1 IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 5 TH DAY OF APRIL, 2011 PRESENT THE HONE BLE MR. JUSTICE SUBHASH B ADI AND THE HON’ BLE MR. JUSTICE N.ANANDA CRL.A. NO.1809 OF 2006 BETWEEN STATE BY YAMAKANAMARADI POLICE BELGAUM DIST .APPELLANT (BY SRI. V.M.BANAKAR, ADDL. SPP) AND: 1. BORAPPA BALAPPA HOSAGOUDAR AGED ABOUT 42 YEARS, R/O BENCHANMARDI GOKAK TALUK BELGAUM DISTRICT 2. NINGAPPA HOSAGOUDA S/O BALAPA HOSAGOUDAR AGED ABOUT 32 YEARS, R/O BENCHANMARDI GOKAK TALUK BELGAUM DIST RESPONDENTS (By Sri. SANTOSH B MALAGOUDAR, ADVOCATE) THIS CRLA. IS FILED U/S.378(1) & (3) CRPC, BY THE STATE PUBLIC PROSECUTOR FOR THE STATE PRAYING TO GRANT LEAVE TO FILE AN APPEAL 2 AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DT.20.5.06 PASSED BY THE P.O., FTC-TI & ADDL. Si., BELGAUM, IN S.C.NO.146/05 - ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/SS,302, 201, 506(u) R/W 34 OF IPC. THIS APPEAL COMING ON FOR HEARING THIS DAY, SUBHASH B ADI 3, DELIVERED THE FOLLOWING: JUDGMENT This appeal is by the State against the judgment of acquittal in S.C,No.146/2005 on the file of the Fast Track Court-TI and Additional Sessions Judge, Belgaum, acquitting accused nos.1 and 2 persons for the offences punishable under Sections 302, 301, 506(11) r/w 34 of IPC. 2. Accused No.1- Borappa Balappa Hosagoudar and accused no.2 — Ningappa Hosagouda are brothers, Deceased Sattavva was the wife of accused no.1. P.W.1 is the father, PW.4 is the elder sister and P.W,19 is the brother of the deceased, About 11 years prior to 2.12.2004, the deceased —Sattavva was given in marriage to accused no.1. Initially, about 2 years they lived happily. Thereafter, the accused started to harass her, as 4 3 such,she came back to her parent’s house and lived with her parents. As the accused no.1 was not giving any maintenance, she flied a petition before the Family Court at Belgaum, seeking maintenance. The Family Court, awarded maintenance at Rs. 500/- per month. Thereafter, at the instance of the elders, the deceased went to the house of the accused no.1. Thereafter, she gave birth to a female child. Again, accused no.1 started to harassing her and driven her to• the parents’ house. Since the accused had not paid the maintenance and the arrears, she flied an application to recover the arrears of maintenance. The said matter was posted on 20.11.2004. The accused no.1 had agreed to give Rs.1,00,000/- each to the wife and child. The case was adjourned to 6.12.2005. However, on 2.12.2004 at 5.30 p.m., the deceased was cleaning jawar. At that time, accused no.2 - brother-in-law of the deceased came near the Drama Platform in the village and called the deceased on the pretext of getting birth certificate to her child. The deceased went along with accused no.2. As the deceased did not return till next day morning (3.122004), P.W.1, P.W.4 and P.W.19 went in search of her. On 5.12.2004 P.W.19 - brother of the VC 4 deceased, who was working as police at Police Head Quarters at Belgaum, received a telephone call from Yamakanamaradi police station stating that a dead body was lying in the land of C.W.21 — Kempanna Shivalingappa Shidlala, within the limits of Shiddlahalli. Thereafter, P.W.19 went to the spot. By that time, the police had already present at the spot. He Identified the dead body as that of his sister. He suspected the involvement of the accused no.1 namely, the husband of the deceased and her brother-In-law (accused no.2) and Informed the PSI, who in turn informed the same to CPI. However, the CPI did not register the case, as the body did not bear any injures. There was exchange of words between CPI and P.W.19, but the CPI conducted the inquest on the dead body of the deceased and sent the same for post-mortem examination. After the post—mortem examination, when the body was returned to the family of P.W.1, they cremated the body of the deceased. P.W.1 and P.W.19 met the Dy.S.P, Gokak and Informed the Incident. The Dy.S.P, Gokak, also did not register the case. They went to Bangalore and complained to Inspector General of Police. Thereafter, P.W.24 came to the house of P.W.1 and 5 received the complaint as per Ex. P4 and registered a case In Crime No.24/2005 and sent FIR as per Ex.P11 to the jurisdictional Magistrate. P.W.25 investigated the matter and flied the charge sheet. 3. The learned Sessions Judge secured the presence of the accused and framed the following charges; “Firstly, that you accused no.1 being the husband of deceased Sattewwa and you accused no.2 being her brother in law / younger brother of accused no.1 in furtherance of your common Intention to cause death of the deceased, you accused no.2 among you by inducement took her near the bridge across the canal situated within the ilmits of Paschapur and committed murdered her by Intentionally ( or knowingly) causing her death by forcibly administering poison on 2.12.2004 at 11 p.m. and thereby you committed offence of murder punishable under Section 302 read with 34 of IPC and within my cognizance. Secondly, on the said date and time in furtherance of your common intention knowing that you have committed an offence of murder, caused evidence of murder to disappear by removing the dead body from the 6 place of murder and throwing the dead body In the land of Kempanna Siddyal — Cw/21 with the Intention of screening yourselves from legal punishment and thereby committed an offence punishable under Section 201 nw 34 of IPC and within my cognizance. Thirdly, on the said date and time when you accused were forcibly administering poison to deceased by throwing her down in the slope of canal and when Cw.12 Raju Satteppagol and Cw.14 Bhimappa Tammannavar questioned you as to why you are causing of the death of Sattewwa, forcibly administering poison, you accused abused them such as” Bosudi Makkalira’ and threatened to cause their death if they disclose this fact to anybody else with intent to cause alarm to them or to cause them to omit to do any act which they were entitled to do and thereby you both accused committed an offence of criminal intimidation punishable under Section 506(11) nw 34 of IPC and within my cognizance.” Both the accused pleaded not guilty and claim to be tried. I The prosecution to prove the charges examined P.W. 1 to P.W.25 and marked Ex.P1 to Ex.P.46. On the defence side, a portion of the statement made by P.W.3 before the 9 7 police was marked as Ex.D1 and U.D.complaint was marked as Ex.D2 and M.O.1 to M.O.12 were marked. 4. From among the witnesses examined, P.W.1 is the father of the deceased, P.W.4 is the elder sister, P.W.19 is the brother of the deceased. P.W.18 and P.W.21 are eyewitnesses to the incident. P.W.2, P.W.3, P.W.4 and P.W.22 were witnesses, who stated to have last seen the deceased in the company of accused no.2. P.W.9 Is a witness who found the dead body at 5.30 a.m., on 5.12.2004. 5. P.W.18 and P.W.21 are eye witnesses, they have turned hostile. They have not supported the case of the prosecution. Nothing has been elicited in their cross examination. P.W.20 Is examined to prove the extra judicial confession alleged to have been made by the accused. He has not supported the case of the prosecution. Panch witnesses to the recovery have also turned hostile. The entire case of the prosecution is based on the motive and last seen circumstance. The motive alleged against the accused was that accused no.1 was harassing the deceased after the marriage. However, after the advise of S 8 elders, deceased went to the house of accused no.1 where she gave birth to a female child. Accused no.1 agaIn started harassing her, unable to bear the same, she came back to her parents’ house. She had filed a petition seeking maintenance before the Family Court and the Family Court has awarded monthly maintenance of Rs.500/-. Ex.P25 is the order of the Family Court, Belgaum dated 29.11.1998, wherein it has enhanced the maintenance from Rs.400/- to Rs.500/- per month. The deceased had sought for recovery of the same. 6. P.W.1, P.W.4 and P.W.19 have stated in their evidence that the Family Court had awarded maintenance, but accused no.1 had not paid the maintenance. P.W.19 - brother of the accused has stated that he used to attend the Family Court proceedings along with his sister (deceased). When the case was listed on 30.11.2004, there was a proposal for settlement and accused no.1 had agreed to pay Rs.1,00,000/- each to the wife and daughter. The matter was adjourned to 6.12.2004. However, on 2.12.2004, at about 5 p.m. accused no.2 came to Bargnal village and took the deceased along with him, on the pretext of getting birth certificate to her child. 9 These witnesses have stated that accused persons were harassing the deceased, as the deceased was demanding arrears of maintenance and have committed the murder of the deceased. However, except Ex.P25 — the order of the Family Court passed In the year 1999, no other documents are produced to prove the motive. The documents on record reveal that the deceased had filed an application for summoning particulars of the service benefits of the accused no.1, as he was likely to. retire from the military service. For the reasons best known to the prosecution, they have not been marked in evidence. P.W.2 and P.W.3 have stated that they had seen accused no.2 near Drama Plat Form in the village and the deceased had Informed P.W.2 and P.W.3 that she will be going with accused no.2. However, P.W. 1 has stated that the deceased had left the house stating that she would go to bazaar for purchasing things. P.W. 1 has further stated that he waited and searched for his daughter for 2 —3 days and thereafter, he came to know that the dead body of his daughter was lying within the limits of Kesanur village. He went and saw the dead body. P.W.19 and doctor were also present at the spot. Inquest was 10 conducted. Entertaining a doubt of Involvement of accused In the murder, he gave a complaint against the accused on the next day (3.12.2004). As the complaint was not registered, he complained to the I.G.P, thereafter, the police registered the case. He has admitted that he came to know that P.W.2 (C.W.9), C.W.1O (P.W.3) had seen the deceased along with accused no.2. P.W.18 — Bhimappa, P.W.21 — Raju Maruthi also stated that they had seen the accused forcibly administering poison In her mouth at about 10 p.m. on 2.12.2004. On coming to know of these facts, P.W.1 flied a complaint and P.W.1 has also stated that few days prior to the incident, the accused had threatened the deceased that he would finish her. The evidence of P.W. 1 and P.W. 19 show that they had flied a complaint before the jurisdictional police. Then, they met the Dy.S.P., Gokak and Informed the incident. As P.W.25 refused to receive the complaint, they met IGP and flied a complaint. However, nothing has been produced to show that they had met IGP and P.W.25 had not registered the complaint. However, in the evidence of P.W24, he admits that a departmental enquiry was Initiated against him. a’ 11 Except this, there are no other material to explain the delay In filing the complaint. 7. The incident has taken place on 2.12.2004. The dead body was found on 5.12.2004. However, the complaint was filed by P.W.1 on 21.12.2005. P.W.19 is a police constable working In Belgaum. He has stated in the evidence that on 4.12.2004, he had met PSI Yamakanamardi P.S., but he did not go to the police station to file a missing complaint of his sister. On 5.12.2004 morning he had received a phone call stating that a dead body is found. He admits that he did not go to Yamakanamaradl police. Only on receipt of phone call on 5.12.2004, at about 8.00 to 8.30 a.m. he went to Rustumpur and identified the dead body. He has also stated that he had given a complaint to ASI — Karabannavar against the accused at about 9 a.m. or 10 a.m. However, the CPI who came to the spot tore the complaint stating that there are no injuries on the body of the deceased and conducted Inquest. He also admitted that his signature was obtained while registering a case under Section 174 of Cr.P.C. He has stated that after 15 days, he met Dy.S.P and thereafter sent the complaint to a 12 the Deputy Commissioner and I.G.P. However, he admits that no endorsement was given from the office of IGP for having received the complaint. P.W.19 being a police constable and was aware of the procedure of filing the complaint. Except stating that he had approached the Dy.S.P and IGP, no documentary evidence is produced to substantiate the same. It Is highly improbable to believe that if a complaint Is not registered by the CPI on the ground that no Injury was found on the dead body of the deceased and had tort the complaint. Even it was not received, it could be sent by registered post. However, except the oral evidence of P.W.1 and P.W.19, there is no explanation as to why complaint was not registered till 2 1.3.2005, even though the dead body was found on 5.12.2004, Inquest and postmortem examination was conducted, P.W.1 and P.W.19 did not state that the accused have committed murder, In turn they took the body of the deceased and cremated the same. Hence, the evidence does not explaIn the delay In filing the complaint. 8. As regards the last seen circumstance, P.W.1 — father of the deceased has stated that on 2.12. 2004 at 5 p.m., the deceased had gone to Paschapur bazaar to 13 purchase the things. The distance between Bagaranal and Paschapur is about 1 ½ furlongs. Number of people to go to Paschapur Bazaar, PW.1 waited for his daughter to come till night. As it was night, he did not go to search of his daughter nor he informed his neighbours. Though Pw.1 had searched for his daughter for 3 days, he did not inform his son — P.W.19 who was working as police constable has also not filed a complaint or made an effort to find out his sister. P.W.2 has stated that on 2.12.2004 deceased and she were cleaning jawar at about 5 p.m., deceased told to P,W.2 that her brother-in-law - accused mo.2 has come near Drama stage and she went there. This witness has been treated as hostile. In the cross examination, P.W2 has stated that she had seen the accused no.2, There was no talks between PW.2 and accused, P.W.2 has stated that she had seen the accused no.2 earlier, when he was coming to the house of the deceased. P.W.3 has stated that he had gone to Paschapur bazaar to purchase things. At about 6 p.m, while he was returning by walk, he saw Sattappa (Cw11) was coming from his behind on a bicycle and he saw accused no.2 and deceased who were coming from opoosite direction 4 14 and he enquired the deceased as to where she is going. Deceased informed that accused no.2 has come and she has go to send him and after 4 days, she came to know the death of the deceased. P.W.4- the elder sister of the deceased has stated that the deceased was cleaning jawar with her and P.W.2 till 5 p.m and thereafter deceased told at 5 p.m., accused no.2 has come near the Drama stage and the deceased went with accused no.2. Since, she was also required to catch the bus to go to her village, she left the house. While leaving the house of her father, P.W.1 had seen the deceased and accused no.2 near the Drama Stage. P.W.22 is also examined to support the case of the prosecution as he had last seen the deceased in the company of the accused.. However, he was turned as hostile and was cross-examined, nothing has been elicited. From the evidence of P.W.2 to 3, it is clear that all the 3 witnesses saw the deceased in the company of accused no.2 at about 5 p.m. on 2.12.2004. P.W.1 has also seen the deceased in the company of accused no.2. There is no evidence to show as to why P.W.1- complainant the father of the deceased did not enquire with accused no.2 with whom the deceased was last seen 15 on 2.12.2004. In turn P.W.1 has admitted that he did not even search for the deceased on the night of 2.12.2004. He had not even informed the incident to the neighbours and after 3 days he Informed P.W.19. P.W.19 who Is also police constable has admitted that a missing complaint has been filed after 4 days of the incident, though he had met the sub inspector of police, Yamkanamardi, but he did not lodge a complaint thinking that the deceased has gone with accused no.2. P.W.1 being father of the deceased, P.W.19 being the brother and P.W.4 being elder sister of the deceased who were aware of the deceased going along with the accused no.2, as the deceased had not returned for three days could not have kept quite. Evidence shows that they had not even made enquiries with accused no.2. Even on 5.12.2005 they did not make any complaint, In turn took the body of the deceased after the post-mortem and cremated the same. This circumstance creates a serious doubt as to whether these witnesses had seen the deceased in the company of the accused no.2. The bonafides of the statement of these witnesses Is doubtful. They are not reliable. It is in these circumstances, the Trial Court has disbelieved the evidence of P.W.2, P.W.3 and ft 16 P.W.4 as last seen witnesses of the deceased in the company of accused no.2. 9. As far as recovery is concerned, the accused no.1 and 2 were arrested on 11.3.2005 and their voluntary statements were recorded as per Ex.P.30 and Ex.P.31 and empty plastic pouches were seized near the scene of offence. P.W.1 in his evidence has stated that when he saw the body of the deceased, he had seen the empty plastic pouch of the poison lying there. In so far as two bags of Zinc Phosphate M.O1 to M.O.3 are concerned, It is pertinent to note that Ex.P7 - forensic lab report dated 5.1.2005 was received on 6.1.2005 and thereafter, the accused were arrested, the police received the chemical report of the contents of the bottle before the arrest of the accused. It is thereafter on the basis of the alleged voluntary statements of the accused, two piastlc bags of poison containing Zinc Phosphate were seized. “Whether the accused could have kept the Zinc Phosphate in their house till it was seized by the police?” 17 The seizure is only after knowing the contents of the empty bottle that it was Zinc Phosphate, it creates doubt as to whether police were aware of the contents of the empty bottle. In these circumstances, it Is highly improbable that the accused would have kept those two bottels in his house till they were seized. The entire case Is based on circumstantial evidence namely motive, last seen circumstance and the recovery. Though two eyewitnesses were examined as P.W.18 and P.W.21, both of them have turned hostile. Nothing has been elicited in their cross examInation. As far as motive is concerned, the allegation is that the amount of maintenance was not paid. But, It has come in the evidence that Rs.6,000/- has been paid by accused no.1 towards maintenance. The arrears of maintenance Is also not forthcoming from the records. If accused no.1 had not paid maintenance, it was open to recover from the salary of the accused no.1. This evidence also does not support the case of the prosecution. As no records are produced as to what was the maintenance amount was due from accused no.1 and what was the last order passed by the Family Court. The only document available is Ex.P25. It relates to enhancement of 18 compensation in the year 1999. In the circumstances, the evidence of RW.2, P.W.3, P.W.4 and P.WJ9 are not credible and reliable, Except this, there is no other evidence to support the prosecution case. The Trial Court on proper appreciation of the entire evidence and by well reasoned order has acquitted the accused. Even on re consideration of the entire material, we do not find any error in the judgment of acquittal passed by the Court below. 1O.Accordingly, the appeal fails and the same is dismissed. TTT1Th2V J , i__ _4J_ Sd/ JUDGE Msu