S.N. Mallesh vs The State of Karnataka

Mohan M. Shantana Goudar, J.

The judgment and order of conviction dated 31.07.2010 passed by Fast Track Court-III, Mayo Hall Unit, Bengaluru in S.C. No. 174/2006 is appealed against by the convicted accused.

The accused is charged and tried for offences punishable under Sections 302 and 201 of IPC. The trial Court convicted the accused for an offence punishable under Section 302 of IPC but has acquitted the accused of offence punishable under Section 201 of IPC.

The case of the prosecution in brief is that the accused and deceased were working as supplier and cashier of Om Shakthi Wine Stores owned by PW. 9 (Narasimhaiah); said Narasimhaiah (PW. 9) was also owning another wine shop under the name and style Samudra Wine Stores; upto 23.10.2005, the deceased worked as cashier in Om Shakthi Wine Stores and at that point of time the accused was supplier in the very wine store; on 24.10.2005, the accused informed PW. 9 over phone that deceased-Manjunatha @ Manjegowda has gone to his native place and hence a boy should be sent to Om Shakthi Wine Stores to work as supplier; PW. 9 inturn informed PW. 5 who was cashier working in Samudra Wine Stores to send a boy to Om Shakthi Wine Stores; accordingly one Ravi was sent by PW. 5 to Om Shakthi Wine Stores to work as supplier; said Ravi worked in Om Shakthi Wine Stores on 24.10.2005 and on the next day he did not go to Om Shakthi Wine Stores but he went to Samudra Wine Stores for work; PW. 5 thereafter deputed PW. 4 to work as supplier in Om Shakthi Wine Stores and accordingly PW. 4 worked in Om Shakthi Wine Stores on 25.10.2005 and 26.10.2005. It is further case of the prosecution that at night at about 10.30 p.m. on 26.10.2005, PW. 4 was paid Rs. 40/- by the accused for getting parcel food; accordingly PW. 4 went to Durga Hotel, wherein he met PWs. 5 and 6; PW. 4 informed PWs. 5 and 6 that the accused is in Om Shakthi Wine Stores and that he has requested PW. 4 to get the food parcel; while PW. 4 was taking food, PWs. 5 and 6 went to Om Shakthi Wine Stores and found that the door of the Wine Shop was closed, however T.V. as well as electric bulb were on; PWs. 5 and 6 came back to the place wherein PW. 4 was consuming food and informed him about aforementioned facts; thereafter PWs. 4, 5 and 6 once again went to Om Shakthi Wine Stores and they tried to open shutters of the wine shop. Since they could not open the shutters of the wine shop, they requested PW. 5 to enter into wine shop through rare side opening wherein exhaust fan was fixed; accordingly PW. 5 entered into the wine shop through a small opening measuring 1 ft. x 2 ft. by removing exhaust fan and on entering wine shop found the dead body in a plastic drum; being frightened PW. 5 came through the very opening of the rare side of the shop and informed PWs. 4 and 6 that he saw dead body of accused-Mallesha in the wine shop; accordingly PWs. 4 and 5 went to the police station; PW. 4 lodged complaint as per Ex. P2 before PW. 17 inspector of police attached to Banasawadi Police Station; FIR came to be prepared as per Ex. P16 and same was dispatched and Crime No. 367/2005 is registered based on the complaint. So the complaint was lodged at 2.30 a.m. on 27.10.2005. Thereafter, the police came to the spot at 3.30 a.m. on 27.10.2005 and drew mahazar i.e., scene of offence as well as inquest panchanama. Ultimately, Inspector of Police-PW. 17 led charge-sheet after completion of investigation.

In order to prove its case the prosecution in all examined 17 witnesses and got marked 20 exhibits and 19 material objects. The trial Court, as aforementioned on evaluation of material on record convicted accused for an offence punishable under Section 302 of IPC and has acquitted him of the offence punishable under Section 201 of IPC.

Sri. N.R. Krishnappa, learned counsel appearing on behalf of the appellant taking us through the entire material on record and judgment of the Court below submits that the major of the circumstances relied upon by the prosecution are not proved by it beyond reasonable doubt; since chain of circumstances is not complete, the benefit of the same should accrue to the accused; all the witnesses examined by the prosecution are interested witnesses and no independent witnesses are examined though the incident has taken place in the busy locality of Kammanahalli Mam Road, Bengaluru. Though one Ravi worked in the shop along with accused on 24.10.2005 and though he was available for examination before the Court he is not examined before the Court; Serology''s report is not produced and marked; door of the shop was locked from inside and therefore it is impossible for the accused to escape from the shop under those circumstances; the keys of the wine store are not seized; so also the cash and account books of the wine store are not proved by the prosecution. Under such circumstances, he prays for acquittal of the accused.

Sri. Chethan Desai, learned Government Advocate appearing for the State argued in support of the judgment of the Court below.

PW. 1 is the brother of the deceased. He is witness for inquest panchanama-Ex. P1. He identified the dead body as that of his brother. PW. 2 is the driver of the tempo. He also identified the dead body of the deceased. PW. 3 is the supplier of wine in another Bar. He knew accused and deceased. He is relative of the deceased and he identified the dead body. On 25.10.2005, he went to Om Shakthi Wine Stores, however he did not find the deceased in the said wine store; accordingly he informed the brother of the deceased (PW. 1) about the same. He has further deposed that accused told him (PW. 3) that deceased had gone to his native place which is ultimately found to be false. PW. 4 is the co-worker working with the accused during the relevant point of time i.e., 25.10.2005 and 26.10.2005. He lodged complaint as per Ex. P2. On the night of 26.10.2005, PW. 4 took Rs. 40/- from the accused, went to Durga Hotel wherein he met PWs. 5 and 6, inturn PWs. 5 and 6 were told by PW. 4 that accused alone was in the wine shop and accordingly PWs. 5 and 6 went to wine shop which was locked from inside the shop. Thereafter, PWs. 5 and 6 as aforementioned went back to Durga Hotel and brought PW. 4 along with them and thereafter they saw dead body. PW. 5 is the cashier in Samudra Wine Stores. Said wine store is also owned by PW. 9-Narasimhaiah. He went along with PWs. 4 and 5 to the Om Shakthi Wine Stores and entered wine shop through the exhaust fan window. He saw dead body first in point of time. Since he could not identified the face of the dead body, he told PWs. 4 and 6 that the accused was murdered; accordingly complaint came to be lodged by PW. 4 before the police station. PW. 6 is the friend of PW. 5. He also knew the accused and the deceased. His evidence is also on par with the evidence of PW. 5. PW. 7 is the father of the deceased. He identified the dead body of the deceased. PW. 8 is the classmate and relative of the deceased. He identified the dead body. He is witness for inquest panchanama-Ex. P1 as well as seizure panchanama-Ex. P3 under which MOs-4 to 11 are seized from the spot. PW. 9 is the owner of Om Shakthi Wine Stores. He has deposed that the deceased had worked as cashier with Om Shakthi Wine Stores and that he used to sleep in the wine store frequently. PW. 10 is the brother of the accused. He has deposed that, on being informed about lodging of the complaint by PW. 4 to the effect that the accused is murdered, he went to the wine shop and thereafter to Dr.Ambedkar Hospital, on seeing the dead body he found that the dead body is not of the accused. Further, he is treated as hostile witness by the prosecutor on certain other points. PW. 11 is the regular customer to the Om Shakthi Wine Stores. He had bought and brought scent bottles at the request of the accused to wine shop on 26.10.2005. He has also deposed that he did not see the deceased in Om Shakthi Wine Stores on 24.10.2005 and 25.10.2005. PW. 12 is the Doctor who conducted autopsy over the dead body. Post mortem report is at Ex. P11. PW. 13 is the witness for seizure of clothes of the deceased under Ex. P12. Such seizure panchanama was made on the spot. He is treated as hostile by the prosecutor on other aspects of the matter though he has fully supported the case of the prosecution with regard to Ex. P12. PW. 14 is the Engineer. He drew sketch of scene of offence as per Ex. P14. PWs. 15 and 16 were police constables, out of them PW. 15 arrested accused on 27.10.2005 from the house of Smt. Leelavathi (sister of accused) situated at Kyathanahalli village, Hassan District. PW. 16-police constable guarded the dead body in the hospital. PW. 17 is the Investigating Officer. He not only registered crime but also completed investigation and led charge-sheet.

The case rests on circumstantial evidence. There are no eye witnesses to the incident in question. According to the case of the prosecution, the incident has taken place during the midnight intervening between 23.10.2005 and 24.102.2005. However, the dead body of the deceased came to limelight only during the midnight intervening between 26.10.2005 and 27.10.2005. Thereafter, the complaint came to be lodged and proceedings were started.

The following circumstances are relied upon by the prosecution to prove its case against the accused.

A) Homicidal death.

B) The deceased and the accused only were working as cashier and supplier in Om Shakthi Wine Stores.

C) The accused and the deceased were sleeping frequently in the Om Shakthi Wine Stores.

D) The recovery of dead body of the deceased and the recovery of the clothes of the accused from Om Shakthi Wine Stores.

E) No explanation by the accused as to how the dead body came inside wine shop.

F) False explanation by the accused regarding the absence of the deceased in the wine shop.

G) The accused got the perfume bottles and phenyl from PW. 11.

H) Absconding of the accused.

Re. A) Homicidal death: The defence does not seriously dispute with regard to the homicidal death of the deceased. Even otherwise, we find from the post mortem report-Ex. P11 and the evidence of Doctor who conducted autopsy (PW. 12) that the death in question is a homicidal death. The doctor has deposed that the death was due to homicidal head injuries sustained by a blunt force. The face of the deceased was completely smashed. The dead body was having six grievous injuries and all the injuries were ante-mortem in nature. Thus, it is clear that the deceased suffered a homicidal death.

Re. (B) The deceased and the accused only were working as cashier and supplier in Om Shakthi Wine Stores: The fact that the deceased and the accused only were working in Om Shakthi Wine Store prior to the midnight on 23.10.2005 is also not seriously in dispute. It is not disputed by the accused that he was working in Om Shakthi Wine Stores during the relevant point of time, so also defence has not disputed that the deceased was working as cashier in the said wine shop. Even otherwise, from the evidence of PWs. 4, 5, 6 and 10, it is clear that the deceased and accused only were working in Om Shakthi Wine Stores as cashier and supplier during relevant point of time. PW. 9 is the owner of the shop. He has categorically deposed that the deceased was the cashier and that accused was the supplier in Om Shakthi Wine Stores.

Re. (C) The accused and the deceased were sleeping frequently in the Om Shakthi Wine Stores: The factum of the deceased and accused sleeping together in the shop frequently is deposed by PWs. 4, 5, 6, 9 and 10. From the evidence of these witnesses, it is manifest that usually accused and deceased were sleeping in the shop during the nights.

It is relevant to note that motive as projected by the prosecution that accused and deceased were homosexual friends, but the said aspect of the matter is not proved by the prosecution. However, the evidence of aforementioned witnesses makes it clear that the accused and the deceased were sleeping together in the shop frequently.

Re. (D) The recovery of dead body of the deceased and the recovery of the clothes of the accused from Om Shakthi Wine Stores: So far as circumstance relating to recovery of dead body from Om Shakthi Wine Stores is also not seriously disputed. Ex. P12 is the spot panchanama. The same makes it amply clear that the dead body was found in a plastic drum kept in the wine store. The evidence of PWs. 2, 9 and 10 further makes it clear that the dead body of the deceased was found in the wine store itself.

Re. (E) No explanation by the accused as to how the dead body came inside wine shop: Though the material on record makes it amply clear that the accused and deceased only were working in the wine shop during the relevant point of time and though the dead body was found in the wine shop, the accused has not explained as to how the dead body came inside wine shop and as to how the death has taken place. Per contra, the material on record clarifies that the death was suppressed by the accused for three days without being informed to anybody. The non-explanation of accused about existence of the dead body in the wine shop of which he alone was the custodian during the relevant point of time is an important circumstance staring at the accused. Neither from the cross-examination nor from his statement recorded under Section 313 of Cr.P.C. the accused is able to explain the circumstance under which the dead body was found in the wine store. Therefore, the trial Court is justified in concluding that the said circumstance is proved.

Re. (F) False explanation by the accused regarding the absence of the deceased in the wine shop: In addition to the non-explaining the circumstance relating to the existence of the dead body in the wine store, the accused has gone a step further to give a false intimation before his friends and the employer about the absence of deceased. The case of the prosecution that the accused informed PWs. 9, 4, 5, 6 and others that the deceased has gone to his native place on the night of 23.10.2005 and therefore an assistant is needed to him to work in the store from morning of 24.10.2005 is proved. Though the accused knew very well that the dead body of the deceased was in the wine shop itself, he has falsely intimated to PW. 9 that the deceased had gone to his native place.

The evidence of PWs. 3, 4, 5, 6 and 9 makes it amply clear that the accused gave false intimation as mentioned supra. PW. 9 has deposed that the accused informed him over phone in the morning on 24.10.2005 that the deceased has gone to his native place and therefore another boy should be sent for assistance as supplier. Accordingly, PW. 9 inturn requested PW. 5 who was working as cashier in Samudra Wine Stores to depute another person; accordingly PW. 5 deputed one Ravi to work in Om Shakthi Wine Stores on 24.10.2005; said Ravi seems to have worked on 24.10.2005 and thereafter PW. 4 was sent by PW. 5 on 25.10.2005 and 26.10.2005. The evidence of PW. 9 is supported by the evidence of PWs. 4, 5, 6 as well as the evidence of PW. 3. The evidence of these witnesses would clearly disclose that the accused falsely gave impression that the deceased was still alive though by that time he was dead. The false explanation given by the accused is another strong circumstance against him and the said circumstance is proved.

Re. (G) The accused got perfume bottles as well as Phenyl from PWs. 4 and 11: PW. 11 has deposed that he was requested by the accused to get the perfume bottles and the sprays. The accused gave Rs. 100/- to PW. 11 for purchasing the same. At that point of time, the accused told PW. 11 that deceased had gone to his native place and therefore he is not being seen in the wine store. On being asked by PW. 11 as to why foul smell is emanating from the wine shop, the accused gave false information that foul smell is emanating because of the death of rat and in order to over come such foul smell he needs scented spray. Accordingly, PW. 11 on the request of the accused went to a shop brought incense sticks and phenyl bottles for spraying in the wine shop. The evidence of PW. 11 is supported by the evidence of PW. 4. He has also deposed about this circumstance. There is no much cross-examination by the defence on these aspects of the matter to these witnesses. Therefore, the said circumstance is rightly held proved by the trial Court.

Re. (TO Absconding of the accused: The last circumstance is abscondance. The accused was found in the shop till night of 26.10.2005. At that point of time foul smell was emanating. PW. 4 was sent out of shop by the deceased on the night of 26.10.2005 on the pretext of getting food for him. When PW. 4 came along with PWs. 5 and 6, he saw that the door of the wine shop was closed and they could not open the door and at that point of time the accused was not found in the shop. Later, aforementioned PW. 5 went inside the shop through exhaust fan opening and saw dead body. The accused came to be arrested from the house of his sister situated at Kyathanahalli Village, Hassan District on 27.10.2005 i.e., on the next day. Though the period of abscondence is not much, it cannot be said that the said circumstance is not proved. If really the accused was innocent, there is no reason as to why he should go to the house of his sister situated at Kyathanahalli which is a far off place in a different district and hide there. From the night of 26.10.2005 he was not found till he was apprehended by the police. The accused has not given his explanation on this aspect of the matter also.

From the aforementioned discussion, it is clear that the prosecution has proved all the circumstances relied upon by it. The circumstances so proved will complete the chain of circumstances. Such proved chain of circumstances would lead to only hypothesis that the accused is guilty of offence punishable under Section 302 of IPC.

We find that the reasons assigned and the conclusion arrived at by the trial Court are just and proper. Hence, no interference is called for.

The appeal fails and the same stands dismissed.