IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N.PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN Criminal Appeal No.1286 of 2012 Between:
1. Borappa, Aged about 61 years, S/o late Sannapa, 2. Kumara, Aged about 30 years, S/o Borappa, Both Residing at Door No.293, 2nd Cross, 2nd Main, Bogadi II Stage, Mysore.
3. Chandra @ Kunda, Aged about 31 years, S/o Chikkanna, 4. Venkatesha, Aged about 41 years, S/o Chikkanna, Both Residing at Door No.2422, 5th Cross, K.G.Koppal, Mysore. …Appellants (By Sri.R.P.Chnadrashekhar, Advocate for A1 & A2; Sri.C.H.Hanumantharaya, Advocate for A3 & A4) And:
The State of Karnataka, By Ashokpuram P.S., Mysore. …Respondent (By Sri.Vijaya Kumar B Majage, Addl. S.P.P.) **** This Criminal Appeal is filed under Section 374(2) Cr.P.C., to set aside the judgment of conviction dated 08.11.2012 passed by the P.O., F.T.C. – IV, Mysore in S.C.No.238/2007 – convicting the appellants/accused for the offence P/U/S 143, 148, 341, 302 and 201 read with 149 of IPC.
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 appellants were arraigned as accused Nos. 1 to 4 along with other accused Nos. 5 to 8 in S.C.No.238/2007 on the file of the Presiding Officer, Fast Track Court-IV, Mysuru, for the alleged offences under Sections 143, 144, 146, 147, 148, 341, 201, 427 and 302 r/w Section 149 of IPC. The trial court has acquitted accused Nos.5 to 8 holding that the prosecution has not proved the case beyond reasonable doubt against them. However, the trial court found sufficient materials against accused Nos.1 to 4 and hence convicted them for the offences under Sections 143, 148, 341, 302 and 201 r/w Section 149 of IPC. They have been sentenced to undergo S.I. for one year for the offence under Sections 148 of IPC, one month for the offence under Section 341 of IPC and undergo R.I. for life for the offence under Section 302 of IPC and also undergo R.I. for three years for the offence under Section 201 of IPC. They have also been sentenced to pay fine with default sentence. Being aggrieved by the said judgment of conviction and sentence, the appellants have challenged the said judgment and sentence on various grounds.
2. We have heard the arguments of the learned counsel for appellants as well as learned Addl. S.P.P. for the respondent-State. We have carefully reevaluated the oral and documentary evidence on record and also examined the correctness of the judgment of conviction and sentence passed by the trial court.
3. Before adverting to the grounds urged and elaborated before this Court by learned counsels and accompanied by learned Addl. S.P.P., we feel it, just and necessary to put forth in brief the factual matrix of the prosecution case.
4. The case of the prosecution is that, one Mr Mahadevu-PW1 has initiated criminal proceedings by lodging a report as per Ex.P.1. The case of the prosecution as divulged in the said document is that the deceased Mani and PW1- N Mahadevu, residing at 1st Cross, in Khantaraja Urs road, Jayanagar, Mysuru. The deceased Mani was doing business in Shamiyana shop and also running an autorikshaw. It is alleged that, said Mani was responsible for the marriage of one Nagesh with the sister-in-law of accused no.2 viz., Kumara. The said Kumara was not happy with the said marriage and therefore, he had an axe to grind against the deceased Mani. It is also alleged that, during Gowri Festival, the appellants/accused persons took shamiyana and Jamakhana for rent, but while returning the said Shamiyana, they failed to return one Jamakhana and they also did not pay the entire rental. In this context Mani was often demanding the appellants for return of the said jamakhana as well the amount due for having taken the shamiyana for rent.
5. It is the further case of the prosecution that, the appellants were dodging payment of said money and they were teasing said Mani by threatening him by saying that they are so powerful as to refuse payment of money and return of jamakhana. On the basis of the above said motive, it is alleged that on 27.10.2006, there was galata between the deceased Mani and the appellants/accused persons viz., Chandra and Kumar and they assaulted Mani with an iron rod to his right arm and also on his chest. In this context, there was a case and counter case registered against each other by the respective parties.
6. It is the further case of the prosecution that with the above said motive, the accused persons were waiting for an opportunity to do away with the life of the deceased. It is stated that on 31.10.2006, at about 8.30-9.00 p.m. PW1 received a telephonic call from one Promod-PW3, stating that Mr. Mani called him over phone and told him that, the accused persons were chasing him in a Maruti van and attacked him and stabbed his leg with a knife when he was proceeding on his Motor bike and they were chasing him on the road leading to graveyard. Thereafter deceased Mani informed PW! over phone that the accused persons assaulting him and chased him in the grave yard and that he ran to save his life. Afterwards the telephone conversation was cut, PW1 gathered his friends and other persons andwent in search of the deceased Mani. At about 12.30 in the night(00.30 hours) they went near the graveyard situated abutting Apollo Hospital, and found the dead body of the deceased Mani, hanging to a rain tree. They have also observed a knife stuck to a branch of the said tree and the deceased also had sustained injury on his leg just above the knee. They also observed a Hero Honda Splendor Motor Bike, which was lying near the place of incident and a stone was found on the said motor bike. PW1 has suspected that, these appellants/accused persons must have committed the murder of the deceased. Therefore, he went to the police station and lodged a report, on the basis of which the police have registered a case in Cr.No.73/2006 for the above said offences and set the criminal law into motion.
7. On the basis of the above said report during the course of investigation, police found sufficient materials to inculpate the accused persons. As such, charge sheet was laid totally against eight accused persons.
8. The accused were arrested and they were later secured by the Court of Sessions and the court found that there are sufficient materials to frame charges against them. Therefore, charge were framed and read over and explained to them.
9. The prosecution in order to bring home the guilt of the accused examined as many as 26 witnesses- PW1 to PW26 and got marked Ex.P.1 to P43 and also material objects-M.Os. 1 to 17. The accused persons were also examined under Section 313 of Cr.P.C. But, it appears that this is a total denial of the prosecution case by the accused persons. No specific defence has been taken by the accused persons and they were also called upon to lead any defence evidence, but they did not chose to do so. After hearing both sides, the trial court has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt. Accordingly, passed the above said judgment of conviction and sentence, which is impugned in this appeal.
10. The entire case of the prosecution revolves around the circumstantial evidence. There are no eye witnesses to the case. The circumstances, which are broadly projected by the prosecution are:(i) death was homicidal or suicidal one ; (ii) Motive ; (iii) last seen circumstances of the accused persons with deceased as per the telephonic conversation; (iv) recovery of the incriminating articles at the instance of the accused persons; and (v) the opinion of the hand writing expert with reference to the writings of the deceased mentioning the names of the accused persons as well as the vehicle number, which was used by them for commission of the offence and the call details connecting the accused persons to the crime.
11. Before adverting to the homicidal or suicidal death of the deceased, which is the main factor, we would like to consider the other circumstances on record.
12. Learned counsel for the appellants strenuously contended before the Court that the evidence placed before the trial court by the prosecution is totally insufficient and no prudent man can come to the conclusion to convict the accused persons on the basis of such evidence. He further contends that so far as motive factor is concerned, though there was quarrel between the deceased and accused persons which is trivial in nature and it is not sufficient to draw any inference that any prudent man will go to the extent of committing murder on the basis of such trivial motive.
13. It is pointed out by the learned counsel for the appellants/accused persons that sofar as hand writing of the deceased is concerned, there is no evidence except the evidence of PW1 and the opinion of the expert. If the case is visualized in detail, there was absolutely no opportunity to the deceased to write his death note on the chit produced before the court or the deceased could have written anything on his palm as projected by the prosecution. Further added to that, the prosecution has not collected any other independent material, which bears the writings of the deceased except the documents which are torn exercise sheets produced by PW1. Therefore, learned counsel contends that though there is opinion from the expert, but it is against the circumstances prevailing in this particular case. Therefore, such opinion is not proper to be relied upon.
14. Learned counsel contended with regard to the recovery of incriminating articles that, first of all there was no occasion for the accused persons to assault the deceased with a knife, even accepting the overt acts of the accused persons, particularly when the deceased was running. If at all, they have assaulted with knife, there was no chance of blood stains spurting on the shirts of the accused persons. He further argued that the said recovery was a farce proceeding by the investigating agency, as the shirts were said to have been recovered in a canal nearby the side of the road, which was accessible to the public at large.
15. The learned counsel submits that the knife was seized from the spot at the time of inquest proceedings itself. He further contended that the alleged blood stains found on the said shirts of the accused persons have not been tallied with the blood group of the deceased, the sample blood having not been collected. Therefore the said report also cannot be believed.
16. The learned counsel further argued PW14 Doctor who has conducted Post Mortem examination has not given any definite opinion regarding homicidal death of the deceased. His opinion is very shaky and virtually he was unable to give the correct and definite cause for death; whereas he has given two versions of the death, may be homicidal or suicidal in nature. Therefore, when the prosecution has not proved the homicidal death beyond reasonable doubt, no question of implicating the accused persons to the crime in question. Hence, for all these reasons, learned counsel contended that it is not a fit case, where the conviction can be sustained.
17. Per contra, Shri Vijaya Kumar B Majage, learned Addl. S.P.P., contended that motive has been established, as there is no dispute with regard to the quarrel between the deceased and the accused persons with regard to the assault on the deceased. As it is admitted that, there was a case and counter case registered against each other, therefore, the accused persons have very strong motive, because previously they had attacked the deceased and inflicted injury on him. Therefore, the prosecution has established the motive factor. The learned Addl. SPP would contend that there are sufficient materials to show the conversation between the deceased and PW1, PW3 and PW11. There is no much dispute in the cross- examination with regard to this aspect. Though, the investigating officer has not collected the call details of all the persons who conversed with each other, it will not in any manner diminish the quality of the prosecution case. He further contended that PW2 and the investigating officer have supported the case of the prosecution with regard to the recovery of the blood stained clothes and further there is strong evidence against the accused persons with regard to the death note left by the deceased in a small chit mentioning the names of the accused persons as well as the vehicle used by them. It is further contended that the deceased has also noted the names of the assailants on his palm while dying and there was no occasion for the deceased to commit suicide. There are no other circumstances emerging in the case during the course of the cross-examination that there was any strong circumstances to show with regard to the deceased committing suicide. From the above said evidence, there are strong materials available against the accused persons/appellants committing the above said offences as rightly appreciated by the trial court. Therefore, 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.
18. After having heard the learned counsels, it is just and necessary for us to have a brief cursory look into the evidence of the prosecution led before the trial court.
19. PW1-N Mahadevu, is none other than the elder brother of the deceased, who lodged the first information as per Ex.P.1. He was also present when the seizure mahazar was drawn as per Ex.P.2 and subsequently, he has produced six sheets of paper out of a note book maintained by the deceased for his day-
today business transaction as per Ex.P.3 stated to have been written by the deceased to compare with the death note left by the deceased. He has identified the death note marked as Ex.P.4, which was alleged to have been written by the deceased on the back page of cash bill of Pavithra digital Studio. He has identified the material objects which contain the blood of the deceased. Said bill was seized by the police in the presence of these witnesses to connect the same with the accused persons.
20. PW2-Shankar, is the recovery panch witness.
According to the prosecution, under Ex.P.5 they have recovered the shirts of accused Nos. 3 and 4 as per M.O.15 and 16.
21. P.W.3-Promoda is the witness to the inquest mahazar as per Ex.P.6 and he was examined for the purpose of establishing the conversation between himself, P.W1 and deceased-Mani before his death. However, he has not fully supported the case of the prosecution.
22. P.W.4-Ravikumar, has turned hostile to the case of the prosecution. He was examined to establish the recovery of clothes of the deceased i.e., M.Os. 9, 11 and M.O.12 from the spot as per seizure mahazar- Ex.P.8. Further Ashok Nagar police have seized the Motor cycle used by the deceased under Ex.P.8 marked as M.O.14.
23. PW.5-Madappa, is none other than the uncle of the deceased-Mani deposed about the motive factor and he has also seen the photograph of the left palm of the deceased marked at Ex.P.9 and photograph of the motor cycle at Ex.P.10 and Ex.P.12-photograph of the knife stuck on the tree marked at M.O.No.1 and Photograph-Ex.P.13 in respect of the injury caused to the knee of the deceased.
24. P.W.6-Krishna Prasad, is another inquest mahazar witness and P.W.7-Putaswamy, in whose presence Ex.P.3-six exercise sheets were seized under mahazar-Ex.P.2.
25. P.W.8-M Mahadeva, P.W.9-Mohan Kumar, PW10-Mahadeva R, PW11-Shivakumar, PW12- Bhagyamma, who is none other than the sister and PW13-Thayamma- mother of the deceased Mani are all in one or the other way related to the deceased-Mani. But some of them, particularly PW.8 and P.W11 have turned hostile to the prosecution case.
26. PW12 and 13 who are the sister and mother respectively of the deceased have supported the case of the prosecution to the extent of motive. P.W.14- Dr.Y Udaya Shankar, who conducted the autopsy on the dead body of Mani and gave report as per Ex.P.18. P.W.15-Abdul Ameed Siddiqui, is the head constable, who carried the FIR-Ex.P.20 to the jurisdictional Magistrate. P.W.16-Manchaiah, another police constable, who carried the clothes of the dead body after Post Mortem examination seized under Ex.P.7. P.W.17-M Udayakumar, is another head constable, who apprehended the accused persons and produced them before the investigating officer.
27. P.W.18-Subramanyam, is another Head constable, who also deposed about the apprehension of some of the accused persons. P.W.19-Sheshadri, was the then ASI of Ashok nagar Police Station, who speaks about the handing over of the death note of the deceased, with sealed cover, marked with English letter ’V’ to the hand writing expert.
28. P.W.20-Padma, another lady Head Constable, who carried the articles i.e., material objects Nos.1 and 3 to 10 for examination to the FSL, Mysuru.
29. P.W.21-Mahadevu, has not supported the case of the prosecution. P.W.22- Gavankar S.N., Asst. Director of chemical lab, Mysuru, who has done the chemical examination of the articles sent by the Ashokpura Police Station and submitted a report as per Ex.P.28. P.W.23-A.S.Hanumantharaya, the then Inspector of Ashokpura police station, who has submitted the charge sheet after investigation.
30. P.W.24-S.K. Krishnaraju, is the Assistant Director, of FSL, Mysuru, who has given the FSL report as per Ex.P.43. P.W.25-Nadeem Ahamed, the then junior engineer, who has prepared the sketch of the spot as per Ex.P.40. P.W.26-Syed Oscar Imam, hand writing expert, who gave his opinion as per Ex.P.39.
31. On over all visualizing the evidence of the above said witnesses, the court has to consider the following circumstances, which are relied upon by the trial court whether those circumstances have been proved beyond reasonable doubt:
(i) MOTIVE Sofar as motive factor is concerned, as we have examined the evidence of PW1 and other witnesses, P.W.12, P.W.13, PW5, and P.W.11 have specifically stated about the rivalry between the deceased Mani and the accused persons. Even in the course of cross- examination, all these witnesses have not disputed about the quarrel between two groups i.e., deceased Mani, P.W.1 on one side and accused persons on the other side. The main contention of the prosecution is that prior to 27.10.2006, the accused persons have taken shamiyana along with a jamakana on rent basis, but they did not return the jamakana and also not paid the rental amount. On that ground, there was an altercation between the deceased and the accused with regard to payment of rental amount for hiring the shamiyana and one jamakana. In this context there was a criminal case and counter case registered against each other. This aspect has not been completely denied in the course of cross-examination. On the other hand, it has been suggested that, there are many number of cases registered against PW1 and the deceased Mani pending before the courts of law. It is also suggested to the witnesses that in connection with the quarrel taken place on 17.10.2006, case and counter cases were registered and it is also revealed from the evidence that subsequently the cases ended in acquittal.
It is also in their evidence by way of suggestion to all these witnesses that, the accused persons never refused to pay rental amount and return of jamakana or payment of money in lieu of loss of jamakana. But, they were seeking some time to make payment. Whether this motive is sufficient to show that the accused persons tried to do away with the life of the deceased or not. Nonetheless, existence of some motive cannot be ruled out and prosecution has been successful in establishing the existence of some motive on the part of the accused in this regard.
It all depends upon the facts and circumstances of each case as to how the motive factor has to be used by the trial court. If the case of the prosecution is otherwise proved, then the motive which is projected to be proved, it would definitely strengthen the case of the prosecution and it may also be used for the purpose of considering quantum of punishment to the accused persons. On the other hand, if the prosecution case is doubtful, it creates serious ambiguity with regard to the rivalry between the two groups and if it is established, both the parties have the opportunity of lodging complaint with each other, then ultimately the motive become double edged weapon and it may also cut the root of the case of the prosecution. In our opinion the motive need not be proved, beyond all reasonable doubt. If some semblance of material available on record, then the court may not take that motive into consideration either for the purpose of affirming the case of the prosecution or to reject the same. On over all consideration, we can say in this particular case, the prosecution has established the existence of some motive in this regard.
32. Now coming to the other important circumstance that the accused persons have actually chased the deceased on the date of the incident i.e., on 31.10.2006 and assaulted him with a knife and thereafter caused his death as per the case of the prosecution.
33. It is the case of the prosecution that on 31.10.2006 at about 8.30 p.m. PW1 received a phone call from PW3-Promod stating that the deceased called him over phone and informed him that the accused persons have attacked and assaulted him with knife and caused injury to his leg and chased him in the grave yard. PW3 in turn has reported the same to PW1. PW1 again called the deceased Mani over phone and in that context, it is said the deceased has also confirmed the above said fact by saying that the accused have attacked him and caused injury to his leg and they were chasing in the grave yard.
34. The prosecution in order to prove this particular aspect, has examined PW1 as well as PW3, PW11 and relied upon call details, which is marked at Ex.P.34.
35. On careful re-look into the evidence on record, PW3, who is a sham witness, has turned hostile to the prosecution case. Sofar as this particular aspect is concerned, he has deposed before the court that he has only seen the dead body of the deceased in the graveyard situated near Apollo hospital. He has stated in his evidence that he received the information about the death of the deceased from one Papu over phone. But he never disclosed anything about the name of any of the accused persons as informed by Papu to PW3. He has deposed that said Papu has not been examined during the course of investigation by the Investigating officer or the prosecution has secured the presence of said Papu in order to establish this fact. Even during the course of cross-examination, though this witness has supported with regard to the motive factor to some extent, there is no evidence in respect of any information received by him with reference to the accused chasing the deceased and causing injury to him. Though, in his cross-examination Ex.P.6(a)and (b) were marked and the contradictions elicited only during the course of the cross-examination by the prosecution. Those contradictions were exactly proved by the prosecution by putting some suggestions to the investigating Officer. But the contradictions have remained as contradictions that cannot be used as substantive piece of evidence, when the witness has not stated so before the court of law. Therefore, there is absolutely no evidence in the deposition of PW3 to connect the accused persons to the crime.
36. PW11 has stated that he has also received information from the deceased-Mani to some extent. But he has stated in his evidence that some of his friends have telephoned him saying that the deceased Mani was attacked by some persons. But, he never stated anything about the presence of the accused persons and they chasing the deceased in the grave yard and causing injury to his leg. He also never stated that his friend, who called him over phone, said anything to the incident. Further added to this, it has come in his evidence, he never stated that accused persons have actually chased the deceased. Even in the course of cross-examination he has supported the case of the prosecution to some extent, but never disclosed the fact that the deceased Mani has informed him, accused persons are chasing him and caused any injury to his leg. However, he has given his telephone number, over which he contacted his friends as well as his conversation with the deceased Mani.
37. In this context, evidence of PW1 played a dominant role. PW1 has categorically disclosed that he has received the information from one Promod. But, it has not come in the evidence of PW3. In the first information, he has not disclosed his telephone number or model of his phone. He has also not stated the telephone number of Promod, from whom he received the information on that particular night. He has also not given his telephone to the police at the earlier point of time. In this context, failure to collect the call details by the police or the opinion play a dominant role. The Investigating officer, in his evidence has not stated that he has made any effort to collect the telephone number and call details insofar as PW1, P.W.3 and P.W.11 are concerned, for the reasons best known to him. However, he has only collected the call details pertaining to the cell number of the deceased Mani, which is marked at Ex.P.34. Of course, during the course of evidence, PW1 and 11 have stated about the telephone numbers which found place in Ex.P.34 at the relevant point of time to show that PW1 and P.W.11 had any conversation with the deceased. Now the question that arises is: whether actually this telephone number belongs to PW1 or Pw11?
38. In a circumstantial evidence case, it is not for the prosecution to succeed on the basis of probabilities, but it should be on the basis of proof beyond reasonable doubt and it should rule out all the circumstances which pointing towards the innocence of the accused. In this back ground there is no explanation offered by the investigating agency as to why he has not collected the call details of the cell phone of PW1, PW3 as well as PW11. If at all, the telephone numbers of these persons would have divulged, in whose names these mobile phones were purchased and in whose name those mobile phones and sim cards were purchased etc., all these details would have surfaced and disclose the conversation made by some other persons or mobiles belonged to some other persons. This Court cannot draw any inference that those mobiles belonged to PW1, PW3 or PW11. Therefore, that would have been based on the evidence collected by the police and produced before the court, so as to avoid the confusion in the mind of the court.
39. In this context, we feel it just and necessary to rely upon the decision of the Apex Court reported in 2015(7) SCC 178 between Tomaso Brunno and another Vs. State of Uttar Pradesh, and this being followed by this Court in Palani P Armugam and Vs. State of Karnataka, reported in 2017(5) KCCR 968. The Apex Court has laid down the principle that even any information accessible to the investigating agency, it is the duty of the investigating agency to have access to the same and produce the same before the court, otherwise, there is optional presumption available under Section 114 (iii)(g) of the Evidence Act. The Apex Court has also observed that failure to produce relevant evidence, adverse inference against a party withholding the information has to be withdrawn. However, the circumstance warranted the said course of action has to be established. It all depends upon the nature of evidence and its importance etc., In the said case it is observed that CCTV cameras recordings and mobile phones of the respective persons and call details were not produced before the court, which were held to be relevant for consideration of the case. Therefore, the court held that the failure to produce those documents which are accessible and available to the investigating agency throws a serious doubt on the very genuineness of the case of the prosecution.
40. In this case also, the above said materials that are available were not collected and produced before the court. Even on careful reading of the evidence of the investigating officer, absolutely no explanation offered by the I.O. why he has not investigated the matter in this line. Therefore, said conversation said to have been taken place between PW1, PW3 and PW11 with the deceased cannot be said to have been proved beyond all reasonable doubt. Therefore, this circumstance, in our opinion is not properly established by the prosecution and the materials placed are not sufficient and very shaky in nature. The benefit of such deficiency in the prosecution evidence, has to be provided to the accused in this regard.
41. The next circumstance is with regard to the recovery of the incriminating articles at the instance of the accused. P.W.2 and the Investigating officer are the two persons, who have deposed with regard to this particular aspect. P.W.2 has not supported the case of the prosecution. He has stated that the accused persons were arrested by the police and particularly accused Nos.3 and 4 were produced before the Investigating officer and they took the police as well as panch witnesses near a canal, situated near Apollo hospital. It is stated that accused Nos.3 and 4 have hide their shirts in a bush and they took the police witnesses to that particular place and each one of them took out one full arm shirt and one half arm shirt which were stained with blood and police have recovered the same under a mahazar-Ex.P.5 marked as M.O.15 and 16 on identification of these witnesses.
42. In the course of cross-examination, it is elicited from the evidence of all these witnesses that on that particular day, he was standing near Apollo hospital and police took him to that particular place. He also stated that there are so many footpaths connecting the said place and anybody can walk through those roads. He has also stated that the said bush was situated by the side of the road and anybody could have access to that particular place.
43. Learned counsel for the accused contended that even if the said clothes were recovered at the instance of accused Nos.3 and 4, then also there are no connecting materials to implicate the accused persons to the crime in question.
44. Learned counsel also relied upon the decision of the Apex Court with reference to the accessibility of recovery of blood stained clothes particularly that of the deceased from the spot which was accessible to the public at large. The Apex Court in a decision reported in 2011(12) SCC, 258, in the case of Sunil Rai Alias Pauya and others Vs. Union Territory,Chandigar. At para No.29 and 30 the Apex Court has observed in the following manner:
29. According to the report of the Central Forensic Science Laboratory (Ext.PA) the pair of pants, shirt, vest and underpants taken off from the body of Dile Ram were stained with human blood of B Group; the blood group of the sample of blood taken from the deceased was also B. And the stains on the jacket recovered from under the seat of the rickshaw were also of the same group of human blood. The report further indicated that though there were stains of human blood on the piece of brick and the sample of earth collected from the spot where the body of Dile Ram was found it was not possible to ascertain the blood group. The piece of concrete and the stone piece had no bloodstains.
30. No effort was made to take the blood sample of Sunil rai and it is not known what is his blood group. Moreover, the jacket was recovered from a rickshaw standing out in the open where it was accessible to anyone. In the aforesaid circumstances, the recovery of the blood stained jacket, on its own is a circumstance too fragile to bear the burden of the appellants’ conviction for murder.
45. The Apex Court has also observed when such circumstances are available, it may, at the most throw a strong suspicion as against the accused with regard to the recovery. But suspicion, however strong it may be, has no bearing to prove the fact. The above said decision is aptly applicable to the present facts and circumstances of the case.
46. Considering the material placed before the trial court such as report of the FSL, which is marked at Ex.P.43 and serology report at Ex.P.28, spoken to by P.W.24 and P.W.22 respectively, of course, on going through these documents and the evidence of these two witnesses, there is no doubt that the said bloodstains found on the shirts of Accused Nos. 3 and 4 tallied with the blood group of the deceased, which is ‘A’ group blood. But in view of the above said circumstances, whether such recovery can be believed, is the question that arises for consideration of the court.
47. In this back ground, the entire case of the prosecution is to be visualized. The story of the prosecution is that on that particular day, the deceased was moving on his motor bike, which was chased by a Maruthi van belonging to the accused persons, thereafter the deceased must have fell down and started running and the accused persons again chased him caused injuries to his right leg and hanged in a rein tree. If at all, the accused persons have chased the deceased and caused injury to his leg near the knee, it could also be expected that the blood would spurt on the persons, who were standing nearby assaulting the deceased. Only one small injury has been caused just above the knee and no other injuries were found on the deceased. Further added to that, the cloth of the deceased as could be seen from the photograph was torn above the knee level and said cloth was stained with blood. Therefore, the above said circumstances also create serious doubt whether such a small injury was sufficient to spurt the blood on the cloth of accused Nos.3 and 4. Thus, in our opinion, it plays an important role in this particular case. Therefore, on over all facts and circumstances, we are of the opinion, the recovery, even if it is accepted, at the instance of accused Nos. 3 and 4 is not sufficient to connect the accused to the crime.
48. The next strong circumstance relied upon by the prosecution is the death note or chit and writings on the palm of the deceased alleged to have been written and left by him during the incident. It is in the evidence of the prosecution witnesses, particularly, PW1 as stated above, who has identified the handwriting on the palm of the deceased and also on the chit-Ex.P.4 and the records maintained by the deceased in his shamiyana shop, which are marked at Ex.P.3.
49. We have carefully examined these documents. Of course, it is in the evidence of PW1 that he has produced the said document i.e. six sheets torn from a exercise book maintained by the deceased Mani in respect of the day today transactions of his business in shamiyana shop and handed over the same to the Investigating Officer. The Investigating Officer has not taken any interest in recovering the entire book to ascertain whether these six sheets are part and parcel of said exercise book or those sheets were produced separately by PW1. The investigating Officer must have taken care to know about the said exercise book and to ascertain whether the said book was maintained regularly by the deceased during the course of his business. The Investigating Officer has not stated anything about this aspect before the court.
50. Another important aspect in this case is the evidence of PW1 and other witnesses, who have supported the case of the prosecution, were suggested that earlier PW1 was arrested in this particular crime as a culprit and he was kept in the Police Station on the basis of suspicion. In fact, some of the witnesses have accepted the same that they have not specifically stated about this fact. But, P.W.3 has stated that PW 1 was kept in the Police station for some time. When these documents i.e., six torn exercise sheets produced by PW1 and police have suspected PW1, in our opinion, the Investigating Officer should have taken care to examine the handwriting of PW1 with that of those documents in order to rule out the concoction of those documents by PW1. It has been stated in the cross-examination of PW1, PW3, PW12 and PW13 to some extent that in the absence of Mani, PW3 was also looking after the said shamiyana shop and he was also noting the transactions in the exercise book maintained by Mani in the said shamiyana shop. Therefore, when the above fact has come from the evidence of the prosecution witnesses, to rule out the doubt, the Investigating Officer should have taken the specimen writings of PW3 in order to examine whether the said handwriting was written by the deceased or PW1 or PW3.
51. The evidence of expert’s evidence, who is examined before the court as PW26, has examined one cash bill of Pavithra digital studio, which contains death note of the deceased, wherein he has written the names of Accused nos.1 to 4 and registration number of the vehicle used by the accused persons with that of six sheets marked at S1 to S.12 (which are earlier marked before the court as per Ex.P.3). He has given the opinion that the person who wrote Ex.P.4 i.e., bill (death note) also wrote S1 to S12, which are marked at Ex.P.3. It cannot be said that with all certainty anybody can say these are the writings of Mani alone because for the simple reason that nobody knew about Mani’s handwriting on the documents particularly Ex.P.3. Except the evidence of PW1, Ex.P.3. was not shown to either PW3, PW5, PW12 or PW13, who are all close associates of deceased Mani. They were also the proper persons who could have stated about the said handwriting was that of deceased Mani or not. Even in the course of examination-in-chief, for a question that whether the handwriting of a person would be the same when he writes a document while lying on the ground or running or if he is under any pressure, the hand writing expert states that there may be some difference in writing but the originality will remain. Even during the course of cross-examination he reiterated the same. But he has not explained what is mean by original handwriting of a person and natural writing of a person. The words used in Kannada by the said person are “¸Áé¨sÁ«PÀ §gÀªÀtÂUÉ ªÀÄÆ® §gÀªÀtÂUÉ”. “ªÀÄÆ® §gÀªÀtÂUÉ” is the original handwriting and ¸Áé¨sÁ«PÀ §gÀªÀtÂUÉ” is natural writing. But, nowhere, it is elicited either in the examination-in-chief or in the cross-examination how one can define the original writing and natural writing of a person and how it can be distinguished while ascertaining the hand writing of a particular person. Unless, it is elicited from the hand writing expert, the court cannot step into the shoes of the expert’s opinion and on the basis of imagination comes to any conclusion. Therefore, in our opinion, evidence of the handwriting expert that both documents were written by the same person, is not sufficient to draw conclusive inference that, it was actually written by the deceased himself.
52. In this back ground, again the Court has to visualize the circumstances of this particular case, whether the deceased had any occasion to write this particular document. As we have already noted that on 31.10.2006 according to the information of PW1, accused were chasing the deceased and the deceased was moving on a motor cycle. The accused persons were chasing him in a Maruthi car, it cannot be imagined that a person moving on a motor cycle in such hurried manner knowing fully well that some persons are chasing him and wrote the same in a chit taking out the same from his pocket, while driving riding the motor cycle. Therefore, it is nothing but an abnormal situation, which is not properly explained by the prosecution. Further added to that after getting down from the motor cycle, he never fell down or jumped from the motor cycle. But it is case of the prosecution that, when he started running towards the graveyard and accused persons have chased him. When the accused chased him till his death, there is no possibility or opportunity to write on such chit or write the same on his palm. Whether it can be imagined that the accused persons, who were chasing a particular person with an intention to do away with is life, would allow such person to write something on the chit or on his palm? has to be examined. This is also in our opinion is a precarious and serious circumstance which has to be examined by the court with the said circumstances, particularly, the motive factor. Therefore, even though the prosecution has placed some material to show that the handwriting in Ex.P.4 and P.3 are that of the same person, the other doubtful circumstance, which we have already noted above, is not clarified by the prosecution. Therefore, in our opinion, this circumstance is also not strong enough to draw conclusive inference that the accused persons have committed such an offence as alleged against them.
53. In this background, as we have already noted the motive played a dominant role and as observed motive sometimes acts as double edged weapon. There was a case and counter case filed against each other, which goes without saying that both parties were waiting for an opportunity to implicate each other. PW1, was a court bird and admittedly there are many cases registered against him in the court and he has also involved in other cases. Further, he has admitted that a case and counter was pending against each other at the relevant point of time. Therefore, the evidence of PW1 has to be examined with a pinch of salt. He has got an opportunity to implicate the accused persons, if time and circumstances permit.
54. One more important aspect with reference to this motive has to be looked into is that, on the date of the incident, as per the evidence of Pw1, he received an information from Pw3 at about 8.30 pm, it is an admitted fact in the evidence of PW1 in the course of chief-examination and also as admitted by the Investigating Officer that the place of incident is hardly about half a furlong away from the house of PW1. When this is the case of PW1 that he received the information that near Apollo hospital, in the graveyard the accused persons are assaulting the deceased, What was the conduct of PW1 at that juncture, is that, he would have immediately rushed to the spot having come to know the said particular place of incident. On the other hand, he says that he has gathered many of his friends nearly 15-20 persons in order to go to that particular spot, instead of going to the spot directly. He further stated that he searched for many places and then went to that particular place at about 12.30 in the night and found the deceased Mani. Nearly four hours have already been lapsed from the time of receipt of such telephonic information. It is also evident from the records that all these persons went to that particular place first and then they have seen the dead body. If at all, there was any handwriting on the hand of the deceased, it was apparent that PW1 was the last person, who suppressed the same without disclosing the same, in Ex.P.1. There is absolutely no whisper about this particular aspect under Ex.P1. Therefore, there are chances of PW1 and his friends going to that particular place before lodging the complaint creating some material evidence against the accused by creating Ex.P.3 and subsequently Ex.P4. Therefore, in this context, the non-examination of the handwriting of PW3 plays an important role. Therefore, when motive was there on both sides, PW1 and his friends first visited the scene of offence and then go to the Police station and lodged a complaint and thereafter brought the police to the spot. By that time, there are chances of altering the situation at the place of incident.
55. On looking to the above said facts and circumstances, in our opinion, the present circumstance has also not been established beyond reasonable doubt. The trial court has not applied its mind properly in order to meticulously examine all these important aspects in the prosecution evidence.
56. Last but not least, the prosecution has to establish beyond reasonable doubt the homicidal death of the deceased. It is the case of the prosecution that the accused persons after assaulting the deceased on his right leg above the knee and hanged him to a rein tree in the graveyard abutting Apollo hospital.
57. On careful perusal of the photographs produced before the court, the dead body was hanging to the tree and legs of the deceased were actually touching the ground. Both knees of the deceased were bent, there was an injury to the right leg just above the knee and there are blood stains on the cloth of the deceased particularly on the pant. The distance between the place of incident and the road is approximately 12 ft. as per the case of the prosecution. The above said circumstance has to be referred to with the evidence of the doctor. PW14-Doctor, who conducted the autopsy has stated that when he examined the dead body, the tongue of the deceased was protruded and there was change of colour of the tongue. He has also examined the palm of the deceased, where names of four persons found and car number were written and one person’s name was not legible. He has also given the details of the injuries on the dead body, particularly around the neck. Ultimately, he is of the opinion that the death was due to hanging. Whether the death was homicidal or suicidal? has not been completely stated in the course of examination-in-chief. However, he has stated that the death was due to asphyxia, as a result of hanging. In the course of examination-in-chief, he has given his opinion that the death may be caused due to suicidal hanging as per the circumstances prevailing in this particular case. Therefore, he has categorically stated that he cannot definitely or conclusively say death was on account of suicide by hanging or homicidal. The trial court has put an important court question asking the doctor that whether injury found on the dead body was due to hanging or it is suicidal injuries. The doctor has stated that he cannot specifically say, but he reiterated that it may be a suicidal case. In order to over come this, the doctor was re-examined and it is elicited that the ligature mark found on the neck and the internal injuries found on the dead body may cause, if a person is assaulted by some persons with the help of M.O.12 rod.
58. Therefore looking in to the evidence of the inquest witnesses and the doctor, in fact, the inquest witnesses or any person cannot say the cause of death of a person, but it is the doctor, who is an expert can only say whether death was homicidal or suicidal. In this particular case, the Investigating Officer has also not bestowed his attention with regard to the rod used for the commission of the alleged offence and also the knife alleged to have been used by the accused. Of course, the circumstances reveal that there were no strong reason for the deceased to commit suicide as rightly contended by the learned Addl. SPP. There are no other circumstances established to show the exact reason for commission of suicide by the deceased. However, there are suggestions put during the course of chief-examination to the kith and kin of the deceased that he has borrowed loans for business purpose from other sources, therefore, he might have committed suicide. But they are only suggestions, nobody has accepted the same and no material has been produced to establish on this aspect. Be that as it may, the death of the deceased is in fact a misery, which has not been properly established by the prosecution before the Court as to whether death was suicidal or homicidal. In this context, burden of proof comes into play and burden of proving is solely on the prosecution. The prosecution has to discharge its burden by producing cogent and convincing evidence before the court that the death was homicidal one and the accused persons are the perpetrators of the crime. The prosecution itself has failed to prove or discharge its burden taking all loopholes in the cross-examination by the accused persons to draw any inference of guilt against the accused persons.
59. For the above stated reasons, we are of the opinion the prosecution has not proved the case beyond reasonable doubts. Hence, extending the benefit of doubt on all the above circumstances, we prefer to acquit the accused persons. Hence the following ORDER The appeal is allowed. The judgment of conviction and sentence dated 08.11.2012 passed by the Presiding Officer, FTC-IV, Mysuru, in S.C.No.238/2007, is hereby set aside.
Consequently, the appellants/accused are hereby acquitted of the charges levelled against them for the offences under Sections 143, 144, 146, 147, 148, 341, 201, 427 and 302 r/w Section of IPC. The appellants/accused are ordered to be set at liberty forthwith, if they are not required in any other case.
If any fine amount has already deposited, the same is ordered to be refunded to the appellants/accused on proper identification and acknowledgement.
Registry is hereby directed to communicate the operative portion of this order to the concerned jail authorities for release of the appellants/accused forthwith, if they are not required in any other case.
SD/- JUDGE SD/- JUDGE Psg*