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PETITIONER: UDAY KUMAR

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       21/09/1998

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

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T S.P. Kurdukar. J. Parthasarthi (P.W.1)  alongwith  his  wife  Gangabai (P.W.2)  and  two  children,  namely,  Suresh  and Manjunath (P.W.3) came to the house  of  mother  of  P.W.2  at  B.M.L. Nagar K G F on 19.4.1998 to attend the Seemantha ceremony of the wife of the brother-in-law of Prathasarthi to be held on 20-4-1988.   The  parents  of  Gangabai  (P.W.2)  reside  at B.E.M.L.  Nagar K.G.F.  The appellant-accused  is  the  real brother of  Gangabai  (P.W.2).    Parthasarthi  (P.W.2)  was sleeping in one of  the  rooms  in  that  house.    Gangabai (P.W.2) between  4  and  5.00  P.M.   came to the room where Parthasarthi (P.W.1) was sleeping and told  him  that  their son Suresh   had   been  killed.    On  hearing  this  news, Parthasarthi (P.W.1) and Gangabai (P.W.2) rushed to the said room where dead body of Suresh with head severed  was  lying on  the  floor  and  the appellant was standing there with a Kathi in his hand.  Parthasarthi  (P.W.1)  then  immediately rushed  to the police station and lodged a complaint against the appellant.  The police reached the place  of  occurrence immediately and carried out the necessary investigation. The appellant was put up for  trial  for  committing the  murder  of  Suresh  aged  about  4  years,  an  offence punishable under Section 302 I.P.C. The accused  denied  the charge  and  claimed  to  be tried. He pleaded innocence and stated that he did not know  who  committed  the  murder  of Suresh. His further plea was that the dead body was found in the  bath  room  and not in the room. He also denied that he was standing near the dead body in the room with kathi.  The substance  of  his defence was that he is innocent and he be acquitted. At the outset, it be stated that  there  is  no  eye witness  to the occurrence in question. The prosecution case entirely   rested   on    circumstantial    evidence.    The circumstances  sought  to  be proved upon by the prosecution were : 1. Suresh died a homicidal death 2.   Suresh was hale and hearty when he was taken by the appellant in his room just  a  few  minutes  before  the incident.

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3. The dead body of Suresh  with  his  head  severed from  the body was found in the room of the appellant and he was standing there with the blood stained kathi in his hand. 4.    Abscondence   of   the   appellant  after  the occurrence. 5.  Recovery  of  the  weapon at the instance of the appellant. The  learned  Principal  Sessions  Judge  at  Kolar. after appraisals of oral and documentary evidence on record, by  her  judgment  and  order  dated 23.1.1993 acquitted the appellant  holding  that  the  prosecution  has  failed   to establish  beyond  reasonable  doubt  the  complicity of the appellant in the present crime. The  State of Karnataka being aggrieved by the order of acquittal preferred a criminal appeal  to  the  Karnataka High Court  at  Bangalore.    The Division Bench of the High Court on re-appraisal of the  evidence  on  record  did  not agree  with the order of acquittal passed by the trial court and held that the prosecution has  conclusively  established all the circumstances which would complete the chain thereof and  these proved circumstances would unmistakably point out to the guilt of the appellant.  The High Court thus  allowed the  appeal  and  set  aside  the  order  of  acquittal  and convicted the appellant for  the  offence  punishable  under Section 302  I.P.C.    and  sentenced  him  to  suffer  life imprisonment.  It is against this  judgement  and  order  of conviction  the  appellant  has  filed  this  appeal to this Court. Mr.  R.K.Jain, learned Senior Counsel, appearing  in support  of  this  appeal, contended that the High Court was wholly unjustified in reversing the order of acquittal.  The view taken by the  trial  court  was  equally  probable  and reasonable one.     Learned  counsel  took  us  through  the judgment of the courts below.   The  reasons  given  by  the trial  court  for  acquittal  in  our  considered  view were totally unsustainable in law.  The order of the trial  court proceeded  on mere surmise and conjectures without assessing the prosecution  evidence  in  proper  perspective.      The reliance  placed  by the trial court on the defence evidence to support its reasons for acquittal was  totally  erroneous as the said evidence is nothing but a tailor made to suit to the defence  of  the  appellant.    The  High  Court, in our opinion, on re-appraisal of evidence on  record,  was  fully justified in  reversing the order of acquittal.  It is not a case where two views were probable, The reasons given by the trial court for acquitting  the  accused  were  not  legally sustainable and therefore it could not be said that the view taken by the trail court was probable one. As  stated earlier, the appellant was not a stranger to the innocent child Suresh.    Mr.    T.N.    Parthasarthi (P.W.1)  has  deposed  that  a coconut was found tied at the threshold of  the  hose  and  that  the  appellant  being  a believer  in  superstitious  beliefs  had sacrificed his son Suresh, an innocent child of four years.  In the  event,  if we  hold  that  the  prosecution  has  established  all  the circumstances to bring home the guilt of  the  accused,  the least that we can say that the appellant had no regard for a human life and was obsenssed with superstitious beliefs. We now advert to the circumstances which were sought to  be relied upon by the circumstances which were sought to be relied upon by the prosecution to prove the guilt of  the appellant. The  first  circumstance  is  whether  Suresh died a homicidal death.  It is not and could not be  disputed  that the death  of  Suresh  was  homicidal.  Just to complete the

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record, we may refer to the evidence of Dr.S.Raj (P.W.5) who held the post mortem on the dead body of Suresh and  opined. "The  body  appeared to have been severed from the most part at the  level  of  the  middle  of  the  thyroid  cartilage, anteriorly  and  the  levels  of  the  body and pedicles and interspinous space of  the  fourth  cervical  vertebra."  In fact,  the  head was severed from the neck and two pieces of the body of Suresh were sent for  post  mortem  examination. In  view  of this medical evidence, we have no hesitation to conclude that Suresh met with a homicidal death. Cming  to  the  second circumstance, namely, Suresh was hale and hearty before  the  occurrence  took  place  on 19.4.1988  between  4.00  and  5.00  P.M.,  there is no room whatsoever to hold otherwise as regards the hale and  hearty state  of  health of Suresh, The only issue raised before us as regards this circumstance is an to whether the  appellant called  Suresh  and  Chandilnathan  in  his  room  under the pretext to give them a coconut.  It is, therefore, necessary to find out as to whether the prosecution evidence  in  this behalf is satisfactory and conclusive. Gangabai (P.W2) has  stated  that  on  19.4.1988  at about 5.00  P.M.    her  son  Suresh  and  her  sister’s son Chandilnathan were taken by her younger brother  (appellant) to  one  of the rooms in the house under the pretext that he would peel coconuts.    Within  short  time  thereafter  the appellant  sent  Chandilnathan  out of the room and detained Suresh in the room and closed the  door.    Thereafter,  she went  to  the  said rood and found that the door of the room was opened and when she went inside, she saw  the  appellant holding  a kathi in his hand and the dead body of Suresh was lying on the floor with his head severed.  The appellant was then preparing to put the severed head into the kitbag.  The appellant then handed over the kathi to he saying that  "you may  now  do  whatever you want." She then kept the kathi on the table and went to her husband Parthasarthi  (P.W.1)  and told him  what  she  saw  in  the  room.    The  witness was searchingly cross examined on behalf of  the  appellant  but nothing could  be  elicited  to  favour  the  defence.   The witness, however, admitted that the appellant had  love  and affection  for  the dead body of Suresh was in the bath room which is situated at some distance  and  one  has  to  cross three rooms  in  between.  The witness denied the suggestion and asserted that  when  she  went  into  the  room  of  the appellant,  she  saw  the dead body on the floor of the room and the appellant was standing worth a kathi  in  his  hand. It  is  also  difficult  to  believe  the story suggested on behalf of the appellant that the dead body and a kathi  were in  the  bath  room  and  during  the  investigation P.S.I., Armugam and Subramanyam had conspired and shifted it in  his room.  This  suggestion  has  been  denied.   We also do not attach any importance to such suggestion.  There is  nothing in  the  evidence  to  suggest that Gangabai (P.W.2) had any enmity with the appellant and the dead body was caused to be shifted from the bath room to the room of the appellant with a view to implicate him falsely in the present crime.    The evidence  of  Gangabai (P.W.2) is unimpeachable on any score and, therefore, we see no reason to disbelieve her evidence. The High Court has rightly accepted the evidence of Gangabai (P.W.2) as credible  one  and  we  are  unable  to  persuade ourselves to hold otherwise. The   evidence   of   Pathasarthi  (P.W.1)  on  this circumstance also assumes importance because he  was  called by  Gangabai (P.W.2) immediately after she saw the dead body of Suresh in the room.  According to  Parthasarthi  (P.W.1), on  reaching  the  room, he saw his son Suresh lying dead in

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the room with the head separated  from  the  trunk  and  the appellant was  holding a kathi in his hand.  His evidence in all  material  particulars  corroborates  the  evidence   of Gangabai (P.W.2).  After going through the evidence of these two   witnesses,  we  have  no  manner  of  doubt  that  the prosecution  has  successfully  established  the  fact  that Suresh  was  hale  and  hearty before the occurrence; he had Chandilnathan were called by the appellant in his room under the pretext  of  giving  a  coconut;  within  a  short  time Chandilnathan  was  sent  out of room; Gangabai (P.W.2) when entered the room saw the dead body of her  son  Suresh;  the appellant  was  present in the room with a kathi in his hand and handing over the same to her  saying  "do  whatever  you like."  The second circumstances, in our considered view, is conclusively established   by   the   prosecution.      This discussion of the evidence would also conclusively establish the  third  circumstance  sought  to  be  relied upon by the prosecution, namely, that the appellant was seen in the room with a kathi in his hand and the dead  body  of  Suresh  was lying on the floor with the head severed. The next circumstance relied upon by the prosecution is abscondence  of  the appellant after the occurrence.  The Investigating Officer,  Shri  B.    Anand  (P.W.16)  in  his evidence  has  stated  that  the appellant was not traceable during the night of 19th and 20th April,  1988  and  he  was arrested at about  11.00  A.M.   on 20.4.19988.  To demolish this circumstance, learned counsel for  the  appellant  drew our  attention  to  the evidence of Parthasarthi (P.W.1) who had stated that when he went to lodge the complaint  to  the police station,  the  appellant  was standing there.  It was contended on behalf of the appellant  that  if  Parthasarthi (P.W.1)  saw  the  appellant with a kathi in his hand in the room and was suspecting him to be the  murderer  of  Suresh, surely he  would ask the Police Officer to arrest him.  Even one Police Officer did not arrest him.   Relying  upon  this evidence,  it  was  urged  that  the  circumstance  that the appellant was absconding is far from truth  and  this  would indicate  that  the  prosecuting has been trying to suppress another crate a false evidence in this behalf.  We  ate  not impressed  by this argument because one has only to consider and bear in mind the mental condition of a  father  who  saw the dead  body  of  his  son  with  the head severed.  There appears to be some mistake in making such statement.  In our view, this evidence would not any way affect the  substratum of the prosecuting   case.    Shri  G.L.    Anand  (P.W.16), Investigating Officer, has stated that despite their efforts to trace the appellant, they wee unable to find him until he was arrested  on  20-4-1998  at  about  11.00  A.M.      The abscondence  in the present case is only of a short duration year it is of  some  relevance  because  ordinarily  if  the appellant  was  innocent,  he  would  have been found in his house and consoling his sister  who  lost  her  son.    This circumstance,   in  our  opinion,  is  also  proved  by  the prosecution. The last circumstance relied upon by the prosecution relates  to the statement of the appellant which lead to the recovery of a weapon.    To  prove  this  circumstance,  the prosecution  sought  to  rely  upon  the  Panchnama  and the evidence of a Panch witness M.  Kempanna (P.W.8), but he did not support the prosecution and was declared hostile.    The prosecution,  therefore,  had to fall back upon the evidence of Investigating Officer G.Anand (P.W.16) who has proved the recovery of weapon M.O.1 at the instance of  the  appellant. In   the   circumstances,   we   accept   the   evidence  of Investigating Officer G.Anand (P.W.16).

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Thus the prosecution, in our  considered  view,  has successfully  and  conclusively proved all the circumstances which complete the chain of circumstances.  All these proved circumstances unmistakably point out to  the  guilt  of  the appellant. It  was  then  contended on behalf of the appellant. that Suresh being the son of his  sister  (appellant’s)  and the  relations  between them being cordial and affectionate, there was no reason for the appellant to commit the  present crime.   We  are not impressed by this submission because of our aforesaid conclusions about the guilt of the  appellant. It  might be, as stated earlier, the appellant appears to be very much obsessed with the superstitious beliefs and it  is because of   that   he   did  this  crime.    However,  this observation is not germane to the finding of  guilt  against the appellant.    There  is  no  suggestion  to any of these witnesses that any outsider had  entered  the  premises  and then committed  the  crime.  In the absence of such material on record, we do not accept this contention.    It  is  true that  in a case of circumstantial evidence, motive is one of the circumstance which assumes importance but it  cannot  be said  that in the absence thereof other proves circumstances although complete the chain would be of no consequence.   It was  then  contended  on  behalf  of  the  appellant that he (appellant) was coaching badminton (shuttle)  to  number  of young boys  and  girls.    He was also distributing toffees, sweets etc.  to the boys and girls.  He  was  know  for  his affectionate and loveable conduct.  It this was the image of the  appellant,  it  was urged that it would be unbelievable that he would commit the crime in question.   Assuming  that the   appellant  possessed  these  good  qualities  but  the appellant possessed these good qualities but that would  not make   the   prosecution   evidence  unbelievable  which  is otherwise found unimpeachable. It was then contended on  behalf  of  the  appellant that  his brothers and parents have been staying in the same house and, therefore, possibility of any other  person  from the family  being the assailant could not be ruled out.  The appellant was not having good relations  with  his  brothers and other  inmates  of the house.  On some occasions, he had demanded partition and separate possession of his  share  in the property.    The  appellant  was  not liked by the other members of the family and, therefore, he  has  been  falsely implicated  in  this  crime  at the instance of these family members.  We see  no  force  in  any  of  these  contentions because there is no acceptable material on record. Lastly, it was contended that the  evidence  of  the defence   witnesses  is  quite  credible  and  the  same  be accepted.  This evidence fully establishes the innocence  of the appellant.    We  have  gone through the evidence of the defence witnesses and, to say the least, the  said  evidence is totally concocted and no reliance can be placed upon such evidence. For   the  foregoing  conclusions,  we  are  of  the considered view that  this  criminal  appeal  filed  by  the appellant  is  devoid  of any merit and, therefore, to stand dismissed.