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PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: BHOJA POOJARI & ANR.

DATE OF JUDGMENT:       09/09/1997

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                THE 9TH DAY OF SEPTEMBER, 1997 Present:               Hon’ble Mr. Justice G.T.Nanavati               Hon’ble Mr,Justice S.P.Kurdukar Ms. Manjula Kulkarni, M.Veerappa, Advs. for the appellant R.S.Hegde, K.K.Tyagi, K.R.Nagaraja, Advs. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T S.P.KURDUKAR, J.      Chitravathi  (since   deceased)  was  the  daughter  of Kirodian (PW  3) and  Amba (PW 5).  They are the resident of Bombay.   On 28th November, 1976, Chitravathi was married to Bhoja Poojari  (A-1)-the first  respondent  herein.    After marriage the  couple went  to the  native place  of  A-1  at Kalwar and  stayed there  for one  and half moths.  A-1 then came to  Bangalore and after staying there for a week or so, he returned to kalwar where his father was ailing.  One week thereafter, A-1  along with  Chitravathi came  to Bangalore. Parents of  Chitravathi who  had come  to Bangalore  went to Kalwar to  see their daughter.  Chitravathi told her parents that she  was being  harassed for  dowry and  ornaments.  At that time,  Chitravathi was in her fifth month of pregnancy. Chitravathi, her  parents and  brother of  A-1 then  came to Bangalore at  the house  of A-1 at Chikkanna garden. A-1 did not appreciate  the coming of Chikkanna garden.  A-1 did not appreciate  the  coming  of  Chitravathi  at  his  house  at Chikkanna garden  as he  was then  staying with his mistress Parvathi (A-2),  the second  respondent herein.   Parents of Chitravathi  were   very  much  disturbed  on  finding  A-1, residing with A-2 at Bangalore.  Chitravathi and her parents thereafter went  to Bangalore  at their relative’s house and after staying there for one and a half months, they returned to Bombay  along with  A-1 on  or about  3rd November, 1977. According to  the prevailing  custom, parents of Chitravathi celebrated Seemantha  ceremony as  she was  in  her  seventh month of  pregnancy.  A-1 stayed at Bombay for about one and a  half   months  and   thereafter   left   for   Bangalore. Chitravathi on  2nd February, 1978 was blessed with a female child at  Bombay and  A-1 was  informed  by  a  letter  but,

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however, he did not respond to the same.  Since there was no response from  A-1, Chitravathi  told her  parents that  she would go  to Bangalore  and stay  with A-1 and A-2 and would face  the  difficulties  which  might  arise,  Chitravathi’s parents, however, did not approve of it immediately and made her to wait at Bombay until the naming ceremony of the child was over.   The  child was named by Nalini.  Sometime in the month of  August, 1978,  Kirodian  (PW  3)  along  with  his daughter and  grand child came to Bangalore.  When they came to the  house of  A-1 at  Bangalore, they saw A-2 along with her three  children  was  residing  in  the  house  of  A-1. Kirodian (PW  3) then advised A-1 to look after his daughter and the child properly and thereafter he left for Bombay. 2.  While   leaving  for   Bombay,  it  is  alleged  by  the prosecution that  Kirodian (PW  3) told Chitravathi that the would be  sending money on the address of Guruva (PW 19) who would pay  the same  to her.  This arrangement continued for sometime but  in January, 1979, when Guruva (PW 19) received a money  order from  Kirodian (PW  3).  he informed him that when he  went to the house of A-1 at Chikkanna garden on two occasions, he  found the  house locked  and on  enquiry, the neighbours informed him that one day Chitravathi, Nalini and A-1 had  gone to see a film at 1.00 p.m. and thereafter they did not  return.   Kirodian  (PW  3)  on  January  15,  1979 received a letter (Ex.P5) purporting to have been written by his daughter stating that she was going to a place which was 13 miles  away from  Bangalore and  she would inform her new address.   till then  money order be not sent.  Kirodian (PW 3) who  was conversant  with the hand writing of Chitravathi did not  believe that  the said letter was written by he and suspecting some  foul play  he wrote  back to Guruva (PW 19) requesting  him  to  go  and  find  out  the  whereabout  of Chitravathi.   On 15th  of May,  1979, Ananda  son of Guruva came to  Bombay and told Kirodian (PW 3) that whereabouts of Chitravathi, Nalini and A-1 were not known.  Kirodian (PW 3) then on  29th May,  1979 came  to Bangalore and after making enquiries with  the neighbours  of A-1 residing at Chikkanna garden, was  told that  Chitravathi and Nalini were taken by A-1 at  1.00 P.M. and since then they did not return. One of the neighbours  also told that A-1 had taken Chitravathi and her daughter  to watch  a film  show.   Kirodian (PW 3) then made  several  attempts  to  find  out  the  whereabouts  of Chitaravathi and  her child  but  without  any  success  and therefore,  on   3rd  June,   1979,  he   lodged  a  missing report/complaint  at   Central  Police   Station,  Bangalore (Ex.P56).   The police  also searched the missing persons at various places  but they  could not find them nor could they get any  clue.  On 11th July, 1979, Kirodian (PW 3) lodged a complaint (Ex.P3)  suspecting the  murder  of  his  daughter Chitravathi  and   Nalini.     The  crime   was  accordingly registered for an offence punishable under Section 302/34 of the Indian  Penal Code.   During the investigation,  A-1 was apprehended  by   Veera  Basappa   Raju  (PW   22)  at   the Byatarayanapur bus  stand and  was produced before the C.P.I who arrested him.  During interrogation, he voluntary made a statement to  point out the place where the dead bodies were buried.   Accordingly, mahazar  (memorandum) was prepared in the presence  of the  panch witnesses  after  obtaining  the permission from  the Sub Divisional Magistrate to exhume the dead bodies.  Investigating Officer  along with  A-1,  panch witnesses, medical  officer and  photographer  went  to  the Sarvodaya School  compound as per the direction of A-1.  A-1 then pointed  out the  place  where  the  dead  bodies  were buried.   The dead  bodies were  kept in the gunny bag which was then  taken out  of a  pit.    They  were  in  a  highly

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decomposed condition.  The Investigating Officer carried out the inquest  panchanama on  the dead  bodies.   The articles which were  found on  the dead  bodies and  in the  pit were seized under the panchanamas.  Dr. B.C.Chandra Gowda (PW 23) performed the  autopsy on  the dead  bodies.   B Raghavendra Rao, Serologist  (PW 12)  carried out  the test  after super imposing the  skull.   A-2 was arrested on 1st August, 1979. After completing  the  investigation.    A-1  and  A-2,  the respondents herein  were put  up for  trial for the offences punishable under Section 302, 201/34 IPC. 3.   Both the  accused/respondents herein pleaded not guilty to the  charge and  claimed to be tried.  According to them, they are  innocent and  they have been falsely implicated in the present crime. 4.   There is  no direct  evidence to  the crime in question and, therefore,  the prosecution  case  entirely  rested  on circumstantial evidence.   The  prosecution must  prove each circumstance beyond  reasonable doubt  and such circumstance must complete  the chain.   Such  proved circumstances  must exclude any  other reasonable hypothesis of innocence of the accused and they must be pointer to the guilt f the accused. The prosecution  has examined  number of  witnesses to prove these various circumstances and the evidence thereof will be dealt with each circumstance wise. 5.   It is  not disputed  that Chitravathi  (since deceased) was the daughter of Kirodian (PW 3) and was married to Bhoja Poojari @ Vasu son of Babu Poojari on 28th November, 1976 at Bombay.  A-1 is the resident of village Kalwar in karnataka. After Marriage,  A-1 took  Chitravathi to village Kalwar and after  staying   there  for  one  and  a  half  months  left Chitravathi at  his parent’s  house and  case  to  Bangalore where he was residing in a Chikkanna garden,  It is also not seriously disputed  that  Chitravathi  stayed  with  A-1  at bangalore for  some time and thereafter came to Bombay along with her  father as  she was  on the  family way  and on 2nd February, 1978,  she was  blessed with a daughter.  Sometime in August,  1978, Kirodian  (PW 3) along with his wife, son, Chitravathi and  Nalini (newly born baby) came to Bangalore. Kirodian left  Chitravathi and  Nalini at  the house  of A-1 with a  request to  took after  them properly.  Kirodian and others thereafter left for Bombay.  The evidence of Kirodian (PW 3)  and Amba  (PW 5)  is very categorical that they left Chitravathi and  Nalini at  the place  of A-1 and thereafter left for  Bombay.   In view of this positive evidence, it is clearly established  by the prosecution that Chitravathi and Nalini were  left at the house of A-1 at Chikkanna garden in August,  1978.     The   evidence  of   Krishna   (PW   16). Venkatgirappa (PW  18), Sarojamma  (PW 20) and Sulochana (PW 21) who  were neighbours  indicated that Chitravati.  Nalini and A-1  continued to  stay in  the said  house  until  12th January 1979. 6.   It is  alleged by the prosecution that on 12th January, 1979 at about noon time, A-1 went along with Chitravathi and Nalini from his house at Chikkanna garden to a movie.  After 13th of  January, 1979, Chitravathi and Nalini wee not seen. On 14th  July ,  1979, two dead bodies were exhumed from the compound of Sarvodaya School, Jainagar, Bangalore, where A-1 was staying in a watchman shed during that period. 7.   The first  and the  most  important  circumstance  that prosecution has  to prove  is whether  the two  dead  bodies exhumed  on   14th  July,   1979,  were   identified  beyond reasonable doubt  to be that of Chitravathi and Nalini.  The two dead  bodies were  kept in  a gunny  bag and  were found buried in  a pit  and then  filled with earth.  This pit was near the  shed of A-1 in the Sarvodaya School compound.  The

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dead bodies  were exhumed on 14th July, 1979 on the basis of the statement  made by  A-1 under  Section 27  of the Indian Evidence Act  and then pointing out the place where the dead bodies were  buried.   As regards  the identity  of the dead bodies, the  trial court  accepted the  evidence of Kirodian (PW 3),  Amba (PW  5), Siddaiah  (PW 9), Venkatachalaiah (PW 11) and  Kempegowda (PW  13) as  credible one.   This ocular evidence  finds   corroboration  from   some  of  the  M.Os. (Muddemal articles)  which were  found on  the dead  bodies. Our of  these articles,  Karimanisara (MO  9), toe rings (MO 10) and  pieces of  bangles (MO  11) were  found on the dead body of  an adult  person whereas  earring (MO 12), talisman (MO 13) and pair of anklets (MO 15) were on the dead body of the child.   These  articles were identified by Kirodian (PW 3) and Amba (PW 5).  They testified that these articles were given to  Chitravathi and  Nalini by  them.  The trial court succinctly discussed  the evidence  of PW  3 and  PW 5  in a great length and found the same to be trustworthy.  The High Court has  disbelieved the evidence relating to the identity of these  MOs on  the ground that the same are commonly used and found  in the market and, therefore, from this evidence, the identity  of the  dead bodies  could not be said to have been conclusively  established.   We are unable to subscribe to the  doubt entertained  by the High Court in this behalf. It is  true that  all these articles (MOs) are commonly used by the  women folk  but Amba  (PW 5)  stood well  during her croos-examination and  asserted  that  these  articles  were given to Chitravathi and Nalini by her.  We, therefore, find that the  High Court  was not  right in  setting  aside  the findings recorded by the trial court as regards the identity of these MOs. 8.   IT is  true that the evidence of Dr. B.C. Chandra Gowda (PW  23)  who  held  the  autopsy  on  the  dead  bodies  is inconclusive as  both the  dead  bodies  were  in  a  highly decomposed condition  and beyond recognition/identification. However, the  prosecution examined  B. Raghavendra  Rao  (PW 12).   Serologist, Forensic  Science Laboratory,  Bangalore, who super  imposed the  skull (Article 1) of an adult person and after  examination of  the skull and the photographs, he opined that it was of an adult human female aged about 25 to 30 years.   He  further stated  that there  is certainty  of about 90-95%  in the  findings given  by him.   The  defence cross-examined the  witness at a great length but thee is no material which could discredit his evidence. 9.   IT is  not and  cannot be  disputed that  the two  dead bodies were exhumed on 15th July, 1979.  The evidence of Dr. B.C.  Chandra   Gowda  (PW  23),  Kempegowda  (PW  13),  the investigating officer  was quite sufficient to conclude that the two  dead bodies were exhumed on 14th July 1979 from the place pointed  out by A-1.  The High Court in our considered view was  not right in rejecting the prosecution evidence as regards the  identity of  the two  dead bodies being that of Chitravathi and Nalini. 10.  Coming to  the next  circumstance  that  some  time  in August, 1978, Chitravathi and Nalini came to Bangalore along with her  father, mother  and brother who after leaving them at the  house of  A-1 at  Chikkanna garden, left for Bombay. As regards  the quarrels  between  Chitravathi  and  accused persons and  ill treatment  meted out  to  the  former,  the prosecution relied upon the evidence of Kirodian (PW 3) Amba (PW 5), N.Krishna (PW 16), Venkatgirappa (PW 18), Guruva (PW 19) and  Sarojamma (PW  20).   The evidence  of  parents  of Chitravathi  indicates   that  A-1   was  staying  with  A-2 (mistress) since  prior to  the marriage of Chitravathi with A-1 which  fact was  not  known  to  them  at  the  time  of

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marriage.   This fact was first time came to their knowledge when Chitravathi went to Bangalore after marriage along with a-1 and  at that  time, she found that A-2 was residing with A-1  along   with  her  children  from  her  first  husband. Kirodian (PW  3) and  Amba (PW 5) testified that Chitravathi was complaining  about the behaviour and conduct of both the accused who  were quarreling  with her  on one  or the other pretext.   A-1 used  to take  side of  A-2 and  he  was  not providing any  money to  her.   Chitravathi was under mental trauma as  A-2 was  residing with  A-1 in  the  side  house. Realising financial  difficulties, Kirodian  (PW 3)  used to send money  orders to  Guruva Poojari (PW 19) for her day to day expenses which eh used to pass on to her. Guruva Poojari (PW 19)  has supported  this version  of Amba  (PW 5).  Some money orders  coupons were  also produced  on record.   This evidence, therefore,  clearly establishes  that A-1  and A-2 were ill treating Chitravathi.      There is also sufficient material on record in the form of evidence  of Krishna  (PW  16).  Venkatgirappa  (PW  18), Guruva Poojari  (PW 19) and Sarojamma (PW 20) who had stated that they  were residing  in the nearby huts/houses and used to hear  and see  quarrels between Chitravathi, A-1 and A-2, At times,  A-1 used  to say  that he  was fed up of quarrels between Chitravathi and A-2.  There is nothing in the cross- examination to  disbelieve their  evidence.  The trial court accepted the evidence of all these witnesses on the issue of ill  treatment  and  quarrels  as  trustworthy  and  for  no statable reasons,  the High  Court has  discarded the  same. We, therefore, do not agree with the reversal finding of the High Court on this issue. 11.  The next  circumstance, namely,  motive to  commit  the murder of Chitravathi.  The same has to be inferred from the conduct of  A-1 and A-2.  Both the accused wanted to get rid of Chitravathi  for the obvious reasons that her stay in the house at  Chikkanna garden  was a  great nuisance  to  their illegitimate conduct.   Therefore,  the evidence  on  record clearly proves  the motive  on the part of A-1 to get rid of Chitravathi so that he could stay with A-2 peacefully. 12.  The evidence  of Krishna (PW 16), Venkatgirappa (PW 18) and Sarojamma  (PW 20)  who are  the neighbours  of  A-1  in Chikkanna garden  further proves  that  A-1  prior  to  12th January, 1979  had taken a job of a watchman and was staying in the  watchman shed  in the  compound of Sarvodaya School, Jainagar, Bangalore.  A-1 was staying with A-2 in that shed. The accommodation  was provided to A-1 by the management for his services  as a  Watchman.   Siddaiah (PW  9) who  is the Secretary of  the School  had testified that A-1 was staying in a  watchman shed  along with  A-2 and  doing the  job  of Watchman.  This is significant because A-1 had left probably the frequent  quarrels between  Chitravathi and  A-2.   This circumstance is also proved by the prosecution. 13.  Coming to  the next  most important  circumstance as to what happened  on 12th  of January,  1979.  According to the prosecution on  that day,  A-1 came  to Chikkanna garden and took Chitravathi  and Nalini at about 1.00 p.m. for a movie. Chitravathi while  going told Sulochana Amma (PW 21) who was in the  hut that  she was going along with A-1 and Nalini to watch a  movie.   The evidence of Sulochana (PW 21) is quite credible to  prove the  fact that on 12th January, 1979, A-1 took Chitravathi  and Nalini  at about 1.00 p.m. for movies. What  happened   thereafter  was   exclusively  within   the knowledge of  A-1, A-1  has denied  that he took Chitravathi and Nalini  on 12th  January, 1979  but this  denial has  no meaning and  the same  was rightly  rejected  by  the  trial court.   This clinching  circumstance, therefore, shows that

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on 12th January, 1979, A-1 along with Chitravathi and Nalini had left  their house  at Chikkanna Garden.  Chitravathi and Nalini were  thus last  seen alive  in the company of A-1 on that day. 14.  The evidence  of Kempegowda  (PW 13),  Krishna (PW 16), Venkatgirappa (PW  18), Sarojamma  (PW 20) and Sulochana (PW 21) is quite consistent to prove that after 12th of January, 1979, A-1  Chitravathi and  Nalini did  not return  to their house.   There is  nothing in the cross-examination of these witnesses which  could make  us disbelieve  their  evidence. The trial  court accepted  this evidence  as trustworthy but the High  Court has  erroneously discarded  the evidence  of these witnesses.   We,  therefore,  hold  that  on  12th  of January, 1979  at about  1.00 p.m,  A-1 took Chitravathi and Nalini along  with him  for watching  a movie and thereafter Chitravathi did not return to the house in Chikkanna Garden. The evidence  of Guruva  Poojari (PW  19) also  supports the fact that  Chitravathi  did  not  return  to  the  house  at Chikkanna  Garden   after  12th   January,  1979  until  the investigating agency  exhumed the  dead bodies on 14th July, 1979, Guruva Poojari (PW 19) has testified that on 15th May, 1979, on receipt of the money order from Kirodian (PW 3) for Chitravathi, he  went to the house of Chitravathi but it was found locked  and after making inquiries, he was told by the neighbours that she had not returned to the house after they went for  movie on  12th January,  1979.  Guruva Poojari (PW 19), therefore, returned the money order to Kirodian (PW 3). 15.  To corroborate  the vital circumstance that Chitravathi and Nalini  were last seen together in the company of A-1 on 12th January,  1979, the  prosecution has  examined Siddaiah (PW 9),  the Secretary  of the  School.   he stated  that he noticed A-1  was coming  with a  woman and  a child  to  the watchman shed  which was  occupied by  him within the school compound.   When he  asked him  as to  who she was, A-1 told that she  was his  wife.   The evidence  of Siddaiah  (PW 9) further shows  that a  few days prior to 12th January, 1979, A-1 was  digging a  pit by the side of his watchman shed and when it  was enquired  from him,  he told  that the same was being prepared  for dumping  the rubbish.   As  per the spot panchanama (Ex.P2),  the size of pit was fairly good and was 3’ to  4’ deep.   A-1  was arrested  on 13th  July, 1979 and while in custody, he made a disclosure statement.  It is not disputed that  such a  statement is admissible under Section 27 of  the Evidence  Act which  led to  the discovery of the dead  bodies  from  the  pit.    The  Investigating  Officer obtained  the   necessary  permission   from  the   District Magistrate to  exhume the  dead bodies.   A  requisition was sent to  Dr. B.C.  Chandra Gowda  (PW 23)  to hold  the post mortem at  the spot.   The dead bodies were exhumed pursuant to the  statement of  A-1 in the presence of panch witnesses and Dr.  B.C. Chandra  Gowda (PW  23).   The post mortem was carried out  by Dr.  B.C.Chandra Gowda  (PW 23)  on the spot itself.   This evidence, therefore, clearly establishes that the two dead bodies were exhumed on 14th July, 1979 but they were  in   a  totally  decomposed  condition  and  were  not identifiable.   The clothes  and other articles found on the dead bodies  were seized  under the separate panchanamas.  A specific question  was put  to accused in this behalf during recording their  statements under  Section 313 Cr.P.C. They, however, denied  their involvement.   On  the basis  of this evidence, we  can safely  conclude that  the two dead bodies were exhumed  on 14th  July, 1979  pursuant to the statement made by  A-1 which  was admissible  under Section  27 of the Evidence Act. 16.  Preceding the  exhumation of  the dead bodies, Kirodian

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(PW 3)  has stated that when he received an information from Guruva Poojari (PW 19) that Chitravathi was not found at her house in  Chikkanna Garden Kirodian suspected some foul play and came  to Bangalore on 25th May, 1979.  He made inquiries with the  neighbours any relatives but nobody could give any information as  regard the  whereabouts of  Chitravathi  and Nalini.  On 3rd June, 1979, he lodged a missing report.  The investigating officer  despite his efforts could not get any clue.   Search of  both the accused was found futile as they were absconding.   Siddaiah  (PW 9) also stated that A-1 had left the  watchman shed  and his whereabouts were not known. however, on  13th July,  1979, A-1  came to  be arrested and during interrogation,  he pointed  out the  place from where the dead  bodies were  exhumed. Kirodian  (PW 3) then lodged the First  Information Report under Sections 302, 1201/34 of the Indian  Penal Code  against both  the accused.   A-2 was arrested on  1st August,  1079. The trial court accepted the evidence  of  Kirodian  (PW  3)  and  P.V.  Kowri  (PW  27), investigating officer  and came to the conclusion that after January 12,  1979, both  the accused  were  absconding.  Dr. B.C.Chandra Gowda  (PW 23)  has stated  in his evidence that deaths might  have occurred  four  to  six  months  earlier. There was  no effective  cross-examination in  this  behalf. The High Court has failed to appreciate the evidence in this behalf in proper perspective and has fallen into error while disbelieving the prosecution story. 17.  The last circumstance which was pressed into service by the prosecution  is the abscontion of A-1 and A-2.  To prove this circumstance,  prosecution relied  upon the evidence of Siddaiah (PW  9), the  School secretary  who had stated that both the accused had left the watchman shed few months prior to 14th  July, 1979 without informing anybody.  The evidence of  P.V.Kowri   (PW  27),  the  investigating  officer  also confirms the  fact that  both the accused despite their best efforts could  not be  traced at  their known  places.  This circumstance, in  our opinion,  is again very important link to show their guilty mind. 18.  The trial court on the careful scrutiny of the oral and documentary evidence on record held that the prosecution has successfully established  beyond every reasonable doubt that A-1 was responsible for causing the death of Chitravathi and Nalini  and   was  also   responsible  for   having   caused disappearance of  evidence  of  murder  of  Chitravathi  and Nalini.   Consistent with his findings, the trial court vide its judgment  dated 12th  November, 1980 convicted A-1 under Section  302   IPC  and   sentenced  him   to  undergo  life imprisonment and for an offence punishable under Section 201 IPC, sentenced  him to  suffer RI  for seven  years.    Both sentences were  ordered to  run concurrently.   A-1 filed an appeal against  his order of conviction and sentence whereas State  of  Karnataka  filed  appeal  against  the  order  of acquittal of A-2.  The High Court of Karnataka by its common judgment dated  17th January, 1983, allowed the appeal filed by A-1  and acquitted  him  of  all  the  charges  and  also confirmed the  order of  acquittal of  A-2.  Both the courts below have  acquitted A-2  of  all  the  charges.    In  our considered view,  the order  of acquittal  of A-2  needs  no interference. 19.  For the  foregoing conclusions,  we set aside the order of acquittal in respect of Bhoja Poojari (A-1) passed by the High Court vide its common judgment dated 17th January, 1983 in Criminal  Appeal No. 349 of 1981 and restore the order of conviction and  sentence dated 12th November, 1980 passed by the  IInd   Addl.     Sessions  Judge,   Metropolitan  Area. Bangalore  City   in  Sessions   Judge,  Metropolitan  Area,

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Bangalore City  in Sessions Case No. 40 of 1979.  The appeal filed by  the  State  of  Karnataka  against  the  order  of acquittal dated  17th January. 1983 passed by the High Court in Criminal  Appeal No.  350 of  1981 in  respect of  A-2 is dismissed.   The appeal  filed by the State of Karnataka for enhancing the  sentence of  A-1 is  also dismissed.    Bhoja Poojari (A-1)  if on  bail, shall surrender to his bailbonds to serve out the remaining part of his sentence .