STATE OF KARNATAKA Vs. S P PRASANNA

JUDGEMENT

(1.) THIS appeal is filed under Section 378(1) and (3), Cr.P.C. by the State of Karnataka represented by Basavanahalli Police, against the judgment dated 14-3-2005 in S.C. No.6/1997 on the file of Principal Sessions Judge, Chickmagalur, whereby the sole accused charged for the offence under Section 302, IPC was acquitted under Section 235(1), Cr.P.C.

(2.) THE relevant facts leading ,to this appeal are as follows :- i) Deceased Nagarathna was the daughter of PW2 K.C. Basavaraju and PW3 Smt. Siddagangamma who hails from Kanikenahalli in Belur Taluk of Hassan District. THE respondent-accused hails from Shivanahalli. One Marigowda is the grand father of accused who also hails from Kanikenahalli, the village in which the parents of deceased are residing. THE accused was in the habit of visiting the house of grand father of deceased. At that time he was also visiting the house of parents of the deceased and became very close to the family members of deceased, including the deceased who had attained puberty. ii) Some time prior to Gowri festival in the year 1996, deceased Nagarathna left the house with her personal belongings stating that she would go to her aunty Smt. Rajamma's house situated at Sevanthanahalli. Since she did not return to her parents house even after 4-5 days, her mother PW3 sent her husband PW2 to Savanthanahalli. PW2 went there and found that deceased had not gone there. He returned back to village and went in search of his daughter at Bangalore as she was visiting Bangalaore along with some girls who gone there to learn tailoring. THEre also he could not trace his daughter. THEreafter, PW2 reported missing of his daughter to PW4 Ramegowda. Both of them left to Bangalore in search of deceased but could not trace her. However, PW4 came to know from some known persons about a news item appeared in papers about the death of a lady in a lodge at Chikmagalur. PW-4 sent word to PW2, who met PW4 at Javagal. iii) It is also the case of the prosecution that on 15-8-1996 PW9 M.L. Harish, Manager of Padmashree Lodge at Chickmagalur noticed foul smell emanating from Room No. 102 of the lodge. It was revealed to him that the occupants of the said room, which was taken on 12-8-1996, had not reported at the reception about the vacancy. PW-9 informed PW1 K.J. Venkatesh owner of the lodge about the foul smell emanating from the locked room. In turn, PW1 informed Basavanahalli Police. PW-19 Devendrappa, the Sub-Inspector of Police, visited the lodge and secured panchas PWs 10 and 17 and two others, went near the room along with PWs 1 and 7 to 9 and found foul smell emanating from the room. PW-19 got broke open the lock of the room and found dead body of a lady on the cot. He obtained a complaint Ex.P2 from PW-1, drawn a Panchanama as per Ex.P1, registered a case in Crime No.151/96 for the offence under Section 302, IPC against one Naveen in whose name the room was taken and filed FIR as per Ex.P13. THEreafter, he returned to the lodge with staff and noticed MOs 1 to 13 in the room and a carry bag MO 27. He seized the articles under a panchanama Ex.P3 and handed over the investigation to PW23 C.K. Shashidhar, the CPI who came to the spot. PW23 took-up investigation, held inquest over the dead body under a panchanama Ex.P9 and recorded the statements of PWs 7, 8, 9 and the Manager and room boy of the lodge. THEreafter, he handed-over the dead body to PW-14 Police Constable for post-mortem. THE photographs (collectively marked as M.O.14) of dead body were taken by PW17-K.R. Raju. PW-20 Medical Officer conducted post-mortem examination over the dead body of the deceased. Since there was nobody to claim the dead body, it was burried. PW-14 produced MOs 16 to 20 and 24 to 26 which were found on the body of the deceased before PW23. On 6-8-1996 PW23 seized Ex.P7 the Ledger Register of the lodge. THEreafter he received the post-mortem report Ex.P19. He forwarded MOs 24 to 26 the viscera to FSL for examination. iv) On 3-9-1996 PWs 2 and 4 met PW23, who showed MOs 1 to 20 and 20 to 24 to them. PWs 2 and 4 identified them as belong to the deceased and their statements were recorded. PW4 had also identified the deceased by seeing the photographs (M.O.14). On 1-10-1996 PW23 arrested the accused from his house at Shivanahalli, recorded the voluntary statement as per Ex.P26 and recovered MO 23 the key bunch of the room in the presence of panchas under a panchanama Ex.P12. THEreafter, he recorded the statements of PWs 2, 3, 5 and CW6 and further statements of PWs 8 and 9. On 3-10-1996 he seized M021 a long note book containing the admitted writings of the deceased under a panchanama Ex.P4 and handed-over further investigation to PW-19. v) On the instructions of CPI, PW19 took the sample hand writing of the accused as per Exs.P15, 16 and 17 and seized them under a panchanama Ex.P18 and thereafter handed-over the investigation to PW-23. On 11-10-1996 PW23 forwarded the admitted and disputed writings of accused to PW7 I.M. Venu, the Handwriting and document Examiner to furnish his report. On 18-10-1996 he received the sketch Ex.P11 from the Junior Engineer and also Ex.P27 the Chemical Examination report and Ex.P28 the sample seal from FSL. On 16-12-19% he received Exs.P20 and 21, the opinion of handwriting expert. After completing the investigation, he filed the charge-sheet. vi) After hearing the counsel for the prosecution and the defence, the learned Sessions Judge, Chikmagalur, framed charge under Section 302, IPC. THE plea of the accused was total denial. THE prosecution examined PWs 1 to 23 and got marked Exs.P1 to P30 and MOs 1 to 23. During the course of cross-examination of prosecution witness, the defence got marked Exs.D 1 to D7. Considering the evidence on record, the learned Sessions Judge found the accused not guilty of the offence punishable under Section 302, IPC and accordingly acquitted him under Section 325(1), Cr.P.C.

(3.) THERE is no conclusive proof of the circumstance of deceased being last seen alive with the accused. The accused is not liable for an offence punishable under Section 302, IPC. In support of this contention, learned counsel for the accused placed reliance in the case of Venkatesan v. State of Tamil Nadu, reported in 2008 AIR SCW 3913. In that case, the deceased alleged to have gone with the accused to other village and did not return. His body was found in a field two days later. Witnesses who have seen them last, have not stated the specific date, they neither knowing names of accused nor giving any identification mark or explaining how they could be identified. Hon'ble Supreme Court held that conviction could not be based on their evidence.