Harish Boregowda and Others vs State and Others

Mohan M. Shantana Goudar, J.

The judgment and order of acquittal dated 23rd December 2010 passed by Fast Track Court -XVII, Bangalore City in S.C. No. 61/2010 is the subject matters of these two appeals.

Crl.A. No. 228/2011 is filed by the victim (PW-1) who lodged first information as per Ex-P1.

Crl.A. No. 840/2011 is filed by the State.

Since both the appeals are directed against the judgment and order of acquittal passed by the trial court, both the appeals are clubbed and heard together.

The case of the prosecution in brief is that accused No. 2 being the wife of the complainant/PW-1 developed intimacy with accused No. 1 who was working with accused No. 2 in the same company M/s. Cbay Systems (India) Pvt. Limited; since there was no harmony between the complainant and accused No. 2 in the marital relationship, accused No. 2 wanted to part with the company of the complainant and marry accused No. 1; accused No. 2 having felt that the complainant was hurdle for their marriage, planned with accused No. 1 to do away with the life of the complainant(PW-1), they engaged the services of accused Nos. 3 and 4 for assaulting the complainant (husband of accused No. 2); accordingly, at about 7.30 a.m. on 1.9.2008, when the complainant had been to morning walk, at Goodwill Apartments, Chandra Layout, accused Nos. 3 and 4 assaulted the complainant with club and ran away on Yamaha motor cycle. The wound certificate Ex-P9 discloses that the victim/PW-1 has sustained fractures.

The complaint was lodged by PW-1 at 1.30 p.m. in the hospital on 1.09.2008 before the Sub-Inspector of Police-PW-11 of Chandralayout police station as per Ex-P1, which came to be registered in Cr. No. 178/2008. PW-11-Investigating Officer completed the investigation and laid the charge-sheet.

In order to prove its case, the prosecution in all examined 13 witnesses and got marked 15 exhibits and one material object. One exhibit was got marked on behalf of the accused. On hearing, the trial court acquitted the accused.

After taking the Court through the material on record, Sri. P.N. Hedge, learned counsel appearing on behalf of the victim drew the attention of the Court to certain observations made by the trial court in para 18 and 19 of its judgment which run contrary to the actual facts. By raising preliminary point, Sri. Hedge prays the Court to remit the matter to the trial court for deciding the question as to the admissibility to the extra-judicial confessional statement allegedly made by accused No. 1 in the form of a document dated 23.5.2009.

Learned Advocates for the contesting parties as well as learned Addl. SPP argued on the preliminary point raised by the victim.

It is the case of the prosecution that accused No. 1 during the course of investigation, having felt that he has committed fault in participating in the crime, allegedly gave a letter/document dated 23.5.2009 in his office in the presence of PWs-5 and 6, making it clear he has committed fault and that he may be excused. The Photostat copy of the letter dated 23.5.2009 was produced alongwith the charge-sheet by the police. However, at the time of marking the document, objection was raised by the defence advocate regarding the admissibility of the document that the original letter dated 23.5.2009 is not produced and therefore the photostat copy cannot be marked. The trial court however did not decide the question as to the admissibility of the said document. It had kept the question of admissibility open to be decided by it at the time of deciding the case finally. However, while writing the judgment, the trial court appears to have missed the aforementioned facts and observed that no such confessional letter is produced before the Court alongwith the charge-sheet by the police. In para 18 and 19 of the judgment of the trial court (relevant portion), it is observed thus:-

"Further, this witness admits in the cross examination, that his wife was staying in the house alongwith his parents till 2008. It shows that accused No. 2 was residing with her parents-in-law, even as on the date of the alleged incident. If that is true, her having intimacy with accused No. 2 and involvement with accused Nos. 2 to 4 in the commission of the alleged offences, become doubtful. Moreover, the parents of PW1 and the maid servant of their house, have not been examined to prove the allegation of illicit intimacy of accused No. 2 with accused No. 1. However, it is elicited from the mouth of P.W.1 that his wife had also filed a dowry harassment case against him and also a petition u/s. D.V. Act wherein some amount of maintenance was also awarded in her favour. He further admits that his wife had also filed a suit at family court for restitution of conjugal rights. He has filed divorce petition against his wife. Further, P.W.1 states that in one of his complaints, he has mentioned the names of witnesses who have witnessed the incident. Further if really, PW-1 had suspicion against his wife as to her involvement in the commission of alleged offences, he would have alleged the same against his wife in Exh.D1 which is filed on 22.1.2009. Further, though the complaint is registered on 03.09.2008, accused Nos. 3 and 4 have been arrested in the month of June 2009 i.e., after a lapse of 10 months. Admittedly accused Nos. 3 and 3 are unknown to PW1. No test identification parade is conducted in the case of hand. Further, the evidence of this witness does not establish the motive and intention for the alleged incident, because as per the case of prosecution accused Nos. 1 to 4 had hatched a plan to eliminate P.W.1 who was a hurdle for the marriage of accused No. 2 with accused No. 1. If that is true, accused No. 2 would have straight away given her consent for divorce petition filed by PW-1 i.e., her husband. So, this itself shows that there was no motive and intention for accused No. 2 to instigate and engage accused Nos. 3 and 3 for commission of alleged offences. Furthermore, though it is stated by PW 1 that accused No. 1 had executed a confessional letter which amounts to extra judicial confession, no such confessional letter is produced before court alongwith charge sheet. The letter alleged to have been written on a stamp paper by accused No. 1 admitting his guilt and his involvement with other accused, is not produced before Court.

So, absolutely there is no material to show that accused No. 1 gave extra judicial confession by virtue of executing a apology letter on the stamp paper. Therefore, the evidence of PW-1 itself cannot be relied upon to believe that accused No. 2 had illicit relationship with accused No. 1 and for this reason, they had hatched a plan with other accused for commission of offence alleged. Therefore, in view of all these material inconsistencies, as observed above, the evidence of PW-1 does not inspire the confidence of this court to believe that accused No. 3 at the instigation of accused Nos. 1 and 2 went near the house of PW-1 alongwith accused No. 4 and made an attempt to commit his murder by causing injuries with M.O.1. Further more, it is simply written in Exh.P1 that two unknown persons had come on Yamaha 250 motor bike and one of them had worn an earring. But, there is no material to show tat either of the accused Nos. 3 and 4 wore any such earrings. Further, the seized motor bike is not Yamaha 250 make, but it is a Bajaj Kawasaki motor bike. So, the use of such motor bike as per Exh.P4, is also doubtful. As such, the involvement of accused No. 3 and 4 in the commission of offences, is also doubtful. Further, PW-1 clearly states in the chief examination at para 3 that accused No. 4 ad assaulted him with M.O.1 and accused No. 3 was simply sitting on the black color motor bike. But the very PW-1 in the 2nd breathe at para 11, states that he identified accused No. 3 in the police station on 26.08.2009 as the assailant and further identified accused No. 4 in the police station on 07.10.2009 as the rider of black color motorbike. So, the involvement of accused No. 3 and 4 is doubtful, in view of the inconsistent version, stated by P.W.1. So these circumstance create doubt as to the occurrence of alleged incident. Therefore, on careful evaluation of the evidence of PW1 coupled with the contents of Exh.P1 and 3, it can be said that his evidence itself is not sufficient to believe the case of prosecution and to hold the accused guilty."

(emphasis supplied)

The preliminary question raised by Sri. P.N. Hegde before the Court is as under:-

"a. Whether the trial court is justified in making the observations that the letter allegedly written by accused No. 1 on the stamp paper by accused No. 1 admitting his guilt(amounting to extrajudicial confession found in writing) was not produced before the Court alongwith charge-sheet?;"

The trial court while recording the evidence of PW-1/complainant has recorded thus:-

Sri. Hegde, learned counsel for the victim submits that the observations made by the trial court in the course of judgment are contrary to the factual aspects and therefore the matter needs to be remitted to the trial court.

As aforementioned, in para 10 of the deposition of PW-1, it is clearly recorded by the trial court that the photostat copy of the document dated 23.5.2009 is produced before the trial court alongwith charge-sheet and defence counsel has raised objection to mark the said document. PWs-5 and 6 who are the witnesses for the said document have supported the case of the prosecution by deposing that the said document was written by accused No. 1 in their presence in the office of accused No. 1 and they have also signed the said document as witnesses. It is relevant to note that PWs-5 and 6 were also co-employees of accused No. 1 and 2 during the relevant point of time. I.O.(PW-11) has also deposed before the Court (see para 4 of his deposition) that the photostat copy of the extra-judicial confessional statement of accused No. 1 is produced alongwith the charge-sheet. The learned defence counsel also fairly admits that photostat copy of the said document dated 23.5.2009 was produced by the police alongwith charge-sheet before the trial court.

Inspite of such admitted facts, the trial court in its judgment (para 18 and 19 mentioned supra) has curiously observed that no such confessional statement is produced before the Court alongwith charge-sheet and that the letter allegedly written on the stamp paper by accused No. 1 admitting his guilt and his involvement with other accused is not produced before the Court. It is also mentioned that absolutely there is no material to show that accused No. 1 gave extrajudicial confession by executing an apology letter on the stamp paper.

Thus we are of the clear opinion that the observations made by the trial court in paras 18 and 19 of its judgment run contrary to the factual aspects. The trial court in all fairness ought to have decided the admissibility of the said document dated 23.5.2009 while writing the judgment. Without deciding the admissibility of the document (which is a vital material relied upon by the prosecution) the trial court has erroneously observed that no such letter is produced by the police alongwith charge-sheet. Such observations of the trial court were uncalled for.

In view of the above and as we find that the said confessional statement in the form of letter dated 23.5.2009 (if is admissible) given by accused No. 1 may play important role in this matter, we deem it proper to remit the matter to the trial court with a specific direction to decide the question relating to the admissibility of the said document.

Accordingly, the following order is made:-

"a. The impugned judgment and order of acquittal dated 23rd December 2010 in S.C. No. 61/2010 stands set-aside.

b. The trial court is directed to decide the question of admissibility of the extrajudicial confessional document dated 23.5.2009 (photostat copy containing the alleged confessional statement of accused No. 1) and thereafter proceed to pass final judgment. In case if the trial court holds that the said document is admissible in law, then opportunity will have to be given to accused to explain the document and to lead evidence on their behalf, if they so choose.

c. We clarify that it is not open for the prosecution to lead further evidence. The evidence let in by the prosecution already on record needs to be taken into consideration while writing the judgment."

The appeals are allowed and matters are remitted accordingly.

We place on record the services rendered by learned Amicus Curiae Sri. Sudhakar Pai, who appeared on behalf of respondent Nos. 3 and 4 and assisted the Court. His Honorarium is fixed at Rs. 7,000/-.