Sri J.K. Mooga vs State of Karnataka

Though Mr. S.R. Khamroz Khan, learned Counsel is a panel advocate of the Legal Services Authority, we have requested him to assist the Court as Amicus Curiae also. Hence, Mr. S.R. Khamroz Khan assisted the Court as Amicus Curiae. This appeal is filed by the convicted accused questioning the judgment and order of conviction dated 05.09.2007 passed by the Fast Track Court, Kodagu in S.C. No. 72/2006. By the impugned judgment and order, the Trial Court has convicted the accused u/s 302 of IPC and sentenced him to undergo imprisonment for life.

Case of the prosecution in brief is that the accused was working in the Forest Department and residing in the Forest Quarters at Moorkal, Nagarahole National Park. The deceased Parvathy, wife of the accused was residing with the accused. There used to be frequent quarrels between the couple. Both of them used to consume alcohol and quarrel. On the relevant night i.e., on the intervening night between 18.05.2006 and 19.05.2006, there was a quarrel between the accused and the deceased under the influence of alcohol. Murder of the deceased took place during the said night. On the next day morning at about 6.00 a.m. the accused locked the front door of the house and left the house. PWs. 3 and 5, neighbours of the accused and the deceased, saw accused going away from the house after locking the door of the house. On 19.05.2006 the accused did not attend to his work. PWs. 3 and 5 went near the house of the deceased and peeped through the window and saw some person sleeping inside the house covered fully with the blanket. Immediately, they informed PW 6 Kiran Kumar, who is the Range Forest Officer. PW 6 also visited the house of the accused and found that the door was locked. He also saw through the window. Inspite of calling loudly, the said person did not wake up and talk. Since the accused did not attend the office on 19.05.2006 and as PW 6 found that the person who was sleeping in the house did not wake up, he informed to the office through wireless. He also informed the incident to PW 17 (brother of the deceased) who is also working in the Forest Department. At about 4.30 p.m. the police visited the house of the accused and found Parvathy dead, having suffered injuries. Thereafter. PW 17 lodged the complaint as per Ex. P13. Based on the complaint. Crime No. 17/2006 was registered in Kutta Police Station. The accused was arrested on 20.05.2006. Till then, the accused was hiding in the forest. Police, after completion of the investigation, have laid the charge sheet against the accused for the offence u/s 302 IPC.

During course of trial, the prosecution in all'' examined 17 witnesses and got marked 14 exhibits and 9 material objects. A portion of the statement of PW 12 is marked at Ex. D1. The Trial Court upon hearing and on considering the material on record, convicted the accused for the offence u/s 302 of IPC.

Sri S.R. Khamroz Khan, learned Amicus Curiae submits that the versions of the prosecution witnesses bristle with contradictions and consequently, the case of the prosecution does not deserve to be believed: the evidence of PW 12 reveals that he was deputed to search for the accused on 18.05.2006 itself and not on 19.05.2006: in view of the same, it is clear that the information about the death of the deceased was reached on 18.05.2006 itself and the police were put into action on 18.05.2006 itself: such first version received by the police on 18.05.2006 is suppressed by the prosecution; there is variation in the evidence of the forest officials and police officials with regard to entering the house of the accused after the incident in question; the CPI PW 14 has deposed that he had entered the house from hind door on the evening of 19.05.2006. However, once again, he entered the house on 20.05.2006 along with the accused after opening the front door with the help of key possessed by the accused; PWs. 5 and 17 have deposed that they have entered the house by removing the roof tiles; whereas the evidence of PW 3 reveals that the police broke open the front door and opened the house on 19.05.2006. He further submits that the alleged recovery of M.Os. 9 and 10 lock and key is unbelievable, inasmuch as the recovery pancha PW 10 has not deposed about the seizure of the lock and key under mahazar Ex. P5. For all these among other grounds, he prays for acquittal of the accused.

Sri N.S. Sampangi Ramaiah, learned Addl. SPP argued in support of the case of the prosecution. He submits that the circumstances relied upon by the prosecution are proved and since the prosecution has proved the chain of circumstances which unerringly point to the guilt of the accused, the Trial Court is justified in convicting the accused.

PW 1 is the mahazar witness for the seizure panchanama Ex. P1, under which the blanket covering the dead body was seized.

PW 2 also has spoken about the same mahazar Ex. P1.

PW 3 is the neighbour, who saw the dead body and informed PW 6 immediately thereafter. He further saw the accused going away from the house. Though PW 3 is treated hostile by the prosecution, on a single point, the evidence of PW 3 fully supports the case of the prosecution in all other respects, particularly in respect of seeing the accused going away from the house in the early hours of 19.05.2006.

PW 4 is the woman Police Constable who kept watch on the dead body and handed over the dead body to the concerned after post mortem examination.

PW 5 is another neighbour of the deceased. He has deposed about the frequent quarrels and the quarrel that took place on the night of 18.05.2006. He has further deposed that he has seen the accused going away from the house in the early hours of 19.05.2006.

PW 6 is the Range Forest Officer, who visited the spot on getting the information from PW s 3 and 5. He informed about the death to PW 17, the brother of the deceased.

PW 7 is the clerk in the Range Forest Office. PW 6 informed PW 7, to intimate the police. Accordingly, PW 7 took the mobile phone of a tourist and informed about the death to police at about 3.00 p.m. on 19.05.2006.

PW 8 is another Range Forest Officer who has deposed that the accused has not attended to duty and that he is residing in the Forest Quarters. He has issued a certificate as per Ex. P3 stating that the accused was residing in the quarters.

PW 9 is the Secretary of Nittur Gram Panchayat, who has issued the certificate as per Ex. P4 stating that the accused and the deceased were residents of the Ane Kavadi Village.

PW 10 is the mahazar witness for seizure panchanama Ex. P5, under which M.Os. 6, 8 and 9 were recovered. The voluntary statement of the accused is marked at Ex. P6. However. PW 10 has not deposed about the seizure of M.Os. 8 and 9. He restricts himself to the recovery and seizure of M.O. 6 the iron rod used for commission of the offence.

PWs. 11, 12 and 13 are the Police Constables who participated in the investigation at various stages. PW 14 is the Inspector of Police who filed the chargesheet after completion of the investigation.

PW 15 is the Doctor who conducted the post mortem examination. The post mortem report is at Ex. P7. The opinion of the Doctor relating to use of iron rod is at Ex. P8.

PW 16 is the PSI who registered Crime No. 17/2006 based on the complaint lodged by PW 17. He has sent FIR to the jurisdictional Magistrate as per Ex. P14.

PW 17 is the younger brother of the deceased. He has lodged the complaint as per Ex. P13. He came to the spot after receiving wireless message from PW 6.

The case rests on circumstantial evidence. The circumstances relied upon by the prosecution are as follows:

a) Frequent quarrels between the accused and the deceased after consuming liquor. On the date of the incident also, quarrel ensued between the couple in the matrimonial house during night. The said circumstance is deposed by PWs. 3 and 5.

b) PWs. 3 and 5 saw the accused going away from the house at about 6.00 a.m. on 19.05.2006 after locking the door of the house. The incident has occurred during the intervening night between 18.05.2006 and 19.05.2006.

c) The death has occurred in the matrimonial house of the accused and the deceased. The house is a Government quarters situated in the forest area.

d) Except the accused and the deceased, none resided in the matrimonial house. No evidence is forthcoming to show that somebody had entered the house during the intervening night between 18th and 19th of May 2006.

e) The accused did not attend to the duties on 19.05.2006. He was absconding till 20.05.2006 and he was hiding in the forest area. He was arrested by PW 12 Police Constable.

f) Recovery of M.O. 6 iron rod. M.O. 8 lock and M.O. 9 key at the behest of the accused.

The defence of the accused is that of alibi. According to the accused. he was not present in the house when the incident took place, inasmuch he had gone deep inside the forest in search of a missing elephant and did not come to the house for two days from the morning of 18.05.2006.

It is now settled law that in case of circumstantial cadence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie.

We have scrutinised the evidence keeping in mind the aforementioned settled legal position. While appreciating the circumstantial evidence, we are of the opinion that if the prosecution is able to prove the circumstances mentioned above, then it is a fit case to confirm the judgment and order of conviction.

Admittedly, PWs. 3 and 5 are neighbours of the deceased and the accused. PW 5 has categorically deposed that there used to be frequent quarrels between the couple every day after consuming liquor. He has further deposed that accused and deceased only were residing in the quarters of the accused. On 18.05.2006 at about 7.00 p.m. he heard the quarreling sounds of the accused and the deceased. On the next, day morning i.e., on 19.05.2006 at about 6.00 a.m. he saw the accused going away from the house after locking the door. On 19.05.2006, the accused did not attend to the office. In the cross-examination, he has reiterated that he saw the accused going away from the house in the morning of 19.05.2006. A suggestion is made to PW 5 that whenever the tamed elephants do not come back to the camp, the mahouts including the accused and PW 5 go in search of such missing elephants in the forest for 2-3 days. PW 5 admitted the said suggestion. However, he has added that the accused did not go in search of a missing elephant during the relevant night or during the previous and next day and night. Nothing is suggested to disbelieve the version of PW 5 with regard to the frequent quarrels between the accused and the deceased. So also, the evidence relating to the accused going away from the house in the morning of 6.00 a.m. on 19.05.2006 after locking is also reaffirmed in the cross-examination. The evidence of PW 5 is supported by the evidence of PW 3.

PW 3 has deposed that there used to be frequent quarrels between the accused and the deceased after drinking liquor; that the accused alone was residing with the deceased and no other person was residing in the said house. He has further deposed that he saw the accused going away from the house at about 6.00 a.m. after locking the front door and on 19.05.2006 the accused did not attend his office Thus the evidence of PW 3 fully supports the evidence of PW 5 in all material aspects. However, he has deposed in the examination-in-chief that he has not seen the accused and the deceased quarreling with each other personally in the house. Only for the purpose of getting clarification in that regard, he was treated hostile by the prosecution and was cross-examined by the Public Prosecutor. In the cross-examination. PW 3 admits that he has stated before the Police that on 18.05.2006 at about 7.00 p.m. he heard the quarreling sounds of the accused and the deceased.

We find that the evidence of PWs. 3 and 5 fully supports the case of the prosecution. The material clearly reveals that the quarrels used to take place between the couple frequently, and on the date of the incident also at about 7.00 p.m. the quarrel did take place between the two. As aforementioned, the incident has occurred during the night intervening between 18.05.2006 and 19.05.2006.

So also the prosecution has proved the circumstance relating to the accused going away from the house at 6.00 a.m. after locking the front door of his house. Both PWs. 3 and 5 have categorically deposed in support of the said circumstance. Nothing is brought out in the cross-examination so as to discard or disbelieve their evidence.

It is not in dispute that the death has occurred in the matrimonial house. It is also not in dispute that no other person except the accused and the deceased were residing in the house in question.

So also the accused has not disputed the fact that he has not attended the office on 19.05.2006. The evidence of PWs. 6 and 8, the officials working in the Forest Department and the Range Forest Officer clearly reveal that the accused did not attend the office on 19.05.2006 i.e., after going away from the house in the morning of 13.05.2006 His whereabouts were not known. He was arrested on 20.05.2006 by PW 12 Police Constable. The accused was hiding in the forest. The suggestion was made to PW 6 that whenever the mahouts find that the elephants are missing, they go inside the forest in search of the elephants for 2-3 days and will return back to the office. The Range Forest Officer has admitted that the mahouts would go in search of missing elephants, but he has added that the mahouts would go along with the team of other tamed elephants to bring back the missing elephants.

PW 6 has also deposed that the accused did not go in search of the missing elephants during the relevant period. Thus the abscondance of the accused for about two days is proved by the prosecution, inasmuch as there is no reliable material to show that the accused had been to the forest in search of the elephants. There is no reason as to why the accused should keep away from the house on 19.05.2006.

After securing the presence of the accused on 20.05.2006, his voluntary statement was recorded as per Ex. P6. Based on the voluntary statement, the accused was taken to the place where he had hidden the iron rod M.O. 6 used for commission of the offence. The place of hiding is shown by the accused and consequently M.O. 6 the iron rod is recovered at the behest of the accused. The recovery mahazar is drawn as per Ex. P5. The mahazar witness is PW 10. He has deposed in support of the case of the prosecution to the effect that the accused brought the police and panchas to his house and showed the place where he had hidden the iron rod, which was used by him for commission of the offence. Thereafter, the weapon was seized under the panchanama Ex. P5. Thus the recovery of M.O. 6 iron rod is proved by the prosecution.

However, no reliable material is placed on record with regard to the seizure of M.Os. 8 and 9 lock and key of the house of the accused. Though the Investigating Officer PW 14 has deposed that the accused has produced the key of the house also and the same was seized under the mahazar Ex. P5, the mahazar witness PW 10 does not depose about the seizure of M.Os. 8 and 9. Thus in our considered opinion, the prosecution has not proved that M.Os. 8 and 9 i.e., lock and key of the house were seized under the mahazar Ex. P5 at the behest of the accused.

From the aforementioned material on record and the discussion, it is clear that the prosecution has proved all the circumstances beyond reasonable doubt. PWs. 3 and 5 have deposed about the frequent quarrels between the accused and the deceased and about the accused going away from the scene of offence at about 6.00 a.m. on 19.05.2006 after locking the door. The accused absconded for about two days and he did not attend to duties on 19.05.2006. He was found hiding in the forest and was arrested by PW 12 on 20.05.2006. The recovery of the weapon used for commission of the offence is also proved, in view of the evidence of PW.10 coupled with the mahazar Ex. P5.

Since all the circumstances as put forth by the prosecution are proved, the Trial Court is justified in holding that the accused is guilty of the offence for which he is charged. All the incriminating facts and circumstances are fully established by cogent and reliable evidence. The facts so established are consistent with the guilt of the accused and are not capable of being explained away on any other reasonable hypothesis than that of the guilt of the accused. The circumstantial evidence unmistakably point to one and only conclusion that the accused person and none other perpetrated the alleged crime. The circumstances proved in this particular case are not inconsistent with the innocence of the accused.

In view of the same, the judgment and order dated 05.09.2007 passed in S.C. No. 72/2006 by the Fast Track Court, Kodagu, is just and proper. Under the facts and circumstances, no interference is called for. Accordingly, the appeal stands dismissed. We place on record the valuable assistance rendered by Sri S.R. Khamroz Khan, learned Amicus Curiae. In recognition of his services, he shall be paid Rs. 7,000/- as honorarium.