, the trial court has observed that: "The instant case is not only based on extra judicious confession made before P.W.3 & 4 but also confessional first information lodged before the police by the accused. Besides recovery of incriminating bloodstained weapons of offence as well as bloodstained Banyan of the accused tallied with other bloodstained material articles belonged to the deceased as per the FSL report." 15. On re-appreciating the entire evidence on record, we do not find even shred of evidence in proof of either the alleged extra judicial confession made before P.W.3 and P.W.4 nor any "confessional first information" by the accused. On re-appreciating the entire evidence on record, we do not find even shred of evidence in proof of either the alleged extra judicial confession made before P.W.3 and P.W.4 nor any "confessional first information" by the accused. As such, this findings having been recorded by the trial court without any legal basis, the same deserves to be set aside as perverse and illegal. On reconsideration of the entire material on record, we do not find any acceptable evidence in proof of the any of the circumstances projected by the prosecution. Eventhough the trial court has held that the prosecution has proved the motive for commission of the alleged evidence, but on going through the entire records, we find that not a single witness has come forward to speak about the alleged illicit relationship between the accused and the deceased nor is there any evidence to show that they were engaged in quarrel either on the date of the incident or any time earlier thereto. As already noted above, the employees of the company where the deceased and the accused were working namely, P.Ws.3, 4 and 13 have turned hostile to the case of the prosecution and have feigned total ignorance about the incident. The other independent witnesses examined by the prosecution namely, P.W.17 has also failed to support the prosecution case. As a result, no worthwhile evidence is available in proof of any of the circumstances projected by the prosecution establishing the ingredients of the offence under Section 302 of IPC. Consequently, the impugned judgment of conviction and order of sentence being contrary to the evidence on record is liable to be set aside and the accused deserves to be acquitted of the charge under Section 302 of IPC. Hence, the following: ORDER The appeal is allowed. The judgment of conviction dated 08.11.2016 and order of sentence dated 09.11.2016 in S.C. No. 106/2013 passed by the III Addl. District & Sessions Judge, Kalaburagi convicting the appellant/accused for the offence punishable under Section 302 of IPC is set aside. Consequently, the appellant/accused-Dhanayya S/o Ramanayya Chirukuri is acquitted of the charge under Section 302 of IPC. As the appellant/accused is undergoing sentence he is directed to be set at large, forthwith if he is not required in any other case. The fine amount, if deposited, shall be refunded to the appellant/accused. Consequently, the appellant/accused-Dhanayya S/o Ramanayya Chirukuri is acquitted of the charge under Section 302 of IPC. As the appellant/accused is undergoing sentence he is directed to be set at large, forthwith if he is not required in any other case. The fine amount, if deposited, shall be refunded to the appellant/accused. The Registry is directed to communicate the operative portion of the judgment to the Superintendent of Prison where the appellant/accused is housed.