Dismissed

The State by Circle Inspector v. Sri P.S. Ananda @ Ananda Kumar

Karnataka HC5 Jan 2024CRL.A/37/2018

Case brief

AI extract

What is this about?

State appeal against acquittal of three tenants for murdering their landlord over rent arrears. The court found the case rested on an unreliable extra-judicial confession before strangers; FSL reports were withheld, seizure witnesses turned hostile, and medical evidence showed strangulation while the alleged confession described hammer and brick assault. Acquittal confirmed and appeal dismissed, w

What did the court decide?

Appeal dismissed; acquittal dated 12.04.2017 in S.C.No.34/2010 confirmed; DGP/IGP directed to hold enquiry into investigation lapses and report within four weeks.

The State by Circle Inspector Vs Sri P.S… — Murder and Culpable Homicide | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JANUARY 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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CRIMINAL APPEAL No. 37 OF 2018

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BETWEEN:

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The State by Circle Inspector, Madikeri Town Circle, Represented by State Public Prosecutor, Bengaluru-560 001. ...Appellant

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(By Shri.B.N. Jagadeesha, Addl. SPP)

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AND:

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Sri. P.S. Ananda @ Ananda Kumar, Son of Setu, Aged about 37 years, Electrician work, R/o Chennangi Goodluru Village, Siddapura Kodagu District, Permanently R/at Kannammangalam Village, Velur Taluk, Thiruvannamalai District, Tamilnadu State – 638 182.

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Sri. P.S. Vijaya @ Vijayakumar, Son of Setu, Aged about 37 years, Electrician work,

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R/o Chennangi Goodluru Village, Siddapura Kodagu District, Permanently R/at Kannammangalam Village, Velur Taluk, Thiruvannamalai District, Tamilnadu State – 638 182.

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H.S. Kumari, Wife of P.S. Ananda Kumar, Aged about 30 years, Coolie Work, R/o Chennangi Goodluru Village, Siddapura, Kodagu District, Permanently R/at Didaga Village, Chennarayapattana Taluk, Hassan District - 573 116. …Respondents

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(By Sri. Manu Prabhakar Kulkarni, Advocate)

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This Criminal Appeal filed under Section 378(1) and (3) of Code of Criminal Procedure, praying to grant leave to appeal against the judgment and order of acquittal dated 12.04.2017 passed by the learned II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet in S.C.No.34/2010 acquitting the respondents/accused for the offence punishable under Sections 302, 201 read with 34 of IPC.

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This Criminal Appeal coming on for Further Arguments having been heard through Physical Hearing/Video Conference and reserved for Judgment on 16.11.2023, coming on for pronouncement, this day, UMESH M. ADIGA J., delivered the following:

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JUDGMENT bracket

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This appeal is by the State directed against judgment passed in S.C.No. 34 of 2010 on the file of II Additional District and Sessions Judge at Kodagu (hereinafter for short referred to as ‘Sessions Court’) dated 12-04-2017.

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The complainant - Police, that is, CPI -Madikeri Town Circle, charge-sheeted accused Nos.1 to 3 for the offences punishable under Section 302, 201, read with Section 34 of the IPC. The accused Nos. 1 to 3 pleaded not guilty. After holding the trial, the Sessions Court acquitted the accused of the above-said offences, by the impugned judgment. Being aggrieved by the same, State preferred this appeal.

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For the sake of convenience, we refer to the

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parties as per their rank before the Sessions Court.

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Brief facts of the case of prosecution are as under:-

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The accused No. 1 to 3 were tenants of deceased K.M. Hassan. The deceased was owner of coffee garden

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situated at Maldare in Chandangi-Gundlur village of Madikere district. Line houses are situated in the said land for occupation of labours of coffee plantation. Accused No. 1 and 2 obtained one of such line houses on lease (hereinafter for short referred to as place of incident). It is alleged that accused did not pay advance amount of deposit and monthly rent for a period of 7 to 8 months prior to the incident. In this regard, the relationship between accused and deceased was strained.

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It appears on the date of incident, it was informed to the deceased by the accused that they would vacate the said house and hand over the possession to deceased and accused told him to come to said house. To take possession of the said house from accused and also for harvesting coffee fruits, on 30.10.2009, at about 3.00 p.m., deceased went to the said coffee garden on his motor cycle. He approached accused Nos. 1 to 3 in the leased house and entered the house, wherein accused No. 1 to 3 were residing. It is alleged that accused No. 1 to 3 with an intention to murder deceased Hassan, assaulted him with

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hammer as well as brick and caused him fatal injuries, as a result of which, he succumbed to the said injuries and thereafter, the accused dragged the dead body from the said house and kept it about 20 meters away from the said house, in the coffee garden.

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It is further the case of the prosecution that neighbors of the said house, heard commotion from the said house; they also heard cry of Hassan for help. Someone intimated this fact to the complainant by name A.K. Hakeem (PW-4). Thereafter, P.W.4 along with PWs-6, 14 and 18 i.e. B.A. Samshu, Mohammad Ali and K.M. Hamsa went to the said garden land. They went to the place of incident. The door of the said house was closed and latched from inside. PWs-4, 6, 14 and 18 asked the inmates of the house to open the door. However, they did not open for a quite some time; thereafter, they opened the back door through which PWs.4, 6, 14 and 18 entered the house. They found the dress materials of the accused were having blood stains; blood spilled over the ground and

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it was mopped. They also saw a bucket containing red

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colour water. On repeated enquiry with the accused, they confessed that they assaulted Hassan with brick and hammer and caused his death. On further enquiry, they also confessed that they kept the dead body in the coffee garden of the deceased. Thereafter, the accused took the above said persons to the place, wherein they had kept the dead body. PW-4 in this regard lodged written complaint as per Ex-P10 to Siddhapura Police Station and on the basis of Ex-P10, PW-15, PSI and SHO of the police station, registered the case in Crime No. 147 of 2009 for the offences punishable under Section 302, 201, read with Section 34 of the IPC.

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It is further the case of prosecution that CW-42 H.C. Vasanth Kumar, CPI of Medikeri Town Circle had taken up further investigation. He arrested accused Nos. 1 to 3, drew the spot mahazar, mahazar of seizure of the articles, inquest on the dead body and sent dead body to Primary Health Centre, Siddhapura for post-mortem. CW30 Dr.Anand conducted the post-mortem examination and gave post-mortem report. After conclusion of the

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investigation, CW-42 submitted charge sheet to the JMFC Court, Virajpet, against accused Nos. 1 to 3 for the offences punishable under Section 302, 201 read with Section 34 of IPC.

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The learned JMFC has taken cognizance of the offence and registered it as the criminal case. The learned JMFC secured presence of accused; supplied copy of charge sheet and enclosures to them. The alleged offences are triable by court of Sessions, therefore, the learned magistrate committed the case to the Court of Sessions for trial. The Sessions Court Madikeri, after receipt of the charge sheet and enclosures, registered the case as SC.No.34 of 2010 and made over to II Additional District and Sessions Judge Court, Kodugu, Madikeri, sitting at Virajpet, for trial.

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The learned Sessions Judge secured presence of the accused. Heard the accused on charge and framed the charges for the offence punishable under Section 302, 201, read with Section 34 of IPC, read out and explained

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to accused. The accused Nos. 1 to 3 pleaded not guilty and claimed to be tried.

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Prosecution to prove its case had examined PW-

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1 to 21 and got marked Exs.P1 to 16 and properties at MOs

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1 to 7. On completion of evidence for prosecution, the learned Sessions Judge examined accused Nos.1 to 3 under Section 313 of Cr.P.C and their answers were recorded. The accused did not offer defence evidence when called upon. On behalf of the accused, Ex.D1 was marked.

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The learned Sessions Judge heard the

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arguments on both side and framed one point for determination as under:

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“Whether the prosecution proves the guilt

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of the accused beyond all reasonable doubt as levelled against them?”

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The learned sessions Judge on appreciating evidence

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and materials on record answered the said point in the negative and by impugned judgement dated 12-042017, acquitted accused Nos. 1 to 3 for the offences

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punishable under Section 302, 201, read with Section 34 of the IPC.

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The same is challenged by the State on the grounds mentioned in the Appeal Memo.

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We have heard the arguments of learned Additional State Public Prosecutor (herein after referred to as ‘Additional SPP’ for short) and learned advocate for accused.

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The learned Additional SPP has vehemently contended that accused have not disputed that they were tenants of the property belonging to the deceased. Even they have not disputed that, they did not pay advance as well as the 7 to 8 months rent to deceased. PWs-4, 6, 14 and 18 have gone to place of incident, within a short period from the time of occurrence of the incident. Both the side doors of place of incident was closed from inside and songs were played in high volume through tape recorder and nobody responded. After repeated requests, back side door was opened through which PWs-4, 6, 14 and 18

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entered inside the house and found that blood was spilled over the ground and it was mopped by accused No. 3 with a cloth and washed said cloth in the water kept in the bucket and its colour was red. On enquiry with the accused Nos. 1 to 3, “they confessed before all the four persons that they had assaulted the deceased with hammer and brick and caused his death. Thereafter, his dead body was kept in the coffee garden.” They showed the said place wherein dead body was kept. Thereafter, PW-4 lodged the complaint and on that basis, case was registered.

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The learned Additional SPP has further submitted that PWs-4, 6, 14, 18 have stated these facts in their respective evidence. Other witnesses are mahazar witnesses. In the cross-examination of material witnesses, nothing is brought out to disbelieve or discard their evidence. Unfortunately, CWs- 42 - Investigating Officer of this case was dead prior to trial, therefore, the prosecution was unable to examine him. The learned Additional State Public Prosecutor has further submitted that post-mortem report as well as inquest were marked with consent and

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accused did not dispute that the deceased had sustained injuries mentioned in post mortem report and he died due to the said injuries. Therefore, it is not in dispute that, death was caused due to injuries sustained by the deceased and it was a homicidal death. The learned Sessions judge has not considered these fact and without appreciating the evidence properly, acquitted the accused for the said serious offences. Therefore, prayed to allow the appeal and convict the accused for the offence punishable under section 302, 201, read with section 34 of IPC.

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The learned counsel for accused submitted that evidence of PWs- 4, 6, 14 and 18are not consistent. One person says, they entered the house from back door and another said they entered the house from front side and all the four persons have stated different version about the confession of accused. The alleged extra-judicial confession is not reliable and there are no other materials to connect the accused with the guilt.

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The learned advocate for accused further submitted that according to case of prosecution, the dead

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body was found in the open yard of the coffee garden of deceased and not from place of incident. Prosecution has not produced evidence to show that the alleged sample of red coloured water seized from the house of accused was containing human blood and that it was of the deceased. Merely post mortem report and inquest were marked with the consent does not mean that the accused have admitted their guilt. The accused have not disputed that Hassan was dead due to injuries or other reasons mentioned in the post mortem report, but they have not admitted that they have committed murder of deceased. Therefore, mere marking of the document is not sufficient to prove the case of prosecution. There are no evidence to show that accused had strangulated deceased.

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The learned advocate for the respondents further submitted that PWs-4, 6, 14 and 18 are not independent witnesses and none of the independent and probable witnesses were examined in this case, to prove the alleged incident. On the contrary, only the known persons, friends and relatives of the deceased were cited as witnesses and on the basis of said evidence, accused could

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not be convicted for such a heinous offence. With these reasons, the learned advocate for accused, prayed for dismissing the appeal.

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The following points emerges for our

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determination :

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(i) Whether prosecution proved beyond all reasonable doubt, that on 30.10.2009 between 4.30 p.m. to 5 p.m. in Maldhare of Chenangi, Gundlur village, accused Nos.1 to 3 in furtherance of a common intention, quarrelled with the deceased K.M. Hassan in respect of vacating house property, obtained by them on lease from the deceased and assaulted on the head of K.M. Hassan, with brick as well as hammer, and strangled him with an intention to murder him and caused his death thereby accused Nos.1 to 3 have committed an offence punishable under Section 302 read with section 34 of IPC ?

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(ii) Whether prosecution proved beyond reasonable doubt that on aforesaid place, date and time, accused Nos.1 to 3 in furtherance of a common intention murdered K M Hassan and with an intention to destroy the evidence, mopped blood spilled over the floor of the house and also removed the dead body from the house

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and thereby accused Nos.1 to 3 have committed an offence punishable under Sections 201 read with Section 34 of IPC.

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(iii) Whether finding of trial judge is erroneous and perverse and interference in the said finding is required?

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(iv) What order?

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The deceased Hassan was owner of coffee

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plantation/ coffee garden bearing survey number 1/271 measuring 0.85 acre situated in Maladare of Chennangi, Gundlur village and there were line of houses situated in the said garden, appears to be used by the labourers is not in dispute. Ex-P7 and 8 pertaining to said facts is marked with the consent. Ex.P1 is prepared by investigating officers

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in the presence of witnesses and Ex.P.6 was prepared wi th the help of police, by the Engineer of PW-D department. In Ex.P-6, place of incidence is shown in the coffee garden of the deceased, wherein dead body of deceased K.M.Hassan was said to be found. In Ex.P1, the description of the place of incident is shown as inside the house. PWs-1 and 2 are witness to Ex-P1 and both of them have turned hostile to the case of prosecution. Unfortunately, the investigating

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officer, who drew the said mahazar is reported to be dead. Hence discrepancy in the Ex.P1 and 6 is not properly explained. There are no sufficient materials to show that after murder of Hassan, his body was shifted to garden from the house. Therefore, the prosecution, failed to prove Ex-P1.

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19. The prosecution, to prove death of K M Hassan as homicidal death, conducted the inquest on dead body at the place, wherein the dead body was found as Ex.P-9 and got conducted post-mortem at government hospital, Siddhapur. CW-30 - Dr. Anand-Medical officer, Community Health centre, Siddhapur had conducted and obtained the post mortem report as per Ex.P5. Ex.P.5 and 6 were marked with the consent and hence, the relevant witnesses

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to the said documents were not examined by the prosecutor.

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In Ex-P9, the witnesses have observed some of the visible injuries found on the dead body. It also indicate seizure of the some articles relevant to the case.

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Ex.P5 - Post mortem report shows that deceased

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sustained following external injuries:

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1. Lacerated wound in the left side forehead near glabella measuring 2cm length x 0.5 cm breadth and bone deep with blood stain.

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2. A lacerated wound in the temporat(right) region 5cm above the right mastoid process measuring about 3cms length x 2cm breadth and bone deep with blood stain.

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3. An abrasion with reddish black colour in the right shoulder area measuring 3cm x 2cm in size.

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4. A lacerated wound with surrounding contusion area measuring 2cmx3cms in the right zygomatic area.

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5. An abrasion with reddish black colour in the right elbow joint posteriorly over the olecranon process measuring 6 cms length x 4cms breadth.

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6. An abrasion with reddish colour in the left elbow joint area at left epicondylar region of humerus measuring 5.5 cm length x 3 cm breadth.

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7. A contusion with blackish red colour in the right forehead measuring 2 cms x 4 cms size with swelling.

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8. Multiple linear scratched abrasions

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over back running from neck down to bullock.

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9. A linear abrasion in the left fore arm measuring 6cms x 4cms in size.

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10. A point abrasion in the right medial

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maleoles.

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11. An abrasion in the left shin bone area measuring 1 cm x 2 cms in size.

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12. A ligature mark with

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parchmentisation of skin from right side of neck below right ear lobule to 2cm lateral to midline in front measuring 14cms length x 1 cms breadth.

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13. A blackish red linear contusion marking running from the mid line in front of neck to left lateral side below left ear lobule measuring 8 cms length x 0.5cms breadth. internal examination of the neck showed extravasations of blood into the neck muscles on the right side beneath the ligature mark at two spots. And in the left side of neck beneath the contusion marks blood extravasation deep in the neck muscles at one spot.

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Rigorous Marks present in the upper and lower limbs.

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After dissecting the body, medical officer found injuries on Carnium and spinal canal noted in Ex.P.5. The medical officer after perusing of FSL report and post mortem findings, was of the opinion that, “death was caused due to asphyxia, as a result of strangulation”. Injury at serial number 12 and 13 mentioned above as the ligature mark found on the dead body.

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Excluding Ex.P-5, there were no material to show that Hassan was died of strangulation or to corroborate the same. The learned public prosecutor appearing before the Trial Court, could have examined the Medical Officer to explain regarding said ligature mark as well as the article of ligature for causing such mark. Hence it is not clarified by the prosecution. The Investigating Officer did not collect ligature materials and produced before Court to prove that the death of K.M. Hassan was caused due to strangulation. Death of K.M. Hassan as homicidal death is not seriously disputed. Ex.P.5 helps the prosecution to prove that death of K.M. Hassan is homicidal.

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Admittedly, this case is based on circumstantial

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evidence. Merely death of K.M.Hassan is not sufficient to

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believe that the accused had cased his death.

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Prosecution has to prove following circumstances to

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connect the accused with the said guilt:

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a. Accused obtained property belonging to deceased on lease and they were in arrears of advance as well as monthly rent for a period of eight months, prior to alleged incident.

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b. The accused did not pay the said arrears of rent as well as advance, due to which relationship between accused and deceased was strained.

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c. That on 30.10.2009, around 4.30 p.m. deceased went inside the house of accused Nos.1 to 3.

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d. There was commotion inside the house of accused which could be audible to neighbors and the neighbors over hearing the same, intimated the said fact to PW-4.

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e. PW- 4, 6, 14, 18 visited the place of incidence and observed certain facts and

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materials collected from the place of incident connect the accused with death of Hassan.

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f. That accused Nos.1 to 3 have made extra judicial confession before PWs-4, 6, 14 and 18.

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g. Collection of weapons of offence on the confession of accused.

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h. Blood stains found on the dress materials of accused were of deceased Hassan.

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Prosecution has not produced any documentary

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or oral evidence to show that about eight months prior to the incidence, deceased had given the house property to the accused Nos. 1 to 3 on lease and there was an agreement between them to pay advance amount as well as monthly rent.

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Prosecution examined PW-9 - wife of deceased K.M. Hassan. In her evidence, she has not stated about amount of advance as well as amount of rent for which accused were agreed to pay to the deceased Hassan or execution of any document in this regard. It appears deceased had intimated these facts only to PW-9 that

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accused were residing in the said house as tenant and they were not vacating the house or paying the rent and they had been dodging for vacating the house; She has also stated that a day prior to incidence accused telephoned K.M.Hassan and informed that they would vacate the property and asked him to come to their house.” However, he did not go due to preoccupation. P.W.9 further stated that on the day of incident, in the afternoon, at about 3.00 p.m., he left home to go to coffee garden. On that day in the evening, she got information from her neighbors that her husband was murdered in the said house. She became unconscious and hence, she could not go to the said house. Therefore, her evidence does not help the case of prosecution to prove that the accused were in arrears of advance amount as well as rent for about 7 to 8 months.

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In the evidence, PW-4 has stated that on the date of incident, deceased told him that he was going to coffee garden to collect arrears of rent and harvest the coffee crop. Except the said particulars, there are no other material evidence to prove that about 7 to 8 months prior

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to the incident, the accused had taken the building on lease and failed to pay advance amount and rent.

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Prosecution should also prove that, on the day

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of his murder between 3.00 p.m to 4.30 p.m., deceased went to spot of incident. Except the evidence of PWs-4 and 9, who have stated in their evidence that, on that day, deceased informed them, that he would go to the coffee garden to meet accused Nos. 1 and 2 to collect arrears of advance and rent, there are no other reliable evidence to prove the same. There is no evidence to prove that he went to spot of incident and met accused.

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29. Prosecution case was that dead body was found

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in the Coffee garden and not inside the house of accused Nos. 1 and 2. Under those circumstances, it is difficult to believe that deceased entered the house of accused between 4.30 to 5.00 p.m., on the day of incident.

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Prosecution case is that PWs- 4, 6, 14 and 18 entered the house of accused; they saw blood spilled over the floor and it was mopped by using cloth. The said cloth

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was cleaned with bucket of water which was turned into red color (i.e., water mixed with the blood) Investigating officer seized the sample of said water and sent to the Forensic Science Laboratory for testing. However, the prosecution did not produce the said report of Forensic Science Lab. Prosecution also not produced serology report of Forensic Science Lab, to prove that blood stains on hammer and brick pieces were of human blood and they were of the deceased.

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The house of accused is situated within the coffee garden belonging to deceased. Prosecution case is that line houses situated in coffee garden and one of such houses leased out to accused. While drawing spot mahazar as well as sketch of the spot of incident i.e., Exs.P1, P6 and P9, there is no reference about line houses, situated near by the house of accused. Therefore the said document do not help in any way to believe that nearby the place of incident, there were houses belonging to and residing by others.

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It is the case of prosecution that, around 4.30 p.m. P.W.10 residing near by place of incident, heard

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commotion from the house of accused and they also heard voice of the deceased, crying for help. Thereafter, PW-10 informed the said fact to one Addu. In Ex.P13, it is stated that PW-10 heard commotion from the house of accused. She thought that something was wrong. Therefore, through her landline phone bearing number 310886, she telephoned to Addu, to his mobile phone number 9448588151 and requested him to come to the place of incident, so that he can rescue the deceased.

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The said Addu @ Abdullah was examined as PW13. In his evidence, he has stated that, on the day of incident, he was going towards Mysore and he received a telephone call from PW-10; narrating about commotion in the house of accused and crying for help by Hassan. He tried to contact PW-4, however, PW-4 did not pick up the telephone. Therefore. again he called PW-10 and informed her to go near the place of incidence and inform him. According to his evidence, PW-10 again told him that, she scared to go to the said place since she was hearing the songs played through a tape recorder, in high volume.

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Therefore, she couldn’t hear anything from the said house. In view of the said reasons, PW-4 did not go to Mysore and returned to the house of K.M. Hassan. PW-4 further stated

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that he came to the house of accused and he noticed several vehicles were parked nearby their house. He also came to know about the murder of K.M. Hassan.

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PW-10 has turned hostile to the case of prosecution. According to her evidence, on the day of alleged incident, she went to graze cattle to the lands, situated about three to four kilometres away from her house; when she returned home, in the evening, she came to know about the incidence and she did not telephone anybody or intimated them that “she heard commotion from the house of K.M.Hassan, wherein accused were residing”. She was treated as a hostile witness and cross examined by the learned Public Prosecutor. In her cross examination, she denied all the suggestions of learned Public Prosecutor and also denied that she gave statement before investigating officer as per Ex.P13.

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35. In her cross examination, by the learned Public Prosecutor, questions were not asked regarding the location of her house as well as distance between her house and the place of incident. Even no questions were asked to show that one could hear Commotion from the place of incident to her house.

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36. Evidence of PWs.10 and 13 are not consistent and it doesn't help the case of prosecution in proving the circumstances that persons residing in the neighbourhood could hear the commotion from the house of accused.

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Prosecution strongly relied on the evidence of PWs.4, 6, 14 and 18. Prosecution’s case is that PWs.4, 6, 14 and 18 had gone to the place of incident within short period after the incident. All the four persons in their evidence have stated that accused were inside the house; they were playing songs by the tape recorder in high volume. All the four requested the accused to open the door, however they did not open the door immediately. After some time, the accused opened the back door and they entered the house. They observed that just before

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their entry someone have moped the floor and cleaned moped cloth in the water kept in bucket due to the same colour of water was red. All the four have stated that on repeated enquiry with accused, the accused have confessed that “They assaulted on the head of deceased with hammer and a brick and caused his death. Thereafter shifted dead body in coffee garden” and one of the witnesses has also stated that “accused No.3 had also shown the place where the dead body was kept”. They also stated that accused showed weapons of offence.

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The said witnesses were thoroughly cross-examined by the accused and visit of said witnesses to the spot of incident and alleged confession made by the accused are all denied.

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During investigation, Investigating officer recorded statement of few persons, who have turned hostile before the Court and their statement recorded under section 161 of Cr.p.c were marked as exhibits. In the said exhibits, the witnesses have stated that they had been to the place of incident around 6:30 p.m., and by that time,

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the people and police gathered near house of accused. All of them had information that accused have assaulted the deceased with brick and hammer and caused his death.

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In the statement of PWS-1 and 2 marked as Ex.1 and 3, these facts are clearly mentioned. As per the complaint lodged by PW-4, he came to place of incident at about 6.00 p.m., and as per the statement of PW-1 and 2 in Exs.2 and 3, police were already present near the spot of incident. PW-4, 6, 14 and 18 came to the spot of incident around 6.30 p.m. If police were already in the place of incident, then why they did not try to arrest accused or proceed with the investigation by recording statement of any of the person who was present at the spot of incident. However, PW-4, 6, 14 and 18 were said to be entered the house of accused and tried to investigate even though police were present. This fact is not explained by prosecution which appears to be very strange and unnatural.

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40. T he evidence of PWs - 4, 6, 14 and 18 are not consistent regarding information of incident and extra judicial confession of the accused.

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As per the case of the prosecution, the accused Nos. 1 to 3 removed the dead body from the house and kept it in the coffee garden and they closed both the side door and cleaned blood spilled on floor of the house and destroyed the evidence. It indicates that accused have knowledge to destroy the evidence to save their skin. When they are so clever, it is difficult to believe that they would reveal details of crime or confess before PWs-4, 6, 14 and 18 who were strangers. It appears to be unnatural.

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Normally confession cannot be a basis for conviction, unless prosecution has produced corroborative evidence to prove its case. It is normal human psychology that a defaulter may always defend himself and deny that he had committed such a crime. In this case, PWs- 4, 6, 14 and 18 are strangers to accused. There are no material to show that accused had faith and confidence in the said witnesses to reveal true facts of the incident. It is also not

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the case of prosecution that PW.4, 6, 14 and 18 assured accused that they would help the accused and protect their interest. When there is no such circumstances, it is highly suspicious to believe that accused Nos.1 to 3 would confess before strangers that too PWs - 4, 6, 16 and 18, who are said to be friends of deceased Hassan.

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43. It is pertinent to note that the death of K.M. Hassan as per medical records, was caused by strangulation and not due to injuries sustained by the deceased. During the alleged confession, the said accused did not disclose about the strangulation of deceased. There might not be any reason to the accused to suppress it. Moreover, according to accused Nos.1 and 2, one of the accused assaulted with brick and another with hammer. They have not disclosed the role of accused No.3 in the commission of crime. This also creates doubt, about alleged confession said to be stated to P.W.4, 6, 14 and 18.

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As stated earlier, only on the basis of extra judicial confession, the Court cannot convict an accused for such a grave offence. Prosecution should prove the

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circumstances or place sufficient materials to prove that the accused had committed the said crime. In this case, except alleged extra judicial confession, there are no other materials to connect the accused with the alleged guilt. Therefore, the submission of learned Additional SPP, that the confession of the accused before PWs - 4, 6, 14 and 18 is sufficient to convict the accused is not acceptable.

¶172

PWs-1 to 3 are the witness to Ex.P1 i.e., spot mahazar drawn on 31.10.2009. All the three witnesses have turned hostile and even they have denied earlier statement as per Ex.P2, P3 and P4. The investigating officer, who had drawn the mahazar is no more. Hence, drawing of Ex.P1 is not proved.

¶173

PW-5 is father of the deceased. In his evidence, he has stated that after hearing the news of death of his son, he went to place of incident, where accused Nos.1 to 3 were present and in presence of people assembled at the spot of incident, they confessed that they had murdered K.M. Hassan. It is a new case made out by PW-5. According to PWs.4, 6, 14 and 18, the said confession was

¶174

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made inside the house. It is not clear from the prosecution papers about where about of accused after alleged confession till they were said to be arrested around 3.00 a.m. on next day i.e., on 31.10.2009. If accused nos.1 to 3 were present and confessed before people gathered at the spot, including the police, as per the statement of PW.1 to 3, then why police did not arrest accused nos.1 to 3 at that time, is not explained. Therefore, either statement made by PW-5 is incorrect or evidence of police officials, who were deputed to arrest the accused and who arrested the accused in the early morning at 3.00 a.m., is false. Hence, said evidence is not believable.

¶176

PW- 7 and 8 are the witness to the seizure mahazar Ex.P11 drawn on 31.10.2009. As per the case of prosecution, the said mahazar was drawn at the time of seizure of shirt and T-shirt of accused Nos.1 and 2. Both

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the witnesses have turned hostile and hence seizure of the shirt and T-shirt said to be belonged to accused No.1 and 2 is not proved.

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48. PW- 11 and 12 are witness to seizure mahazar of seizure of telephone belonging to accused Nos. 1 to 3. The said mobile phones were said to be seized on 4-112009, that they have thrown their mobile phone in the said coffee garden. On the confession of the accused, the investigating officer, with the help of public, had searched the coffee garden and traced out the mobile phone. They were seized under Ex.P14. Both PW- 11 and 12 have turned hostile to the case of prosecution and denied that in their presence mobile phone of the accused were seized.

¶180

PW-17 is witness to mahazar Ex.P16, drawn at

¶181

the time of seizure of mobile phone of the deceased. He has supported seizure of mobile phone in the police station under Ex.P16. PW-21 is also witness to said mahazar and he identified the mobile phone and his signature on Ex.P.16 at Ex.P.16B. However, he pleads ignorance about contents of the said mahazar.

¶182

50. T he investigating officer had seized mobile phones belonging to accused as well as the deceased under two mahazars. The relevancy of seizure of mobile phones is

¶183

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not explained by the prosecution. It is not the case of the prosecution that before commission of the incident, there was a conversation over the mobile phone between the accused and the deceased. No C.D.Rs. are produced. The said evidence also do not help prosecution to bring home the guilt of accused.

¶185

PWs-15, 16, 19 and 20 are official witnesses and they are not material witnesses PW-20 in his evidence has stated that he was SHO of police station on 30.10.2009 at 11.45 pm and received written complaint as per Ex.P10 from P.W.4 and on that basis, he registered a case in crime No.147 of 2009 for the offence punishable under section 302 and 201 read with section 34 of the IPC, thereafter, it was sent to the jurisdictional magistrate.

¶186

PW-15 is head constable, submitted FIR to the magistrate on 31.10.2009. In the statement of witnesses recorded by the police, it is mentioned that around 6.30 pm, the public as well as police were present at the spot of incidents. PW-4 had been to the spot of incident as mentioned in Exhibit P.10, at 6.00 pm. Both PW-4 as well

¶187

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as PW-20 have not explained regarding delay in filing complaint and registering the FIR.

¶189

PW-16 and 19 were entrusted with the work of arrest of the accused. According to their evidence, they had credible information that accused had hidden themselves in the said coffee garden, belonging to the deceased and they searched accused in the coffee garden and apprehended the accused at about 3 a.m., and produced before the investigating officer. As already discussed in earlier paragraphs, the accused all along were said to be present in the place of incident as per evidence of PW - 4, 5, 6, 14 and 18, then question of searching them in the garden during night might appears to be highly doubtful. Hence, it is difficult to believe evidence of PW-16 and 19.

¶190

54. I t appears investigating officer had collected the material objects i.e., bloodstained, clothes of the deceased as well as the accused and sent them to the FSL. Report of FSL was not placed before the Trial Court and there were no explanation for not producing the same before the trial court.

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The offence alleged to be committed by accused

¶193

is grave in nature. The way in which investigation was

¶194

done is highly inappropriate . Incident was said to be taken place during the daylight i.e., around 4.30 to 5.00 p.m. Looking to the statements of witnesses i.e., PWs-1 to 3, there were houses nearby the place of incident. PWs 4, 6, 14 and 18 went to spot around 6.00 p.m. However, complaint was lodged at 11.45 p.m. Prosecution did not place any materials regarding occupation of labour in the line of houses situated in the coffee garden, nearby the place of incident. The prosecution mainly is relying on the extrajudicial confession of the accused before PW- 4, 6, 14 and 18. Only on the basis of such alleged extrajudicial confession of the accused No.1 to 3 before the said witnesses, cannot be sole reason to convict the accused for such a grave offence.

¶195

The prosecution unable to secure scientific evidence that is FSL report, regarding alleged bloodstain found on the dress materials of the accused as well as the deceased as well as red colored water kept in bucket, in the

¶196

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house of the accused. Prosecution had made out case that death was caused due assault with a hammer and a brick. However, Exhibit P5 shows that death was due to strangulation. No materials were collected to prove the same, except the opinion of the doctor. In view of these reasons, the prosecution had miserably failed to prove the guilt of the accused much less beyond reasonable doubt.

¶198

It is true that the learned trial judge did not discuss and appreciate the evidence of the witnesses properly. It is the duty of the trial judge to appreciate the evidence of all the witnesses and materials placed before the court and give his findings. However, the learned session judge in his cryptic order didn’t consider any of the evidence except observing that “they have turned hostile and their evidences are not reliable” which is not sufficient to come to conclusion. The finding of the acquittal of the accused was proper and there are no materials to reverse the said finding.

¶199

Looking to the facts of the case investigation done by the concerned was very improper/inappropriate. The

¶200

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police were in the spot much prior to lodging of complaint but no action taken including apprehending of accused No.1 to 3. Scientific evidences were not collected. Materials were not collected to ascertain motive for the incident; Report of blood stained clothes etc. No material collected to prove that accused had strangled the deceased. Even after obtaining post mortem report, ligature materials were not collected or investigation was made in this regard.

¶202

Relevant evidence not collected to prove that deceased was crying for help and there was quarrel between accused and deceased. These are material lapses by the concerned police. It is an appropriate case to direct

¶203

the higher police officer to hold enquiry of concerned as to why responsible officers did not investigate properly and submit the report within four weeks.

¶204

For the above said reasons, we answer point No.1 to 3 in the negative and pass following:

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ORDER

¶207

i. Appeal is dismissed .

¶208

ii. The impugned Judgment dated

¶209

12.04.2017 in S.C.No.34 of 2010 on the file

¶210

of the II Additional District and Sessions Judge at Kodagu-Madikeri is confirmed.

¶211

Registry to transmit copies of this judgment to the Director General of Police/Inspector General of Police to hold enquiries about lapses in investigation and report within four weeks to this Court.

¶212

Sd/JUDGE

¶213

Sd/JUDGE

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The State by Circle Inspector v. Sri P.S. Ananda @ Ananda Kumar

Case brief

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The State by Circle Inspector v. Sri P.S. Ananda @ Ananda Kumar

Case brief

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What the court decided

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