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2019 Supreme(Kar) 1613
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.N. PHANEENDRA, H.B. PRABHAKARA SASTRY, JJ.
Kumar Naik S/o. Yuvaraj Naik – Appellant
Versus
State by Chikkajajuru Police Chitradurga District Rep. by the Special Public Prosecutor High Court of Karnataka Bengaluru – 560 001. – Respondent
Criminal Appeal No.411 of 2015
Decided on : 20-03-2019
Advocate Appeared:
For the Appellant :Sri.N.S. Sampangiramaiah, for Sri.B. Pramod, Advocate)
For the Respondent: Sri.I.S. Pramod Chandra, adv
Headnote:
Indian Evidence Act, 1872 - Section 27 - Indian Penal Code, 1860 - Sections 302 and 201 – Criminal Procedure Code, 1973 - Section 313 - Offence of murder - Rigorous Imprisonment for life - Whether his mother had returned from Temple or not - Whether accused in meantime had gone to house of deceased and committed murder of deceased - Whether accused if at all committed murder of deceased - Whether he would have come back to house of PW6 and again gone to place of incident it is very difficult to consume above said circumstance - Whether such a recovery is proper and acceptable in facts and circumstances of this case - Court have carefully perused oral and documentary evidence placed for consideration of Trial Court by prosecution and court have also examined judgment of Trial Court - It is case of prosecution that deceased was given in marriage to brother of accused - Accused was also married and he was residing along with his wife - It is case of prosecution that deceased and her husband were residing - During lifetime said person brought accused to his house and accused also started living with his brother – Held, Court have also seen video in which Police have recorded voluntary statement of accused pertaining to this case and also pertaining to death of one wife of accused on ground that he has committed murder of his wife - On careful visualization of video court are of opinion that there are so many interpolations and interceptions by Investigating Officer while recording statement of accused - It appears Investigating Officer knew all factual aspects prior to recording of video of voluntary statement of accused because during course of recording voluntary statement he has put some questions which are relatable to death of wife of accused and also death of brother of accused which were put in nature of suggestions to accused which discloses that Investigating Officer had already recorded statement of accused and to strengthen case he has recorded voluntary statement in video graph method - Merely because statement of accused is recorded by video graphic method it will not in any manner strengthen case of prosecution - This is as good as recording confession statement of accused which should fall within parameters of Section 27 of Indian Evidence Act, 1872 and nothing more - In fact Trial Court on basis of mere recovery without discussing above said factual aspects with regard to surrounding mysterious circumstances has accepted and connected recovery to crime though there is no evidence to actually connect recovered articles with that of crime - Court are of opinion that though prosecution has established certain circumstances but court cannot with all certainty say that those circumstances are proved to hilt so as to conclusively come to conclusion that those circumstances are sufficient to hold accused guilty of above said offences - It is not that on basis of circumstantial evidence Court cannot convict accused - It is recognized principles of law that in a circumstantial evidence case all circumstances projected must be proved beyond all reasonable doubts and if any doubt which is sufficient to doubt entire case of prosecution in such an eventuality benefit of such doubt has to be given in favor of accused – Therefore doubt which court have expressed with regard to last seen and also recovery of articles from a place where it was accessible to other persons and also recovered articles were not connected with crime such doubt in court opinion has to be bestowed in favor of accused – Appeal is allowed
JUDGMENT :
The appellant, the sole accused in S.C.No.85/2012 on the file of the Principal District and Sessions Judge at Chitradurga, has preferred this appeal calling in question the judgment of conviction and order of sentence in the said case dated 27-12-2013. The learned Sessions Judge has convicted the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced him to undergo Rigorous Imprisonment for life and to pay a fine of Rs.10,000/- with a default sentence to undergo Simple Imprisonment for a period of one year for the offence punishable under Section 302 IPC. The Court further sentenced the accused to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.2,000/-, in default of payment shall undergo Simple Imprisonment for a period of three months for the offence under Section 201 of IPC.
2. We have heard the arguments of the learned counsel for the accused appellant, Sri. N.S. Sampangiramaiah on behalf of Sri. B. Pramod and also the learned State Public Prosecutor-II for Respondent State.
3. We have carefully perused the oral and documentary evidence placed for consideration of the Trial Court by the prosecution and we have also examined the judgment of the Trial Court.
4. Before adverting to the submissions made by the respective counsels, it is just and necessary for this Court to have the brief factual matrix of this case.
5. It is the case of the prosecution that the deceased Susheela Bai was given in marriage to the brother of the accused by name Ramaswamy Naika. The accused was also married and he was residing along with his wife at Madakaripura in Chitradurga District. It is the case of the prosecution that deceased Susheela Bai and her husband were residing at Tanigehally in Chitradurga Taluk and District. During the lifetime of Ramaswamy Naika, the said person brought the accused to his house and accused also started living with his brother Ramaswamy Naika. After some time, Ramaswamy Naika also died.
It is the further case of the prosecution that, the accused had developed illicit intimacy with his brother’s wife, Susheela Bai and also used to assault her and abuse her. After some time, the deceased and her children being frustrated with the conduct of the accused have driven the accused out of their house. However, the accused did not stop coming to their house. Often he used to go to their house and live there for some time. Whenever he used to come to the house of Susheela Bai, he used to beat her and abuse her, etc. The accused was also addicted to alcohol.
6. In this background, it is alleged that on 24-03-2012, the deceased, accused and some other people of the village had been to Uchhangidurga Yellamma Temple and they returned to the village at about 1:30 a.m. in the night on 26-03-2012. The deceased went to the house of her brother Kumara Swamy in the night after returning from the Temple, drank water and went to her house. The accused went to the house of PW6 – Tippeswamy and slept in the house of Tippeswamy and at about 4 o’clock, he was not found by the said Tippeswamy. The son of the deceased by name Ananda (PW4) was working as a driver and he used to come back to the house once in two or three days. He came to the house on the said date at about 4:30 a.m. and he searched for his mother and found that his mother was not there and therefore came to the house of PW1 Kumaraswamy and asked him whether his mother had returned from the Temple or not. PW1, in turn, told that she had already returned and after drinking water in his house, she went to her house.
Then, PW1 and PW4 together came back to the house of the deceased and searched for her and they found that, the outer door of the house of the deceased being latched from outside and after removing the latch they observed inside the house some blood stains on the wall and broken bangle pieces on the ground. They suspected that something wrong might had happened a
