Dayananda and Others vs State and Others

Mohan M. Shantana Goudar, J—The judgment and order of conviction convicting accused No. 1 for the offences punishable under Sections 302 and 201 of IPC passed by the Fast Track Court-V, Madhugiri in S.C.No. 182/2008 is appealed against by the convicted accused No. 1 in Crl.A.No. 545/2012.

The State has preferred Crl. A. No. 787/2012 questioning the very judgment and order acquitting accused Nos. 2 to 5 of the said offences.

Crl. R.P. No. 893/2010 is filed by the State against the order dated 20.1.2010 passed by the said Court rejecting the application filed by the Public Prosecutor for leading additional evidence for production of certain documents before the trial Court.

Since all the matters are connected, they are heard together and decided by this order.

Case of the prosecution in brief is that deceased Roopa married accused No. 1 on 24.5.2000 at Dharmasthala. Accused No. 1 belongs to scheduled caste whereas, deceased Roopa is from Banajiga community. Accused Nos. 2 and 3 are the parents of accused No. 1. Accused No. 4 is the sister of accused No. 1. Accused No. 5 is the husband of accused No. 4; Accused No. 1 was an employee of the Court working as Process Server whereas, deceased was working as Typist in the Assistant Public Prosecutor''s office attached to Sira Court. Deceased and accused No. 1 lived happily for about three years and a child by name Abhinandan was born. Subsequently, all the accused started torturing the victim on one pretext or the other; accused No. 1 used to pressurize the deceased to raise loan and to give her entire salary to him; accused No. 1 was addicted to alcoholic drinks and used to harass the deceased both physically and mentally; since the deceased did not agree for the illegal demands of all the accused, the accused collectively committed murder of the deceased by assaulting her and after committing the murder, the accused in order to screen themselves from being prosecuted, set the dead body on fire by pouring kerosene and kept coconut leaves on the dead body.

The incident has taken place on 11.4.2008 at about 8.30 p.m. in the matrimonial house of accused No. 1 and the deceased; the parents of the deceased came to know about the incident on the next date and consequently, they came to the spot at about 10.00 a.m. on 12.4.2008 and lodged the complaint as per Ex. P2 at 10.45 a.m. on 12.4.2008. Complaint was lodged by P.W. 2(mother of the deceased) before the Inspector of Police attached to Koratagere police station (P.W. 12), which came to be registered in Crime No. 86/2008. The First Information Report came to be dispatched at 11.45 a.m. on the very day, which came to be received by the Magistrate Court at 4.30 p.m. The police after investigation laid the charge sheet against five accused.

In order to prove its case, the prosecution in all examined 13 witnesses and got marked 31 exhibits and 3 material objects. On behalf of defence, no witness is examined. As aforementioned, the trial Court convicted accused No. 1 for the offences punishable under Sections 302 and 201 of IPC and acquitted all other accused.

During the pendency of trial before the Court below, the Public Prosecutor filed application seeking permission to produce certain additional documents by way of additional evidence, such application came to be rejected by the trial Court on the ground that the documents sought to be produced during the course of trial were not part of the charge sheet; no explanation is forthcoming as to why such documents are not placed on record by the Public Prosecutor earlier; the documents appears to be created, in as much as, none of the documents were signed by the deceased though such documents were allegedly the letters written by the deceased; it appears to have been created subsequent to the incident for the purpose of trial of the case. Be that as it may.

The trial Court, having found that the material itself is sufficient to decide the case justly, rejected the application filed by the Public Prosecutor and proceeded with the trial. We have already mentioned supra that the said order rejecting the application for leading additional evidence is questioned by the State in Crl.R.P. No. 893/2010.

Sri Vageesh Hiremath, learned Amicus Curiae taking us through the material on record submits that the Court below though was justified in acquitting accused Nos. 2 to 5, is not justified in convicting the accused No. 1 for the offence punishable under Section 302 IPC, since accused No. 1 had not made any preparation for committing the crime, at the most accused No. 1 may be convicted for the offence under Section 304 Part II IPC. He further submits that the there are no eye witnesses to the incident in question. Looking to the evidence of DW 1, it is clear that accused No. 1 was not present in the house at the time of alleged crime. Since the deceased was frustrated in life, according to him, this is a case of suicide and it is not a case of homicidal death.

Per contra, Sri. P.M. Nawaz, learned State Public Prosecutor submits that the Court below ought to have convicted accused Nos. 2 to 5 also in as much as the letter (Ex. P8) written by the victim implicate other accused also, atleast for the offence under Section 498A IPC. He further submits that though the accused Nos. 2 to 5 were living in a different house, they were supporting accused No. 1 for troubling the victim and therefore, they are also to be held liable.

Sriyuths. M.C. Harish Kumar and B.M. Raghavendra for S. Krishna Kishore, appearing on behalf of accused Nos. 2 to 5 in Crl. A. No. 787/2012 argued justifying the acquittal of accused Nos. 2 to 5.

PW 1 is the younger brother of deceased Roopa. He went alongwith his mother PW 2 and saw the dead body after getting news of death of the deceased. He deposed that certain blood stains were found on the wall and the room had become fully dark because of the dead body was burnt, there were no jewelleries on the body of the deceased Roopa. PW 2 is the complainant. She is the mother of deceased Roopa. She lodged the complaint as per Ex. P2 after seeing the dead body at about 10.45 a.m. on 12.04.2008 before Koratagere Police Station which came to be registered in Cr. No. 86/2008.

PW 3 is the elder sister of the deceased. Her evidence is at par with the evidence of P.Ws. 1 and 2. P.Ws. 1 to 3 being younger brother, mother and elder sister of the deceased have come to the spot after the incident. In the cross examination, PW 1 has admitted that the deceased had not informed him about the ill-treatment meted to her by the accused persons. It is in the evidence of PW 1 that all the accused were not the parties for harassing the deceased. He has also admitted in the cross examination that he signed the scene of offence mahazar also. According to P.Ws. 1 to 3, the deceased had committed suicide.

PW 4 is the witness for inquest panchanama (Ex. P14). He turned hostile to the case of prosecution. PW 5 is the Engineer who drew the sketch of scene of offence as per Ex. P15. PW 6 is the owner of the house, wherein accused No. 1 and deceased were living. According to her, she has deposed that she was not at Koratagere village on the date of incident and she pleaded ignorance of the incident. She is treated as hostile to the case of prosecution. PW 7 is the Scientific Officer of Forensic Laboratory, who examined the material objects such as kerosene can, coconut leaves etc., which were sent for examination.

PW 8 is one more witness for inquest mahazar. PW 9 is the employee attached to the Assistant Public Prosecutor office at Koratagere. He handed over the letters (Exs. P11 and 12), written by the deceased from his office before the investigating officer during the course of investigation. Exs. P11 and P12 are admitted handwriting of deceased. These letters were sent to FSL for comparison alongwith disputed handwriting of the deceased. PVV10 is the Doctor who conducted autopsy of the dead body. The autopsy report is at Ex. P22 and his opinion is at Ex. P22(b). The doctor has opined that the death is due to hypovolumic shock as a result of head injury. PW 11 is the hand writing expert working in FSL. He has compared the letters written by the deceased Exs.P8 to P12 sent to him for examination. Among them, Exs. P11 and 12 are the admitted hand writing of deceased and others are disputed handwriting. He has given his report as per Ex. P23. The report discloses that the handwriting found in Exs.P11 and 12 tallies with the handwriting found in Ex. P8. PW 12 is the investigating officer who conducted part of the investigation. He registered the case in Cr. No. 86/2008 based on the complaint lodged by PW 2. PW 13 is the another Inspector of Police who completed the investigation and laid the chargesheet.

Before proceeding further on the merits of the matter, it is better to assess the validity of the order passed by the Court below in rejecting the application filed by the SPP to lead additional evidence before the Trial Court. The said order dated 20.01.2010. The said order is self explanatory in as much as it discloses detailed and valid reasons for coming to the conclusion. The complainant wanted to produce certain letters allegedly written by the deceased making allegations mainly against accused No. 1. The investigating officer had allegedly collected the letters from the victim''s mother and submitted them in PF No. 145/2009 dated 16.12.2009. But the Trial Court has observed that the letters so produced alongwith the memo are not signed by the victim Roopa. Thus, it cannot be assumed that the letters are written by the deceased prior to her death. There is nothing to believe that the said letters were missing from the complainant while the investigation was in progress. Admittedly, the said letters were not given by the complainant to the investigating officer during the course of investigation. Consequently, the said letters do not find place in the chargesheet. Further, the complainant has produced typed letters said to have been written to her by the deceased. It is also strangely alleged that the deceased has directly written letters to the prosecution department.

The complainant has not given any convincing reasons for not producing the said letters before the investigating officer at the time of investigation. Based on these facts and circumstances, the Court below has rightly felt that it is not a fit case to permit the prosecutor to produce the documents at the trial stage. It is also not in dispute that certain letters are already on record. The Court having felt that the documents, which are already on record are sufficient to decide the case, appropriately rejected the application filed by the prosecution. Moreover, we find that the production was sought by the public prosecutor at a belated stage during the course of trial and such request is rightly rejected by the Court below. Hence, we conclude that the order dated 20.01.2010 passed by the Fast Track Court V, Madhugiri in SC No. 182/2009 needs no interference. Accordingly, Crl. RP 893/2010 is liable to be dismissed.

In so far as the merits of the matter is concerned, the case mainly rests on the evidence of P.Ws. 1 to 3 and the letter Ex. P8 written by deceased prior to her death apart from the postmortem report (Ex. P22) and the medical evidence by the doctor who conducted autopsy.

Evidence of PW 10 clearly discloses that the death is due to hypovolumic shock as a result of head injury. Based on the FSL report, the doctor has opined that the body did not contain any sort of poison. The vital aspect of the postmortem report and the evidence of doctor is that there were two wounds on the dead body apart from the fracture of skull. There is incised wound measuring 3 x 7 c.m. present on the right wrist and another incised wound measuring 3 x 1 c.m. present on the left forearm. On dissection, it is found that the temporal bone of the deceased was fractured over the right side. It is also forthcoming that the body was burnt. The doctor who conducted autopsy based on the medical examination has deposed before the Court that the deceased was done to death by assaulting on the head at the first instance and thereafter, the body was burnt. The medical evidence amply proves that it is a case of homicidal death and consequently the contention of the accused that it is a case of suicidal death is liable to be rejected and the same is rightly rejected by the Court below.

It is further clear from the medical evidence that accused No. 1 after committing the murder of deceased by assaulting on her head, set her ablaze by pouring kerosene and coconut leaves in order to screen himself from the offence.

The evidence of P.Ws. 1 to 3 with regard to harassment by the accused Nos. 2 to 5 are concerned appears to be vague. The general allegations are made against them, added to it, it is clear from the evidence on record that both the parents of accused No. 1 were residing at Tumkur and accused Nos. 4 and 5 were living in their matrimonial house situated apart from the house of accused No. 1 and deceased. Merely because accused Nos. 2 to 5 are relatives of accused No. 1, they cannot be implicated in the crime without there being any evidence much less adequate material against them.

Ex. P8 is the letter written by the victim prior to her death, which runs about 8 pages. We have meticulously perused the letter to find out as to whether there are allegations against accused Nos. 2 to 5 or not. On verifying the contents of Ex. P8, it can be borne out that mainly, the deceased had grievance by the conduct of accused No. 1. He used to torture her both physically and mentally. He used to take sleeping pills, he was a alcoholic and had become drunkard. He was pressurizing the deceased to raise loan from the department in her name, so also he used to pressurize the deceased to give him the entire salary of the deceased. Even the child Abhinandan was not made to leave with the lady, consequently, the deceased had grievance against accused No. 1. The contents of Ex. P8 mainly revolve around accused No. 1. It is no doubt that certain vague and cryptic allegations are found against accused Nos. 2 to 5, though it is mentioned in her letter that accused Nos. 2 to 5 were residing separately in a different house. However, the contents of Ex. P8 which the deceased had written prior to her death would amply clarify that it is accused No. 1 who had tortured the deceased during her life. Therefore, in our considered opinion, the Trial Court is justified in acquitting accused Nos. 2 to 5.

Ex. P8 is the only document which tallies with the admitted handwriting found in Exs.P11 and P12. The Scientific Officer of FSL has given report as per Ex. P23 and has deposed before the Court in support of his report, reiterating the handwriting found in the contents of Ex. P8 tallies with the admitted handwriting found in Exs.P11 and P12. Exs.P11 and P12 are the application given by the deceased to the department at the time of joining the duties.

The incident has taken place during the night of 11.04.2008 in the house of accused No. 1 and deceased, where they both were residing. The child Abhinandan was also not residing with accused No. 1 and deceased. The incident has taken place within the house. There is nothing on record to show that the third parties entered the house at that point of time. Therefore, it is the duty of accused No. 1 to explain as to how the death of deceased has taken place in the house. The cause of death needs to be explained by the accused in the facts and circumstances of the case.

The accused tried to explain by adducing the evidence of DW 1, who is the Officer of Madhugiri Sub Jail., DW 1 has deposed that accused No. 1 was brought to the jail pursuant to the order of Civil Court and that accused No. 1 was present in the jail premises upto 7.45 p.m. or 8.00 p.m. on 11.08.2008. According to DW 1, accused No. 1 must have left the jail premises in between 7.45 p.m. to 8.00 p.m. on that day. From the evidence of DW 1, it is clear that accused No. 1 was in the Sub Jail of the premises of Madhugiri upto about 8.00 p.m. Thereafter, the accused has not explained as to what was done by him subsequently. According to the case of prosecution, accused came back to the matrimonial house and committed the offence. In the absence of any explanation with regard to the case of death in the matrimonial house, in which the accused was living with the deceased, the Trial Court is justified in raising presumption against the accused. The accused has not rebutted such presumption.

If really, the accused No. 1 was innocent and had not committed the offence and if really, the deceased had committed suicide, accused No. 1 would be the first person to inform about the death to the police. Nobody including accused No. 1 informed about the death of the deceased to the police till morning of 12.04.2008. This complaint came to be lodged only after P.Ws. 1 to 3 came to the spot on the next day at about 10.45 a.m. on 12.04.2008. The silence of the accused in not lodging the complaint or not informing about the death of deceased to the police speaks volumes of his conduct. The theory of suicide argued by the defence cannot be accepted having regard to the medical evidence placed on record.

In view of the above, we conclude that it was accused No. 1, who committed the murder of deceased and thereafter set the dead body on fire by pouring kerosene in order to screen himself from the offence. So also, we conclude that the prosecution has not made out a case as against accused Nos. 2 to 5.

Accordingly, the following order is made:

a) Crl.R.P. 893/2010 filed by the State stands dismissed.

b) Crl.A. Nos. 545/2012 filed by accused No. 1 stands dismissed. The Order of conviction and sentence recorded by the Trial Court against accused No. 1 stands confirmed.

c) Crl. A. No. 787/2012 filed by the State questioning the judgment and order of acquittal, acquitting accused Nos. 2 to 5 stands dismissed. Consequently, the judgment and order of acquittal, acquitting accused Nos. 2 to 5 stands confirmed.

We place on record the valuable assistance rendered by the learned Amicus Curiae. Hence, the registry is directed to pay a sum of Rs. 10,000/- as honorarium to the learned Amicus Curiae.