Hussainappa and Others Vs. The State of Karnataka - Court Judgment

Excerpt:

.....recovered from a goldsmith of narayanpet, one k.venkataramalu, pw-li. it is farther claimed that 79 gold beads, from the mangalasutra of ivlallamma, were said to have been recovered from the house of accused no.l, on information provided by him and 3 gold pendants of the mangalasuthra were recovered from the house of accused no.3, on information said to have been provided by him. the further circumstances that are relevant are that tippanna, pw.3, had stated, that on 5.8.2005, around 11-00 to 11-30 pm, he had walked to the outskirts of the village to defecate in the open, as was his practice. he had then seen the accused squatting together in the field of one fakirappa and smoking. he had seen them by his torchlight and is said to have spoken to them and was said to have been informed that they were about to proceed to a field for work during the night. further, shankaranna, pw-4, who is said to be a neighbourer of the complainant, had stated to have seen all the three accused passing by his house at about 1-15 am on 6.8.2005, they were said to have been coming from the direction in which the complainant's house was situated. it is not however, stated that there were an verbal.....

Judgment:

(Prayer: This Criminal Appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 praying to set aside the judgment of conviction and order of sentence passed by the Learned Fast Track Court-III at Gulbarga in S.C. No.283/2005 dated 28.06.2007, which is at Annexure (A, in view of the reasons as stated above in the interest of justice and equity.)

1. We have heard the learned counsel for the appellants and the learned Additional State Public Prosecutor and have perused the record.

2. It was the case of the prosecution that on the intervening night of 5th and 6th August 2005, the Complainant, Channabasappa, of Najirapura, Yadgir taluk, Gulbarga District and his grandson had camped on their field to water their paddy crop during the night. The complainant's wife, Maliamma, was said to be alone at home. It is said that the accused, the appellants herein, with a common intention to commit theft, had trespassed in to the house of the complainant, and after having gained entry into the bouse through the back door, had forced open a trunk kept in the pooja room and taken a gold ring weighing about 5 grams and while they were looking for other valuables in the kitchen, it transpires that Mallamma, who was sleeping in the "padasala" (foyer or lobby) of the house had come into the house to investigate, apparently woken up by sounds of movement inside the house. When she came upon these three appellants - she had questioned them as to their presence in the house and was about to raise an alarm, when the three are said to have immediately overpowered her and had silenced her. Accused no.1, Hussainappa, is said to have thrown her on the floor and squatting on her chest had proceeded to throttle her. Accused no.2, Mahadevappa, is said to have grabbed her hands and closed her month to mulfle the sounds of her struggle, while accused no.3 , Basanna is said fo have held her legs. After she was killed, the accused are said to have taken away the mangala sutra worn by her and had left, after having laid her body on the cot, in the padasala of the house. It is said that the time was about 1:15 AM, when they left, as they were seen passing by at that time by one of the prosecution witnesses, who was said to be living nearby.

It then transpires that Ananthamma, a maid servant is said to have come as usual in the morning to the house of the complainant and found that Mallamma was dead, she had then alerted the neighbourers and rushed to the field where the complainant was present to inform him. Later in the day, the complainant had lodged a complaint against unknown persons having murdered his wife, before the Gurumatkal Police Station, i.e., on 6.8.2005 at about 3-00 PM. A case was accordingly registered in Crime no.99/2005, for an offence punishable under Section 302 of the Indian Penal Code , 1860 (Hereinafter referred to as the 'IPC', for brevity)

It was the further case of the prosecution that all the three accused had voluntarily approached Somanath Reddy, PW-2, who was said to be the brother of the village Dallapathy, at his house on 12.8.2005 at about 6-00 AM and are said to have disclosed the commission of the crime, in detail, as is recounted above. They are said to have sought his help to protect them from the law. It is stated that he refused to provide them any help and had decided to inform the complainant about the involvement of the accused. It is claimed that while he was proceeding towards the house of the complainant, he is said to have met Tipparma, PW- 3 and Shankaranna, PW- 4 and had told them about the accused. Thereafter it transpires since the complainant was not available, he could inform him only at about 8 PM on that day.

On 13.8.2005, the Investigating Officer (IO), who was informed of the new development, is said to have recorded the further statements of the complainant and PW.2 to 4, apart from the statements of other witnesses and had arrested all the three accused persons on the same day. It is stated that they had admitted the commission of the offence - on being interrogated. And on the information provided by them, the I.O. is said to have recovered the stolen jewellery. The gold ring was said to have been recovered from a goldsmith of Narayanpet, one K.Venkataramalu, PW-li. It is farther claimed that 79 gold beads, from the mangalasutra of ivlallamma, were said to have been recovered from the house of accused no.l, on information provided by him and 3 gold pendants of the mangalasuthra were recovered from the house of accused no.3, on information said to have been provided by him.

The further circumstances that are relevant are that Tippanna, PW.3, had stated, that on 5.8.2005, around 11-00 to 11-30 PM, he had walked to the outskirts of the village to defecate in the open, as was his practice. He had then seen the accused squatting together in the field of one Fakirappa and smoking. He had seen them by his torchlight and is said to have spoken to them and was said to have been informed that they were about to proceed to a field for work during the night. Further, Shankaranna, PW-4, who is said to be a neighbourer of the complainant, had stated to have seen all the three accused passing by his house at about 1-15 AM on 6.8.2005, they were said to have been coming from the direction in which the complainant's house was situated. It is not however, stated that there were an verbal exchanges between the said witness and the accused.

The case having been registered against the accused persons before the committal court for offences punishable under Sections 457, 380, 460 and 302 read with Section 34 of the IPC, the case was said to have been committed to the Court of Sessions for trial. The Trial Court had, in turn, framed charges for the offences punishable under the above provisions. The accused had pleaded not guilty and had claimed to be tried. The prosecution had then examined PW-1 to PW-15 and had got marked Exhibits P-1 to P-21 and Material Objects - MOs.1 to 6 and rested its case. The accused were examined by the Trial Court for purposes of Section 313 of the Code of Criminal Procedure, 1973. The accused did not choose to tender evidence personally, but had examined one Revappa as their witness.

After having heird the arguments canvassed, the Trial Court had framed the following points for its consideration :

(1) Whether the prosecution proves beyond reasonable doubt that ihe death of Mallamma is a homicidal death as alleged?

(2) Whether the prosecution proves beyond reasonable doubt that on 6.8.2005 in the midnight at about 1.15 a.m., accused Nos.1 to 3 with common intention committed lurking house trespass by night by entering into the house of the complainant Chanabasappa P.W.1 situated in Najirapura Village within the limits of Gurumatkal Police Station and committed the offence punishable under Section 457 read with 34 IPC?

(3) Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place, accused Nos.l to 3 with common intention after entering into the house of the complainant, committed theft of M.O.6 gold ring weighing about 5 gms. kept in a trunk and have committed an offence punishable under Section 380 read with 34 I.P.C. as alleged?

(4) Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place, accused persons with common intention after committing lurking house trespass by night inio the house of the complainant Chanabasappa committed theft and it was witnessed by the complainant's wife deceased Mallamma and as such, the accused persons have voluntarily caused death of said Mailamma by committing her murder and have committed an offence punishable under Section 460 read with 34 IPC as alleged?

(5) Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place, accused Nos.1 to 3 with common intention intentionally committed murder of the complainant's wife Mallamma by pashing her on the ground and then throttled her neck and committed an offence punishable under Section 302 read with 34 IPC as alleged?"

All the above said points were answered in the affirmative and the Trial Court found that the accused were guilty of the offences alleged and convicted them. All the accused were sentenced to undergo rigourous imprisonment for three years and to pay a fine of Rs.2000/-, for the offence punishable under Section 457 IPC and were also sentenced to an identical punishment for an offence punishable under Section 380 IPC. They were further sentenced to undergo rigourous imprisonment for five years and to pay a fine- of Rs.5000/- each, for the offence punishable under Section 460 of the IPC. They were sentenced to imprisonment for life and fo pay a fine of Rs. 10,000/- each for the offence punishable under Section 302 IPC. The sentence passed against all the accused were to run concurrently.

It is that judgment which is under challenge in the present appeal.

3. Shri Nanda Kishore Boob, the learned counsel appearing for the appellants, elaborating on the grounds of appeal, seeks to highlight the following circumstances.

That it is for the first time, in a further statement made to the police, on 13.8.2005 at 10 AM, that the complainant has mentioned the missing jewellery, which the deceased was said to be wearing prior to her death. This coupled with the further circumstance that it was claimed by PW-2, Somanath Reddy, that the accused had made an extra judicial confession to him, at 6-00 AM on 12.8.2005 and he had, in turn, informed the complainant at about 8-00 PM on the same day. is an unusual co-incidence. In that, an elementary detail of valuables missing from the house after the incident, would be the starting point of an investigation and even if the complainant was in a state of shock at the time of lodging his complaint, the dispassionate investigating authority would certainly have jogged his memory for details It is odd that the complainant has remembered about the jewellery only on being told by PW-2, that the accused had admitted to having taken away the jewellery.

It is contended that the further co-incidences which makes the case of the prosecution even more curious is the further fact that it is only after PW-2 is said to have informed PW-3 Tippanna and PW-4 Shankaranna, about the extra judicial confession of the accused, that they had revealed their having seen the accused on the fateful night. In that, PW-3 is said to have seen them at about 11 or 11:30 PM on 5.8.2005 on the outskirts of the village sitting together in a field and smoking. And PW- 4 having seen them moving away from the direction of the complainant's house at about 1:15 AM on 6.8.2005.

It is significant that there was no mention of any missing jewellery in the complaint. This, it is pointed out, is admitted by the complainant in his cross-examination. Further, even though in the examination-in-chief, the complainant had stated that there were beads from his wife's mangalasutra and her bangle pieces strewn on the kitchen floor - he has admitted in cross- examination that there is no mention of this detail in the complaint. It is also significant that there is no mention of any such traces of jewels or ornaments in the spot panchanamah. PW-6, the son of PW-1 and the deceased, had also stated in his evidence that on hearing the news of his mother's death, he had rushed to the village and had noticed that the jewellery on her person was missing. But he had not stated this in his statement before the police on 7.8.2005. 

It is contended by the learned counsel that the active involvement of PW-2, at every stage of the investigation is to be noticed - he is a witness to the inquest and also to the spot panchanamah. He is also a witness to the recovery of the clothes of the deceased. This coupled with the circumstance that he has acted as the catalyst and was instrumental in trying to make out a case against the accused is significant. This - it is claimed stems from the animosity he carried against the accused, as he was aware of the fact that the accused had worked for a rival candidate ai a local body election in which he had contested and that he had been defeated at that election by a single vote. This fact of having contested and losing at the election is shown to have been admitted by PW-2 in his cross- examination.

Further, the said PW-2 had admitted in his evidence that apart from PW-3 and PW-4, he had not mentioned to anybody else, apart from the complainant, about the extra judicial confession of the accused and even after PW-3 and PW-4 were so informed, they had not immediately told him about their having seen the accused on the intervening night of 5th and 6th August 2005.

PW-2 was not a man holding any office or position, to be able to protect or assist the accused in any manner, be was not their friend or mentor, on the either hand, the accused were not the followers or admirers of the said witness. It is inexplicable therefore that it is claimed by him they had together approached him in desperation and provided graphic details of the manner in which they had committed the murder and stole valuables and had sought his help- when they were not even suspected of having committed any offence, and when there was no circumstance leading to their collective emotional break down.

It is pointed out that it is not the case of the prosecution fhat the appellants are vagabonds, who were desperate to commit murder for gain. They are said to own lands in the village. Appellant no.1 is a barber by avocation and was the drum beater at the funeral of Mallamma the deceased, which would indicate that there was hardly any apprehension or his part of being suspected as one of the assailants. Hence it is contended that the systematic framing of the accused by the said witness, PW-2 is a certainty It is pointed out that PW-4 Shankaranna has admitted, that from his house, the house of the complainant is not visible. It was also not nis statement that he had seen the accused emerging from the complainant's house after committing the murder of Mallamma. It is further claimed that the son of PW- 4 and Appellant no.l had quarreled and there was even a criminal case registered before the Gurmitkal Police Station in that regard. PW-4 therefore had an axe to grind against the accused.

The further circumstance that was sought to be made out against the accused is the allegation that the gold ring stolen by the accused had been sold by Mahadevappa, appellant no.2, on 12.8.2005 at about 11 AM, for a sum of Rs.1500/- to a gold smith, Venkataramulu, PW - 11. It was said to have been recovered from the possession of the said witness on 13.8.2005, by the investigating officer. The said witness has contradicted his statements about knowing the said Mahadevappa even before he sold the ring.

It is pointed out that there is a disturbing feature of the case. According to PW-8, Dr.Sbivanand, the post-mortem examination of the deceased was conducted by him between 6:15 and 7:15 PM, in the open - at the village. It is admitted by him that there would be ligature marks present on the neck, if a person is throttled or strangulated. It is admitted that he had not seen any such injuries on the deceased.

Apart from the above, the learned counsel has drawn attention to other minor discrepancies, which according to him, would also vitiate the findings of the trial court.

The learned Counsel has relied on several authorities in support of his arguments, particularly to support the contention that an extra judicial confession to be made the basis of conviction would require the courts to proceed with prudence and circumspection. And that the mere recovery of valuables said to have been made from the accused persons by itself would not establish their guilt in respect of the charges, if other circumstances alleged are not also supported unimpeachable evidence.

4. On the other hand, the learned Additional State Public Prosecutor seeks to justify and sustain the judgment of the trial court.

5. In the light of the rival contentions and the facts of the case, as sought to be made out by the prosecution having been accepted by the Trial Court, we proceed to address the reasoning of the trial court in coming to certain conclusions and whether the same could be sustained.

The fact that Mallamma, the wife of the complainant had died an unnatural death, was discovered at about 6:00 AM, on 6.8.2005. There were no eye witnesses to the manner in which she had died. The complaint was lodged with the jurisdictional police at 3.00 PM on the same day. There was no person or persons named as the accused. The investigating officer bad visited the spot and conducted an inquest, to which PW-2, Somanath Reddy, and two others were witnesses. The spot panchanamah was conducted on the next day, i.e., 7.8.2005. Pw-2 was a witness to the same. The post-mortem examination was conducted late in the day after night fall, in the open on the same day.

In the above sequence of events what is to be noticed is that the complaint has been lodged after much delay for which the explanation offered is tnat the family of the deceased, especially the complainant, was in deep shock. Even if this is accepted the fact that there is no mention of any missing valuables is a glaring mystery. Even if the complainant had overlooked it, it would be expected of the investigating authority to certainly address the same, as that would be one of the starting points of an investigation. Apart from this the tell-tale bangle pieces and beads from the mangalasutra of the deceased which were said to be found strewn in the kitchen , after the same was apparently wrenched from the neck of the victim, by the assailant or assailants, does not find mention in the spot panchanamah, which itself was conducted more than 24 hours after the discovery of the murder and possibly after the entire village had trooped into and out of the house , to pay their respects to the deceased and to whet their curiosity as would be the case in any village. It is also overlooked that the women folk who would have prepared the dead body for the funeral would have noticed the absence of her mangalasutra. It is not known whether the deceased was wearing other jewellery such as earrings, nose studs and anklets and if the same were intact.

The Trial Court has narrated the sequence of events as claimed by the prosecution up to the stage of recording the further statement of the complainant as on 13.8.2005, without any reservation and has not noticed anything amiss. The further statement having been recorded a clear seven days after the incident, when there is mention of the missing jewellery for the first time, is unusual, especially in the circumstances aforesaid.

The development of the case from 12.8.2005 onwards also is seen to be ridden with unusual co-incidences. It is stated by PW-2, Somanath Reddy that all the three accused had visited him at his home on 12.8.2005, at 6:00 AM and sought his help, while having confessed to the murder. There is no preamble to this. It is not clear as to what provoked the accused to approach the said witness. The relationship between the accused and the said witness was not claimed to be of a kind that would have compelled them to approach him. It is not shown that the said witness was a man of influence, or even if he was - it is not known as to how he could be of any help. He was said to be the brother of the village Dallapathy, that would not make much of a difference. It is also not shown that the accused were faced witn any circumstance that made them desperate to approach and seek anybody's help. On the other hand, it was admitted by the said witness that he had stood for election to a local body and had lost by a single vote. It was the case of the accused that they had worked for the rival candidate and that the said witness had thus carried animosity against them, which had prompted him to engineer a case against them. Except PW-2, it is not the case of the prosecution that any other person was present when the accused had made an extra judicial confession. It is not seen from the record if there were other people in the house of PW-2 at that time. Nor is there any evidence of any person or persons having seen the accused visit the said witness.

It is stated that PW-2 had thereupon proceeded to inform the complainant of the confession made by the accused. On the way to the complainant's house, he is said to have met PW-3 Thippanna and PW-4, Shankaranna and had shared the news with them. Those two witnesses are the ones, who claimed to have seen the accused together on the fateful night. PW-3 is said to have seen them on the outskirts of the village sitting and smoking in a field, at about 11: 30 PM on 5.8.2005 and PW-4 is said to have seen them at 1:15 AM on 6.8.2005, passing by his house. This information however, they do not provide to PW-2 when he is said to have informed them of the confession made by the accused, but it is only recorded by the L.O. by way of further statements. The above information is curiously kept between them till the com plain an- is informed at 8:00 PM that night. It is there after that the complainant informs the I.O. the next day, who had recorded ihe statements of PW-2, PW-3 and PW-4. apart from the further statements of PW-5, Ananthamma, the house maid, PW-6 , Shivakumar, the son of the complainant, who has stated about the missing jewellery for the first time, and other witnesses. And curiously, the accused who had allegedly revealed their crime were conveniently available in the village to be immediately arrested and taken into custody and to have also provided information to recover the stolen jewellery. If PW- 2 had been informed of their acts and he had refused to help them, normal human conduct would have been for the accused to panic and flee or evade arrest. 

Further, the 1.0. is said to have recorded the voluntary statements of the accused at Exhibits P-17 to P-19, wherein they are said to have stated that the jewellery stolen was shared by them. And on the basis of the said information it was recovered from the gold smith, PW-11, to whom the ring had been sold, and the rest had been recovered from the houses of the accused. It is also stated ihat the I.O. found that the accused had suffered injuries on their bodies at the time of interrogation. The said injuries are sought to be linked to the night of the incident, whicii is highly unlikely that any sign of scratches or blunt injuries: if at all, that were possible for the deceased to have inflicted on them while desperately fighting for her life, would have disappeared by the time of the arrest, which was one week after the incident. The injuries were most likely inflicted during interrogation.

The Trial Court has not doubted the case of the prosecution as to the sequence of events as stated by the several witnesses with regard to the events subsequent to the extra judicial confession said to have been made by the accused to PW-2. The glaring circumstance that there was no clear description of the jewellery that was missing even in the further statement made by the complainant on 13.8.2005. There was hence no foundation laid to claim that the jewellery recovered on the basis of the voluntary statements of the accused did indeed belong to the deceased or the complainant. It is also noticed that the prosecution has not thought it fit to mark that portion of the voluntary statements, on the basis of which such recoveries were made. Reliance is sought to be placed on the entire text of the voluntary statements to claim that recoveries were made on that basis. This is not in accordance with Section 27 of the Evidence Act, 1872. Added to this, PW-11, the goldsmith to whom Mahadevappa is said to have sold a gold ring had contradicted himself, which had led even the trial court to record thus :

“ Of course , there are some minor contradictions in the evidence of the prosecution witnesses examined before the Court , more particularly Ex. D-l and Ex-D-2 which are contradictory statements given by PW-3 Tippanna and PW-11 R.Venkata ramulu,…………….” (See: Page 41-42 of judgment)

The Trial Court has also referred to the fac4: that Mahadevappa, accused no.2 had worked for 2 years in the house of the complainant and therefore was fully aware of the layout of the house and was thus able to gain entry easily through the back door of the house and had thus enabled the other accused to follow him. Such a presumption could not be drawn mechanically. That would lead to any servant being a suspect, as for instance, Mogalappa, PW- 10, who was employed as on the date of the incident, had significantly not come to work on the fateful night. And that was the reason for the complainant to have worked on the field during the night. So could he also be suspected?

From a close examination of the material on record and the reasoning of the Trial Court, it is clear that the primary evidence, on the basis of which, the accused have been held to have committed the alleged crime, is on the basis of the extra judicial confession said to have been made by the accused to PW-2 and the corroboration as to the presence and movement of the accused on the intervening night of the 5th and 6th August 2005, as stated by PW-3 and PW-4, belatedly and laconically. It is on the basis of the statements of these witnesses the accused were arrested and their voluntary statements were recorded and recovery of valuables was made.

It is well established that an extra-judicial confession has to be shown to be voluntary and true to be relied upon by the Court. The value of the evidence as to confession like any other evidence depends upon the veracity of the witness to whom it has been made. Its reliability would also depend on the nature of circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. If the witnesses are shown to be unbiased, not even remotely inimical to the accused and nothing is brought out against them which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused and the words spoken to by the said witness are clear, unambiguous and unmistakably convey that the accused was the perpetrator of the crime and that nothing was omitted by the witness which may militate against it after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the sole basis of a conviction. The requirement of corroboration in such a circumstance would be a matter of prudence and not an invariable of law. Indeed, this is the position of law laid down in tne judgment of the Apex Court in the case of State of Rajasthan vs. Rajaram, AIR 2003 SC 3601 at Paragraphs 19 and 20.

If the evidence of PW.2 is examined in the background of the above legal position and keeping in mind the facts and circumstances adverted to in detail herein above, it would follow that extra-judicial confession by the accused as spoken to by PW.2 cannot form basis for convicting the accused in the instant case. The credibility of the version of PW.2 is rendered highly doubtful because of several facts and circumstances to which reference has been already made.

The prosecution version of the case lacks credibility. The Trial Court was not justified in placing reliance oil the statement of PW-2 as to the accused having made an extra judicial confession to him. He was no friend or mentor of the accused and there were no citcumstances compelling them to make such a confession. The fact that on the other hand they could have remained unruffled even under trying circumstances, even if they were indeed the assailants, is demonstrated by the fact that accused no.2 was present at the funeral of the deceased and was the drum beater. If that is the poise he could maintain the very next day of the murder, there was hardly any reason for him or the others to go to PW-2 in desperation and to seek his help. The nature of help that he could provide is also not known. The said PW-2 who had offered himself as a witness at the inquest, the spot panchanamah and the seizure mahazar, respectively, was sufficiently familiar with the police to have immediately informed the police in the course of the day or sought the help of others in taking the accused into custody and producing them before the police, as he admittedly did not have any sympathy for them and intended that they be brought to book, as he did inform the complainant late in the evening on the day he learnt of the accused having committed the crime, apart from informing PW-3 and PW- 4 who have also not shown any agitated reaction to the alleged confession of the accused to the gruesome murder. This cool reception of information and equally cool transmission of the information to the complainant, who in turn, informs the police only the next day, is hardly the reaction one would expect upon the identity of the assailants being revealed and knowing that they are freely moving in the village.

On the strength of the statements of PW-2 to PW-4, the accused having been taken into custody and possibly forced to affix their thumb impressions to the voluntary statements recorded at Exhibits P-17 to P-19, cannot be ruled, out. It cannot also be ruled out that if the accused were to be falsely implicated, there was sufficient time to plant the jewellery, which in any case is not established to be that of the deceased, in the houses of the respective accused. The evidence of PW-2 cannot be relied upon nor can the evidence of PW-3 and PW-4 be accepted as corroborating the evidence of PW-2 , to establish the guilt of the accused beyond all reasonable doubt.

In the result, we find that the judgment of the court below cannot be sustained and is accordingly set-aside. The accused are acquitted and shall be set at liberty forthwith. A copy of the operative portion of this order be forwarded to the jail authorities for immediate compliance.