IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE DR.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.411 OF 2015 BETWEEN:
Kumar Naik S/o. Yuvaraj Naik Aged about 36 years Occ: Mason, Tanihehally village, Native of Madakaripura, Chitradurga Taluk.
(By Sri.N.S. Sampangiramaiah, for Sri.B. Pramod, Advocate) AND:
State by Chikkajajuru Police Chitradurga District Rep. by the Special Public Prosecutor High Court of Karnataka Bengaluru – 560 001.
(By Sri.I.S. Pramod Chandra, SPP-II) …Appellant …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction dated 27-12-2013 passed by the Principal District & Sessions Judge, Chitradurga in S.C.No.85/2012, convicting the accused- appellant for the offences punishable under Sections 302 and 201 of IPC and sentencing the accused-appellant to undergo Rigorous Imprisonment for life and to pay fine of `10,000/- in default to pay the fine shall undergo Simple Imprisonment for one year, for the offence punishable under Section 302 of IPC and further he is sentenced to undergo Rigorous Imprisonment for two years and to pay fine of `2,000/- in default ot pay the fine, shall undergo Simple Imprisonment for three months, for the offence punishable under Section 201 of IPC and both the substantive sentences to run concurrently.
This Criminal Appeal coming on for hearing this day, K.N. PHANEENDRA, J., delivered the following:
J U D G M E N T The appellant, the sole accused in S.C.No.85/2012 on the file of the Principal District and Sessions Judge at Chitradurga, has preferred this appeal calling in question the judgment of conviction and order of sentence in the said case dated 27-12-2013. The learned Sessions Judge has convicted the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced him to undergo Rigorous Imprisonment for life and to pay a fine of `10,000/- with a default sentence to undergo Simple Imprisonment for a period of one year for the offence punishable under Section 302 IPC. The Court further sentenced the accused to undergo Rigorous Imprisonment for a period of two years and to pay a fine of `2,000/-, in default of payment shall undergo Simple Imprisonment for a period of three months for the offence under Section 201 of IPC.
2. We have heard the arguments of the learned counsel for the accused - appellant, Sri. N.S. Sampangiramaiah on behalf of Sri. B. Pramod and also the learned State Public Prosecutor-II for Respondent - State.
3. We have carefully perused the oral and documentary evidence placed for consideration of the Trial Court by the prosecution and we have also examined the judgment of the Trial Court.
4. Before adverting to the submissions made by the respective counsels, it is just and necessary for this Court to have the brief factual matrix of this case.
5. It is the case of the prosecution that the deceased Susheela Bai was given in marriage to the brother of the accused by name Ramaswamy Naika. The accused was also married and he was residing along with his wife at Madakaripura in Chitradurga District. It is the case of the prosecution that deceased Susheela Bai and her husband were residing at Tanigehally in Chitradurga Taluk and District. During the lifetime of Ramaswamy Naika, the said person brought the accused to his house and accused also started living with his brother Ramaswamy Naika. After some time, Ramaswamy Naika also died.
It is the further case of the prosecution that, the accused had developed illicit intimacy with his brother’s wife, Susheela Bai and also used to assault her and abuse her. After some time, the deceased and her children being frustrated with the conduct of the accused have driven the accused out of their house. However, the accused did not stop coming to their house. Often he used to go to their house and live there for some time. Whenever he used to come to the house of Susheela Bai, he used to beat her and abuse her, etc. The accused was also addicted to alcohol.
6. In this background, it is alleged that on 24-03-2012, the deceased, accused and some other people of the village had been to Uchhangidurga Yellamma Temple and they returned to the village at about 1:30 a.m. in the night on 26-03-2012. The deceased went to the house of her brother Kumara Swamy in the night after returning from the Temple, drank water and went to her house. The accused went to the house of PW-6 – Tippeswamy and slept in the house of Tippeswamy and at about 4 o’clock, he was not found by the said Tippeswamy. The son of the deceased by name Ananda (PW-4) was working as a driver and he used to come back to the house once in two or three days. He came to the house on the said date at about 4:30 a.m. and he searched for his mother and found that his mother was not there and therefore came to the house of PW-1 - Kumaraswamy and asked him whether his mother had returned from the Temple or not. PW-1, in turn, told that she had already returned and after drinking water in his house, she went to her house.
Then, PW-1 and PW-4 together came back to the house of the deceased and searched for her and they found that, the outer door of the house of the deceased being latched from outside and after removing the latch they observed inside the house some blood stains on the wall and broken bangle pieces on the ground. They suspected that something wrong might had happened and they also observed that the floor of the house was cleaned with cow-dung. Thereafter, they went to their respective houses and slept on that night. In the morning at about 6.00 a.m., Kumaraswamy i.e. PW-1 came to know that some villagers were talking that the dead body of the deceased Susheela Bai was lying near the cattle track in the said village. Immediately, PW-1 Kumaraswamy went to that particular spot and found the dead body of the deceased in a cattle track. He also noticed the injuries on the body of the deceased and press mark on the neck etc. Therefore, PW-1 looking to the above said facts and circumstances and also having found the accused being there with blood stained cloths, in fact telephoned the Police and in turn the Police came to the spot and the complaint has been lodged as per Ex.P1.
On the basis of such information given by PW-1, the Police have thoroughly investigated the matter and submitted the charge sheet against the accused for the above said offences.
7. After the committal proceedings, the Trial Court has secured the presence of the accused and framed charges against him for the offences punishable under Sections 302 and 201 of IPC and summoned the accused to face the trial. As the accused pleaded not guilty, the prosecution in order to bring home the guilt of the accused examined as many as 11 witnesses from PW-1 to PW-11, got marked Exs.P1 to P10 and Material Objects from MO-1 to MO-8. From the side of defence, Ex.D1 alone was marked.
8. The Trial Court also recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973. The accused was also called upon to enter into defence evidence, if any. The accused did not choose to lead any evidence on his side. Therefore, the Trial Court after hearing the learned counsel for the accused as well as the learned Public Prosecutor and after appreciating the oral and documentary evidence on record arrived at a conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubts. Therefore, the Trial Court has rendered the impugned judgment of conviction and sentence against the accused.
9. The learned counsel for the appellant has strenuously contended before the Court that the prosecution is mainly dependent upon the circumstantial evidence. The prosecution has projected the following circumstances i.e., (i) Motive; (ii) last seen of the accused and the deceased together; and (iii) arrest of the accused and recovery of incriminating articles at the instance of the accused as well as connection of the incriminating materials to the crime.
The learned counsel for the accused-appellant has taken us through the evidence of all the witnesses and commented on the evidence of those witnesses, particularly with reference to the circumstances projected by the prosecution.
The learned counsel submitted that the prosecution has not proved any of the circumstances beyond reasonable doubt, though made attempts to establish specifically the ‘last seen’ theory as well as recovery of the incriminating materials at the instance of the accused and to bring home the guilt of the accused. However, the prosecution has failed in its attempt. Though there was no acceptable evidence from the prosecution witnesses, except mainly culminating on two circumstances that, the accused and deceased were seen together on that particular night and also there were recovery of the incriminating articles belonging to the deceased at the instance of the accused, the Trial Court has drawn the inference that the accused is the perpetrator of the crime. The said observation made by the Trial Court is erroneous and if the evidence is re- looked into, it will disclose that the prosecution has not proved the case against the accused beyond all reasonable doubts. The doubts which emanate from the evidence of the prosecution witnesses with regard to the ‘last seen’ of the accused, presence of the accused on the spot and recovery of the alleged incriminating materials and a very feeble motive will not lead to any inference that the accused is the perpetrator of the crime.
Therefore, the learned counsel submits that there is insufficient and inadequate material to convict the accused. Hence, he pleads for acquittal of the accused by setting aside the judgment of the Trial Court.
10. Per contra, learned SPP-II submitted before the Court, though there are certain discrepancies in the evidence of the prosecution witnesses, but the Court has to evaluate the overall gamet of the prosecution case and the evidence in that line has to be appreciated. If there are contradictions and omissions here and there in the evidence of the prosecution, if they are not sufficient to uproot the prosecution case, then, such omissions and contradictions have to be ignored.
Therefore, the learned SPP-II submits that, the Trial Court after appreciating the oral and documentary evidence and considering the evidence on record, has properly drawn the inference that, the prosecution has proved the case against the accused beyond all reasonable doubts. There is no room to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, he pleaded for dismissal of the appeal.
11. In the wake of the above said submissions made by the learned counsels, before adverting to the material evidence on record with reference to the circumstances projected by the prosecution, we would like to glance through the evidence of the prosecution witnesses.
12. PW-1 - Kumaraswamy is none other than the brother of the deceased Susheela Bai who lodged the complaint at Ex.P1 as noted above. He received the information from the son of the deceased by name Anand and later he went to the spot and saw the dead body of the deceased and also saw that the accused was wearing blood stained cloths. He has also deposed with regard to the circumstances of the case with regard to the motive and other factors.
13. PW-2 - Rajappa is the spot panch. He deposed that the accused has actually shown the spot to the Police after his arrest, and also the Police have recovered one ankle chain, ole and cloth used by the accused for cleaning the blood stains on the floor of the house of the deceased. In Ex.P2 - spot Mahazar, he identified Material Objects as MO-1 to MO-3 before the Court.
14. PW-3 – Ankala Naika is the inquest panch witness who supported the case, stating that he was present when the inquest proceedings were conducted as per Ex.P3 and also he has stated that, the accused has actually shown the place of incident and also shown the removal of the tiles in the roof of the house to show how he came inside the house on the date of incident and how he washed the floor of the house and dragged the dead body from one place to another. PW-3 has also identified MO-1 to MO-3 which were seized at the time of drawing the Mahazar Ex.P2.
15. PW-4 – Ananda is none other than the son of the deceased Susheela Bai. He is also a circumstantial witness and he has stated about the family background, about the conduct of the accused, death of his father and how the accused was behaving and the family problems in the house and specifically stated that the accused was a drunkard and he used to come to the house even though he was driven out from the house of deceased. He also deposed with regard to the date of the incident stating that, he came to the house at 4:30 a.m, searched for his mother and on the next morning he saw the dead body of the deceased and he suspected the accused. He identified the accused and also blood stained cloths on the accused.
16. PW-5 – Ramesh Naika is the neighbour and he has stated about the family background of the accused and the deceased and he has also stated that he saw the dead body of the deceased on the next day morning and saw the injuries on the dead body and he was also present at the time of inquest proceedings.
17. PW-6 – Tippeswamy is the relative of the accused. He has stated about the accused seen on the date of the incident at about 1:30 a.m. in the midnight and he also says about the dead body being found on the next day in a cattle track and he suspected that the accused might have committed the murder of the deceased.
18. PW-7 – Veerabhadrappa is a Police Constable who carried the First Information Report (FIR) as per Ex.P4 to the jurisdictional Magistrate.
19. PW-8 – Somashekharappa was the Assistant Sub-Inspector of Police of Chikkajajuru Police Station and at the relevant point of time, he received a telephonic information with regard to the death of a lady at Tanigehalli village. Immediately he went to the spot at about 12:30 p.m. in the afternoon and received a report as per Ex.P1 from Kumaraswamy, the brother of the deceased and registered a case on the basis of said report in Crime No.54/2012. He also saw the dead body and injures and swelling on the face of the deceased and also injuries surrounding the neck. He has also deposed that he searched for the accused, but he could not able to secure him. Thereafter, he prepared the FIR and despatched it to the jurisdictional Court. He also stated that he further went to the spot as per the directions of the Circle Inspector of Police and got conducted the inquest as per Ex.P3. He has also recorded the statements of some of the witnesses during the course of inquest.
20. PW-9 – Dr. Kiran Kumar, Medical Officer, Primary Health Centre, Chikkajajur deposed that he has conducted the Post-Mortem examination on the dead body of deceased Susheela Bai on 26-03-2012. He gave his opinion that, the death of the deceased was due to asphyxia as a result of strangulation. He has also observed the external and internal injuries on the dead body of the deceased. He has also opined that he has noticed fracture of Hyoid bone and thyroid cartilage and other injuries on the body of the deceased and that the said death was due to mechanical asphyxia as a result of homicidal strangulation and he also stated that the time of death was approximately between 12 and 14 hours.
21. PW-10 - Sridhar who was working as Circle Inspector of Police who actually investigated the case has stated that on 27-03-2012, he took over the further investigation from the Assistant Sub-Inspector Somashekharappa and on 30-03-2012, the accused was secured by A.S.I. – Tippareddy and produced before this witness and he recorded the voluntary statement of the accused and in the voluntary statement, he came to know that the accused has also committed the murder of his wife in the year 1999, on the basis of which, it appears he has lodged a separate suo-motu report with reference to the death of the wife of the accused.
In connection with this case, he has also deposed that the accused in his voluntary statement has stated that he would produce the incriminating articles like ear studs, a pair of silver ankle chain and also the cloth which was used for the purpose of washing the floor where the blood stains had fallen in the house of the deceased. He secured the panch witnesses and recovered the incriminating articles at the instance of the accused, drew up a mahazar as per Ex.P2 and after concluding the investigation, he has submitted the charge sheet against the accused. He has also identified the accused before the Court.
22. PW-11, Lokesh, a Police Constable who was working as a constable at Holalkere Police Station has deposed that on the direction of the Circle Inspector of Police (PW-10), he took the handicam with him and went to Tanigehalli and recorded the spot mahazar as well as the recovery proceedings by videographing the said instances in the said handicam and he has also witnessed the videograph in the CD and DVD and produced them before the Court marked at MO-7 and MO-8 and he has deposed that the accused on the basis of his voluntary statement has shown the place where the offence was committed and the incriminating articles were kept, and at the instance of the accused those items were recovered.
23. On the basis of the above said evidence, the prosecution would like to establish the guilt of the accused. With reference to the circumstances we would like to discuss the evidence of the prosecution. The prosecution has mainly relied upon the following circumstances:-
(i) Motive:
The motive for the commission of the offence is in fact deposed by the kith and kin of the deceased, i.e. PW-1- Kumaraswamy, who is none other than the brother of the deceased Susheela Bai and PW-4 - Ananda, who is the son of the deceased. These two persons are the persons who have actually spoken about the motive factor. These two witnesses have stated that, the deceased Ramaswamy Naika and Susheela Bai were residing at Tanigehalli while the accused was residing at Madakaripura with his wife. During the lifetime of Ramaswamy Naika, the said Ramaswamy Naika brought the accused to his house and the accused was doing the masonry work. After the death of Ramaswamy Naika, the accused started living permanently in the house of Susheela Bai and he used to come to the house with drunken state and assault the deceased etc. It is also stated by these two witnesses that on various occasions, due to intolerance with reference to the conduct of the accused, they drew away the accused from the house. In spite of that, accused used to come to the house often. It is their case that the accused and deceased had developed illicit intimacy between them and because of this reason, PW-4 –Ananda and the other son of the deceased drew the accused away from the house. Therefore, the accused was frustrated and he was having grudge against the deceased because she was the root cause for throwing him out of the house. Therefore he was waiting for an opportunity to kill the deceased.
24. Of course these two witnesses have fully supported the case of the prosecution, they infact have suspected that, the accused must had committed the said offence. Though in the course of cross-examination it is suggested that there was no such motive, but specifically no questions have been put that the said allegations made against the accused are not proper and correct, there is no whisper in the course of cross-examination against the allegations made against the accused. On the other hand, it is suggested to PW-1 that when the accused used to assault and abuse the deceased, these witnesses have not given any Police complaint and also they have not taken any action against the accused. Coupled with the evidence in the Examination-in-chief, it is evident that PW-4 and deceased Susheela Bai along with her another son have taken action and thrown the accused from the house. Therefore though there is no specific and meticulous evidence to show that the accused and deceased have developed illicit intimacy, but the quarrel between the accused and the deceased and the family members of deceased Susheela Bai not being happy with the conduct of the accused, is established by the prosecution.
25. Merely because the establishment of any motive is not sufficient to draw any inference with regard to the guilt of the accused, it is also a circumstance available to the prosecution and that too it is not a decisive circumstance so that the Court can solely on the basis of the motive convict the accused for any offence. Therefore, the Court has to take the ‘motive‘ factor into consideration with the other circumstances projected by the prosecution. If prosecution is able to prove the other circumstance, in such an eventuality, the ‘motive’ factor can also be added as a an additional link to strengthen the case of the prosecution. Therefore, in this background we would like to refer to the said circumstance as relied upon by the prosecution.
(ii) Last seen of the accused and deceased together:
In order to establish this factor, the evidence of PW-1 - Kumaraswamy and PW-6 - Thippeswamy play a dominant role. PW-1 has stated in his evidence so far as this aspect is concerned that, on the date of incident, i.e. between 25-03-2016 and 26-03-2012, the accused and deceased and other villagers had been to Uchhangidurga Yellamma Temple and all of them returned to the village. On 25/26-03-2012 at about 1:30 a.m., in the night, deceased Susheela Bai went to the house of this witness (PW-1) and drank water and went back to her house. She was alone at that particular point of time. On the same day at about 4:30 a.m., the second son of the deceased Ananda (PW-4) came to the house of this witness and enquired about his mother, to which PW-1 told that, the deceased came to his house at 1:30 a.m. to drink water and went away to her house. Thereafter both of them went to the house of the deceased, and saw inside the house, blood stains on the wall and also observed broken bangle pieces and observed that the floor was completely cleaned with cow-dung. Thereafter PW-1 went to his house and slept and Ananda (PW-4) also slept in his house. This is exactly the statement of the witnesses so far as the ‘last seen’ is concerned.
26. The evidence of PW-1 is not so sufficient because he never said that accused and the deceased went together to the Temple and came back to the house together and accused was also present along with the deceased when she had been to the house of this witness to drink water. Therefore, the presence of the accused on that particular day with the deceased is actually not spoken to by this witness. He also never stated that the accused was present in the house of the deceased on that particular night or in the morning immediately when PW-4 came to the village.
In the course of cross-examination so far as this aspect is concerned, it is elicited that on 24-03-2012, this witness only saw the accused and deceased going along with the villagers (about 20 persons) to Uchhangidurga Yellamma Temple. Except that, in the course of cross- examination also, he has not stated anything about the presence of the accused after they came back from the said Temple.
27. PW-6 - Tippeswamy who has also stated before the Court that after the death of Ramaswamy Naika - the brother of the accused, accused started living together in the house of Susheela Bai. Further specifically stated that the sons of the deceased, viz. first son Santhosh was working as a driver at Bengaluru and the second son Ananda (PW-4) was also a Lorry driver at Bheemasamudra and once in two or three days, PW-4 used to visit the house. He further deposed that, whenever the sons of the deceased were out of station on their work, the accused and Susheela Bai used to live together in the house and accused used to come to the house in a drunken state and assault the deceased.
28. In the above background, it is deposed that on the previous day to the incident, the accused and the deceased and others had been to Uchhangidurga Yellamma Temple and in the midnight at about 1:30 a.m., the accused alone came and slept by the side of this witness in the Courtyard of the house of this witness. However, he deposed that on the next day morning, the accused also went to the place where the dead body was lying. Thereafter, this witness also went to that particular spot and when all these persons and the villagers were witnessing the dead body at the cattle track and at that time, accused went away from the spot. Thereafter, only this witness and others have suspected the conduct of the accused and suspected that the accused might had committed the said offence.
In the course of cross-examination, it is elicited that on that particular date at about 4:00 a.m. he got up and saw that the accused was not there with him. But, if the evidence in the cross-examination and Examination- in-chief are seen, he has stated that the accused must have come back and slept with this witness after 4 o’clock, because, in the examination-in-chief, he says that in the morning the accused also went to the place where the dead body was found. This goes to show that though the accused was not there at about 4:00 a.m. but he was found with this witness in the morning and after accused went to the spot, this witness also proceeded to the place where the dead body was found. Therefore, when the accused came at about 1:30 a.m. and was not found at 4:00 a.m., but again found in the morning with this witness, creates a serious doubt whether the accused in the meantime had gone to the house of the deceased and committed the murder of the deceased. Therefore, the evidence of this witness also in categorical terms does not disclose that why the accused has left the place at 4:00 a.m. and came back again in the morning. It is not explained by the prosecution with all probabilities whether the accused if at all committed the murder of the deceased between 1:30 a.m. and 4:00 a.m., whether he would have come back to the house of PW-6 and again gone to the place of incident, it is very difficult to consume the above said circumstance. This witness also never stated that he saw the accused and the deceased together at any point of time. Only on the basis of some imagination, these two witnesses have stated because of the conduct of the accused that they found blood stains on the cloths of the accused, they suspected that the accused might had committed the said offence.
29. In our opinion, though the above said circumstance is strong enough but it only creates a serious suspicion in the case of the prosecution. But it will not in any manner conclusively establish the circumstance of ‘last seen’ of the accused and the deceased together.
30. It is worth to mention here that mere suspicion is not sufficient. The suspicion however strong it may be, it will not take the place of proof. Therefore, it only creates a serious doubt in the case of the prosecution that the accused might have committed the murder of the deceased. But we cannot with all certainty say that due to this circumstance the accused must have committed the murder of deceased. Therefore, that stand though stated to have been proved is not sufficiently and adequately established by the prosecution.
(iii) Recovery & connection of the recovered articles with the crime:
The last segment of the prosecution story is recovery of some incriminating articles at the instance of the accused. The prosecution has relied upon the evidence of the Investigating Officer PW-10 – Sridhara, who has stated that on 27-03-2012, he has taken over the investigation from the previous Investigating Officer and he deputed his personnel for apprehending the accused. On 30-03-2012, ASI - Tippareddy at about 8:00 a.m. in the morning produced accused before this witness and he infact recorded the voluntary statement of the accused, and the accused has stated in his voluntary statement that, he would show the place where a silver chain and ear stud of the deceased were kept and also the cloth which was used for washing the floor where the blood stains had fallen at the time of commission of the offence. On the basis of such information, the Investigating Officer has selected Rajappa and Anjinapa as panch witnesses and went along with the accused. It is the case of the Investigating Officer that the accused took them all to the place where the offence was committed. The Police have observed the said house and they have also observed that the tiles of the said roof were removed and reinforced at the same place by the accused. But no such tile was recovered at the instance of the accused. It is further stated that the accused took the witnesses and the Investigating Officer to the cow-shed belonging to some other people in the village and removed from a small niche/pigeonhole a pair of silver leg chain and ear stud and further he has also produced a blue colour blouse piece (unstitched) which was alleged to have been used for the purpose of washing the floor of the house of the deceased in order to destroy the blood stains. The Police drew up a mahazar as per Ex.P2 and the said ankle chain and single ole or ear stud were marked as MO-1 and MO-2 and a blue colour blouse piece was marked at MO-3. Of course PW-2 Rajappa has also, to some extent, supported this particular recovery. But what we have to see is, whether such a recovery is proper and acceptable in the facts and circumstances of this case.
31. PW-2 has stated in the course of cross- examination so far as recovery aspect is concerned that, when the Police and other witnesses along with the accused went to that particular place, i.e. the house of the accused, they only saw that the floor of the house was completely cleaned with cow-dung. He has never stated about the presence of any blood stains inside the house. However, it is stated that they do not know whether the cow-shed belongs to whom and who was the owner of the said cow-shed. It is also stated that when they reached the house of Ramaswamy Naika the house was locked and some villager opened the said lock. If at all PW-4 had come to the village, he is the proper person to have the key with him, but we do not know why the door lock was opened by some villager of the said village and the said person was not examined. It is also stated that in the corner of the said cow-shed, there was a small niche/pigeonhole and the Police have taken the photograph of those aspects. In the course of cross- examination of the Investigating Officer, so far as this aspect is concerned, it is elicited that when they proceeded to the house of the accused, they saw the blood stains on the wall of the house and the photographs have been taken with regard to those circumstances. But the Investigating Officer has admitted that those photographs were not produced before the Court for the reasons best known to him and he has also not taken the scrapping of the wall in order to collect the blood stains which were on the wall of the said house. This has not been explained by the Investigating Officer why he has not done so. If at all the blood stains belonged to the deceased which were found on the floor and the wall inside the house of the deceased, what prevented the Investigating Officer from collecting the blood stains and send the same to the Forensic Science Laboratory to ascertain whether the blood stains tallies with the blood group of the deceased or not.
Further, strangely enough the article - unstitched blouse piece seized which was said to be used for the purpose of washing the blood stains that had fallen on the ground at the time of the incident by the accused, i.e. MO-3 was also not sent to the Forensic Science Laboratory for examination to ascertain whether the cloth was actually stained with any blood and that too the blood stains belonged to the deceased. The sample blood of the deceased was also not taken and sent for examination. These aspects create serious doubt as to whether any incident has really happened inside the house of deceased Susheela Bai or whether it had taken place out side the house.
32. Further added to that, the Investigating Officer has also stated that the said cow-shed from where the accused has produced the incriminating articles was open and it was not locked and nobody was prevented from going into the said cow-shed. The Officer has also not verified whether there were any stains inside the house etc. Therefore, when a particular place is open to public and anybody could go inside the said cow-shed, at any time, therefore it amounts to recovery of incriminating articles from an open place which is accessible to third parties. In such an eventuality, though the articles were shown to have been recovered at the instance of the accused, but such circumstance, in our opinion, though is acceptable but not so strong enough to draw an inference to connect the accused to the crime.
33. Apart from the above, it is the duty of the prosecution to establish that those incriminating articles, viz. ankle chain and the ear stud were actually belonged to the deceased. On the other hand, if the evidence of PW-4 is taken into consideration, he has stated that those incriminating articles were not shown to him and he never identified that the said articles belonged to his mother. The Investigating Officer has also stated in his evidence that he has not shown the articles to any of the kith and kin of the deceased to get the confirmation that those articles actually belonged to the deceased and that during her lifetime, the deceased was actually wearing those ankle chain and the ear studs so that the prosecution could connect the recovery of the incriminating articles with that of the crime.
34. Last but not the least, the said articles were not even sent to the Forensic Science Laboratory to ascertain whether those articles were also stained with any blood or not.
35. Under the above said circumstances, though the articles were shown to have been recovered at the instance of the accused, it is not established that those articles were actually worn by deceased Susheela Bai at the time of the incident or those articles actually belonged to the deceased. Bereft of any further connection with the incriminating articles, it is very difficult to draw a conclusive inference that these articles belonged to deceased Susheela Bai and the accused has committed the murder and thereafter took away these articles which were on the body of the deceased. Therefore, in our opinion, the above said circumstance is also not so sufficient and adequate to draw a conclusive opinion that the accused is a perpetrator of the crime.
36. We have also seen the video in which the Police have recorded the voluntary statement of the accused pertaining to this case and also pertaining to the death of one Vanitha Bai, the wife of the accused on the ground that he has committed the murder of his wife in the year 1999.
37. On careful visualization of the video, we are of the opinion that there are so many interpolations and interceptions by the Investigating Officer while recording the statement of the accused. It appears the Investigating Officer knew all the factual aspects prior to recording of the video of the voluntary statement of the accused, because, during the course of recording the voluntary statement, he has put some questions which are relatable to the death of the wife of the accused and also the death of brother of the accused which were put in the nature of suggestions to the accused which discloses that the Investigating Officer had already recorded the statement of the accused and to strengthen the case, he has recorded the voluntary statement in the videograph method. Merely because the statement of the accused is recorded by videographic method, it will not in any manner strengthen the case of the prosecution. This is as good as recording the confession statement of the accused which should fall within the parameters of Section 27 of the Indian Evidence Act, 1872 and nothing more. In fact, the Trial Court on the basis of mere recovery without discussing the above said factual aspects with regard to the surrounding mysterious circumstances, has accepted and connected the recovery to the crime, though there is no evidence to actually connect the recovered articles with that of the crime.
38. Under the above said facts and circumstances, we are of the opinion that though the prosecution has established certain circumstances, but we cannot with all certainty say that those circumstances are proved to the hilt so as to conclusively come to the conclusion that those circumstances are sufficient to hold the accused guilty of the above said offences. It is not that on the basis of circumstantial evidence, the Court cannot convict the accused. It is the recognized principles of law that in a circumstantial evidence case, all the circumstances projected must be proved beyond all reasonable doubts and if any doubt which is sufficient to doubt the entire case of the prosecution, in such an eventuality, the benefit of such doubt has to be given in favour of the accused. Therefore, the doubt which we have expressed with regard to the last seen and also recovery of the articles from a place where it was accessible to other persons and also recovered articles were not connected with the crime, such doubt, in our opinion, has to be bestowed in favour of the accused.
39. In view of the above said reasons, we are of the opinion that the prosecution cannot be said to have proved the case against the accused beyond all reasonable doubts. Hence, giving benefit of the above said doubt, we prefer to err on the safer side, and acquit the accused of the charges leveled against him. Hence, we proceed to pass the following:
O R D E R [i] The Appeal filed by appellant/accused is allowed;
[ii] Consequently, the judgment of conviction dated 27-12-2013 and order on sentence dated 30-12-2013, passed by the learned Principal District and Sessions Judge, Chitradurga, in Sessions Case No.85/2012, holding the appellant/accused guilty of the offences punishable under Sections 302 and 201 of the Indian Penal Code are hereby set aside;
[iii] Consequently, the appellant/accused – Kumar Naik, S/o. Yuvaraj Naik, Aged about 36 years, Occ: Mason, Tanihehally village, native of Madakaripura, Chitradurga Taluk, is hereby acquitted of the offences leveled against him;
[iii] The appellant/accused shall be set at liberty forthwith, if he is not required to be continued in judicial custody in any other case;
[iv] The amount in deposit by the accused, if any, shall be refunded to the accused on proper acknowledgment and identification;
Registry is hereby directed to communicate the operative portion of this judgment to the concerned Jail authorities forthwith, to release the accused forthwith, if he is not required in any other case;
Registry is also directed to send back the Lower Court Records to the Trial Court with a copy of this judgment.
Sd/- JUDGE Sd/- JUDGE BMV*