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Judgment
K. Sreedhar Rao, J.—The material facts of the case of the prosecution is that one Anand is the deceased. Appellants 1 to 4 are the accused before the trial court (for sheet A1 to A4). A-2 died during pendency of the appeal. Hence the appeal filed by A-2 abates. A-1 is the nephew of PW 14 There was proposal of marriage of Kalyani with A-1. Since there was heavy dowry demand, the alliance did nor come through. Later on, Vishnuvardhan Rao-PW 14, father of Kalyani fixed the marriage of his daughter - Kalayani with the deceased. The betrothal function was held, A-1 was bearing grouse against the deceased since he was getting married to Kalyani. On 16.5.01, the deceased took his aunt PW 2 on a motor cycle to give drop to her house at 9.00 pm and thereafter, he did not return and was found missing. The motor cycle was found at STD booth of PW 18. One Anjanappa - PW 15 is the father of the deceased. He made extensive enquiries to trace the whereabouts of his missing son, but is of vain. PW 15 lodged the missing complaint before the police on 18.5.01 to the effect that the deceased was last seen by one Babu - PW 18 who is a boy working in STD booth. The deceased had gone to STD booth and had made some telephone calls. Thereafter he said to have gone away and found missing.
On 21.5.01, PW 15 gave another complaint suspecting that A1 to A3 and two others have abducted the deceased and kept in illegal confinement. Later on, the dead body was found floating in the river. The said foot was reported to the police. PW 15 has identified the dead body as that of his missing son. The inquest is held, A1 and A2 were arrested on 24.5.01. A3 and A4 are arrested on 30.5.2001, At the voluntary instance of A-3, plastic rope- MO6 was recovered which is said to be used for strangulating the deceased. The PM report discloses that the death is due to asphyxia as a result of strangulation.
In the course of Investigation, it is found that PW 18 had last seen the deceased at the STD booth where he made some telephonic calls and thereafter, some unknown persons came and took away the deceased. One Shivabasappa - PW 9 is said to be the driver of Tata Sumo in which the deceased was abducted and killed. PW 9 is the eye witness for the abduction and killing. The accused is charged for committing the offences U/Ss 364, 302, 201,. 506 r/w Section 34 IPC.
The prosecution has relied upon the following circumstances to prove the guilt of the accused:-
a) The motive that A.1 was bearing grouse against the deceased for getting married to Kalyani. A2 to A4 are friends of A-1 and his sympathisers in the cause.
b) A1 to A4 abducted the deceased in Tata sumo belonging to PW 11. PW 9 is said to be the driver of Tata sumo. The deceased while being taken by the accused, he was throttled and killed and dead body was thrown in the river. PW 9 was threatened not to disclose the information. Therefore, he had meekly accompanied the accused as per their dictates and also did not reveal the fact to any body until the police interrogated him.
c) PW 18 - Babu is said to be the working in STD booth who has last seen the deceased when he made telephonic calls and thereafter, two persons came and took away the deceased. The said two persons are identified as A3 and A4 in the Court.
d) The PM report discloses that the death is homicidal.
e) PW 15, father of the deceased given evidence with regard to marriage of the deceased - Kalyani and also regarding missing of the deceased and lodged the complaint to the police as per Ex.P16 and missing complaint as per Ex.P 17 respectively. PW 14 is the lather of Kalyani and he has given evidence to the effect that the marriage of the Kalyani with the deceased was engaged and betrothal function was also held. He also states that earlier proposal of marriage of Kalyani with A-1 did not materalise because there was heavy demand of dowry. So A-1 was bearing grouse against him as well as against the deceased.
f) Recovery of plastic rope - MO 6 is of no consequence because the body was totally decomposed and there was no scope for matching MO 6 with the legature mark on the neck.
PW 9 has given evidence to the effect that he was the driver of Tata Sumo, The accused abducted the deceased in Tata sumo and strangulated and killed him and he has been abducted from place to place and ultimately the dead body was thrown in the river and he is witness for commission of murder. PW 18 is the boy working in STD booth. His evidence discloses that on the night of 16.5.01 at 9.00 p.m. the deceased made telephone calls and later on two persons took him away and thereafter, he identified A3 and A4 in the Court. His evidence discloses that the death is homicidal. The Trial Court on the basis of the above evidence, has convicted A1 to A4 for the offence with which they were charged. The convicted accused are in appeal.
Sri R.B. Naik, Sr. Counsel for the appellants - accused strenuously pointed out the following discrepant circumstance to assail the order of conviction.
i) The evidence of PW 13 is to the effect that he had last seen the deceased. After telephone calls, A3 and A4 came and took the deceased with them on 16.5.01 at 9.00 p.m. His evidence cannot be believed because A3 and A4 are strangers to PW 13. The police have not conducted any TI parade to lend credibility to his version.
ii) In the complaint lodged by PW15, there is clear mention of the fact that PW 15 went and made inquiries with PW 18. But he only states that the deceased made two telephone calls and later on went, away. There is no mention of fact of A3 and A4 taking away the deceased. Non-mention of the said fact in the FIR dents the credibility of version of PW 18 with regard to last seen circumstance testified by him.
iii) The evidence of PW 9 - driver of Tata sumo is concocted and artificial. In the inquest report, in column No. 5, it is mentioned that the deceased was last seen alive by the accused person''s and one Shivkumar driver of Tata Sumo in question.
iv) P.W.11 Venktesh Shetty who is owner of Tata Sumo has testified to the effect that Shivkumar is a driver of his Tata Sumo, whereas the prosecution has projected one Shivbasappa - P.W.9 as the driver of Tata Sums. P.W. 11 has been wrongly treated as hostile because his evidence is consistent with the earliest version in the inquest discloses that Shivkumar is a driven Therefore P.W.9 is not a driver of Tata Sumo and he is a concocted witness.
v) The conduct of P.W.9 is doubtful to be believed because the accused abducted the deceased in Tata Sumo in night of 16/05/2001, the accused persons strangulated the deceased and thrown the deceased in the river. PW 9 states that he took the accused in Tata sumo from place to place and he did not raise any objection. His evidence also discloses that he has passed through the police stations of Bellary, Sirugupa and Sindanur. PW 9 does not make any attempt to stop the vehicle and report the matter to the police. The statement of PW 9 is recorded belatedly on 30.5.01. In fact, PW 9 is not the driver of Tata sumo in question and it was Shivkumar. The prosecution has not cited and examined Shivkumar who is driver of Tata sumo in the inquest and as per version of PW 11.
In view of the above discrepant material in the evidence of PW 9 and PW 18, It was strenuously argued that their evidence, cannot be believed and they are the concocted witnesses.
It is admitted by PW 9 in his evidence that he was kept in detention by she police before his statement U/s 164 (5) Cr.P.C. was recorded by the Magistrate, The statement given by PW 9 is obviously while he was under duress. The evidence of PW 9 if read closely, it suggests that he is an accomplice. It is evident that he was kept in detention for about 2 days and compelled to give statement. In the context, the evidence of PW.9 cannot be believed. If the evidence of PW 9 and PW 18 is eliminated, the prosecution has only established the motive and that the death of the deceased is homicidal. The incriminating circumstance to connect the accused with the crime is not established. Therefore, the order of conviction recorded by the Trial Court is bad in law. The Trial Court has failed to appreciate evidence properly and has erred in placing reliance on the evidence of PW 9 and PW 18 while convicting the accused.
Sri A.R. Patil, learned Addl. SPP strenuously contended that the evidence of PW 18 and PW 9 is credible. PW 9 has stated that he was threatened and therefore, he did not reveal the fact, In the course of investigation, the statement of A.1 was recorded and the name of PW 9 is revealed. Therefore, the police were able to interrogate and record his statement. The prosecution has clinchingly established the motive, last seen circumstance of eye witness to murder and the death is homicidal. Thus, supported the judgment of conviction.
On carefully going through the submission made at the Bar and the evidence recorded, we find that the evidence of PW.18 with regard to last seen circumstance become doubtful to be believed because in the complaint lodged by PW 15 that there is mention that he did not make inquiries about the whereabouts of the deceased with PW 18, According to the FIR, the deceased after making telephone calls, went away. There is no mention of unknown persons taking the deceased with them in the FIR, The evidence of PW 18 discloses that after telephone calls, some unknown persons took the deceased with them. If really PW 18 is truthful, it should have been mentioned in the FIR. Therefore, the evidence of PW 18 with regard to circumstance of A3 and A4 caking the deceased, appears to be embellishment.
PW 18 has identified A3 and A4 in the Court. The IO has not conducted T1 parade to get A3 and A4 identified by PW 18 who were strangers at the time of commission of the offence.
With regard to evidence of PW 9, the earliest version available in the inquest discloses that it was Shivkumar who was driver of Tata Sumo and last seen the deceased along with the accused when they were travelling in Tata Sumo. The I.O has not cited and examined Shivkumar. PW 11 is the owner of the Tata Sumo. In his evidence, he states that Shivkumar was the driver of Tata Sumo and not PW 9. PW 11 has been treated as hostile. In view of the material in the inquest, it appears that the evidence of PW 11 that Shivkuamr is the driver cannot be rejected. That apart the conduct of PW 9 in remaining silent for more than 13 days till he was interrogated by the police, becomes doubtful to be believed. The Trial Court has failed to notice the above discrepancies in the evidence of PW 9 and 18. If the evidence of these two witnesses is eliminated, there is absolutely no evidence to connect the accused with the Crime. In that view of the matter, the order of conviction is bad in law and the same is set aside. The appeal is allowed. The accused are acquitted. The fine amount to be refunded to the accused appellants if deposited.