R IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.992 OF 2013 BETWEEN:
SUBBARAYAPPA SON OF LATE ANJANAPPA AGED ABOUT 60 YEARS AGRICULTURIST RESIDING AT CHIKKADASERAHALLI SIDDALAGHATTA TALUK-562 105. ... APPELLANT (BY SRI. S. SHANKARAPPA, ADVOCATE) AND:
1. K. MURTHY SON OF KRISHNAPPA AGED ABOUT 34 YEARS RESIDING AT CHIKKADESANAHALLI Y. HUNASENAHALLI PANCHAYATH SIDDALAGHATTA TALUK-562 105.
2. B.M. LAKSHMIPATHI SON OF MUNIRAYANAPPA AGED ABOUT 22 YEARS RESIDING AT BASANAPARTHI VILLAGE Y. HUNASENAHALLI PANCHAYATH SIDDALAGHATTA TALUK-562 105.
3. KRISHNAPPA SON OF MYAKALA SINGAPPA AGED ABOUT 38 YEARS RESIDING AT CHIKKADESANAHALLI Y. HUNASENAHALLI PANCHAYATH SIDDALAGHATTA TALUK-562 105.
4. STATE BY SIDDALAGHATTA RURAL POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. ... RESPONDENTS (BY SRI. P.N. PRASHANTH, ADVOCATE FOR RESPONDENT NOS.1 TO 3 SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 PRAYING TO SET ASIDE THE ORDER DATED 31.05.2013 PASSED BY THE ADHOC SESSIONS JUDGE, FAST TRACK COURT-II, CHINTAMANI IN SESSIONS CASE NO.5 OF 2012 – ACQUITTING THE RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 120B READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed by the complainant challenging the judgment of acquittal passed in S.C.No.5 of 2012 dated 31.05.2013 on the file of the Adhoc District and Sessions Judge, Fast Track Court-II, Chintamani acquitting the accused persons for the offences punishable under Sections 302 and 120(B) read with Section 34 of Indian Penal Code.
2. Brief facts of the case:
It is the case of the complainant, who is the father of the deceased in his complaint, which is marked as Ex.P2 that his daughter Prameela had married accused No.1 and it was a love marriage. They lived together for about six months and thereafter, the accused left his daughter and contracted second marriage with one Munilakshmamma. In view of contracting second marriage, his daughter stayed in his house and she gave birth to a girl child and now her grand daughter has become eleven years old. It is his further complaint that his daughter had filed the maintenance case before the Civil Judge, Siddlaghatta wherein an order was passed to pay the maintenance of Rs.350/- each to the wife and daughter, in total Rs.700/-. The accused No.1 did not pay the said amount. Hence, she filed recovery case in the Court and the same was listed on 06.09.2011. When the matter came up before the Court, the Court directed accused No.1 that if he fails to pay the maintenance amount, he would be sent to jail and next date was fixed on 13.09.2011.
That on 08.09.2011, when his daughter went to bring hay stock for cattle, she did not turn up till late evening and immediately, he enquired one Giddappa and he informed that she left at around 5.30 p.m. He searched her but he did not find her and found the dead body of his daughter at around 7.00 p.m. near the land of Kolinarayanappa. Hence, he lodged the complaint stating that his son-in-law, his brother, parents and the second wife of the son-in-law have committed the murder. They all were waiting for arrival of his daughter alone in between 5.30 p.m. and 6.30 p.m. and by using the sharp edged weapon, slit her neck and hence, lodged the complaint to take action against them.
3. Based on the complaint which was given at 2.00 a.m., the police have registered the First Information Report in Crime No.211 of 2011 for the offences punishable under Sections 302 read with Section 34 of Indian Penal Code. The police thereafter conducted spot mahazar and conducted inquest and thereafter, apprehended the accused persons and recoveries were made. The case was registered against seven persons at the first instance and while filing the charge sheet, the case was filed only against four accused persons, accused No.4 was also discharged thereafter. Hence, the case continued against accused Nos.1 to 3 i.e., husband of the deceased, brother of his second wife and father of accused No.1 respectively. The police while filing the charge sheet invoked the offence under Section 120(B) of Indian Penal Code that accused No.1 conspired with other accused persons and committed the murder. Hence, invoked section 120(B) of Indian Penal Code and Section 302 read with Section 34 of Indian Penal Code. Accused No.1 was in jail till 31.03.2012. Accused No.2 and 3 were on bail.
Accused persons were subjected to trial since all the accused persons did not plead guilty and claimed for trial.
4. The prosecution in order to prove their case examined P.Ws.1 to 19 and got marked Exs.P1 to P22(a). The defence confronted Ex.D1 to P.W.4. The prosecution also relied upon the material objects M.Os.1 to 9. The Court below having considered both oral and documentary evidence did not accept the direct evidence of P.Ws.3 and 4 and also did not consider the recoveries made at the instance of the accused and acquitted the accused persons. Hence, the present appeal is filed by the complainant.
5. The complainant in the appeal would contend that the Court below has committed an error in not accepting the evidence of two eye witnesses i.e., P.Ws.3 and 4. Wherein, in their evidence they have categorically stated that M.O.3 was used to commit the murder. The material objects have also been identified by the witnesses and in spite of the independent evidence of eye witnesses P.Ws.3 and 4, the Court below disbelieved their evidence. It is also contended that medical evidence of the Doctor i.e., P.W.19, who conducted post mortem over the dead body has deposed that M.O.3 could have caused injury on the deceased and in spite of corroboration between the evidence of P.W.19 and the eye witnesses P.Ws.3 and 4, the Court below has committed an error in acquitting the accused persons.
6. The Court below has also failed to take note of the order passed directing the accused No.1 to pay the maintenance and the fact that he has failed to pay the maintenance. Hence, in order to get rid of the wife, he committed the murder to avoid payment of maintenance and though, motive was proved, the Court below has committed an error. The Court below also gravely erred in considering the incriminating materials like M.Os.3 and 7 which have been recovered at the instance of the accused i.e., blood stained clothes of the accused and also the weapon used for committing the murder. The FSL report at Ex.P21 is also corroborates the case of the prosecution that those articles were stained with ‘B’ group human blood and the same is not disputed by the defence. In spite of it, the Court below has committed an error in not accepting the evidence of the prosecution.
7. The Court below also failed to take note of the 313 statement of the accused persons recorded under Section 313 of the Code of Criminal Procedure and none of the accused persons have given any explanation before the Court when incriminating evidence was put to them regarding blood stains found in M.O.3 as well as M.O.7 i.e., the cutter and saree of the deceased respectively and the report of the FSL was also affirmative. Hence, the Court below has committed an error in acquitting the accused persons.
8. The counsel appearing for the complainant/appellant in his argument vehemently contends that the Court below has failed to consider the evidence of recovery witnesses i.e., P.Ws.12, 13 and 10, who have categorically deposed before the Court with regard to recovery of weapon was used for committing the murder and also blood stained clothes of the accused No.1 seized at his instance. The Court below also failed to take note of Ex.P22, the order of maintenance passed by the Civil Judge awarding maintenance to the deceased and also the suit filed for partition by the wife and daughter of accused No.1. The Court below has also failed to take note of the recoveries made at the instance of accused No.1, based on the voluntary statement which is marked as Ex.P15. The weapon is also recovered from the land of the accused and the medical evidence also supports the case of the prosecution and so also the FSL report at Ex.P21 indicates that blood stains were found on the clothes of the accused as well as on the clothes of the deceased, so also the weapon used for committing the murder which belongs to ‘B’ group blood. In spite of the same, the Court below has committed an error.
9. Learned High Court Government Pleader appearing for the State, who is arrayed as respondent No.4 supports the case of the complainant and reiterates the argument of learned counsel for the complainant. Apart from that, she would also contend that M.O.3 was recovered at the instance of accused No.1 which contains the blood stains. P.Ws.12 and 13 have supported the case of the prosecution regarding recovery at the instance of accused. She further submits that the Court below has failed to take note of the motive for committing the murder and the report of the FSL also confirms the case of the prosecution. Hence, prayed the Court to allow the appeal and convict the accused persons.
10. Per contra, learned counsel appearing for the respondents, in his argument vehemently contended that the evidence of P.Ws.3 and 4 cannot be accepted and they are not the eye witnesses. Though the incident has taken place at around 5.00 to 5.30 p.m., it is the case of the prosecution that, they came to know about the fact that dead body was lying at around 7.00 p.m. If really, P.Ws.3 and 4 have witnessed the incident, they would have intimated the same to the police. However, the police came to the spot at 8.00 p.m. in the night and no complaint was given and it was given after eight hours i.e., around 2.00 a.m. In the complaint also, the complainant has not stated that P.Ws.3 and 4 have witnessed the incident and only it is mentioned that dead body was found. Hence, the theory of P.Ws.3 and 4 that they have witnessed the incident cannot be accepted and the Court below has rightly accepted the defence theory that they were not the eye witnesses to the incident. Regarding recoveries are concerned, the Court below has also discussed the same in detail and though, some of the witnesses have supported the case of the prosecution regarding recovery, the same does not inspire the confidence of the Court. The accused were arrested on 16.09.2011, almost after seven days of the incident. Therefore, the recovery of stained clothes at the instance of the accused is unnatural and the Court below has taken note of the same and gave the benefit of doubt in favour of accused Nos.1 to 3 and acquitted them. Hence, there are no grounds to interfere with the judgment of Trial Court.
11. Having heard the arguments of learned counsel for the complainant/appellant and also the learned High Court Government Pleader appearing for the State and so also the learned counsel for the accused Nos.1 to 3, this Court has to re-appreciate the material available on record and after re-appreciating the evidence, the points that arise our consideration are:
(i) Whether the Court below has committed an error in acquitting accused Nos.1 to 3 for the offences punishable under Sections 302 and 120(B) read with Section 34 of Indian Penal Code?
(ii) What order?
Point Nos.(i) and (ii):
12. The nut shell of the case of the prosecution is that the accused No.1 married the deceased and after six months, he left her and contracted second marriage.
Hence, the deceased claimed maintenance on her behalf and also on behalf of her daughter and the Court has granted the maintenance. In spite of the same, the accused No.1 did not pay the maintenance. Hence, she filed an application for recovery and when the case was listed three days prior to the incident, the Court directed the accused to pay the maintenance or otherwise he would be sent to jail. As a result of which, the accused being enraged with the said development, hatched a plan along with the other accused persons to eliminate her and committed the murder.
13. Now let us consider the evidence available on record before the Court, in order to re-appreciate the material available on record keeping in view the contentions urged by learned counsel for both the parties whether the Court below has committed an error in acquitting the accused or has rightly appreciated the evidence available on record.
14. The prosecution relies upon the evidence of P.W.1, who is the panch witness to mahazar at Ex.P1 and he has turned hostile to the case of the prosecution.
15. P.W.2 is the father of the deceased, who gave the complaint in terms of Ex.P2 and narrated the complaint averments regarding the marriage between accused No.1 and his daughter. He also reveals that accused No.1 was in Bombay and he left his daughter and contracted second marriage when he came to village. He also reiterates that maintenance petition was pending before the Court and interim order was passed to pay the maintenance. On the date of the incident, his daughter, who had been to bring to cattle hay stock did not turn up. She was murdered by the accused persons by slitting her neck. His son when he noticed that his sister did not turn up, he went to bring the hay stock which his daughter collected and made ready to take the same to the house and he witnessed the accused No.1 having M.O.3 in his hand and others were also moving in a hurried manner and he informed about the murder of his sister and thereafter, all of them went to the spot. Thereafter, they have informed the incident to the police, the police came to spot and took his complaint in terms of Ex.P2. It is also his evidence that the police have conducted spot mahazar in terms of Ex.P1 and seized the articles.
In the cross examination, it is elicited that they have not participated in the marriage between his daughter and accused No.1. It is suggested that accused No.1 did not fell in love with the deceased and their marriage was not love marriage and no marriage had taken place between them and the same was denied. It is suggested that there was no relationship between the accused No.1 and the deceased and the same was denied. It is elicited in the cross examination that, he came to know about the death of his daughter at 7.30 p.m. and at that time, he was not there in the house and he had been to somewhere else and only when he came back to house, he came to know of the same. He reiterates that, in his complaint, he has mentioned that accused No.1 was having M.O.3 in his hand and the same is not stated in the complaint is false. He states that when the police came to spot, he himself and villagers were there at the spot.
16. The prosecution also relies upon the evidence of P.W.3 claiming that he is an eye witness. In his evidence, he states that he was grazing the sheep and at around 5.30 p.m., when he was about to return to house, at that time, deceased alone was coming and he immediately heard the screaming sound and he rushed towards the said place and she was murdered, head was separated from the body. At the spot, he found accused Nos.1 to 3. The accused No.1 was having M.O.3 and he identifies the same. He states that his statement was recorded after two months of the incident.
In the cross examination, it is elicited that, he did not inform the said incident to anybody else in the village either to P.W.2, P.W.4 or his brother and their family members. He cannot state at what time, the police came to the village. He also did not scream at the spot when the accused persons, after committing the murder left the place and also he did not make any efforts to catch hold of them. It is suggested that he did not witness the incident and the same was denied.
17. P.W.4 is the brother of the deceased. In his evidence, he reiterates about the marriage between the deceased and accused No.1 and an order passed for maintenance in favour of his sister and sister’s daughter and the accused did not pay the same and also the warning made in the Court against accused No.1. It is his evidence that, his sister went to pluck chilies and while coming, she told that she has collected the hay stock and instructed him to come and take the same in the land of Giddappa, Basavanaparti Village. In between 5.45 to 6.00 p.m., he went to the land of Kolinarayanappa in the road which leads to Basavanaparti Village. He found accused Nos.1 to 4 and they also witnessed him. When they saw him, they started to leave the place in a hurried manner, he found M.O.3 in the hands of accused No.1. He went towards Neelagiri plantation, at that time, accused No.1 proceeded towards the said place with M.O.3 and he also found the dead body of his sister, which was separated from head. Immediately, he rushed to the house and informed the same. In his evidence he also states that he can identify the material object and identifies the same.
He was subjected to cross examination. In the cross examination, it is suggested that in his evidence he has made the statement that after registration of the marriage, both the accused No.1 and his sister were there in the house and the same was not stated in his statement and the same was denied. It is elicited that, there was a 200 feet distance between the dead body of his sister and the place in which the accused persons were proceeding and he did not scream at the spot, when he saw the dead body. It is suggested that he did not mention in his evidence that the accused persons left the place in different directions. It is elicited that accused persons did not run away from the place but, they proceeded in a hurried manner. He did not find any other persons except the said accused persons at the spot. He did not meet anyone while going to house. He had also informed his mother that all the four accused persons have committed the murder. But he states that he did not witness the committing of murder of his sister. When he went and informed the villagers by screaming, more than twenty persons came to the spot. He cannot say whether P.W.3 was present when the police came to the spot. He did not make any efforts to catch hold of any of the accused persons and he admits that P.W.3 is his relative.
18. P.Ws.5 and 6 are the mahazar witness to Ex.P1. They have supported the case of the prosecution regarding spot mahazar .
19. P.W.7 is another brother and he reiterates the evidence of P.Ws.2 and 4 regarding relationship between the accused No.1 and the deceased and non-payment of maintenance ordered by the Court. In his evidence, he states that he came to know about the murder of his sister through their family members.
He was subjected to cross examination. In the cross examination, the defence itself suggested that the Judge warned the accused to pay the maintenance amount before the next date of hearing and if he fails to make the payment, he would send him to jail. He came to know about the murder of his sister at 7.00 p.m. When the police came to the spot at 8.00 p.m., he himself, his mother, brother and other villagers were there at the spot.
20. P.W.8 has turned hostile and he was subjected to cross examination by learned Public Prosecutor.
In the cross examination, he admits the marriage between accused No.1 and deceased and accused No.1 contracting second marriage and deceased was having a daughter and leaving his daughter and wife, he contracted second marriage.
21. P.W.9 has turned hostile to the case of the prosecution.
22. P.W.10 is the witness for recovery of M.O.3.
In his evidence, he states that the Police Inspector and Panch witnesses were taken to the land of Narayanaswamy, wherein M.O.3 was thrown near the wet land bund and the same was taken by the police. At that time, accused No.1 was present and mahazar was drawn. However, he states that he cannot identify the same. He was treated as hostile by the learned Public Prosecutor and suggestion was made that in his presence only, the police seized M.O.3 and the same was denied. However, the defence counsel elicited that jeep was stopped near Marappanahalli Road and when they went there, the accused were also there in the said land and the police themselves took the same. However, he admits that said material object is not in the Court. It is suggested that police did not take him and he is falsely deposing the same and the same was denied. It is also elicited that he was taken to custody within four to five days of the murdering of the deceased.
23. P.W.11 has turned hostile to the case of the prosecution.
24. P.W.12 is the mahazar witness for the seizure of shirt and pant of accused No.1. In his evidence, he states the he was called to the Circle Inspector’s Office and found shirt and pant, which were blood stained and the same were seized by drawing mahazar in terms of Ex.P.8. He identifies his signature and so also M.O.7. P.W.12 was subjected to cross-examination and he states that the Circle Inspector only called him to station. There were no talks between him and the Circle Inspector when the shirt was shown to him. On that day they have shown both shirt and pant and they were blood stained. He was called to the Police Station within three days of committing the murder of the deceased. Other panch witness Siddegowda was also present. It is suggested that blood stained shirt and pant were not seized in his presence and in the presence of Siddegowda and the same was denied.
25. P.W.13 is the mahazar witness for the recovery of M.O.3. In his evidence, he states that the accused No.1 took him, police and the other panch witnesses near the land of Narayanaswamy and M.O.3 was seized and the mahazar was drawn. He also identifies M.O.3 and his signature in Ex.P.7(b). In the cross-examination, it is elicited that when he went to the spot, at that time the accused No.1 was removing M.O.3 and he does not know the survey number of the extent of the land. It was suggested that he himself and other panch witnesses were not taken to the land of Narayanaswamy and the accused No.1 did not produce M.O.3 and the same was denied. He further states that the accused No.1 removed M.O.3 and gave the same to the police and the same was seized.
26. P.W.14 is the police official who was deputed to apprehend the accused. In his evidence, he states that on 16.9.2011, he arrested accused Nos.1 and 3 at 7.30 a.m. and produced them at 8.30 a.m. before the CPI. It is suggested that the accused persons were not taken to custody at Chintamani and they were arrested in their house and the same was denied.
27. P.W.15 in his evidence he states that the accused No.2 placed an order to prepare M.O.3 along with other two sickles and he only prepared and gave the same to him. In the cross-examination, he states that he cannot tell on which day he took the same. He states that he took the same 20 days prior to the death of the deceased.
28. P.W.16 turned hostile. P.W.17 is the owner of the land in which the body was lying. In his evidence, he states that the body of the deceased was lying in his land.
29. P.W.18 is the Investigating Officer. In his evidence, he states that on 9.9.2011, he took up the further investigation from C.W.45 and on the next day he went to the spot and conducted the spot mahazar from 6.15 a.m. to 7.15 a.m. and seized the articles at the spot and the body was sent to medical examination. The deceased’s clothes were produced before him and he seized the same and sent the P.F. and recorded the statement of the witnesses. On 16.9.2011, his staff produced accused Nos.1 and 3 before him and accused No.1 gave his voluntary statement and also told that he will produce the weapon used for committing the murder. In pursuance of the voluntary statement of accused No.1, he took the panch witnesses along with him and went to the land of Narayanaswamy and accused No.1 produced M.O.3 and the same was seized. The said M.O.3 was sent to the scientific expert. Accused No.1 also produced the other articles and bed sheet and the same was seized at his instance in terms of Ex.P.2. The clothes which he was wearing were also seized providing alternative clothes and thereafter accused No.1 was produced before the Court. He also recorded the statement of the witnesses. He conducted the further investigation and obtained the relevant documents from the other witnesses and sent the seized articles to scientific examination and received the information that accused No.2 was in Srinivasapura Taluk and he was apprehended. He also collected the documents in respect of the order passed in the Court for the payment of maintenance to the deceased. He recorded the statement of the witnesses. He also received the FSL report. After the competition of the investigation, he has filed the charge-sheet.
30. In the cross-examination, it is elicited that in the spot, the children of P.W.2 and his wife were present at the time of conducting the spot mahazar. While conducting the inquest, he was not aware of which article was used to commit the murder. It is further elicited that till 10.9.2011, he was not aware of which weapon was used to commit the murder. He also admits that the case was pending in the JMFC Court. It is elicited that M.O.3 was recovered from the place, which is located by the side of the road. None of the witnesses have mentioned the colour of the shirt, which the accused No.1 was wearing. It is elicited that the lady agriculturists used to wear the old shirts of the men. He did not collect the documents that the said land belongs to Narayanaswamy. He admits that the statement of P.W.2 was recorded after 84 days and there was no explanation for delay. He states that P.Ws.3 and 4 have not stated before him that they have witnessed the incident. He admits that the blood of the accused No.1 was not collected to identify, as to it is whose blood group.
31. P.W.19 is the doctor, who conducted the post mortem. In his evidence, he states that he found four injuries and also the body and head were separated and he gave the report in terms of Ex.P.20 and identifies his signature. In the cross-examination, it is elicited that he did not give any opinion in respect of the weapon, which was used for committing the murder.
32. Having considered both oral and documentary evidence available before the Court and also the contentions urged by both the respective counsel, this Court has to re-appreciate the evidence available before the Court. In order to arrive at a conclusion with regard to Section 120B of Indian Penal Code i.e., conspiracy among the accused persons to eliminate the deceased, no material is placed before the Trial Court by the prosecution. It is the case of the prosecution that accused No.3 instigated accused No.1 and accused No.2 aided accused No.1 by giving the information over phone that the deceased was coming alone. In terms of earlier conspiracy, accused No.1 committed the murder of the deceased. The Investigating Officer did not collect any call details of accused No.2 to substantiate the charges levelled against accused No.2 that he gave the information over mobile to accused No.1. None of the witnesses have spoken with regard to the conspiracy between accused Nos.1 to 3 to eliminate the deceased. Hence, there is no material before the Court to reverse the findings of the Trial Court with regard to Section 120B read with Section 34 of Indian Penal Code.
33. With regard to the death of the deceased is homicidal is concerned, the evidence of the doctor, who has been examined as P.W.19 is clear that the head was separated from the body and he noticed the injuries and gave the report in terms of Ex.P.20. On perusal of Ex.P.20, it discloses four injuries and the doctor has opined that cause of death is due to shock and hemorrhage. In the cross-examination of the doctor – P.W.19, nothing is elicited that it is not homicidal and hence it is clear that it is a case of homicidal.
34. The prosecution in order to prove the case relied upon the evidence of P.Ws.2 to 4. P.W.3 states that he was grazing the sheep at the time of the incident and he found the victim was coming alone at about 5.30 p.m. and he heard the screaming sound and he rushed to the spot and found the accused persons. But he did not inform the same to any family members. It is also elicited that his statement was recorded belatedly. It is also important to note that P.W.2 – father of the deceased states that he sent P.W.4 when his daughter did not turn up. But in the cross-examination, he admits that he came to know about the incident at 7.30 p.m. and on that day he was not in the village. He had been to some other place. Hence P.W.2 sending P.W.4 to bring her daughter cannot be accepted. The evidence of P.Ws.3 and 4 does not inspire the confidence of the Court that they were present on the spot. The respective statements of these witnesses were recorded belatedly. It is pertinent to note that though the police came to the spot at 8.00 p.m., no complaint was given at that time. P.W.2 gave the complaint at 2.00 a.m. In the complaint, it is mentioned that the accused persons have committed the murder. In the evidence of Investigating Officer, it is clear that P.Ws.3 and 4 have not given any statement that they have witnessed the incident and he categorically admits that till 10.9.2011 he was not aware of which weapon was used to commit the murder.
35. The evidence of the Investigating Officer – P.W.18 and P.Ws.2 to 4, does not inspire the confidence of the Court and there are material contradictions in their evidence. P.W.4 states that he did not find any person when he went to the spot other than the accused. P.W.3 states that he was at the spot at the time of incident and he saw the accused persons. But P.Ws.3 and 4 have not seen each other. P.W.4 also categorically stated that when he came to know about the murder, he returned to the village. He did not meet any of the persons. Hence, the evidence of P.Ws.3 and 4 that they are the eyewitnesses, cannot be accepted. The complaint also does not disclose that witnesses have witnessed the incident and the complaint is only a guess work. The Court below considered the evidence of these two witnesses and came to the right conclusion that they are not eyewitness.
36. Now the question before the Court is with regard to the circumstantial evidence. Whether the circumstances prove the case against the accused persons. This Court has already pointed out that nothing is on record that the other accused persons were also there along with accused No.1. But it is important to note that the police official – P.W.14, who was deputed to arrest the accused categorically states that he arrested accused Nos.1 and 3 on 16.9.2011 and produced before the Investigating Officer. The Investigating Officer, who has been examined as P.W.18 also stated that P.W.14 produced the accused Nos.1 and 3 before him. It is also his evidence that he recorded the voluntary statement of the accused No.1. Accused No.1 reveals that if he is taken to the place where he has kept M.O.3, he would produce the same and accordingly the accused No.1 was taken to the land of Narayanaswamy. P.W.10 states that the police took him to the said place and police took the weapon. But in the cross-examination, he admits that in his presence only M.O.3 was recovered within 4-5 days of committing the murder of the deceased. The same is elicited in the cross- examination of the accused counsel only and the accused counsel elicited that they were taken in a jeep and the jeep was stopped in the Marappanahalli Road.
37. The other witness regarding recovery of M.O.3 is P.W.13. In his evidence, he states that the accused No.1 led him, other panch witnesses and also the police to the land of Narayanaswamy and he produced the blood stained M.O.3. He also identifies the same. In the cross- examination of P.W.13, he states that accused No.1 removed M.O.3 in the presence of other panch witnesses.
It is suggested that the accused No.1 did not produce M.O.3 in the presence of other panch witnesses and the police and the same was denied. Nothing is elicited from the mouth of P.W.13 to disbelieve the evidence of prosecution regarding recovery of M.O.3.
38. The other witness is P.W.15. In his evidence, he states that accused No.2 came and placed the order to prepare M.O.3 and other two sickles and he only supplied the same to accused No.2, 20 days prior to the incident.
39. The other witness is P.W.12, who is the witness for seizure of shirt and pant of the accused No.1 in the Police Station and he also identifies his signature on Ex.P.8. In the cross-examination, nothing is elicited to disbelieve the evidence of P.W.12. It is elicited by the defence counsel that there were blood stains on the shirt and pant. But answer elicited is that he was called to the Police Station on the third day of the murder of the deceased. That is the only discrepancy found in the evidence of P.W.12. It is suggested that blood stained shirt and pant were not seized in the presence of other witness Siddegowda and the same was denied categorically.
40. It is important to note that M.Os.3 and 7 were sent to FSL in terms of evidence of P.W.18 – Investigating Officer. The FSL report is also marked as Ex.P.21. No doubt, in the cross-examination of the doctor – P.W.19, it is elicited that the weapon was not sent for opinion as to whether it could cause injuries noted in the post mortem. But, merely not sending the weapon for obtaining the opinion, will not take away the case of the prosecution. On perusal of the material available on record, it discloses that neck of the deceased was slit and as a result, head and body were separated and the murder is nothing but a ghastly murder. The FSL report, which is marked as Ex.P.21 is clear that the seized article M.O.3 used for committing the murder and also the clothes belonging to the accused were blood stained and the same contains human blood and the blood group was also ascertained as ‘B’ group. When the FSL report confirms blood stains and human blood of ‘B’ group, there is no explanation on the part of the accused No.1 under Section 313 of Code of Criminal Procedure. When the blood stained clothes and blood stained incriminating article, which were used for committing the murder was recovered at the instance of accused No.1, there must be an explanation from the accused No.1 and the same was not given.
41. We would like to refer to the judgment of the Hon’ble Supreme Court reported in 1995 SCC (CRI) 1085 in the case of ASHOK KUMAR v. STATE (DELHI ADMINISTRATION) regarding the report of the Forensic Science Laboratory containing ‘B’ group blood. Relevant portion of Paragraph No.9 of the judgment reads as hereunder:
“Another fact of importance is the discovery of B group blood on the stone Ex. P-30, the clothes of the deceased and the clothes of the appellant removed from his person on his arrest on 12-1- 1988. This is indicative of his being in close proximity of the deceased when he was fatally wounded…………………Lastly ever brooding to the occurrence is the motive of the crime. No animus is alleged against the prosecution. It has given the chain of events and the movements of the accused inter se and of their being seen together in the company of the deceased. The appellant has thus necessarily to be held guilty of the crime, unless he had a plausible explanation to offer. But instantly, the appellant gave no explanation at all what to say of a plausible one. The appellant, in our view, was thus rightly convicted of the offence under Section 302 IPC. The appraisal of evidence of both courts was sound and we entirely agree with their verdict.”
42. We would also like to refer the judgment of the Hon’ble Apex Court reported in (2011) 3 SCC (CRI) 550 in the case of KUMAR AND OTHERS v. STATE REPRESENTED BY INSPECTOR OF POLICE, TAMIL NADU with reference to paragraph No.57 of the judgment wherein it is observed that discovery appears to be credible under Section 27 of the Evidence Act, 1872 and so also recovery of blood stained weapon and no explanation was given by the accused and discovery positively further proved prosecution case. Paragraph No.57 of the judgment reads as hereunder:
“57. It was then urged by the learned counsel that this was an open place and anybody could have planted veechu aruval. That appears to be a very remote possibility. Nobody can simply produce a veechu aruval planted under the thorny bush. The discovery appears to be credible. It has been accepted by both the Courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the Forensic Science Laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.”
43. We also would like to rely on the judgment reported in AIR 1991 SC 1853 in the case of KUJJI @ SURENDRA TIWARI v. STATE OF MADHYA PRADESH regarding discovery of weapon of offence and appreciation of evidence, wherein it is observed that nothing has been brought in the cross-examination to shake the intrinsic value to be attached to his evidence. Paragraph No.9 of the judgment reads as follows:
“9. After the appellant and his two companion Parsu and Gudda were arrested they were interrogated by the investigating officer PW 13 Ramji Singh. In the course of interrogation they showed their willingness to point out the weapons of assault. Thereupon the investigating officer called two panchas, one of them being PW 5 Panna Lal. The very same panch witnesses were panchas to all the three discovery panchnamas as well as panchnamas regarding the attachment of the clothes worn by the appellant and his companion. It was, therefore, contended by the counsel for the appellant that PW 5 Panna Lal was a stock witness whom the police had employed to act as a panch witness. Pointing out that it was Tulsi Ram the brother of the deceased who had chosen him because he was closely associated with the family of the deceased and was intimate with Babulal another brother of the deceased, Mr Lalit submitted that no reliance can be placed on the evidence of such an highly interested and specifically chosen witness. The witness comes from the same locality and his house is situate within 100 yards of the residence of the deceased. He knows the family of the deceased quite well being as a neighbour and of the same ‘biradari’. It is equally true that he had gone to the hospital on learning about the assault on Gulab and had stayed back with Babulal since the latter was not feeling well. But would it be proper to throw out his evidence on account of his neighbourly relations with the family of the deceased, when nothing has been brought out in cross-examination to shake the intrinsic value to be attached to his evidence? Even in the cross- examination of the investigating officer nothing has been brought out to infer that the choice of PW 5 as a panch witness was a deliberate one made with a view to enlisting his support to the prosecution case. The mere fact that he was a witness to all the panchnamas prepared by the investigating officer is by itself not sufficient to discard his evidence. Even in the case of an interested witness, it is settled law that his evidence cannot be overlooked merely on that ground but at the most it must receive strict scrutiny. In the case of PW 5, except being a good neighbour nothing more is shown. On the question of recovery of the weapon as well as the blood-stained pant of the appellant there is hardly any effective cross-examination. Nor has the appellant offered any explanation in his statement recorded under Section 313 of the Code. In these circumstances we are not prepared to reject his evidence on the specious plea of his being an interested witness. In Himachal Pradesh Administration v. Om Prakash (1972) 2 SCR 765 : (AIR 1972 SC 975) this Court observed at page 777 (of SCR) : (at p.983 of AIR) that it could not be laid down as a matter of law and practice that where recoveries have been effected from different places on the information furnished by the accused, different sets of persons should be called in to witness them. There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. It is, therefore, clear from the decision of this Court that merely because the same set of panch witnesses were used for witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions. PW 5's evidence could not be discarded since nothing had surfaced in cross- examination to shake his evidence. We are, therefore, satisfied that the evidence of PW 5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under Section 27, Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW 5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of the appellant.”
44. We would also like to refer to the judgment of the Hon’ble Apex Court reported in (2011) 3 SCC (CRI) 803 in the case of RAKESH AND ANOTHER v. STATE OF MADHYA PRADESH regarding proof and recovery of incriminating material. It is observed in the said judgment that when there was no proof that Investigating Officer had any animosity or any kind of interest and closeness to deceased and also there cannot be any set pattern or uniform rule of human reaction to discard a piece of evidence. Paragraph Nos.26, 28 and 29 of the judgment reads as hereunder:
26. The other circumstances particularly, the statements of B.M. Dubey, Investigating Officer (PW 21) and Balram (PW 9), the arrest of the accused, recovery of weapons on their disclosure statements proved the prosecution case. The depositions of B.M. Dubey (PW 21) had been natural. There was no proof that the IO (PW 21) had any animosity or any kind of interest and closeness to the deceased. Therefore, the question of not believing the statement of B.M. Dubey, IO (PW 21) does not arise. The High Court in spite of the fact of disbelieving Khemchand (PW 10), found the prosecution case wholly proved on the sole testimony of Anil (PW 11).
28. Even if there are minor discrepancies between the narrations of witnesses when they speak on details, unless such contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety. The trivial discrepancy ought not to obliterate the otherwise acceptable evidence.
29. In Leela Ram v. State of Haryana this Court observed as under: (SCC pp. 533-34, para 11) “11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals.
There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.”
45. We would also like to refer to the judgment reported in (2001) 1 SCC 652 in the case of STATE, GOVERNMENT OF NCT OF DELHI v. SUNIL AND ANOTHER with reference to Para Nos.21 and 22 which reads as under:
“21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
22. In this case, the mere absence of independent witness when PW 17 recorded the statement of A-2 Ramesh and the knickers were recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.”
46. We would like to refer to the judgment reported in (2012) 3 SCC 766 in the case of NEEL KUMAR v. STATE OF HARYANA with reference to paragraph No.30 which reads as hereinunder:
“30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.PC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.”
47. We would like to refer to the judgment reported in ILR 2004 KAR 2531 in the case of BORAIAH @ PUJARI BORAIAH v. STATE BY THALAK POLICE with reference to paragraph Nos.14 and 18, which reads as herein under:
”14. In addition, the prosecution also places reliance upon the recovery of weapon M.O. 1 at the instance of accused, to prove its case. The seizure panch — P.W. 8 has turned hostile. But the prosecution heavily relied upon the evidence of P.W. 14 — the Investigation Officer. Upon consideration of the relevant material on record relating to recovery, the Court is of the considered opinion that there is absolutely no reason as to why the evidence of independent witness — public servant i.e, Investigating Officer — P.W. 14 should be disbelieved. The evidence of P.W. 14 — Inspector discloses that on getting information about the presence accused at Chikkaullarthi, he went to the said place along with the staff and arrested the accused. The voluntary statement of accused — Ex. P. 9, was recorded. The accused led the Police and Panchas to the land called Sangammanavara Ajjanna hola near Gajjiganahally bus stand and took out kodli (M.O. 1) from jail bush. There is nothing on record the show that P.W. 14 has got any axe to grind against the accused and that he has acted partially.”
“18. Examination of the accused under Section 313 Cr. P.C. is not an empty or idle formality. The underlined object behind Section 313 of Cr. P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. Thus, said provision makes it obligatory on the part of the Court to question the accused on the evidence and circumstances appearing against him so as to apprise him the exact case which he is required to meet. Thus, each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to serious irregularity, vitiating the trial if it is shown to have prejudiced the accused. Apart from affording an opportunity to the accused to explain the incriminating circumstances against him, it would also help the Court in appreciating the entire evidence. While deciding the criminal case, the Court has to consider the statement of the accused in the light of the evidence adduced by the prosecution and weigh such statements with the probabilities of the case either in his favour or against him. Hence, the questions to be put to the accused are to be framed with care and caution which should contain mainly the incriminating material against the accused. Recording of the statement under Section 313 Cr. PC is the last opportunity for the accused to explain any circumstance that may appear against him in the evidence. The accused should know as to what is the exact incriminating material against him. As such the Trial Courts shall frame questions on the basis of incriminating evidence against accused. Inspite of repeated pronouncements on this aspect, it is seen from the record of the present case that the learned Sessions Judge has not given his due attention to this aspect while framing the questions under Section 313 Cr. P.C. The learned Sessions Judge has simply extracted the evidence of the prosecution witnesses at length, some of the questions are running into pages, without pointing out exact material against the accused. Many questions put to the accused under Section 313 Cr.
P.C. by the Court below do not conform to the requirements of Section 313 Cr. P.C.”
48. We would like to refer to the judgment reported in AIR 2017 SUPREME COURT 2161 in the case of MUKESH AND ANOTHER v. STATE FOR NCT OF DELHI AND OTHERS, with reference to paragraph No.436 which reads as herein under:
“436. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. The recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once the recovery is proved by the prosecution, burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when the investigating officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process.”
49. Having considered both oral and documentary evidence available on record, though the prosecution did not place any material for direct evidence, the other circumstantial evidence discloses that though an attempt is made to examine P.Ws.3 and 4, the same does not inspire confidence of the Court regarding direct evidence. But the circumstantial evidence placed before the Court is enough to come to a conclusion that accused No.1 only committed the murder of the deceased. It is evident in Ex.P.22 that the deceased claimed maintenance from the accused and the Court passed an order to pay maintenance of Rs.350/- each to the deceased and her daughter, in all Rs.700/-. The same was not paid and hence the matter was before the Court. Accused No.1 had appeared before the Court on 6.9.2011. When he did not pay the amount, the Judge directed him to pay the amount or he would be sent to jail. The said fact has not been disputed by the accused and in the cross-examination defence itself suggested about the pendency of the case and also passing of the order against him to pay the maintenance and also that the case was posted two days prior to the incident. When such being the case, the prosecution was able to prove the motive behind committing the murder. The Court below ignored this material regarding an order to pay the maintenance and also case was posted before the Court just three days before the incident.
50. It is pertinent to note that the accused No.1 denied the relationship between him and the deceased. But the prosecution witnesses have categorically deposed that the marriage was solemnised between them and thereafter he left the deceased. Then he contracted second marriage and the accused No.1 did not dispute that he married again, but only disputed the first marriage. It is pertinent to note that the State and the complainant advocate, during the course of argument brought to the notice of the Court that the suit filed by the deceased against the accused No.1 was decreed recently in the year 2018 granting the share in favour of the daughter of the accused No.1. This Court also cross checked it and confirmed the same by taking print of the judgment. The same is not disputed. It is proved before the Court below regarding marriage and share has been allotted to the daughter. There was an order of interim maintenance in the said suit. Hence, it is clear that instead of making the payment of maintenance, he eliminated his wife. It is also the case of the prosecution that the case was listed on 13.9.2011 and the incident had taken on 8.9.2011 and there was a strong motive to commit the murder. The Court below also comes to the conclusion that there was a motive to commit the murder, but fails to consider other circumstantial evidence available before the Court, i.e., blood stained shirt of the accused No.1 and also the weapon used for committing murder which was stained with the blood of the deceased.
51. The Court below failed to take note of the FSL report, which is marked as Ex.P.21 and the same substantiates that M.O.3 was seized at the instance of accused No.1 which was used for murder and also blood stained clothes, which were seized at the instance of the accused No.1 contained the blood stains and the same was human blood and pertained to ‘B’ group. No doubt in the evidence of the Investigating Officer, it is elicited that the blood group of the accused No.1 was not determined and the same is not fatal to the case of the prosecution. It is the duty cast upon the accused to explain how his shirt and pant were blood stained with ‘B’ group blood of the deceased. In the absence of any explanation, the prosecution has proved the motive as well as recovery at the instance of the accused. It is also important to note that the accused Nos.1 and 3 were apprehended at Chintamani by P.W.14 and the same has been corroborated by the evidence of Investigating Officer – P.W.18 who recorded the voluntary statement and recoveries were made at the instance of the accused No.1 and though one panch witness for recovery of M.O.3 turned hostile in part, but the answer was elicited in the cross-examination with regard to the recovery. The other witnesses P.W.13 fully supported the case of the prosecution. Nothing is elicited with regard to any enmity between him and also with the witnesses so also with the Investigating Officer to falsely implicate him. The very reasoning assigned by the Trial Court that the recovery has not been proved is against the material on record and the answer elicited from the mouth of the witnesses was not believed by the lower Court and formed a general opinion that the recovery witnesses have not supported the case of the prosecution i.e., opposed to material on record and the very finding of the Trial Court that recovery was not proved shows that the Court below ignored the material on record and instead, mainly acted upon the evidence of P.Ws.3 and 4 – eyewitnesses and the Trial Court failed to take note that in the absence of direct evidence, the Court can rely upon the circumstantial evidence. The circumstantial evidence available before the Court is that, an order was passed to pay maintenance to his wife and daughter. The recovery proceedings was pending and three days before committing the murder, the matter was listed before the lower Court. The Court warned him to make the payment or otherwise he would be sent to jail. After committing the murder he was arrested and based on his voluntary statement, the recovery of weapon and blood stained clothes were recovered and recovery was proved. Apart from that, the F.S.L. report substantiates the case of prosecution. All these circumstantial evidence has not been considered by the Trial Court in a right perspective and hence the impugned order of acquittal requires to be reversed and has to be set aside.
52. In view of the discussions made above, we pass the following:
ORDER (i) The Appeal is allowed.
(ii) The judgment of acquittal passed against accused No.1, is hereby set aside. The accused No.1 is convicted for the offences punishable under Section 302 of Indian Penal Code. The accused No.1 is sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,00,000/-. In case of default, he shall further undergo rigorous imprisonment for a period of one year.
(iii) Acquittal order passed against the accused Nos.2 and 3, is hereby confirmed.
(iv) The fine amount is payable to the minor daughter. The amount is directed to be kept in fixed deposit in any nationalized Bank to earn interest till she attains the age of majority. Thereafter to be released in her favour on proper identification.
Sd/- Sd/-
JUDGE JUDGE ST/MD