IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.268/2014 (C) BETWEEN:
SANTHOSH SHETTY S/O SUNDARA SHETTY AGED ABOUT 27 YEARS R/A MUNDADIMANE SANANDOOR VILLAGE BELTHANGADY TALUK D.K.-574 214 ... APPELLANT (BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR M/S HASMATH PASHA & ASSOCIATES) AND:
STATE OF KARNATAKA THOUGH PUNJALAKATTE POLICE BELTHANGADY CIRCLE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15/17.3.14 PASSED BY THE II ADDITIONAL DISTRICT AND S.J., D.K., MANGALURU IN S.C. No.187/12-CONVICTING THE APPELLANT/ACCUSED FOR THE OFENCE PUNISHABLE UNDER SECTION 302 OF IPC ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant was arraigned as accused No.1 in S.C.No.187/2012 on the file of the II Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, [for short, “trial Court”] who was convicted vide judgment dated 15th day of March, 2014 for the offence punishable under Section 302 of the Indian Penal Code [‘IPC’ for short] and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default, to undergo simple imprisonment for two years, vide order dated 17.03.2014.
2. Accused Nos. 1 to 3 were arraigned before the trial Court. Initially the trial Court has framed charges against accused Nos. 1 to 3 for the offence punishable under Sections 498A, 302 and 114 of IPC. But, for want of evidence, accused Nos.2 and 3 were acquitted of the charges leveled against them and convicted Accused No.1 for the offence punishable under Section 302 of IPC and sentenced him as stated above.
3. The appellant-accused No.1 has challenged the said judgment of conviction and sentence on various grounds.
4. We have heard the arguments of the learned Counsel for the appellant as well as the learned Additional State Public Prosecutor for the State. We have carefully re-evaluated the entire oral and documentary evidence on record and carefully perused the judgment of the trial Court.
5. Before adverting to the elaborated arguments by the respective Counsels on the materials on record, we feel it just and necessary to have the brief factual matrix of the case as un folded in the records that, one Ramanna Shetty has lodged a report on 20.5.2012 before the Police Sub-Inspector, Punjala Katte in Putturu Taluk. The case of the prosecution is that, the sister of P.W.2 Shashikala (deceased) Ramanna Shetty was given in marriage to accused No.2 - Vijaya Shetty, who is none other than the son of accused No.3 – Sundara Shetty. Accused No.1 is none other than the brother of accused No.2 and son of accused No.3. The marriage between Accused No.2 and the deceased took place about 12 years prior to the incident. Since four years prior to the incident, accused Nos. 2 and 3 were ill treating and harassing the deceased on the ground that, Shashikala was disclosing all the information about their house to the neighbours and others and diminishing the status of accused Nos.2 and 3 and their family members. In this context, P.W.2 had on various occasions advised Shashikala not to do that. It is the further case of the prosecution that, on 4th May, 2012 there was a marriage of the sister of the accused, and P.W.2 and others have attended the said marriage. After the said marriage, the a panchayath took place in the house of the accused in the said panchayat the deceased Shashikala has pleaded pardon assuring that she would not continue the activity, alleged against her.
6. In the above said background, it is alleged that on 20.5.2012 in the afternoon at about 3.15 p.m., P.W.2 received an information from one Srikanth that Shashikala was murdered and the Srikanth told P.W.2 to go to the house of the accused immediately. Immediately, P.W.2 along with his wife Vinutha went to the house of the accused at 4.30 p.m. and found the dead body of his sister Shashikala sustaining severe injuries on her head and lying in the pool of blood, in front of the toilet of their house. Suspecting the hands of accused Nos.1 to 3 in the murder, of his sister Shashikala, P.W.2 lodged a report to the Jurisdictional Police.
7. On the basis of the above said information, the police have registered a case in Crime No.43/2012 for the offences punishable under Sections 498A, 114, 302 r/w 34 of the IPC, investigated the matter and submitted A charge sheet against accused Nos. 1 to 3.
8. After committal proceedings, the trial Court secured the presence of accused Nos. 1 to 3 and framed charges against them for the aforesaid offences and tried them.
9. The prosecution in all examined 20 witnesses, as P.Ws.1 to 20 and got marked the documents as per Exs.P.1 to 15 and also the material objects – MOs.1 to 9. The accused persons were also examined under Section 313 of the Code of Criminal Procedure [for short “Cr.P.C.”] except the written statements of the accused person stating that they were not present at the time of the incident, no other specific defences have been taken during the course of their examination before the trial Court. The accused persons also did not choose to lead any evidence on their behalf.
10. After hearing the Counsels, appearing on both sides, the trial Court has arrived at a conclusion that, the prosecution has proved the case beyond reasonable doubt against Accused No. 1 and accordingly, convicted and sentenced accused No.1 alone as noted above and acquitted accused Nos.2 and 3 for all the offences levelled against them.
11. The learned Counsel for the appellant (A1) has strenuously contended that, the entire case revolves around the sole testimony of eye witness – P.W.10 and recovery of shirt, blood stained clothes at the instance of accused No.1. He further submitted that the evidence of P.W.10 also is not available to the prosecution. A close scrutiny of the evidence of P.W.10 discloses that, he was not an eye witness to the incident and he could not have seen the incident and for the reasons best known to him, he has implicated accused No.1 alone by excluding the presence of accused Nos.2 and 3 in the crime. But, it is the case of the prosecution that, all the three accused were present and accused Nos.2 and 3 have instigated accused No.1 to commit such an offence. He further contended that, the story of recovery of blood stained clothes at the instance of accused No.1 is also a make believe story, as no person after commission of such offence would normally remain at the place of incident in order to leave evidence against himself when the police arrived at that particular place. Therefore, he contend that these two aspects are not available to the prosecution and the trial Court believing these two important aspects, has laid conviction against the accused, which is erroneous and the same is liable to be set aside.
12. Per contra, the learned Additional State Public Prosecutor contended before the Court that, in the evidence of P.W.10, though there are some discrepancies, improvements, contradictions and omissions, P.W.10 being neighbourer of the accused and deceased, there is no reason for him to falsely implicate the accused persons. Further added to that there is recovery of blood stained shirt at the instance of accused No.1, which tallied with the blood group of the deceased which strongly indicates the implicity of the accused in the crime. Therefore, the learned SPP submitted that, if the Court believes the version of the eye witnesses and the recovery, there is no need for this Court to interfere with the impugned judgment of conviction and sentence passed by the trial Court. Hence, the learned SPP pleaded for dismissal of the appeal.
13. Before adverting to the material evidence required to be appreciated by the Court, it is just and necessary for us to have a cursory look at the evidence of the prosecution witnesses.
13.1 P.W.1 is a formal witness who has drawn the spot sketch - Ex.P.1 at the direction of the Investigating Officer. The evidence of this witness is relevant and we would like to consider it later, while considering the topography of the incident.
13.2 P.W.2 – Ramanna Shetty is the brother of the deceased, who speaks about the motive, previous conduct of the accused with the deceased and the rest of the information about the incident. Exs.P.1 and 2 have marked through him.
13.3 P.W.3 Amitha – the sister of the deceased Shashikala also speaks in consonance with P.W.2. P.W.4 – Vinutha, who is the wife of P.W.2 also has given evidence similar to that of P.Ws.2 and 3. P.W.5 –Deepak Shetty, is the sister’s son of the deceased, who received the information about the death of the deceased from Ramanna Shetty and has seen the dead body.
13.4 P.W.6 is a panch witness to the inquest mahazar (Ex.P.3), which was drawn by the police. P.W.7 is also another panch witness to Ex.P.3 (inquest mahazar) and also panch witness to Ex.P.9, under which the recovery of shirt from accused No.1 was sought to be established. Likewise, P.W.8 is another panch witness to prove the inquest panchanama – Ex.P.3 and recovery panchanama – Ex.P.9. But all these three witnesses have turned hostile to the prosecution case and they have not supported the case of the prosecution to any extent, though during the course of their cross-examination they were suggested with regard to their presence at the time of drawing up of inquest mahazar - Ex.P.3 and also - recovery mahazar Ex.P.9.
13.5 P.W.9 is another sister of the deceased by name Sunanda. She also speaks similar to that of P.W.1 by supporting the case of the prosecution and also about the information received by her with regard to death of the deceased.
13.6 P.W.10 whose house is situated beside the house of the accused is the prime and eye witness to the prosecution case, he identifies accused Nos. 1 to 3 before the Court, and he also identifies M.O.1 Club and M.O.2 cable wire, which were alleged to have been used by accused No.1 to commit the aforesaid offence.
13.7 P.W.11 – Master Abhishek is the son of the deceased and accused No.2, he was examined before the Court as an eye witness to the incident, but he turned hostile to the prosecution case. P.W.12 –Srikanth the neighbor of the accused, is also an eye witness to the incident, but he has not supported the case of the prosecution.
13.8 P.W.13 is the doctor, who conducted the post- mortem examination on the dead body of the deceased and has given his opinion as per Ex.P.6 opining that the death the was caused due to shock and hemorrhage as a result of injury to her head, which is a vital organ. Ex.P.12 is the opinion about the material object – M.O.1 - wooden club.
13.9 P.W.14 is a Police staff, who carried the FIR (Ex.P.8) to the Jurisdictional Court, which was registered on the basis of the report Ex.P.2.
13.10 P.W.15 –Mr. Radhakrishna, a Police Constable, who after inquest proceedings, has shifted the dead body to the hospital for the postmortem examination and also carried the articles to Forensic Science Laboratory. There is no cross-examination so far as this witness is concerned.
13.11 P.W.16 – Chandrashekar is stated to have, arrested accused Nos. 1 to 3 and produced them before the Court, as per the direction of the Invesgating Officer.
13.12 P.W.17 - Madhava Kudlu is the person, who received Ex.P.2-complaint from P.W.2 and registered a case in Crime No.43/2012 and dispatched the FIR to the Court as per Ex.P.8.
13.13 P.W.18 – Dr. B. Suresh Kumar Shetty, is the Doctor, Professor and as well as the Head of the Department of Forensic Medicine, at KMC., Mangalore. He has given his opinion with regard to upper portion of the trachea and oesophagus, right carotid artery, thyroid cartilage, hyoid bone, neck muscles with sub coetaneous tissues and overlying skin, etc., of the deceased, which is marked as Ex.P.10.
13.14 P.W.19 – Bhaskar Rai is the Circle Inspector of Police, who conducted the inquest and investigation in part.
13.15 P.W.20 – Dr. Geethalakshmi is the Officer attached to the Forensic Science Laboratory, Mangaluru. She stated to have examined the articles (Exs. P1 to P9), sent to her, and gave her opinion as per Ex.P.14 stating that the blood stains found on the above said articles are of human ‘A’ blood Group, which matches with the blood group of the deceased.
14. As could be seen from the entire evidence, three eye witnesses were examined before the Court and out of them, two have turned hostile, one, who is none other than the son of the accused No.2 and deceased, and another is Srikanth, the neighbourer of the accused. The other witnesses, are the kith and kin examined before the Court as P.Ws.2 to 5 and P.W.9, are all the close relatives of the deceased. In their evidence in examination-in-chief, they speak about the conduct of the accused and the deceased prior to the incident. It is their case that, Accused Nos.2 and A3 and as well as Appellant (A1) were ill treating and harassing the deceased for the sole reason that she was divulging all the information of their family to the neighbours and others, which was diminishing the status of their family. Therefore, panchayaths were held and in that regard, and P.W.2 advised the deceased not to continue such attitude and the matter was resolved and thereafter the deceased and accused continued to reside together. In so far as ill treatment and harassment are concerned, as we have already observed, the trial Court has acquitted the accused Nos.2 and 3 including the appellant (A1) for the offence punishable under Section 498A of IPC. Therefore, there is no need for this Court to delve upon the above said factual aspect once again.
15. The other aspect which has to be looked into in the evidence of P.W.2 is that, he got information about the death of the deceased from P.W.12 Shrikanth and thereafter, he went to the spot and saw the dead body of the deceased, who sustained bleeding injury on the head and the body was lying in a pool of blood and thereafter, they have attributed the conduct of accused Nos.1 to 3 for the death of the deceased. Therefore, the evidence of P.W.2 and P.W.12 in examination-in-chief, even if it is accepted as it is, there is no such material to connect the accused, to crime, except their suspicion. As we have referred above, Except PW.s 1 and 19, all other witness are all formal witnesses. Though the incriminating articles were recovered at the instance of the accused there is no material evidence available on record to connect the accused with those articles in commital of the crime.
Therefore, these two important factors have to be considered by this Court.
16. It is worth to refer here a decision rendered by the Hon’ble Apex Court in the case of Kartik Malhar –vs- State of Bihar (1996 Crl.L.J. 889) wherein the Appellate Court has laid down certain guidelines as to how the evidence of sole eye witness has to be considered and it is held that there is no doubt that the conviction can be recorded on the basis of the statement of a single eye witness provided, his credibility is not shaken by any adverse circumstance appearing on record against him and the Court, at the same time, should be convinced that, he is a truthful witness, then the Court will not insist for corroboration of any other eye-witness particularly as the incident might have occurred at the time and place, when and where there was no possibility of any other eye- witnesses being present. Therefore, the Court has to examine the evidence of such solitary witness meticulously for considering all the circumstances, as to whether such witness can be believed and the Court can trust the such witness for convicting the accused.
17. It is also worth to refer here another decision cited by the learned Counsel for the appellant in the case of Karunakaran –vs- State of Tamil Nadu reported in 1976 SCC (CRL) 52 wherein the Apex Court has observed in the following manner;
“10. Ordinarily in an appeal under article 136 of the Constitution we would have hesitated to go into the facts to re-appreciate the evidence. It is, however, not possible to adopt that course in this case where the testimony of the sole witness has been rejected with reference to the second accused who was on the same boat with the appellant. The very fact that this eye witness could be persuaded to substitute PWs 1, 2 and 3 for his deceased brother as chasing the assailants, degrades him from the status of an absolutely reliable witness.
Further it is also observed at para-12 that:-
“When the accused is going to lose his life in such a serious charge, it is only necessary that the Court should be circumspect and closely scrutinize the evidence to come to an unhesitating conclusion that he is absolutely reliable.”
Therefore above said rulings make it abundantly clear that, before accepting the sole testimony of an eye witness, the Court has to visualise the entire circumstances and circumspect the stand taken by that witness, before accepting the evidence.
18. Bearing in mind the above said principles, now we would like to examine the evidence of P.W.10.
19. PW.10-Mr. M. Gopala has stated that, his house is situated in front of the house of the accused and he knew about the accused and deceased Shashikala. He has deposed that, on the date of incident i.e., on 20.5.2012 at about 3.00 p.m., he came out from his house and went to the garden land, which is situated in front of the house of the accused. From there, itself he was watching the front yard of the house of the accused and he observed that accused No.1 Santosh Shetty was dragging the deceased Shashikala holding her neck with the help of wire, near the bath room situated outside the house and there, he assaulted on her head with the help of a firewood. Accused No.2 - Vijaya Shetty was also present there and he went towards the forest area situated behind his house in his autorickshaw and thereafter, Santosh Shetty also proceeded towards pathway situated by the side of his house. Thereafter, accused No.3 came out from the house and dragged the dead body of Shashikala near the heap of garbage situated near the house of the accused and made the dead body to lie horizontally facing down (Prone position). After seeing this, this witness, (P.W.10), his wife and other two persons who were working along with him in the garden land came to the spot and they all again set right the dead body of Shashikala to lay face up position (Supine Position) of the deceased. At that time, of committing alleged offence, accused No.3 was not wearing any shirt or banian. His chest, hands and back were stained with blood and P.W.10 also observed that, the walls of the house of the accused, were stained with blood immediately, he telephoned to ambulance and ambulance came to the spot and thereafter, the persons in the ambulance refused to assist, and went back stating that, the said incident appears to be a murder, as such, they cannot take the dead body. P.W.10 further stated that, little later when he observed, the blood stains found on the walls were vanished and accused No.3 was wearing clothes by that time. About five to ten minutes later, accused No.2 came to his house alone in his auto rickshaw by playing music through taperecorder in the auto. He parked the vehicle near the house of Srikanth and went inside the house and slept. Thereafter, this witness again went back to his garden land. P.W.10 has identified the accused persons as well as M.O.1 before the Court. During the course of cross-examination, situation of the house of P.W.10 was very much concentrated. Learned Counsel for the appellant (A1) has contended that, there was no chance for P.W.10 witnessing the incident. According to the prosecution, the house of one Srikanth situated closer to the house of the deceased when compared to the house of this witness (P.W.10). P.W.10 never stated to have spoken about the presence of Srikanth, who is examined before the Court as P.W.12, who has turned hostile to the case of prosecution. Even (P.W.10) also in his examination-in-chief has never spoken about the presence of Srikanth at any point of time, though he was fully and thoroughly witnessed, the incident. According to the prosecution, Srikanth was the first informant, who came to the spot after witnessing the incident and informed P.W.2 about the incident, but it was not even suggested to Srikanth in the course of cross-examination about the presence of this witness at that particular point of time, as if this witness was also an eye witness to the incident.
20. Apart from the above, it is an admitted fact by P.W.10 himself that, his house is situated at about 6 to 7 feet in the down gradient compared to the house of the accused. It is admitted that the top portion of the house of this witness comes to the bottom portion of the house of the accused persons. Therefore, the learned Counsel submitted that there was no chance for this witness (P.W.10) witnessing the incident, from the garden of his house. This argument of the learned Counsel is fully supported by the evidence of the Investigating Officer. As could be seen from the evidence of P.W.19 (I.O.) at para 24 of his evidence he has also deposed that, the house of P.W.10 is at the down gradient about 6 to 7 feet compared to the house of the accused. He has admitted that the back portion of the house of P.W.10 is facing the rare portion of the house of the accused. The Investigating Officer has also drawn the spot mahazar which is marked as Ex.P.13.
21. We have carefully perused the document Ex.P.13 which clearly depicts that the house of P.W.10 is situated at a distance of more than 15 to 20 feet on the northern side of the house of the accused after the front yard of the house of the accused. It is the evidence of P.W.10 that in front of the house of accused, there is a garden land of the accused as well as the garden land of this witness, but in the sketch, no where it is shown as to where actually garden area is situated. The front yard about 15 to 20 feet surrounding the house of the accused is shown to be in existence as per Ex.P.13. Therefore, it goes to show that after 15 to 20 feet, the garden land must have been situated in front of the house of the accused and thereafter, the house of P.W.10 is situated along with his garden land. In this regard, the narration of the situation or existence of land is also depicted in the inquest report. For the limited purpose, the Court can look into Ex.P.3 (inquest report) wherein, at paragraph 8, while explaining the place where the dead body was found, the boundaries have also been mentioned. According to Ex.P3, the said place situate towards the North, where the house of the accused is situated is a down gradient land, and in the down gradient land, the aracanut garden of Sundara Shetty (A3) is situated and to the South West also, the lands of Sundara Shetty (A3) is situated. Therefore, only after aracanut garden on the northern side, after the front yard of the house of the accused, the land of P.W.10 appears to be situated. In this regard, the evidence of P.W.1 also shows that, he has drawn the sketch (Ex.P.1). Accepting Ex.P.1, it was suggested to P.W.1 that the house of P.W.10 is situated at a distance of 20 ft. down gradient, compared to the house of the accused. But this witness (P.W.1) has stated that, it is at a down gradient at a distance of 7 to 8 feet. Therefore, the evidence of P.W.1 clearly discloses that, the house of P.W.10 is situated on the northern side at some distance after the front yard of the house of the accused and thereafter, the garden land of the accused and thereafter, the land of P.W.10 is situated, where he claimed to have been working at that particular point of time. Therefore, considering the evidence regarding the presence such a distance between the place of incident and from the land where P.W.10 was claimed to be working, in the absence of clinching material, it is very difficult for the court of visualize, whether P.W.10 could witness the incident, while accused No.1 was assaulting the deceased.
22. Apart from the above, P.W.10 in his cross- examination at para-12 has also admitted that, he has made lot of improvements compared to his statement before the police. According to this witness, during the course of evidence, he has stated the presence of accused No.2 at the place of incident and he coming to the forest land after the incident and accused No.3 coming out from his house after the incident and setting right the dead of Shashikala supine (facing up) position and thereafter, this witness (P.W.10) coming to the spot along with his wife and two workers, and finding the blood stains on Sundara Shetty and also on the walls of the accused and thereafter, he found accused No.1 was proceeding at a distance of about 100 ft. from the front road and he informing the ambulance and though the ambulance came to the spot, did not carry the dead body and again, and when he returned, to the spot, he found Sundara Shetty wearing the clothes, and P.W.10 also observed that the blood stains found on the walls of the house were vanished. All these important aspects have been improved during the course of evidence of P.W.10 he also admitted that, he has not stated so before the Police, thinking that, if he has given full information to the police accused Nos.1 to 3 would kill kill him. Inspite of such apprehension, he has disclosed the presence of accused No.2 and also the assault by accused No.1. It is also not elicited during cross examination that as to why he has not disclosed the whole factual aspects before the police. Therefore, it goes to show that he is a witness, who had suppressed the material things and who can only give distarted version as and when required before the police. Therefore, this also, in our opinion, creates a doubt to consider whether this witness is wholly reliable or not.
23. P.W.10 has also admitted in the course of cross- examination that he has got two cases in Belthangady Police Station and he has also admitted that, he never stated before the Police about the presence of accused No.3 at the spot at any point of time. He has also stated that he had got some cases in the Court also. Therefore, as stated above, when some cases of P.W.10 are pending in the police station, it can be visualized that he might have visited the police on various occasions, therefore, he was having close contact with the police officials and perhaps he being the neighbourer of the accused, his statement would have been recorded by the police and therefore, in our opinion, the statement of P.W.10 is not wholly reliable.
24. Further added to the above, as we have already narrated, the evidences of the eye witnesses i.e., P.W.12 – Srikanth and P.W.11- Master Abhishek, in the course of their cross-examination nothing was suggested about the presence of this witness (P.W.10) and also the other three witnesses – wife of P.W.10 and other coolie workers, who have been working in surrounding area of the house of P.W.10 on that particular day, at that particular point of time. Even on curiosity, we have seen the contradictions and variations in these two witnesses i.e., P.Ws.11 and 12 to ascertain what exactly the story of the prosecution. But we noticed that P.Ws., 11 and 12 also never whispered about the presence of P.W.10 at the spot when the incident took place. Even P.W.s 11 and 12 in their statement before the police or in their evidence before Court have never disclosed about the presence of any other persons at that particular point of time. Therefore, in our opinion, it is very difficult for us to draw an interference that these witnesses were eye witnesses to the incident in question. Therefore, the evidence of these witnesses do not inspire confidence in the mind of the Court.
25. Considering the evidence available on record, there is no difficulty in holding that the death of the deceased had occurred in precarious condition or precarious circumstances in the house of the accused. Therefore, the Court can still insist for an explanation by the accused, holding that the accused persons were present in the house at that particular point of time of incident and they have to explain as to what happened on that particular date and time. The accused persons in fact have stated in their statement recorded under Section 313 of the Cr.P.C., that, they were neither present when the incident happened near their house nor they were aware of the said incident aware and they came to know about the death the deceased through somebody, and actually they do not know how the incident or the death of the deceased occurred. In the above context, learned Counsel for the appellant has drawn our attention to a decision of the Hon’ble Apex Court in the case of Murlidhar and Others –vs- State of Rejasthan reported in 2005 AIR SCW 2596, wherein it has been observed that, “……. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle of Section 106 could not apply. …..”
26. In the above cited case, the fact, what happened to the victim after his abduction by the accused persons is within knowledge of accused persons. Hence, while maintaining conviction under Section 364 of the IPC, the Hon’ble Apex Court acquitted the accused under Section 302 r/w 34 of the IPC.
27. Therefore, in view of the decision in Murlidhar’s case (supra), in the case on hand also when the prosecution has failed in establishing the case on the basis of eye witnesses’ version, there is no need for the Court to invoke Section 106 of the Indian Evidence Act to call upon the accused to explain as to what happened on that particular day, particularly when the accused persons claim that they were not at all present at the place of incident, specifically, when the prosecution also did not prove the presence of accused Nos.1 to 3 on the spot on that particular date of the incident.
28. Peculiar enough, P.W.10 also excludes the presence of accused Nos.2 and 3 at the spot by admitting the improvements made by him before the Court. But according to P.W.10, accused Nos.2 and 3 were also present at the place of incident and particularly when accused No.3 has set right the Prone (facing down) position of the dead body of Shashikala to Supine Position (facing up), and dragged the dead body to the heap of Garbage, but knowingly P.W.10 excludes the presence of Accused Nos. 2 and 3 at the place of evidence, during the course of his cross-examination and also admits the improvement and he only tried to implicate accused No.1 and exclude accused Nos.2 and 3 from the incident. Therefore, the evidence of P.W.10 is something fishy in implicating accused No.1 only to crime, for the reasons best known to him. Therefore, the evidence of P.W.10, in our opinion, is not credit worthy and acceptable.
29. The evidence of the doctor, in our opinion, in so far as the injury around the neck of the deceased, Shashikala also creates a serious doubt. P.W.13 Dr. Adam K., who conducted the post-mortem examination has stated that, he found as many as four injuries on the dead body i.e., i) Lacerated injury over the right parietal region;
ii) Contusion over the right side of neck;
iii) Lacerated injury over the right ear pinna; and iv) Fracture of the Thyroid cartilage cricoids and laryngeal cartilage and hyoid bone.
30. P.W.13 admits during the course of his cross- examination that, he had sent certain articles to the histopathologist and he has also perused the opinion of histopathalogist; He answered in the cross examination that, in Ex.P.6 – Post-mortem report, the doctor had mentioned the fracture of hyoid bone, thyroid cartilage and cricoid laryngean cartilage but after histopathology examination, he noticed that, no fractures were found in any of these bones. Therefore, he submitted that the Court can rely upon the histopathalogy report in regard to the injuries suffered by the deceased concerned. Therefore, occurring of injuries around the neck both inside and outside, are also doubtful. In the peculiar facts and circumstances of the case, using of the alleged weapon for the purpose of strangulation and after committing the murder, dragging the dead body of the deceased outside the house, up to bathroom, is also not acceptable.
31. The next circumstance relied upon by the prosecution is recovery of blood stained shirt at the instance of accused No.1. The Investigating Officer – P.W.19 in his evidence has stated that on the same day of the incident on 20.5.2012 at about 23 hours, accused Nos.1 and 3 were very much present in their house itself and he has taken them to his custody and at the time of taking them to his custody, accused No.1 was still wearing the blood stained T-shirt and a pant and possessing electric wire measuring was 40 inches length and 2 cm. in width in his pant pocket. The said wire was recovered by the Investigation Officer under a mahazar Ex.P.9. If the evidence of P.W.10 is visualized, he has stated that accused No.3 was having blood stains on his chest, hands and back and also the walls of the house of the accused were stained with blood when the incident had happened at the time when he went to arrange for the ambulance, but when he came back, he observed that all the blood stains were vanished. When accused Nos.1 to 3 were so intelligent to get vanish the blood stains dropped on the walls as well as on the body of accused No.3, it cannot be believed that accused No.3 and accused No.1 were still wearing blood stained clothes till the arrival of the police and the Police recovering at the said clothes worn by A.1. This also in our opinion is unbelievable and this abnormal behaviour is also forthcoming in the evidence of the Investigating Officer.
32. Further added to that, in order to prove this recovery, the prosecution has examined two witnesses which we have already referred above in this Judgment and they have turned hostile to the prosecution case. Therefore, in the absence of any corroboration to the evidence of the Investigating Officer, the so-called recovery also, in our opinion, is unacceptable.
33. Looking to the above said facts and circumstances, the trial Court though convicted the accused persons on the basis of the above said materials, in our opinion, the view that has been taken by us in this Judgment, is also possible on the basis of the same set of facts and circumstances. When two views are possible on the same set of facts and circumstances, the benefit of doubt ought to be given in favour of the accused. Therefore, we would like to give benefit of doubt of the said circumstances, arose in the evidence of P.W.10 and also the recovery of blood stained clothes from Accused No.1, to the Accused. Though the FSL report and the, evidence of P.W.20 disclose that all the and recovered and seized articles contain ‘A’ group blood and which tallied with the blood group of the deceased, but in the absence of connecting the same to crime, recovery, also would not in any manner help the prosecution case. Therefore, looking to the above said facts and circumstances of the case, we are of the opinion that there are some doubts in the material evidences. It is the settled principle of law that always the benefit of doubt should be in favour of the accused. Hence, giving benefit of doubt in favour of the accused-appellant, we prefer to acquit the accused of the aforesaid alleged offences. Hence, we proceed to pass the following:
ORDER Appeal is allowed. Consequently, the judgment of conviction and order of sentence passed against the appellant/accused No.1 in S.C.No.187/2012 dated 15th/17th March, 2014 by the II Additional District and Sessions Judge, Dakshina Kannada, Managalore is hereby set aside.
Accused No.1 (appellant) shall be released forthwith, if not required in any other case. If the accused has deposited any fine amount, the same is ordered to be refunded to him, on proper acknowledgement and identification, by the trial Court.
The Registry is hereby directed to send the information to concerned jail authorities for release of the appellant/accused No.1 forthwith, if he is not required in any other case.
Sd/- JUDGE Nsu.
Sd/- JUDGE