STATE OF KARNATAKA Vs. N R ANTHONY RAJ

JUDGEMENT

(1.) WE have heard the learned Government Pleader on merits and we have also done a total re-evaluation of the record because the charge is one under Section 302 of the Indian Penal Code and there are also allied charges of having destroyed the evidence of the crime because, the dead body of the deceased Narayana Swamy was found buried in the field belonging to Accused No. 2. The learned Government Pleader submits that the evidence of P. Ws. 1, 2 and 3 conclusively establishes that the deceased Narayana Swamy had accompanied Accused No. 2 at about 11 p. m. on the night of 10-6-1995 to the field and that the accused was never seen alive thereafter. His submission is that the circumstance oflast seen together is highly incriminating and that it is for the Accused No. 2 to render satisfactory explanation as otherwise, this circumstance points heavily towards the guilt of the accused insofar as the dead body of Narayana Swamy was found from the field belonging to the Accused three to four days later and furthermore, that it had been buried there.

(2.) THE law postulates that in a case of circumstantial evidence, it is not enough to allege certain facts or circumstances, it is necessary to establish them. In the present case, we need to clarify that the last seen together circumstance becomes highly incriminating provided the prosecution establishes a reasonable proximity between the time when the deceased was last seen in the company of the accused and the time of death. In this case, according to the prosecution, the villagers noticed dogs going towards the field of Accused No. 2 and when the cause for this was checked, it was found that the toes of one of the feet were protruding above the soil. P. W. 1 and the other villagers thereafter dug in that area and found narayana Swamy's body which is identified by his parents. The body was in a decomposed condition, the legs were tied together and a piece of cloth was stuffed into the mouth. No external injuries were found on the body and the doctor states that this was because, it had decomposed and it was not possible to really trace out any such injuries, the cause of death could also not be ascertained for the same reason and the end result is that neither has it been established that the death was homicidal nor could the crucial factor viz. , the time of death be established. We have already pointed out that the circumstance of last seen together postulates (hat there has got to be a reasonable closeness or proximity between the time when the deceased was seen with the accused and the time of death because if there is uncertainty about the length of this time or if there is long time lag, several other factors, could have intervened. As regards the explanation. Accused No. 2 has boldly contended that he left the deceased back at his house that very night and that he does not know what could have happened thereafter. In this situation, we need to hold that the circumstance of last seen together itself is relatively weak and cannot be said to have been conclusively established.

(3.) THE learned counsel then submitted to us that linked with the previous circumstance, the fact that the body was recovered from the field belonging to the Accused No. 2 who was also absconding is heavily incriminating. While this circumstance does go against Accused No. 2 to some extent again, we cannot hold that it is conclusive for the simple reason that a field is not a secluded area and if anybody else was responsible for burying the body in that field, the possibility cannot be ruled out unless the prosecution produces some better evidence to indicate that Accused No. 2 was himself responsible for this.