IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.913 OF 2012 BETWEEN:
THE STATE BY POLICE CIRCLE INSPECTOR METAGALLI POLICE STATION MYSURU DISTRICT. ... APPELLANT (BY SRI. PRAMOD CHANDRA I.S., STATE PUBLIC PROSECUTOR-II) AND:
1. JUNAID @ MOHAMMED JUNAID @ REHAMAN SON OF FAROOQ @ REHAMAN AGED ABOUT 26 YEARS STUDENT, MUSLIM DOOR NO.129, 4TH CROSS C.V. ROAD, BANNIMANTAP MYSURU CITY-570 001.
2. FARIYA A KHANASA DAUGHTER OF JAMEEL AHAMMAD KHAN AGED ABOUT 26 YEARS STUDENT DOOR NO.32, 2ND CROSS C.V. ROAD, ‘A’ LAYOUT BALABHAVAN, BANNIMANTAP MYSURU CITY-570 001. ... RESPONDENTS (BY SRI. HASMATH PASHA, SENIOR COUNSEL FOR SRI. NASIR ALI, ADVOCATE FOR RESPONDENT NO. 1 SRI. SHOWRI H.R., ADVOCATE FOR RESPONDENT NO. 2) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378 (1) AND (3) CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 12.04.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-III, MYSURU IN S.C.NO.236 OF 2006 – ACQUITTING THE RESPONDENTS-ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 201, 109 AND 120(B) READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that the accused Nos.
1 and 2 were studying at the St. Philomina College, Mysuru. They were in love with one another. The deceased Imran was a friend of accused No.1. The deceased also developed a liking towards accused No.2. He was constantly telling accused No.2 not to be in the company of accused No.1. Accused No.1 had already expressed his desire to marry accused No.2. After knowing this fact, deceased started quarrelling with accused No.1. Hence, there was ill will between them. On 21.05.2006, accused No.1 took the deceased on his motor cycle and thereafter committed his murder by stabbing him with knife over his neck, chest, abdomen, back etc. He threw the dead body in a gutter by the side of the road leading to B.M.Srinagar, GRS Fantasy Park, Mysuru. On 24.05.2006, PW.28, after noticing the dead body, lodged the complaint vide Ex.P14 with Metagalli Police Station, Mysuru city. The same was registered in FIR No.56/2006 for the offences punishable under Sections 302, 201 of Indian Penal Code against unknown persons. Inquest as well as Post mortem of the dead body was conducted. The cause of death was said to be due to hemorrhage as a result of cut throat injury as well as multiple stab injuries on the body of the deceased. Since there was nobody to claim the dead body, the same was buried.
2. On 31.05.2006, the brother of the deceased lodged a missing complaint before the Narasimharaja Police Station, Mysuru city which came to be registered in FIR No.63/2006. Thereafter they visited the Police Station and identified the photos, clothes etc of the deceased. Investigation was taken up. Accused Nos.1 and 2 were arrested on 22.08.2006 at Hyderabad. After completion of investigation, charge sheet was filed for the offences punishable under Sections 302, 201, 109, 120(B) read with Section 34 Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
3. In order to establish its case, the prosecution examined PWs.1 to 40, marked Exs.P1 to 42 and produced MO Nos. 1 to 16. The trial Court by the impugned order acquitted the accused. Hence the present appeal by the State.
4. Learned counsel for the appellant contends that the order of the trial Court is erroneous and liable to be interfered with. The trial Court committed an error in misreading the evidence and material on record. That the prosecution has proved the last scene theory that accused No.1 was seen along with the deceased just prior to the commission of the offence. The witness has also heard accused No.1 speaking over his mobile with regard to commission of offence. The body has been identified with the number of injuries and the motive has been proved. The trial Judge has unfortunately not considered the material and has wrongly extended the benefit of doubt to the accused. Hence, he pleads that the appeal be allowed by convicting the accused.
5. On the other hand, learned counsel appearing for the respondents-accused disputes the same. He pleads that the prosecution has miserably failed to prove its case; that the last seen theory has not been established; that there is no material to link the offence of murder to the accused and that the benefit of doubt has rightly been extended to the accused. Hence, he pleads that the appeal be dismissed.
6. Heard learned counsels and examined the records.
7. The prosecution seeks to prove its case on the basis of the last seen theory based on the evidence of PWs.12, 18 and 23. PWs.12 and 18 have stated that on 21.05.2006 at about 8.30 p.m. when they were returning home, they saw the deceased and accused No.1 proceeding on a motor cycle. Therefore, it is pleaded that when the incident took place on 21.05.2006 and when accused No.1 and the deceased were last seen together just prior to the commission of the offence, the presumption of the accused having committed the offence has been proved by the prosecution. PW.23 has stated that he has also identified accused No.1 and the deceased proceeding on a two wheeler. Under these circumstances, it is contended that the last seen theory has been proved by the prosecution. The trial Court has disbelieved this theory. We find no reason to take a different view.
8. There is no material to indicate that there was any ill-will between accused No.1 and the deceased. They were known to one another. Therefore, they being seen together and going together on motor cycle cannot be considered either as a strange event or an event that would lead to the commission of offence. Furthermore, the incident is said to have taken place on 21.05.2006. PWs.12, 18 and 23 are said to be related to the deceased. However, the missing complaint is lodged 10 days thereafter on 31.05.2006. Even when the missing complaint was lodged, there is no reference at all by any of these three witnesses to the fact that they had seen the deceased and accused No.1 together on 21.05.2006. Therefore, there was no reason for them to suspect the involvement of accused No.1 in the commission of offence. Assuming that the case of the prosecution is to be believed that accused No.1 has committed the offence which is proved by the last seen theory, the same would become doubtful in view of the non-mentioning of the name of accused No.1 at the time of lodging the missing complaint before the Police. Therefore, this is a clear indication that the last scene theory would have no nexus with the offence that has been committed. There was not even a suspicion by PWs.12, 18 and 23 with regard to the involvement of accused No.1 in the commission of the offence.
9. Furthermore, so far as accused No.2 is concerned, there does not appear to be any material so far as last seen theory is concerned. Accused No.2 was implicated only on the basis of the motive for commission of the offence. The plea of motive by the prosecution is that the deceased as well as the accused No.1 were having an affair with accused No.2. Therefore, accused No.1 committed the murder of the deceased. However, the contention has only remained on paper. There is no material to substantiate any such relationship with either one of these three persons. Hence, we do not find that the said theory would stand applicable insofar as the accused No.2 is concerned.
10. The further contention is based on the evidence of PW.20. He has stated in the evidence that on the date of incident, accused No.1 called accused No.2 over the mobile. Accused No.2 switched on the speaker of the mobile and therefore PW.20 was able to hear the entire conversation. The conversation was to the effect that accused No.1 would commit the murder of the deceased. Therefore, this portion of the evidence is sought to be relied on by the prosecution to bring home the guilt of the accused. We are unable to accept such a contention. When a serious act of conspiracy to commit murder of another person is sought to be taking place, no person in his senses would switch on the speaker of the mobile so that whole world could hear it. Therefore, the evidence led in by PW.20 cannot be accepted. The reliance placed by the prosecution on this evidence therefore cannot be accepted.
11. It is their further case that after the incident occurred, the accused came to PW.20 and told him that he has committed the murder of the deceased. There is no blood relationship between accused No.1 and PW.20. There was a Cricket team known as Star Cricket Team wherein PW.20 was the captain. Accused No.1 was one of the players. This is the only relationship that persuaded accused No.1 to confide in PW.20. We find it difficult to accept this argument. There is no proximity of any relationship between accused No.1 and PW.20. A matter of confidence are related only with persons who are close to oneself. The matter of such a serious consequence is not disclosed to one and all. When the relationship between Accused No.1 and PW.20 is not deep, the theory of the prosecution that accused No.1 visited him the next date of the incident and told him about the commission of the offence, is very hard to accept. Therefore, we find it difficult to accept the evidence of PW.20.
12. It is further contended that PW.20 also intimated the said fact to PW.5. Since we have rejected the evidence of PW.20, the question of he communicating the same to PW.5 becomes irrelevant. Even otherwise, if the contention of the prosecution is to be accepted, the same becomes doubtful in view of the fact that none of these facts are reported to anybody in the family. The report of the incident is said to have been communicated to PW.20 on the very next day of the incident. When a person is informed of a death of another person, necessarily somebody in the family would be informed. However, in the given case, not a single member of the family is informed. The missing complaint is lodged after 10 days that too, against unknown persons.
13. In the totality of the circumstances, we are of the view that the learned trial Judge was justified in extending the benefit of doubt to the accused. We do not find any iota of evidence to link the accused to the commission of offence. The missing complaint was lodged 10 days after the disappearance of the deceased. The missing complaint does not refer to both the accused in any manner whatsoever. The so-called witnesses, who were aware of the incident on the very next day itself, have not intimated the fact to any one of the family members. The prosecution has therefore miserably failed to bring home the guilt of the accused. Hence, we do not find any perversity in the judgment passed by the learned trial Judge.
14. Even otherwise, this is an appeal against acquittal. The consideration of such an appeal is on a different principle. Only because a second view is possible, does not entail the Appellate Court to take a second view. Even otherwise, no second view other than that taken by the trial Court is possible. The findings of the trial Court are appropriate.
15. Under these circumstances, we do not find any ground to interfere with the well considered order passed by the trial Court. Consequently, the appeal being devoid of merit, is dismissed.
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JUDGE JUDGE akc/