State of Karnataka Vs Vasu

VASU S/O LATE RAJU AGED 27 YEARS R/AT CHANDRAHASA BUILDING BHARATHNAGAR 2ND STAGE DWARAKA ROAD YESHWANTHPURA HOBLI BENGALURU NORTH TALUK NATIVE OF DOLLALAKOPPALU BILIKERE, HUNASURU TALUK MYSURU DISTRICT-571 105. …RESPONDENT

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(BY SRI. ABISHEK N N., ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 22.03.2017 PASSED IN S.C.NO.74/2012 BY I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE ACQUITTING THE ACCUSED/RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366,309,302 AND 201 OF IPC.

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THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

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This appeal is preferred by the State challenging the judgment and order of acquittal in SC No.74/2012 passed by I Additional District and Sessions Judge, Bangalore Rural District, Bangalore.

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The respondent was sole accused in SC No.74/2012. He was tried in the said case for the offences punishable under Sections 366, 309, 302 and 201 of IPC on the basis of charge sheet filed by Tavarereke Police in Crime No.417/2011. Crime No.417/2011 was registered initially

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against the accused, his sister and brother-in-law for the offence punishable under Section 366 read with Section 34 of IPC. But while filing charge sheet, the sister and brother-in-law

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were dropped. For the purpose of convenience, parties are referred to henceforth according to the ranks before the trial Court.

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The case of the prosecution in brief is as follows:

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(i) That the accused was pestering the victim to love and marry him. He was threatening PW.1/mother of the victim to perform the marriage of the victim with him and send her with him. Due to such harassment of the accused, PW.1, who was working in a college as Group-D staff, stopped the education of the victim and got her employed in a cloth shop. The accused went to that shop also insisting her to accompany him and made galata in that shop also. Therefore, the employer terminated the employment of victim. Then PW.1 got employed the victim in the college, where she was working. The accused started suspecting that the victim has an affair with PW-15 and threatened to kill her.

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(ii) On 13.10.2011, in the morning the accused called

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the victim on phone and threatened her saying that, if she does not marry him, he will kill her. On the same day, in the afternoon, he phoned PW.1 also to send the victim with him to temple. Being scared, PW.1 intended to send the victim to the house of her younger sister/PW.4. So she accompanied the victim till Ganesha Sweet Condiments in the village and dropped her there, instructing her to go to the house of PW.4.

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But the accused forcibly took her from that place on his motor bike bearing No.KA-02-EX-2747 to the land of KIADB near Bramhadevara Gudda. At 7:30 p.m. he quarreled with the victim saying that she has an affair with PW.15, slapped her, when she fell down, he strangulated her with his pant belt and committed her murder. Then he attempted to commit suicide by consuming rat poison and parthenium leaves. Then he returned to his sister’s house. When PW.1 visited that house and questioned him about the victim, he suppressed the fact of her murder.

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The Trial Court on hearing respondent/accused, framed charges against him for the offences punishable under Sections 366, 302, 201 and 309 of IPC. As accused pleaded not guilty, charges were framed and trial was conducted.

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In support of the case of the prosecution PWs.1 to 18 were examined, Exs.P1 to P24 and MOs.1 to 16 were marked. Statement of the accused under Section 313 Cr.P.C was recorded. No defence evidence was led by the accused.

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Trial Court on hearing the parties by the impugned judgment and order acquitted the accused holding that the

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case is based solely on the circumstantial evidence and circumstances relied upon were not proved beyond reasonable doubt. Challenging the said order the prosecution has preferred the above appeal.

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On 20.11.2024 when the matter was taken up for final hearing, this Court noticed that the trial Court had not examined the accused with reference to the evidence of PWs.10, 12 and 13. Therefore by order dated 20.11.2024 Trial Court was directed to examine the accused with reference to evidence of PWs.10, 12 and 13. Trial Court on further examination of accused has submitted the records.

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Heard both side.

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Submissions of Smt. Sowmya R, learned HCGP:

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Witnesses to the circumstance of last seen theory have supported the prosecution case. Death was homicidal one. Dead body of the victim and bike used for commission of offence by the accused were recovered at his instance. The prosecution satisfactorily explained the delay in recording the FIR. Trial Court has fallen in serious error in passing the order

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of the acquittal though the witnesses to the aforesaid circumstances supported the prosecution case.

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Submissions of Sri. Abishek N.N, learned Counsel for respondent/accused:

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The case was only based on the circumstantial evidence. The circumstances relied were not satisfactorily established. The chain of circumstances was not complete to reach the only conclusion that crime is committed by the accused. There was unexplained inordinate delay in delivering the FIR and explanation for delay was rightly rejected by the trial Court. Trial Court on sound appreciation of evidence and analyzing the applicable law has acquitted the accused. Therefore, there is no scope for interference in the impugned judgment and order.

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On consideration of submissions of both side and on

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examining the materials on record, the point that arises for determination is "Whether the impugned judgment and order of acquittal is sustainable?"

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Analysis:

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This is an appeal against the order of acquittal. It is the settled proposition of law that in an appeal against the

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order of acquittal, the scope for interference is limited. The Appellate Court cannot interfere with such judgment, unless it is demonstrated that the impugned judgment and order of acquittal suffers patent illegality or perversity. In para 42 [(4) and (5)] 7 and 13 of the judgment in Chandrappa v. State of Karnataka¹ the Hon'ble Supreme Court expounded the legal position regarding the scope of interference in an appeal against acquittal as follows:

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‘ 42 . From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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( 1 ) ……………………………………………

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( 2 )…………………………………………….

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( 3 ) ……………………………………………

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( 4 ) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly , the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly , the accused having secured his acquittal , the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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( 5 ) If two reasonable conclusions are possible on the basis of the evidence on record, the

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1 (2007) 4 SCC 415

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appellate court should not disturb the finding of acquittal recorded by the trial court. '”

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(emphasis in original)

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Following the judgment in Chandrappa’ s case, the Hon’ble

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Supreme Court in para 13 of the judgment in Prem singh v.

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State of Haryana² has held as follows:

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13. The parameters within which the High Court was required to exercise its powers under Section 378 of the Code while hearing the State's appeal have already been noticed. If a conclusion with regard to the innocence of the accused is reasonably possible on the basis of the evidence and materials on record the High Court ought not to have disturbed the findings recorded by the trial court, even if, on a reappreciation of the evidence, it was inclined to take a different view. So long the view taken by the trial court was a possible view the exercise of the appellate power of the High Court under Section 378 Cr.P.C would remain circumscribed by the well-settled parameters .

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(Emphasis supplied)

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Reading of the above judgment shows that in an appeal against acquittal, the accused has double presumptions of innocence, first one available during the trial and then one

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due to his acquittal by the trial Court. Therefore unless impugned order suffers from patent illegality or perversity, the Court cannot interfere. Further conclusions reached by the trial Court are possible on the basis of evidence on record, this Court cannot disturb the order of acquittal passed by the Trial

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2 (2013) 14 SCC 88

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Court. In the light of such legal position evidence in this case has to be re-appreciated.

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As already noted, according to the prosecution the accused forced victim to marry him and was intimidating her and her mother/PW.1 that if victim was not given in marriage to him, he will cause harm to her. Therefore, victim tried to maintain distance. PW.1/mother, PW.2/brother and PW.7/maternal uncle of the victim did not accept the marriage proposal on the ground that victim was minor. On 13.10.2011 at about 6:30 p.m. accused forcibly took the victim when she was near Ganesha Sweet Condiments on his motorbike to Brahmadevara Gudda. At about 7.30 p.m. he picked up quarrel with victim, slapped her, when she fell down, he strangulated her with his pant belt and committed her murder. He also attempted to commit suicide by consuming rat poison and parthenium leaves. Thereafter, he came to the house of his sister and tried to hang himself as he suspected that the victim has an affair with PW.15.

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Admittedly there was no eyewitness to the incident. The case was based solely on circumstantial evidence. The case of the prosecution was based on the following circumstances:

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i) Motive - The accused insisting the victim to marry him and suspecting that she had an affair with PW.15 - Evidence of PWs.1, 2, 4, 7 and 15 on this aspect;

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ii) That the accused and deceased were last seen together before the victim was found dead – Evidence of PWs.5 and 6;

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iii) Medical evidence regarding cause of death of the victim - PW.9/the doctor who conducted post mortem examination and Ex.P9 postmortem report;

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iv) The circumstance of the accused attempting to commit suicide - PW.8, the doctor who treated the accused and Ex.P6;

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v) Extra judicial confession before PWs.1 and 2 about assault and kidnapping;

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vi) The FSL evidence;

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vii) Discovery of dead body at the instance of the accused; and

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viii) The evidence of the police witnesses.

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What should be the degree of proof and how the

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evidence shall be appreciated in the case based on the circumstantial evidence was expounded by the Hon'ble

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Supreme Court in the judgment in Sharad Birdichand Sarda vs

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State Of Maharashtra3.

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Para 153 of the said judgment which is useful for appreciation of circumstantial evidence and law in this case reads as follows:

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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( 1 ) the circumstances from which the conclusion of guilt is to be drawn should be fully established .

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It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established . There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made:

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“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

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( 2 ) the facts so established should be consistent only with the hypothesis of the guilt of the accused , that is to say, they should not be explainable on any other hypothesis except that the accused is guilty ,

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3 1984 AIR 1622; 1985 SCR (1) 88

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( 3 ) the circumstances should be of a conclusive nature and tendency,

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( 4 ) they should exclude every possible hypothesis except the one to be proved, and

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( 5 ) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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(Emphasis supplied)

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Thus, it becomes clear that when the case is based on circumstantial evidence, the chain of circumstances must be so complete that it should lead to the only hypothesis of the guilt of the accused. If there is any break in one link, then the accused is entitled to the benefit of doubt. The prosecution is required to prove each of the circumstances beyond reasonable doubt, but not by preponderance of probabilities. Suspicion however strong it may be, cannot take the place of proof.

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In the light of such principle, this Court has to reappreciate the evidence and find out whether the Trial Court has committed any error in appreciation of the evidence and acquittal of the accused.

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Reg. Motive:

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According to the prosecution, the accused had altercation with the victim suspecting that she had an affair with PW.15. He was threatening the victim, her mother-PW.1, brother-PW.2 and maternal uncle-PW.7 to get victim married to him and he was also warning the victim to stay away from PW.15. No doubt PWs.1, 2, 4 and 7 have spoken regarding accused following the victim and pestering her to marry him and not to have contact with PW.15, but motive circumstance alone itself is not sufficient to place conviction and other circumstances relied on by the prosecution has to be established.

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Reg. Last seen theory:

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According to the prosecution, the accused and deceased were last seen together by PWs.5 and 6 near Ganesh Sweet Condiments from where the accused allegedly forcefully abducted the victim on his motorcycle. The version of PWs.5 and 6 regarding the manner of abduction is not the same. PW.5 says that on 13.10.2011 at 6:30 p.m. when he was proceeding near Ganesh Condiments, he found accused taking the deceased on his bike. He further stated that he tried to call

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PWs.1 and 7, but their phones were not connecting. On the next day when he phoned PW.7, he learnt from PW.7 that the victim Latha is missing and he informed PW.7 about he sighting the accused and deceased together. PW.5 in his crossexamination states that he has not given statement before the police about he informing PW.7 about he sighting accused and deceased together.

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PW.6 states that on 13.10.2011 around 6:00 p.m. and 6:30 p.m. when he was having Tea in Ganesh Condiments, he found Latha standing there. Further within 5 minutes he found a boy coming and picking her on his motorcycle. Next day he came to know that Latha was missing. Then he informed PW.7 about he sighting accused and deceased together on the previous day. None of these witnesses have stated that accused had taken the victim forcibly on his motorcycle as alleged by the prosecution. Though these two witnesses were known to PW.7, they have not informed PW.7 soon after they sighting accused and deceased together. It is not even their case that they suspected anything unnatural about accused and deceased being found together.

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One more thing to be noticed is that the alleged last sighting of accused and deceased by PWs.5 and 6 was on 13.10.2011 and the dead body was traced on 16.10.2011. PW.9/Doctor who conducted postmortem on the dead body of the victim states that he conducted postmortem examination on dead body on 16.10.2011 between 1:15 p.m. to 3:00 p.m. and gave his report as per Ex.P9. PW.9 did not speak about the time of death in his deposition, but in postmortem report, he has mentioned date of death 2-3 days prior to postmortem examination. This evidence has to be analyzed in the light of evidence of PWs.1, 2, 7 and police officers PWs.17 and 18. Their evidence shows that the place where the dead body was lying was within their knowledge. Initially the accused had confessed before them about offence and had said that incident had taken place near Kannahalli temple. According to the aforesaid witnesses, they tried to search near Kannahalli temple and victim was not traced.

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PW.1 in her chief-examination itself states that on the date of incident itself, the sister of accused phoned her and told her that accused had informed that himself and victim have gone to temple to commit suicide, therefore she went to

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her sister’s house immediately. PW.1 further states that she rushed to her younger sister/PW.4 and then both of them went to the house of sister of accused. The sister of accused told that on getting such information from accused, her husband has gone to bring both accused and victim. But after sometime only brother-in-law of the accused returned and told that accused and victim are coming. She further states that after 10 minutes only the accused came, on enquiry he told that he has left the victim near Kannahalli temple. It is her statement that when they were present in the house of sister of accused, accused attempted to commit suicide by hanging himself and all of them together took the accused to the hospital and then they went in search of Latha near Kannahalli temple where she was not found. She further stated that her son visited hospital, enquired the accused and accused confessed that he committed murder. Then all of them went to search near Kannahalli temple, the dead body was not found there, but it was found near Brahmadevara Gudda. The above evidence and medical evidence regarding time of death do not corroborate with each other. Thus, proximity between the time and place of last seen together and death were also not established.

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The evidence of PW.8 who said to have treated accused in Unity Lifeline hospital is to the effect that the accused was brought to their hospital on 13.10.2011 at 10:30 p.m. with a history of consumption of rat poison, eating parthenium and attempted hanging. He further stated that on the date of admission the accused was unconscious and drowsy. But he recovered on the next date itself and on next morning he was able to talk. The admission of the accused in the said hospital was known to mother, brother, maternal aunt & uncle including the police. But police claimed to have recorded his statement on 15.10.2011 though accused was able to speak on 14.10.2011 itself. This also creates doubt about prosecution version that the accused was able to speak only on 15.10.2011, his statement was recorded on 15.10.2011. The evidence of PW.8 shows that the accused got discharged on 15.10.2011. The evidence of PWs.1 and 8 shows that all were aware of admission of the accused in Unity Lifeline hospital and Investigating Officer/PW.18 says that he deputed his staff to arrest the accused on learning about the admission of the accused in Victoria hospital, Bengaluru. PWs.17 and 18 have not made any attempt to arrest accused soon after his

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admission in the hospital and there is no explanation for that. That also creates doubt about proximity of time of last seen together and the time of death. Therefore, circumstance of last seen together was not satisfactorily established.

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Reg. Confession of accused about the crime.

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To prove that accused confessed commission of crime, the prosecution relied on Exs.P8 and 17/the alleged voluntary statements of the accused and evidence of PW.17. But Exs.P8 and 17 were totally inadmissible in evidence as they were hit by Section 25 of the Indian Evidence Act,1872 (for Short ‘Evidence Act’). The trial Court has erred in admitting those documents in evidence. Consequently, evidence of PW.17 regarding confession of the accused before him has no value.

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The other evidence relied on by the prosecution is regarding extra judicial confession allegedly made by the accused before PW.2. PW.2 in his chief-examination stated that on learning about the incident and admission of the accused in hospital, he went and enquired him and accused told him that he has left behind Latha at Brahmadevara Gudda, he went and enquired there. PW.2 in his chief examination has not

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whispered anything about extra judicial confession made before him by the accused regarding crime. Whereas PW.1/his mother in her evidence states that the accused made such confession before PW.2 when PW.2 himself did not speak about such extra judicial confession. Thus, evidence of PW.1 in that regard does not bear any credence.

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Reg. Recovery:

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PW.17 states that accused led him to

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Brahmadevara Gudda and showed place where the dead body was concealed. But he has not recorded the statement of the accused as required under Section 27 of the Evidence Act. Precondition for recovery on the basis of voluntary statement under Section 27 of the Evidence Act is that such statement should have been made when he was in police custody on arrest. But contrary to the evidence of PW.17, PW.18 in his chief examination itself says that he had deputed his staff to apprehend the accused who was taking treatment in Victoria hospital. After discharge of the accused from Victoria hospital, his staff CWs.16 and 19 apprehended the accused and produced before him on 20.10.2011, then he arrested the accused. Whereas, PW.17 in his chief-examination states that

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on learning about discharge of the accused from the discharged hospital, on 16.10.2011 he visited the house of the accused and recorded the statement/Ex.P17 and on the basis of such statement, dead body was discovered. Thus, the evidence of PWs.17 and 18 regarding arrest of the accused is totally contradictory.

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The records of admission of the accused in Victoria hospital were not collected and produced. Further regarding alleged discovery of dead body, no recovery mahazar was drawn. At the same time, PW.18 claims to have conducted inquest mahazar on 16.10.2011 itself. Having regard to such material contradictions in evidence of the witnesses, the Trial Court was justified in holding that circumstances of recovery of dead body at the instance of the accused was not established.

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The above discussions clearly go to show that the investigation and case of the prosecution was fraught with doubts. The Trial Court analyzing all such evidence and related law, in Paras 56 to 59 by summarizing its reasoning, has acquitted the accused. No patent illegality or perversity is found

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