IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRL.A. NO.216/2014 (C) BETWEEN BOOTHA @ BOOTHESH S/O OBALESH AGED ABOUT 23 YEARS OCC: COOLIE R/O KADLEGUDDU VILLAGE CHITRADURGA TALUK AND DISTRICT-577 501. ... APPELLANT (BY SRI. R.B. DESHPANDE, ADV.) AND THE STATE OF KARNATAKA BY BHARAMASAGARA POLICE STATION, (C.P.I., CHITRADURGA RURAL CIRCLE)-577 519 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED:16/21.01.2014 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA, IN S.C.NO.57/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 376/511, 382 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR PERIOD OF 7 YEARS AND PAY FINE OF RS.3,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 376/511 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant/accused has preferred this appeal against the judgment of conviction and order of sentence passed by Addl. District and Sessions Judge, Chitradurga in S.C.No.57/2011 dated 16/21-01-2014 for the offences punishable under Sections 302, 376 read with 511 and 382 of IPC and sentencing him to under go imprisonment for the offence punishable under Section 376 read with 511 of IPC for a period of seven years and to pay fine of Rs.3,000/-; and for the offence punishable under Section 302 of IPC the accused was sentenced to under go imprisonment for life and to pay fine of Rs.3,000/- with default sentence; and for the offence punishable under Section 382 of IPC sentenced him to under go rigorous imprisonment for seven years and to pay fine of Rs.3,000/- with a default sentence of simple imprisonment for a further period of one year.
2. We have heard the arguments of Sri.
R.B.Deshpande, learned counsel appearing for the appellant and Sri.Vijayakumar Majage, learned Additional SPP appearing for State. We have carefully reevaluated the oral and documentary evidence on record and also perused the judgment of the trial Court.
3. The learned counsel for the appellant seriously contended before the Court that the prosecution mainly relied upon two strong circumstances against the appellant/accused, one is, accused and deceased were last seen together and accused alone going back to the village from the place where the incident had happened; another one is recovery of piece of gold chain belonging to the deceased at the instance of accused which is identified by kith and kin of the deceased. Except these two circumstances, there are no other circumstances to connect the accused for the said offences. Learned counsel further contended that these two circumstances are also doubtful and the prosecution has not explained the doubt with regard to the delayed examination of the witnesses i.e., PWs. 2 and 4 with regard to the last seen theory. Learned counsel further contended that recovery has not been established beyond reasonable doubt because the entire chain has not been traced by the prosecution and they collected only remaining piece of chain alleged to be belonged to the deceased. Therefore, prosecution has failed to prove the two circumstances against the accused beyond all reasonable doubt. Hence, the judgment of the trial Court is liable to be set aside and accused has to be acquitted from the aforesaid offences.
4. Per contra, the learned SPP submitted before the Court that though there is some delay in examining the witnesses i.e., PWs.2 and 4 from last seen theory but their evidence has not been disturbed. Considering the witnesses being belonging to the rural area, mere delay in recording the statement of witnesses, will not any way diminish the value to the prosecution case. Learned SPP further submits that the prosecution has beyond reasonable doubt established that the recovery of piece of gold chain at the instance of accused which has been actually identified by PW-1 and PW-6 as belonging to the deceased. The appellant/accused has not explained as to how the piece of gold chain had come to his possession. Therefore, in the absence of not explaining the possession and recovery clearly establishes that the accused is the perpetrator of the said crime and murdered the deceased after making rape attempt on her and snatched the chain of the deceased. Therefore, the trial Court has considered the above circumstances as proved by the prosecution and convicted and sentenced the accused. Accordingly, this appeal does not call for any interference of this Court. Hence, he pleaded for dismissal of the appeal.
5. We have carefully perused the evidence on record. Before adverting to the materials on record for appreciation, we would like to have the evidence led by the prosecution witnesses before the trial Court.
6. PW1-Nagaraj is the brother of the deceased.
He lodged the first information report as per Ex.P.1. He identified and stated that MOs.1 and 2 are hairs of the deceased which were collected by the police at the spot of incident. MOs.3 and 4 are slippers recovered at the spot of crime. MO.5 is sari belonging to the deceased, He also identified MO.6-piece of gold chain belonging to the deceased recovered at the instance of accused.
6.1 PW-2, Somashekar is from the same village and he has spoken to about the last seen of the accused with the deceased. At about 6.00 pm while he was coming back after finishing his work, he saw said Gethamma who was washing the clothes nearby the chikkerekodi and accused was sitting on the tank bund.
6.2. PW3- Manjunath is the son of the deceased, he has also spoken similarly to that of the evidence of PW1 who went in search of deceased on the particular day.
6.3. PW4-Veerabhadrappa is another person who has seen the accused rushing back to his house in a panic condition in wet clothes after alleged incident at about 7.00 pm. Accused was known to this man who identified him before the Court.
6.4. PW-5 Marulasiddaiah, father of the deceased, has spoken similar evidence as that of PW1.
6.5. PW6-Anasuyamma is the sister of deceased.
She has also stated the factual aspects as stated by PW1.
6.6. PW7-Madhu is the witness to spot and inquest panchanama Ex.P-3. He identified MOS.1 to 3-haris and chappal.
6.7. PW8-G.B.Annappaswamy is the witness of seizure mahazar and he identified MO.6-piece of gold chain.
6.8. PW9-Shivakumar is another witness of spot and seizure mahazar. He also spoke about the seizure of M.Os.1 to 8.
6.9. PW10-Narasappachar is the goldsmith and identified MO.6-piece of gold chain.
6.10. PW11-Dr.Rajkumar is the Medical Officer has conducted post mortem examination on the dead body of the deceased and issued Ex.P7-post mortem report, Ex.P8 and 9-FSL reports.
6.11. PW12-Dr.Basavaraju is the scientific officer who was examined the articles sent for examination and gave report as per Ex.P10. According to him there is no evidence of recent sexual intercourse and there is no seminal stains found on the articles sent for examination.
6.12. PW13-Naveen Kayakada is the police constable and carrier of FIR who apprehended the accused on 03.06.2010 at Muthugaduru Village and produced him before the Invistigation Officer. PW14-Umesh Ishwar Nayak and PW15-Rajshekar are the investigating officers who laid the chargesheet against the accused person.
7. After securing the presence of the accused, the trial Court has framed charges against him for the afore said offences and put him on trial. The prosecution in order to bring home the guilt of the accused, examined as many as 15 witnesses PWs.1 to 15 and got marked exhibits P-1 to P-14 and also Material Objects MOs.1 to 8. The accused was also examined under the provisions of Section 313 of Cr.P.C. and accused was also given an opportunity to enter into any defence evidence, but the accused did not choose to lead any defence evidence and as such, the trial Court after hearing the arguments of both sides and appreciating the entire materials on record, has rendered the impugned judgment.
8. Now before adverting to the collected materials in so far as two circumstances are concerned, we remind ourselves that in the case of circumstantial evidence, the prosecution has to prove the circumstances projected beyond all reasonable doubt and there should be no suspicion in the mind of the Court and the Court has to rely upon the chain of circumstances for drawing the inference. Further, in the circumstantial evidence stage, the projected circumstances have to be proved beyond all reasonable doubt so as to connect the accused. Bearing in mind the above said principles and looking into the factual matrix of the case, appreciate oral and documentary evidence on record to connect the accused.
9. The brief factual matrix of the case are that the person by name Nagraj-PW1 who has lodged the report before the Police as per Ex.P1 on 14.05.2010, stating that the deceased Geethamma is his younger sister. She and himself are the residents of Kadleguddu Village in Chithradurga Taluk. Gethamma was given in marriage to one Hanumanthappa and she begotten two children by name Thippeswamy and Manjunatha. Husband of Gethamma died about seven years prior to the incident. The said Gethamma was residing along with her sons in the said village.
10. In this background it is alleged that on 14.05.2010 at about 5.30 pm, the said Gethamma had been to tank called Chikka Kere Kodi for washing clothes situated in the said village, but she did not return to the home. At about 9.00 pm son of the deceased- Thippeswamy (CW7) and sister of deceased by name Anasuyamma (CW8) came to the house of P.W.1 and told about the said factual aspects. Immediately, all of them went in search of said Gethamma with electric torches and they found the dead body of the deceased Gethamma in the said tank, the water was up to the knee level in the said tank and they also found one pair of slipper belonging to the deceased and another pair of slipper. They noticed that there was no sari on the dead body and hooks of the blouse were removed etc., They also found two ear studs in the ears of the deceased but they found gold chain missing in the neck of the deceased. They found bite marks on the face of the deceased and they suspected somebody has attempted to rape Gethamma and committed murder. After committing murder by snatching the gold chain worth Rs.15,000/-, they might have fled the scene.
11. On suspicion, the police have registered the case on the basis of Ex.P1 in Crime No.202/2010 for the offence punishable under Sections 302, 376 read with 511 and 379 of IPC.
12. As rightly submitted by the learned counsel for the appellant as admitted by the learned SPP, the entire case of the prosecution revolves around two circumstances as noted supra. The Court has to examine one by one whether the prosecution has proved the case of the last seen. In this context, the prosecution has relied upon the evidence of PW2 and PW4. PW2 is the person who is of the same village. He has stated before the Court that on the date of incident at about 6.00 pm when he was returning after finishing work, he observed that deceased Gethamma was washing clothes nearby the tank called as Chikkerekodi. He has also seen the accused sitting on the same tank bund. Thereafter, he went to the house. At about 9.30 p.m., some villagers were found proceeding towards the said tank. Immediately, he also went to the particular place and saw the dead body of Gethamma and also observed some bite marks found on the face of the dead body and also observed clothes were disturbed. He stood there for half an hour and later came back to his house. He suspected somebody might have committed murder of said Gethamma. In the course of examination- in-chief itself he has not stated that accused might have committed the offence. He has also not stated that though the people of the said village gathered and they suspected murder of the deceased Gethamma, though he was knowing that accused was found near the said place prior to the death of the deceased, but he did not inform the same to anybody for the reasons best known to him. The learned counsel brought to our notice that the statement of this witness is recorded after lapse of six days from the date of incident i.e, on 20.05.2010.
13. We have carefully examined the evidence of investigating officer who except stating that he recorded the statement of witnesses on 20.05.2010, has not stated as to why statement of witness was recorded in the delayed manner that too after lapse of six days from the date of incident. In the absence of such elucidation either from the witnesses or from the investigating officer, we are of the opinion that, it is difficult to believe the witnesses. Even in the course of cross examination, it is elicited that the accused was known to this man even earlier to the particular day and said accused is also from the same village. He neither spoke with the accused nor with the deceased at that particular time. He did not disclose the presence of the accused with anybody much less to the PW1 or to the sons of the deceased or to the father of the deceased. He also further stated that about four or five days later, the police have recorded the statement of these witnesses and did not disclose the said fact to the police. It is also stated that on the particular date also he had been to the tank and saw the dead body and lot of people gathered there inspite of that he has not disclosed the said fact on that particular day or within reasonable time or on the next day though accused was not found in the village on the next day of incident.
14. Likewise, PW4-Veerabhadrappa deposed before the Court stating that on the evening of that incident at about 7.00 pm, he saw the accused in a panic mental state was rushing towards his house hurriedly and at that time his clothes were wet. On the same day at about 9.00 p.m., lot of people were proceeding towards tank on the ground that Gethamma is dead. This witness also went near the tank, some people were in search of the dead body and after searching, they lifted the dead body of the deceased. He also observed the injuries on the face of the dead body and clothes were torn and he did not say anything about the presence of the accused on particular day to the any person. Though he has stated in the examination-in-chief that he suspected that accused might have committed murder of said Gethamma but he did not disclose with regard to the presence of the accused for over a period of six days.
15. It is stated in the cross examination that accused was doing some coolie work under this witness for some time and accused was very honestly doing the said work. It is also stated by him that he has not disclosed the above said fact particularly to the father or to the brother or to the sons of the deceased on that particular day or atleast on the next day or within reasonable time. Likewise, there is no explanation in the course of cross- examination as to whether this witness was available in the village or on the next day or within the reasonable time, so as to enable the police to examine this witness because on the same day police had visited the spot and on the next day itself police have conducted mahazar and also conducted inquest proceedings on the dead body of the deceased. On these occasions also these witnesses were present in the village but they never disclosed to the Police any thing about accused or presence of accused near tank bund. There is no suggestion by the prosecution about them as to the fact that they are not available to the investigating officer for examination. Therefore, as could be seen from the evidence of these witnesses, they are not strangers to the accused and they are not strangers to the relatives of the deceased. They are from the same village. If at all they have actually seen the accused prior to the incident or immediately after the incident and in case they went to the tank and saw the dead body, the natural conduct of the witnesses would be that, they would have immediately disclosed the said facts atleast to the relatives of the deceased or to the police when latter visited the spot for conducting spot mahazar. These witnesses would have disclosed the said fact to the police but for over a period of six days they have not disclosed the same to the relatives of the deceased nor to the police while enquiring them and recording the statement.
16. Of course, we are conscious of the legal position that delay in recording the statement of witnesses is not fatal to all the cases, but it all depends upon the facts and circumstances of the each case. So far as this case is concerned, when the accused, deceased and relatives of the deceased who are all very well known to the witnesses and they belong to the same village and particularly, when they saw the dead body, bite marks and injuries on the face of the deceased and clothes were torn and disturbed on the deceased and they suspected somebody might have committed murder of the deceased, they would have disclosed the suspicion on accused or his presence on the tank bund to the relatives of the deceased and to the police on the same day or atleast on the next day or within reasonable time. So far as this case is concerned, we are of the opinion that delay in disclosure of the said fact or delay in recording the statement of witnesses is fatal to the prosecution so far as circumstances are concerned. Therefore, we are of the considered opinion that, the prosecution has not proved the circumstances of last seen theory of the accused and deceased together and the accused being seen immediately after the incident.
17. The next circumstance is with regard to the recovery of the piece of gold chain at the instance of accused.
18. It is the case of the prosecution that accused was arrested on 3.6.2010 and voluntary statement of the accused was recorded by the Investigating Officer.
According to the voluntary statement, the Investigating Officer has recovered a piece of gold chain at the instance of the accused which is marked at MO-6 under Mahazar Ex.P-4 and this piece of gold chain has been identified by PWs.1 & 6. In order to establish this circumstance, the prosecution has relied upon the evidence of PW-8 Annappaswamy and the evidence of the Investigating Officer PW-14 Umesh Ishwar Naik.
19. PW-8 G.B. Annappaswamy has deposed before the court that about 2½ years prior to his evidence, the Police secured this witness and they all went to the house of the accused, the accused went inside his house and brought a gold chain piece and produced the same before the Police and the Police drew up Mahazar as per Ex.P4 and the witness identified his signature as per Ex.P-4(a). Police have also told this witness the value of the chain was Rs.3,000/- as on that day. He has also stated that CW-13 Rajappa was also another witness to the said Mahazar. During the course of cross examination, nothing worth has been elicited to totally disbelieve the evidence of this witness. It is re-iterated by P.W.8 that he has stated in the cross examination that PW-1 Nagaraj and PW-7 Madhu and CW-13 Rajappa are all belonged to the same caste. He has further stated that at the time of drawing up of the Mahazar, he do not know whether the Police have taken the signature of the accused or not. He also does not know from where the Police have secured his presence and brought him on that day. He also stated that he did not go inside the house of the accused, but accused himself brought the gold chain piece from inside his house. He has not seen the relatives of the deceased signing the said Mahazar etc., Except these sentences, nothing has been elicited as to why this witness has to say lie before this court against the accused.
20. Coupled with the evidence of this witness, the Investigating Officer PW-14 Umesh Ishwar Naik has also deposed to the same factual aspect that after arrest of the accused, he recorded the voluntary statement of the accused as per Ex.P-13 and on the basis of the same, he recovered the said gold chain piece at the instance of the accused. After the recovery of the said items, the Police have shown the said item to PW-1. PW-1 in his evidence has categorically stated that he has identified the said article as that of the deceased. PW-1 is no other than the brother of the deceased. PW-6 Anasuyamma, is the sister of the deceased also identified the same. The trial Court in fact, ordered this MO-6 to be returned to PW-3 Manjunatha, son of the deceased. These aspects have neither challenged by the accused nor objected for granting of the said chain before the trial Court in favour of PW-3.
21. Looking to the above said factual circumstance, in our opinion, the prosecution has established the recovery of gold chain piece at the instance of the accused and that particular link has been proved by the prosecution.
22. Though the prosecution has also relied upon a pair of chappal marked at MO-4 as that of the accused person and MO-3 pair of chappal belonged to the deceased, they have not categorically established this particular aspect. The Investigating Officer PW-14 has admitted in his evidence that he has not even tested the chappals with the size of the accused by asking whether those chappals belonged to the accused or not, but he has not made any scientific investigation to establish that these chappals belonged to the accused. This would have been vital material running against the accused which ought to have been taken care by the Investigating Officer, but the same has not been done.
23. The circumstances of Recovery is only established and last seen theory has not been proved. In this context, we would like to refer some of the decisions of the Hon'ble Apex Court as to how in similar circumstances, the Hon'ble Apex Court has dealt with the matter.
24. In a decision reported in 1980 (SUPP) SCC 336 between Nagappa Dondiba Kalal and State of Karnataka, wherein the Hon'ble Apex Court has observed that:
“Recovery of ornaments of the deceased three days after the occurrence at the instance of the accused – Identity of the ornaments, on facts, fully established even in absence of any T.I. parade . Accused having received the ornaments knowing them to be stolen property, held, can be convicted u/s.411 on the basis of presumption u/s.114, of the Evidence Act. Sentence of 3 years’ RI and fine of Rs.5,000/- in default thereof imposed – In absence of any evidence to connect the accused with murder, assault or robbery, his conviction u/s.302 or 394, held not justified.”
25. In another ruling reported in 1994 SUPP (3) SCC 326 between Gautam Maroti Umale and State of Maharashtra, wherein the Hon'ble Apex Court has laid down the principle that – “Circumstantial evidence – Prosecution must prove each of the circumstances and circumstances so proved should form a complete chain. There should be inconsistent innocence of the accused and also exclude every other hypothesis, however, remote – On facts, recovery of ornaments belonging to the deceased at the instance of the accused did not connect him with murder. At the most he can be convicted for possession of the stolen property invoking the provision of Section 411 of IPC.”
26. In another Ruling reported in (2003) 3 SCC 106 between Bharat and State of Madhya Pradesh, wherein the Hon'ble Apex Court has observed that -
“Head Note C - Circumstantial evidence – Chain of circumstances must be complete – Non-explanation by accused in his statement u/s.313 Cr.P.C. – Effect – Murder of a woman – Motive alleged to be robbery of ornaments worn by the deceased – appellant last seen with the deceased on Jan.8 – dead body of deceased recovered on Jan.13 – prosecution failed to establish that death took place on Jan.8 itself as according to medical evidence it could have taken place at the earliest on Jan.10 – Ornaments recovered from appellant’s house on the basis of statement made by him u/s.27 of the Evidence Act. But neither proper and legal identification of the ornaments nor recovery as a consequence of the statement of the accused could be established – On exclusion of the evidence of recovery and identification of the ornaments, the only circumstance was regarding the deceased having left with the appellant on Jan. 8 on the basis of which it cannot be held that prosecution established the charge against the appellant only on the ground that appellant failed to offer any explanation in his statement u/s.313 Cr.P.C.”
27. Looking to the above cited decisions of the Hon'ble Apex Court, it is clear in this particular case, that the evidence of PWs.2 & 4 is inadequate and insufficient to draw an inference that the prosecution has proved the case of last seen theory beyond reasonable doubt. The other alternative would be recovery of gold chain piece at the instance of the accused. Therefore, at the most, it can be said that the accused was having property with him belonged to the deceased and there was no explanation for holding the same. Therefore, there is no connection established by the prosecution with reference to the murder of the deceased. The accused was found with the property of the deceased un-explained as he has not claimed the said article is belonged to him.
28. Under the above said circumstances, we are of the opinion that the accused at the most can be held for the offence punishable under section 379 of IPC as without the consent or without the knowledge of the deceased, it is not explained as to how this property has come to the possession of the accused. In the absence of any medical evidence and circumstantial evidence to connect the accused person for the offence punishable under section 376 read with Sections 511, 302 and 382 of IPC are all baseless and hence the judgment of conviction and sentence so far as these offences are concerned are liable to be set aside. However, the accused is liable for conviction for the offence punishable under section 379 of IPC. Accordingly, with the above said observation, we pass the following:
O R D E R (1) The appeal is partly allowed.
(2) The judgment of conviction dated 16.1.2014 and order of sentence dated 21.1.2014 passed by the Addl. District and Sessions Judge, Chitradurga in SC No.57/2011, for the offence punishable under section 376 read with Sections 511, 302 and 382 of IPC is hereby set aside.
(3) However, the appellant/accused is convicted for the offence punishable under section 379 of IPC and sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.5,000/-. In default, to undergo imprisonment for another six months.
(4) The appellant/accused is entitled for set off, for the period of sentence, which he has already undergone. Hence, the accused shall be set at liberty, if he is not required in any other case.
(5) Registry is hereby directed to communicate the operative portion of this Judgment to the concerned jail authorities for release of the accused forthwith, if he is not required in any other case.
Sd/- JUDGE Sd/- JUDGE PL*