A YADHAV Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court disposing of three criminal appeals which had their matrix in a judgment of learned 9th Additional Sessions Judge, Bangalore City in SC No.353 of 1992. Criminal Appeal No.51 of 1996 was filed by Krishnamutty A1 challenging the conviction and sentence passed against him for the offences punishable under Sections 302 and 394 of the Indian Penal Code, 1860 (in short the 'IPC') whereas Criminal Appeal No. 748 of 1996 was filed by the State challenging the inadequacy of sentence so far as Krishnamutty accused No. 1 was concerned and prayer was to enhance the sentence of imprisonment for life to death sentence. The last appeal i.e. 748 of 1996 was filed by the State challenging acquittal of present appellant-A. Yadav, A2.

(2.) Background facts in a nutshell are as follows : Sunanda Varadhan, aged 73 years, and her mother Rukamma, aged 90 years, (hereinafter referred to as the 'deceased' Nos. 1 and 2) came from well to do family and their children were settled outside Bangalore. They were staying at Flat No.201, First Floor, Richmond Place, Convent Road, Bangalore. They were often engaging the services of Accused-1 as part-time Driver to take them in and around Bangalore. They had also engaged Selvi (P.W.3) as maid servant. They were often calling personally or on phone their relatives including Suvarna Prasad (P.W.6) daughter of deceased Sunanda, Lakshmi (P.W.8) deceased Rukamma's cousin sister, Nagamani (P.W.19) - niece of deceased Rukamma and Dr. Xavier (P.W.22) a retired Medical Practitioner, who was staying in the same apartments and was said to be looking after the health of both deceased. Similarly, Keshava Iyengar (P.W.1) whose daughter was married to the son of deceased Sunanda, used to visit both Sunanda and Rukamma at their apartment and look after their well being. In the morning of 9-8-1992 (Sunday), as Suvarna Prasad (P.W.6) did not get regular phone call from Sunanda and in spite of repeated attempts made by her from Madras where she was staying could not contact her, she contacted Dr. Xavier, (P.W.22) and asked him to make enquiries about the well being of Sunanda and Rukamma and to intimate her. Accordingly Dr. Xavier (P.W.22) at about 10.00 A.M. tried to call both deceased Sunanda and Rukamma over phone and, when he could not get any reply, he thought that they might have gone out to meet their relatives and waited for some time. Even then when no reply was received from them, he contacted Keshava Iyengar (P.W.1) who, as stated earlier, is another relative of deceased Sunanda and Rukamma at about 6.00 P.M. Again Keshava Iyengar (P.W.1) thinking that both Sunanda and Rukamma might have gone out and having waited some time, came to the apartment and along with Dr. Xavier (P.W.22) went to Flat No.201 occupied by both the deceased. When both of them (P.W. 1 and P.W. 22) went there, they found that door was locked from inside and as it was a latch-door and in spite of repeated pressing of the bell there was no response, Keshava Iyengar (P.W. 1) with the help of a duplicate key which was with him opened the door and entered the house. There was darkness in the house and on switching the lights, in the bed-room they noticed, on separate cots, two bodies covered with rugs and on verification they were found to be the dead bodies of Sunanda and Rukamma. Immediately, Keshava Iyengar (P.W.1) contacted his relatives at Bangalore as well as Suvarna Prasad (P.W.6) at Madras. Suvarna Prasad (P.W.6) informed Keshava Iyengar (P.W.1) that she would come to Bangalore immediately by the next available flight and not to do anything till then. Keshava Iyengar (P.W.1) thereafter locked the door of the flat and came back to his house. Next day, i.e., on 10-8-1992 in the morning at about 7O' clock, after the arrival of Suvarna Prasad (P.W.6) and her husband, Keshava Iyengar (P.W. 1) accompanied them and observed the conditions inside the house. As Suvarna Prasad (P.W.6) suspected that some of the articles including some jewelleries on the persons of deceased were missing, suspecting foul play, Keshava Iyengar (P.W. 1) requested to lodge a complaint with the jurisdictional police. Accordingly, Keshava Iyengar (P.W. 1) contacted the D.I.G. of Police, who, in turn, instructed Narayan (P.W.29) the Police Inspector and Station House Officer of Ashokanagar Police Station, to look into the same. Narayan (P.W.29) proceeded to the spot wherein Keshava Iyengar (P.W. 1) gave him the written complaint as per Exhibit P.1 which was sent to the police station for registration of the case and investigation. Srinivas (P.W.26) who was the Police Sub Inspector on receipt of the complaint registered a case in Cr.No.594 of 1992 for the offence punishable under Section 302 IPC against unknown persons and thus investigation was set in motion. Dog Squad and Finger Print Experts were called for. The Police Dogs could not lead to any suspicious place or person and as such it was given up. However, Narayanappa (P.W.28) (Finger Print Expert) found three chance finger prints on the T.V. Stand and two chance finger prints on the stainless steel cup kept near the dead bodies and took photograph of the same as well as the finger prints of the deceased and the nearby occupants, viz, Thavamani (P.W.2) - a watchman and Selvi (P.W. 3) - maid servant, who had immediately come there. Ameer (P.W. 10) - the police photographer took photos of the dead bodies and, after holding inquest mahazar as per Exhibits P.26 and P.27 the bodies were sent for autopsy. As surfaced during the inquest and subsequent recording of statements of witnesses especially from the statement of Thavamani (P.W.2) that the Accused-1 along with another person had visited previous night and went to the flat of the deceased, search for Accused-1 was made. Chandrashekar Nair (P.W.7) - Inspector (COD), who was entrusted with search/apprehending the accused, found Accused-1 moving in his Ambassador car near the Manipal Hospital and he was apprehended and brought to the police station along with car. He was formally arrested by Narayan (P.W.29) at about 5.00 p.m. After the arrest, Accused-1 was interrogated and, as per his voluntary statement (Exhibit P.39), certain ornaments said to be belonging to both the deceased were recovered from the dickey of the Ambassador car bearing Registration No.KLD 6288, admittedly belonging to Accused-1. As during the interrogation Accused-1 pointed out involvement of Accused-2 in the crime, he was also arrested and interrogated. As per his voluntary statement, the Pillow and Pillow Cover (M.Os. 7 and 7a) said to have been used for smothering the deceased were also recovered from the apartment itself. On 11-8-1992, Dr. Thirunavukkarasu (P.W. 12) and Dr. Manjunath (P.W. 13), the Doctors, who conducted autopsy on the dead bodies, gave their P.M. Reports as per Exhibits P. 15 and P. 19. Since both the Doctors did not find any physical external injuries, possibly due to decomposition and swelling of the bodies, they reserved their opinion subject to the reports sought from the Chemical Analysts and Forensic Science Laboratory to which certain articles including viscera of both the deceased were sent. Meanwhile, the Investigating officer, Narayan (P.W.29) recorded statements of many witnesses, obtained finger prints of the accused and sent the same along with the finger prints of the deceased obtained earlier by the Finger Print Experts. It is to be mentioned here itself that, after the recovery of the pillow and pillow cover on the information given by Accused-2, the police suspected that the death was due to smothering. The Investigating Officer asked for clarification from the Medical Officers who conducted post mortem as to the possibility of the cause of death by smothering. Both Dr. Thirunavukkarasu (P.W. 12) and Dr. Manjunath (P.W. 13) as per Exhibits P. 15 and P. 19 gave positive opinion regarding the possibility of cause of death of both Sunanda and Rukamma being due to smothering by smooth object like pillow. The Chemical Examination and Forensic Science Laboratory Report dated 19-10-1992 indicated no presence of any poison. After completing the investigation and receiving all the necessary documentary material, on 2-11-1992 charge sheet was filed against both the accused for the offences under Sections 302 and 394 read with Section 34 IPC. As the accused denied the charges and claimed to be tried, they were tried in S.C.No.353 of 1992. In order to establish the guilt of the accused, the prosecution examined 29 witnesses got marked Exhibits P.1 to P.42 as well as M.Os.1 to 17. The accused denied the prosecution case in toto and after marking certain statements from the evidence of P.Ws. 2 and 4 as Exhibits D.1 to D.5, the accused closed their case without further evidence. Considering the material placed before the trial Court in the form of oral and documentary evidence, the trial Court held Accused-1 alone guilty of the offences under Sections 302 and 394 IPC. However, finding certain discrepancies and lacunae in so far as the evidence against Accused-2 is concerned, he was given benefit of doubt and was acquitted of all the charges. Hence, the present appeal has been filed. As noted above different appeals were filed, one by the accused No.1 while two other filed by the State for enhancement of sentence in case of A1 and questioning correctness of the order of acquittal so far as the A2 is concerned. The High Court by the impugned judgment allowed the appeal so far as the State is concerned in respect of the present appellant and the other two appeals were dismissed. Questioning correctness of the judgment of the High Court setting aside the order of acquittal the present appeal has been filed.

(3.) Learned counsel for the appellant submitted that the trial court had analysed the evidence in great detail and had directed acquittal so far as the present appellant is concerned. Without analyzing the evidence in detail and without recording reasons as to how the judgment of the trial court suffered from any infirmity, interference was made.