C.M. Ramu vs State

N. Ananda, J.—The respondent-Police had filed a final report against accused Nos. 1 to 5 for offences punishable under Sections 143, 147, 364, 302, 201 r/w Section 149 of IPC. Accused No. 3 was absconding. Therefore, case against him was separated. Accused No. 5 died before the charges were framed. Therefore, case against accused No. 5 abated.

The learned Sessions Judge tried accused Nos. 1, 2 and 4 for the aforestated offences.

The learned Sessions Judge on appreciation of evidence acquitted accused No. 4 of the aforestated offences and convicted accused Nos. 1 and 2 for offences punishable under Sections 364, 302, 201 r/w Section 34 of IPC. Therefore, accused No. 1 has filed Crl.A. No. 28/2011 and accused No. 2 has filed Crl.A. No. 565/2013.

We have heard Sri. C.H. Jadhav, learned Senior Counsel appearing for appellants/accused Nos. 1 and 2 and Sri. B.T. Venkatesh, learned SPP for the State.

Before adverting to appreciation of evidence, it is necessary to state the inter se relationship of some of prosecution witnesses and accused.

Deceased-Shivanna is the father of PW-5-H.S. Mallesha and elder brother of PW-6-Siddaramegowda. The daughter of PW-6 namely Bhagya was given in marriage to accused No. 1 and their marriage was performed on 22.04.2002. After the marriage, Bhagya was living in the house of accused No. 1. It is the case of prosecution that accused No. 1 was constantly ill-treating, harassing and subjecting his wife Bhagya to cruelty. The cruelty became unbearable, the wife of accused No. 1 namely Bhagya committed suicide on 23.05.2004. Therefore, a case was registered and charge-sheet was filed against accused No. 1, his parents and relatives alleging an offence punishable under Section 304-B IPC and also under Sections 3 and 4 of Dowry Prohibition Act. In connection with that case, accused No. 1 was in judicial custody for few months.

The prosecution has relied upon the following circumstantial evidence:

i) Motive

ii) Extra-judicial confession made by accused No. 2

iii. Deceased was last seen in the company of accused Nos. 1 and 2

iv) Recovery of incriminating articles on the voluntary information given by accused Nos. 1 and 2.

The homicidal death of Shivanna has been proved from the medical evidence of PW-1-Dr. Y. Udayshankar. PW-1-Dr. Y. Udayshankar, at the first instance has deposed that he was not in a position to furnish the opinion relating to the cause of death. However, after receipt of requisition from investigation officer to give opinion regarding the cause of death, PW. 1 gave his opinion stating that death of Shivanna might have been caused due to strangulation.

It is the case of prosecution that deceased-Shivanna was missing from 07.12.2005. On 02.01.2006, his dead body was found in highly decomposed state near a channel of Doddamalgud village. The photographs of the dead body would reveal that the dead body was in decomposed state. The deceased had been done to death and after removing clothes, dead body was thrown into a channel which had drift to the side of the channel. Therefore, the finding of learned Sessions Judge regarding homicidal death of Shivanna does not call for interference.

Motive:

As already stated, Bhagya was given in marriage to accused No. 1. The marriage was performed on 22.04.2002. Accused No. 1 was constantly subjecting his wife to cruelty. Therefore, she committed suicide. In that connection, a case was filed against accused No. 1 and his relatives for offences punishable under Section 304-B of IPC and Sections 3 and 4 of Dowry Prohibition Act.

It is the case of the prosecution that accused No. 1 was in jail for few months and thereafter he was released on bail. Accused No. 1, after he was released on bail had contacted deceased to arrive at a settlement of the case which had been filed against him. However, the deceased had rejected the proposal of settlement. Therefore, accused No. 1 had grudge against the deceased.

The prosecution has not produced documentary evidence to prove the date on which accused No. 1 had been sent: to jail in connection with the case relating to unnatural death of his wife and the date on which he was released on bail. The prosecution has not examined any independent witness to prove that accused No. 1 had approached the deceased to settle the case. As regards accused No. 2, there is no evidence to show that he had grudge against the deceased. Accused No. 2 is alleged to be an associate of accused No. 1. Therefore, there is no satisfactory evidence to prove the motive alleged by prosecution.

The law is fairly well settled that failure of prosecution to ravel the whole of motive cannot be a ground to discard other evidence if it is found consistent and credible.

The prosecution has placed much reliance on evidence of PW-5-H.S. Mallesha (son of the deceased) and PW-6-Siddaramegowda (younger brother of the deceased) to prove that during evening of 02.01.2006 accused No. 2 had met PW-5 near sub-urban bus stand, Mysore and accused No. 2 confessed before PW. 5 that accused Nos. 1 and 2 were staying in Central Prison at Mysore; they came in contact with each other. Accused No. 1 had told that deceased was responsible for sending him to jail by making false accusation of dowry harassment and dowry death. Therefore, he requested help of accused No. 2 to kill the deceased. Accused No. 1 had promised accused No. 2 to give a sum of Rs. 25,000/- and secure him a driving licence. After accused Nos. 1 and 2 came out of the jail, accused No. 2 took the help of accused Nos. 3 and 4. On 07.12.2005, accused No. 1 to 4 abducted the deceased in a Maruthi Van. They took the deceased to the road leading to Monasikyathanahalli village and strangled him to death. Thereafter, they removed the clothes of deceased and threw the dead body into the Vishweshwaraiah channel near Doddamulagud village. They also burnt the clothes of deceased to cause disappearance of evidence. Accused No. 1 did not pay a sum of Rs. 25,000/- to accused No. 2 and he did not secure driving licence to accused No. 2.

PW-5 has deposed; that after accused No. 2 made aforestated extra judicial confession statement before him, he wanted to ensure the truth of confession made by accused No. 2; PW-5 and others asked accused No. 2 to take him to the places where the deceased was abducted; deceased was done to death; the place from where the dead body was thrown to Vishweshwaraiah Channel and the place where the clothes of deceased were burnt. Accordingly, accused No. 2 took PW-5 and others to those places. Thereafter, on the following day viz., 03.01.2006, accused No. 2 along with PW-5 met PW-6 and reiterated confession statement. PW-5 has deposed that he lodged first information on 03.01.2006.

The learned Sessions Judge by referring to the judgments of the Supreme Court reported in AIR 1975 SC 1320, AIR 1985 SC 1678 and ILR 2000 KAR 4672 has held that extra-judicial confession is reliable piece of evidence and if other circumstances are proved, extra-judicial confession can be accepted and acted upon.

The learned Sessions Judge has not appreciated evidence of PW-5 and PW-6 to record a finding on credibility and probability of the alleged confession.

It is not in dispute that accused No. 2 had no acquaintance with PW-5. As per extra-judicial confession made by accused No. 2, he had come in contact with accused No. 1 when they were in Central Prison at Mysore. Accused No. 1 had told accused No. 2 that deceased was responsible to send him to prison by making false allegations of dowry harassment and dowry death. Accused No. 1 had requested help of accused No. 2 to eliminate the deceased and promised accused No. 2 to pay a sum of Rs. 25,000/- and also to secure him a driving licence.

PW. 5 in his evidence has admitted that when accused No. 2 made extrajudicial confession before PW. 5, his friends namely Umesha and Kumara were present. The aforestated Umesha and Kumara were not examined before the trial court. PW. 5 has admitted that accused No. 2 made the alleged extra judicial confession statement during the evening of 02.01.2006 near Sub-urban bus stand at Mysore.

At this juncture, it is relevant to state that deceased Shivanna was missing from 07.12.2005 and in that connection PW. 5 had lodged a missing report. If accused No. 2 had made extra judicial confession to the effect that accused No. 1 to 4 abducted and committed the murder of deceased, the natural instinct and conduct of PW. 5 would be to take accused No. 2 to the police station. On the other hand, evidence of PW. 5 reveal that he had allowed accused No. 2 to go elsewhere. PW. 5 did not immediately inform the jurisdictional police.

PW. 6-Siddaramegowda has deposed; that on 02.01.2006, PW. 5 brought accused No. 2 to the house of PW. 6; accused No. 2 made extra judicial confession before PW. 6 that accused No. 1 to 4 abducted the deceased and strangled him to death, thrown his dead-body into a channel and burnt his clothes; accused No. 1 had promised accused No. 2 to pay a sum of Rs. 25,000/- and secure driving licence to accused No. 2 but he had failed to keep up his promise.

The evidence of PW. 5 that accused No. 2 had met him near Sub-urban Bus stand at Mysore during the evening of 02.01.2006 and made extra judicial confession and the evidence of PW. 6 that on 02.01.2006, PW. 5 brought accused No. 2 to his house and accused No. 2 had made extra judicial confession before PW. 6 does not inspire confidence.

During cross-examination, PW. 6 has admitted that PW. 5 had brought accused No. 2 to his house between 12.00 p.m., and 3.00 p.m. (afternoon).

PW. 6 has deposed; that after accused No. 2 confessed the crime, he was asked to take PW's. 5, 6 and others to the places where the deceased was done to death, where the dead body was thrown to channel and his clothes were burnt; PW's. 5, 6 and other villagers accompanied accused No. 2 to other places and found the dead body of Shivanna in a decomposed state.

PW. 6 has deposed; that he identified the dead body of Shivanna by looking at the clothes found on the dead body. PW. 6 has deposed that on the following day, PW. 5 lodged the first information.

Thus, we find from the evidence of PW. 5 and PW. 6 that accused No. 2 had made extra judicial confession is inconsistent and contradictory. The evidence of PW. 5 that accused No. 2 had made extrajudicial confession before him looks improbable. PW. 5 is none other than the son of deceased.

It is not the case of prosecution that accused No. 2 had made extrajudicial confession before PW. 5 in a state of remorse or repentance. It is not the case of prosecution that PW. 5 was a friend of accused No. 2. It is not the case of prosecution that accused No. 2 had made extra judicial confession before PW. 5 with a request to help him to wriggle out of the situation. The extra judicial confession made by accused No. 2 gives an impression that accused No. 2 had approached PW. 5 to help him for recovery of Rs. 25,000/- from accused No. 1. The conduct of PW. 5 after the alleged extra judicial confession was made by accused No. 2, in letting away accused No. 2 to go away from that place and again meeting him on the following day looks improbable.

The evidence of investigation officer (PW. 28-K.R. Kantharaju) would reveal that on 03.01.2006 at about 8.00 a.m., when he was in the police station, PSI of Elavala police station namely Parashuramappa brought the case file and he produced accused No. 2 before him. PW. 28 arrested accused No. 2 and recorded his voluntary statement; thereafter, accused No. 2 took PW. 28 and other witnesses to the place where accused had allegedly committed murder of deceased Shivanna; accused No. 2 also led to the place from where they had thrown the dead body into a channel and also to the place where they had burnt the clothes of deceased.

At this juncture, it is relevant to state that PW. 5 lodged the first information at about 6.00 a.m., on 03.01.2006. In the first information, PW. 5 has referred to extra judicial confession said to have been made by accused No. 2 before PW's. 5 and 6. In the first information, he has not stated as to what happened to accused No. 2 after he made extra judicial confession before PW. 5. PW. 5 has not deposed as to what happened to accused No. 2 after he made extrajudicial confession before PW's. 5 and PW. 6 and after he led PW. 5, PW. 6 and others to the place of incident; the place where the dead body was thrown to a channel and the place where clothes of deceased were burnt.

In our considered opinion, the investigation officer appears to have given colour of extra judicial confession to the confession made by accused No. 2 before the investigation officer.

The learned Sessions Judge without noticing the intrinsic improbabilities in the extra judicial confession alleged to have been made by accused No. 2, by relying on the decisions relating to relevance and use of extra judicial confession in a criminal trial, has accepted the circumstance of extrajudicial confession put forth by the prosecution. The learned Sessions Judge has not properly appreciated evidence of PW. 5 and PW. 6 to record a finding on credibility of evidence of PW. 5 and PW. 6 relating to extra judicial confession said to have been made by accused No. 2. Therefore, we hold the alleged extra judicial confession has not been proved.

It is the case of prosecution that deceased was last seen alive in the company of accused No. 1 to 4. The prosecution has relied on evidence of PW. 21-Anitha to prove that accused No. 1 to 4 had travelled in a Maruti Van and had purchased petrol from her.

At this stage, it is relevant to state that maternal uncle of PW. 21 was running a petty shop in Jeenugudde village. He was clandestinely selling petrol in small quantities. PW. 21 has deposed; that she was selling petrol in the absence of her maternal uncle. It is obvious that PW. 21 and her maternal uncle were under the mercy of police.

PW. 21 has deposed; that accused No. 1 and 2 and two ladies came in a Maruti Van and purchased small quantity of petrol, twine thread, fruits and chocolates. PW. 21 has not deposed that deceased was in the Maruti Van when accused no 1 had come to purchase petrol. Therefore, her evidence is not of conclusive tendency to hold that deceased was last seen alive in the company of accused No. 1 and 2.

The learned Sessions Judge has ignored discrepancies in the evidence adduced by prosecution to prove that deceased was last seen alive in the company of accused.

The prosecution has relied on recovery of incriminating articles on the information volunteered by accused No. 1 and 2. It is the case of prosecution that voluntary statement given by accused No. 1 led to recovery of an empty milk can of the deceased from the house of accused No. 1.

At this juncture, it is relevant to state that when the missing complaint was filed, it was not stated that an empty milk can was missing. The prosecution has adduced evidence to show that on 07.12.2005, PW. 5 and other relatives of the deceased found a bicycle, small milk can and a measuring jar near Huyilalu Vidya Niketan Convent situate in the village of deceased.

It is the case of prosecution that accused had not only committed the murder of deceased but also threw the dead body into a channel and burnt the clothes of deceased to cause disappearance of evidence. In the circumstances, evidence adduced by prosecution that accused No. 1 had taken away an empty milk can of the deceased and produced the same before the investigation officer looks highly improbable. The milk can alleged to have been recovered from the possession of accused No. 1 does not bear any pecuniary value. The recovery of milk can on the information volunteered by accused No. 1 gives an impression that accused No. 1 had kept the milk can to produce it before the investigation officer as incriminating evidence against him.

PW. 28-K.R. Kantharaju, the investigation officer has deposed; that on 04.01.2006 at about 5.00 a.m., PSI-Parashuramappa and other police constables produced accused No. 1, 4 and 5 and Maruti Van bearing registration No. KA-04/A-1643; he recorded voluntary statements of accused No. 1, 4 and 5; the Maruti Van was seized; after searching the van, they found a rexin bag containing knife, axle blade, petrol can and the same were seized under mahazar as per Ex. P11. The investigation officer has not deposed that Maruti Van bearing No. KA-04/A-1643 belonged to accused No. 1.

The evidence of investigation officer that he verified from the records of concerned RTO office however, he was not able to locate or identify the registered owner of Maruti Van bearing No. KA-04/A-1643 looks improbable. It is not the case of prosecution that registration number of Maruti Van bearing No. KA-04/A-1643 was fake. In the circumstances, evidence of investigation officer that he was not able to identify the registered owner of Maruti Van bearing No. KA-04/A-1643 cannot be accepted.

The learned Sessions Judge has held that Maruti Van bearing No. KA-04/A-1643 was seized from the possession of accused No. 1. Therefore, failure to identify the registered owner of Maruti Van bearing No. KA-04/A-1643 will not be of any consequence. The prosecution has not adduced evidence to prove that accused No. 1 was in possession of Maruti Van bearing No. KA-04/A-1643 at any point of time prior to the date of commission of offence or after the commission of offence. Above all, evidence of PW. 28 that accused had kept knife, twine thread, petrol can in a rexin bag to produce the same before the investigation officer looks improbable.

It is the case of prosecution that accused No. 1 committed the murder of deceased and had thrown the dead body of deceased into a channel and burnt the clothes of deceased to cause disappearance of evidence. The offence was allegedly committed on 07.12.2005. The accused were arrested on 03.01.2006. There was nearly a month's time for the accused to destroy these articles if they had used the same.

In the discussion made supra we have held that, evidence of PW. 1 that deceased was strangulated to death is not conclusive; the prosecution has not adduced evidence to show that accused had used knife to commit the murder of deceased. In the context of other evidence adduced by prosecution, it is difficult to believe that accused had kept all these articles in a rexin bag and the bag was kept in Maruti Van.

In the discussion made supra, we have held that prosecution has failed to prove that accused No. 1 was in physical possession of Maruti Van bearing No. KA-04/A-1643 either on the date of commission of offence or after commission of offence.

The learned Sessions Judge without proper appreciation of evidence has believed the story of recovery put forth by the prosecution. The learned Sessions Judge has ignored the settled principles of law relating to appreciation of evidence in a case resting upon circumstantial evidence. The learned Sessions Judge has failed to notice that prosecution has failed to prove each circumstance relied upon by it by adducing credible and consistent evidence. There are missing links in the chain of circumstances. The chain of circumstances proved by prosecution does not establish the guilt of accused beyond reasonable doubt.

The learned Sessions Judge without proper appreciation of evidence and without bearing in mind the nature of evidence to be adduced by the prosecution to prove circumstances relied upon by the prosecution, has erroneously held that prosecution has proved that accused No. 1 and 2 had committed offences punishable under Sections 364, 302, 201 r/w 34 IPC. Therefore, the impugned judgment cannot be sustained.

In the result, I pass the following:

ORDER

Crl.A. 28/2011 and Crl.A. 565/2013 are accepted. The impugned judgment of conviction of accused No. 1 and accused No. 2 for offences punishable under Sections 364, 302, 201 r/w 34 IPC is set aside. Accused No. 1-C.M. Ramu.. S/o. Marimanchaiah and accused No. 2-Suresh @ Gangadhar, S/o. Karigowda are acquitted of offences punishable under Sections 364, 302, 201 r/w. 34 IPC in S.C. No. 103/2006, on the file of III Additional Sessions Judge at Mysore.

The bail bonds executed by Accused No. 1-C.M. Ramu, S/o. Marimanchaiah and accused No. 2-Suresh @ Gangadhar, S/o. Karigowda stand cancelled.

Accused No. 1 and 2 shall be released if they are not required to be in custody in connection with any other case. The fine amount, if any, deposited by accused No. 1 and 2 shall be refunded to them.