KRISHNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THESE Criminal Appeals have been preferred by the original accused Nos. 1 and 3 in Sessions Case No. 70/92 in the Court of the Additional Sessions Judge, Shimoga. The original accused No. 2 had also preferred Cr. A. No. 643/96 which has since abated as accused No. 2 has passed away. The original accused No. 4 was shown as absconding and hence, we are concerned in these two appeals only with original accused No. 1, Krishna and accused No. 3, raja. It was alleged that on 26. 6. 1992 between 11. 30 a. m. and 2. 30 p. m. at the residence of deceased Shantha Bai which is situated at rajendranagar in Shimoga, the four accused entered the residential premises and strangulated Shantha Bai after which they are alleged to have committed robbery of various items of jewellery including an ear ring and an anklet that was worn by the deceased. The son of the deceased P. W. 15, Dr. Suresh Upadhyaya, who is a Dental surgeon came back to the house at about 2. 00 p. m. and found his mother lying on the floor. On closer examination, he found there appeared to be some injury marks on here neck and that the cupboard in the house was also ransacked and the various items of jewellery were missing. He immediately telephoned his sister P. W. 4, savitha Upadhyaya, who was working for a Bank. The daughter rushed to the house and subsequently, the police were also intimated. The incident as indicated by us took place on 26. 6. 1992 and it is the prosecution case that on 25. 7. 1992 on receipt of certain information by P. W. 13, P. S. I. Basavaraj, that he proceeded to the residence of P. W. 11, Devananda. According to him, since he had received information to the effect that some stolen property was likely to change hands, he had taken two pa'nchas with him. It is his case that on entering the house of P. W. 11, he found a boy there who was concealing something in his fist and on verifying it was found that the boy had two ear rings and a gold bangle which he was attempting to sell to P. W. 11. The P. S. I, states that he seized the items of jewellery under a mahazar and that the boy who is accused no. 1, Krishna was placed under arrest. It is the prosecution case that accused No. 1 made a voluntary statements pursuant to which the police arrested accused Nos. 2 and 3 on the same day whereas accused No. 4 about whom there is some controversy with regard to the correct name was shown as absconding and was never arrested at any time thereafter. It is the prosecution case that accused Nos. 2 and 3 also made certain voluntary statements and further that accused No. 2 led the police and the panchas to certain places at t. Narasipur, Mysore and Vatal and that the police recovered a seizable amount of jewellery as a result of his pointing it out. As far as accused No. 3 is concerned, it is the prosecution case that pursuant to the voluntary statement made by him ihat three heads of jewellery were recovered being M. Os. 6, 7 and 8 from a pawn broker who is P. W. 8, Padmaraj Jain, next M. Os 9 and 10 from an other jeweller who is P. W. 9 by the name of Manjunatha and that accused No. 3 led the police and the panchas to his house from where M. Os. 11,12 and 13 were recovered under the mahazar ext. P. 11. The prosecution relies very heavily on the recovery evidence because there are no eye-witnesses to what transpired at the house of deceased Shantha Bai nor is there any indirect evidence such as the evidence of persons who might have seen the accused either entering or leaving the premises. Again since Shantha Bai was strangulated, no weapon was used nor has it been recovered nor for that matter is this a case where there are any other incriminating articles such as blood stained clothes etc. that have been seized. We refer to this aspect only for one reason viz. , that the entire prosecution case depends totally on the recovery evidence. The Trial court found the evidence satisfactory and held that both the charges under Sections 302 and 392 read with 34 IPC were established and convicted all the three accused. The accused were sentenced to undergo imprisonment for life for the offence punishable under section 302 IPC and sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 392 RPC. The substantive sentences were directed to run concurrently. The present appeals are directed against these convictions and sentences. As indicated by us earlier, accused No. 2 having died and the appeal filed by him having abated, all that survives is the present two appeals preferred by the original accused no. 1, Krishna and accused No. 3, Raja.

(2.) WE have heard the learned advocates who represent the appellants as also the learned Additional State Public Prosecutor and we have aiso very carefully reviewed the record. We need to make special mention of the fact that for the reasons as will be pointed out by us presently, we were required to scrutinise the documents that the prosecution has relied upon, particularly, the receipts issued for the jewellery in question, the counter-foils etc. , as it was very necessary in view of the challenge presented, to reexamine the question as to whether this evidence passes the total test of scrutiny. It will not be out of place for us to mention that accused No. 1 who has been referred to as a boy by P. W. 13, was sent 'o the hospital for purposes of ascertaining his age. The opinion given was to the effect that he was aged 14 years. Though a submission was canvassed before us that he ought to have been tried by the Juvenile Court,, we have over ruled this submission in view of the clear provisions of Section 27 Cr. P. C. which stipulates trial in the case of an offence punishable with death or imprisonment for life, that it is the Court of Sessions which will exercise jurisdiction even if the accused is a minor. We however heed to briefly record that accused No. 1 contended that he used to do certain odd jobs arid that he used to pluck coconuts and further that the police had arrested him in connection with an allegation that he had committed theft of coconuts. It is his defence that he had nothing to do with the present incident a'nd that since the police could not trace but the real culprits, that they have foisted the present charges on him. The defence of accused No. 3 who according to the prosecution was a companion of accused No. 1 is also to the effect that he is a poor youngster who has been wrongly accused by the police and that he had nothing to do with the incident in question.

(3.) THE principal submission canvassed on behalf of the appellants is that the prosecution case bristles with infirmities. In the first instance what is demonstrated to us by the learned advocates is that the incident took place on 26. 6. 1992 and that the complainant p. W. 15, Dr. Suresh Upadhyaya and sister P. W. 4, Savitha Upadhyaya came to the scene of the incident. on that very afternoon and that it is their own case that they immediately noticed that one of the ear rings was missing from the ear of the deceased and that the cupboard had been opened and the various boxes in which all the jewellery was stored was scattered around the place and that the jewellery was missing. Dr. Upadhyaya has pointed out that his wife had died of cancer a few months earlier and that part of the jewellery belonged to her, part of it belonged to his sister who is P. W. 4 and that part of it belonged to his deceased mother Shantha Bai. What is pointed out to us by the appellants' learned advocates is that despite the charge to the effect that virtually all the jewellery from the house had been looted, that for some strange reason neither an inventory nor a description of the jewellery is forthcoming from P. Ws 4 and 15 right until 24. 7. 1992, 28 days after the incident. What is brought to our notice is that if the gold jewellery of substantial value had been looted from the house that there would have been no difficulty or hesitation for P. W. s 4 and 15 to have recounted to the police as to what were the items of jewellery that were missing, what is their description and what is their value. It was only after a delay of 28 days that this list was made available to the police. The. submission is that this itself raises a very serious doubt as to whether at all the jewellery had been taken away when the incident took place and the learned advocates vehemently contended that if all the Jewellery from the house which was of substantial value had been stolen, that there is absolutely no plausible? reason why the list of the jewellery would not have been straight-away furnished to the police. The learned Additional State Public Prosecutor brought it to our notice that P. W. 15 has given two reasons, the tirst being that he was busy with the ceremonies relating to his mother's death and that thereafter, he had been posted as Principal of the College at sagar and that consequently, he was unable to attend to this matter. We find it difficult to accept these explanations for a variety of reasons, the principal one being that P. W. 15 and his sister P. W. 4 are educated and well placed persons who are only too familiar with the fact that valuable items of jewellery change hands very quickly, that there are even instances where jewellery is melted down and that time is of the essence in such cases. Unless a list is given to the police along with a proper description of the stolen property, it would be impossible for the police to make attempts to trace it out and in this background, it does appear to us more than strange that the inventory was not forthcoming for as long as 28 days. Both these witnesses have very clearly stated that the jewellery belonged to their mother, the late wife and the sister and that it was normally kept in the cupboard in the house and the jewellery being personal items, the inventory thereof could have been complied virtually within a matter of minutes. The fact that this was not done for as long as 28 days is not only a lapse but is a circumstance that attaches a high degree of suspicion to it because the question that is left hanging in the air is as to whether at all the jewellery had in fact been stolen at the time of the incident, and recovered thereafter. The so called coincidence of the inventory being given to the police on 24. 7. 1992 and P. W. 13 arresting accused No. 1 on 25. 7. 1992 from the residence of a milk vendor with two of the items of jewellery (M. Os 3 and 4)supposedly in his possession and gold bangle ( (M. O. 5) does again appear to be a little but difficult to accept. The additional reason for this is because the appellant's learned advocate has pointed out to us from the evidence of P. W. 13, PSI, Basavaraj that according to him, accused No. 1 had concealed M. Os 3, 4 and 5 in his hand and that the property was recovered when he was made to open his fist. While it is not difficult to conceal gold ear rings in one's fist, it does appear to be totally impossible to conceal a gold bangle inside a closed fist and that too in the case of a 14 year old boy. Again for some strange reason, P. W. 13, Basavaraj who solemnly states that he had definite information that stolen property was changing hands and that this was why he went to the residence of P. W. 11, Devanand along with two panchas has stated that he asked the panchas to wait outside when he entered the premises and that according to him he recovered the jewellery from accused No. 1. The prosecution has not examined either of the two panchas whereas the defence has summoned Chandrashekar, who has been examined as D. W. 2 and Chandrashekar has very clearly in his defence deposed to the fact that he was not a witness to any such seizure.