Case: State Of Karnataka Vs. Chand Basha

2. The brief facts necessary to dispose of this appeal are that one Ganesh, amason, went missing on 16.01.2001. On 20.01.2001, PW1 D. Ramu, Dhobi by profession, saw a dead body floating in a well near the Dhobi Ghat with hands tied at the back and the ankles were also tied. The police recovered the dead body, shifted it to Bowring Hospital Mortuary and thereafter published the photograph of the dead body in the newspaper. From this photograph, PW3 father of the deceased, reached the Bowring Hospital and identified the body as that of his son Ganesh. PW1 lodged a complaint with K.G. Halli Police Station and investigation started, and from the apprehension of PW3, accused Chand Basha was arrested on 23.01.2001. The investigation revealed that on 17.01.2001, PW12 (Appu) told PW3 that his son had gone to a wet party with the accused on 16.01.2001. The said wet party took place at Sindhur Bar at Lingarajapuram. PW5 (theand PW6 (owner of the bar) testified that on 16.01.2001, the accused along with one other person visited their bar. Building further, the investigation came across with PW8 (shopkeeper) who testified that the accused along with one other person bought 2 cigarettes from his shop on 16.01.2001 at 10 p.m., and the accused thereafter was arrested on 23.01.2001, but the deceased was never seen alive again.3. Police filed the charge sheet against accused Chand Basha, after which charges for offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as ?IPC?) were framed by the Trial Court and the charges were read over and explained to the accused but he pleaded not guilty and claimed trial.4. The Trial Court by its judgment and order dated 14.02.2003, convicted the respondent Chand Basha for the offence punishable under Section 302 IPC and sentenced him to rigorous imprisonment for life and a fine of Rs.15,000/, and in default of payment of fine, further rigorous imprisonment for six months was awarded. Being aggrieved by the aforesaid judgment and order of the Trial Court, thefiled an appeal before the High Court of Karnataka at Bangalore, being Criminal Appeal No.1047 of 2003. The High Court by the impugned judgment and order allowed the criminal appeal on the ground that the prosecution might have proved the motive but had miserably failed to prove the incriminating last seen circumstance and had also failed to successfully prove the discovery evidence. The High Court held that the death may be a homicidal, but there is no evidence to connect the accused with the crime. In view of the aforesaid discrepancies, the High Court set aside the order of conviction passed by the Trial Court and acquitted the respondent.5. The AppellantState has challenged before us the judgment of acquittal passed by the High Court.

Reasoning:
14. The prosecution story relies upon theseen together? theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove theseen together? theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes theseen together? theory beyond reasonable doubt to prove the guilt of the accused. The prosecution merely proved the motive which could have compelled the accused, and that the accused went to the bar with one other person, but the identity of that other person is not clearly established at all. Thereport fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001, after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established.15. Thus, in the light of the above discussion, we are of the view that the present appeal is devoid of merits, and we find no grounds to interfere with the judgment passed by the High Court.The High Court rightly rejected the two recoveries made as it seems artificial that the accused intending to kill the deceased will not prepare well. Having two shoe laces at his disposal, why will he cut a shoe lace into two to tie the hands of the deceased. Similarly, the piece of Saree which was recovered near the well is doubted as an accused intentionally committing a crime will not bother to cut a piece of cloth into two before tying. These evidences were sent to FSL on 25.2.2001 i.e. after 1 month of the alleged recovery. The recovery of these material objects seems more of an unnatural occurrence. The High Court also rightly ruled outconfession as deposed by PW4. PW4 in herdeposed that she narrated the saidconfession of the accused to her father PW3. PW3 also came to know that his son (deceased) had gone with the accused to a wet party. There arises doubt upon the conduct of PW3 who knew that his son was missing since 16.01.2001 and he also heard ofconfession of the accused, yet he did not report to the police.The prosecution pressed hard on the fact that the accused as well as the deceased were together on 16.01.2001 and the deceased was never seen again. The dead body was recovered on 20.01.2001 i.e. after 3 days and 4 nights. PW1 Dhobi deposed that he goes to the well daily to wash clothes and no question was asked as to the presence of a dead body in the well before 20.01.2001. Thus, the possibility of the deceased being thrown into the well later than 16.01.2001 cannot be ruled out completely, particularly when therevealed that the victim last ate vegetables and rice. Even if depositions of PW5 and PW6 are relied upon, there exists a missing link between the visit to the bar and the deceased being thrown into the well i.e. the deceased having anotherprosecution story relies upon the last seen together? theory as its pivotal evidence which is hereunder examined. The prosecution examined PW5, PW 6 and PW8 to prove theseen theory?. PW5 the bar boy claims to be the person who served the accused and one more person with 3 quarters of RR Brandi and 1beer on 16.01.2001. PW6 is the owner of the bar who testified in his statement that the accused came along with one other person. These witnesses were first questioned by the Investigation Officer on 24.01.2001 and both deposed before the Court that their bar is usually crowded and they neither make personal interaction to each and every customer nor do they take details of each of their customers. PW 5 and PW6 also deposed that the two persons were also served 2 fried chicken. According to these witnesses, the two customers were served at about 8:30 PM. PW8 (shopkeeper) is another prosecution witness who testified that at about 10.00 PM on 16.01.2001, the accused along with one other person came to his shop and bought two cigarettes of Rs.2/each. This witness has also deposed that he does not personally know the accused or the other accompanying person. On careful examination of their depositions andand also in light of the other medical evidence, some doubt is raised upon the chain of events. PW5 and PW6 stated that they were not personally acquainted to the accused. However, during investigation when the Investigating Officer, accompanied by the accused, asked them, they were able to identify him as their customer who came on 16.01.2001 along with one other person. At this point of time, the Investigating Officer disclosed the name of that other person as Ganesh and stated that he was dead. Thereafter, PW6 did not depose about any photograph being shown to him. However, PW5 was shown a photograph of the deceased and thereby he stated that he was the same person who was present with the accused on 16.01.2001. The role of the Investigating Officer is therefore doubted, as within a very short span of time, why PW6 was not shown the photograph and only PW5 was shown the photograph of the deceased. PW5 also did not disclose the details of the photograph, but it can be presumed that he was shown the photograph of the dead body. From a perusal of medical evidence it appears that the dead body was stout, the complexion had changed and bite marks of aquatic animals were present especially on the face, since it was recovered from the well. From a perusal ofreport, it transpires that the stomach contained partially digested vegetables and rice. However, PW5 and PW6 deposed that the accused and the deceased at last ordered 2 chicken fry. During investigation, PW8 was not shown the photograph of the deceased, moreover, in the examination no question was asked about the identity of the other person who was together with the accused. This goes on to create a serious doubt on theseen together? theory.