KOUSHIK Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal is filed by the accused challenging the judgment of conviction passed in S.C.No.451/2012 dated 18.7.2017 on the file of Principal City Civil and Sessions Judge, Bengaluru for the offences punishable under Sections 302, 392, 201 of Indian Penal Code.

(2.) Brief fats of the prosecution case are, On 2.12.2011, the complainant who is the husband of deceased received a phone call around 1.45 p.m. that fire was emanating from their house and at that time complainant was in Bidadi along with his friend P.W.5. The said call was made by P.W.4 who was the tenant of the complainant and asked him to come immediately. When the complainant came to house, he found fire in the house and his wife was lying dead on the cot in the room. The said cot, bed and other things were half burnt and that the neighbours extinguished the fire. It is also the case of prosecution that mangalya chain was missing from the neck of his wife and when the complainant also checked the almirah, jewels and cash were found missing. Complainant left the house at 11.45 a.m. and some culprits came to his house and lynched his wife and laid the dead body on the cot and set fire, after robbing cash and jewels. Bases on the complaint, police have registered the case for the offences punishable under Sections 302, 392 and 201 of Indian Penal Code. During the course of investigation, it was unearthed that accused who is hailing from neighboring village of the deceased used to come to the house of deceased and discussing about purchase of site with the husband of the deceased only in order to commit her murder and rob the jewels. He also used to telephone to the complainant and on the previous day of the incident he called the complainant by name of one Kumar that he intend to purchase a site and asked him to show a site at Bidadi and on the date of incident also he called him and thereafter on confirming that complainant had left the house, he came to the house of deceased and smothered her mouth and nose with lungi and strangulated her neck and thereafter, robbed the jewels worth Rs.17 lakhs and cash of Rs.60,000/- kept in the house and thereafter, he laid the dead body of the deceased on the cot and set fire. P.W.32, the Investigating Officer completed the investigation and filed the charge sheet for the offences punishable under Sections 302, 392 and 201 of Indian Penal Code. The accused was secured and was sent to judicial custody. He did not plead guilty and claimed to be tried. The prosecution, in order to prove its case, examined P.Ws.1 to 32 and got marked Exs.P1 to P40. The defence got marked Ex.D1 portion of statement of P.W.22. The prosecution also relied upon M.Os.1 to 46. The accused was subjected to statement under Section 313 of Cr.P.C. and thereafter, he did not choose to lead any evidence. The Court below, after hearing the arguments of the learned Public Prosecutor and also the defense counsel, convicted the accused for the charges leveled against him. Hence, the present appeal by the accused/appellant.

(3.) The grounds urged in the appeal are that the case rests upon circumstantial evidence. Only on suspicion, accused was arrested on 8.12.2011 and none of the witnesses have named and suspected the role of accused person. P.W.1 has not at all given the detail description of number of items and value of jewels missing from their house even in his further statement. But P.Ws.1, 2 and C.W.3 have only named this accused who was visiting their house and talking to P.W.1 over phone. Hence, it is clear that only on suspicion the appellant was arrested and there is no any direct evidence to indict the accused with the crime. The Court below has believed the improved versions of P.Ws.1 and 2. P.W.1 admits in the cross- examination that people used to contact him over phone or meet him at his residence in connection with his real estate business. Thus, the trial Court has committed an error in convicting the accused on mere probabilities by relying on the evidence of P.Ws.1, 12, 16 and 30. P.W.3 deposes that he was working as a driver to C.W.18 and found the accused near the house of P.W.1. The very presence of P.W.3 near the house of P.W.1 is doubtful since P.W.3 was unknown to the appellant/accused. P.W.3 identified the appellant in the police station on 10.12.2011 after the arrest of the accused and there was no identification parade conducted. Hence, the evidence of P.W.3 cannot be accepted. P.W.12 identified the appellant about 8-9 days after the incident and there was no identification parade and hence, the evidence of P.W.12 also cannot be accepted. The evidence of other witnesses P.Ws.13 and 14 who are the employees of Ganesh Diamond and Jewellary also cannot be accepted regarding the recovery and sale of jewelleries is concerned. The Court below fails to consider the answers elicited in the mouth of these witnesses. P.W.16 also has turned hostile at the first instance and when he was recalled, he supported the case of prosecution. Hence, his evidence also cannot be looked into. P.Ws.1 and 2 are interested witnesses and their evidence is not corroborated by independent evidence. None of the witnesses have identified the jewelleries and hence, the accused cannot be convicted based on the weak peace of evidence.