of Karnataka Vs. A.B.Nagaraj & Anr  Insc 531 (10 December 2002)
Babu & P. Venkatarama Reddi Rajendra Babu, J. :
old Neelamma's corpse was found on 05-10-1985 at a bush on the side of a footpath
leading towards Mavinahalla, near Bennerghatta National
Park. The learned
Sessions Judge, Banglore Rural District found Neelamma's father (A1) and
stepmother (A2) guilty of killing her. They were convicted under Section 302
read with Section 34, Indian Penal Code and sentenced to life imprisonment. On
appeal, the High Court of Karnataka acquitted them. The State has preferred
this appeal by special leave.
case of the prosecution is that on 05-10-1985 both the accused and the deceased
went to Bennerghatta National Park. PW5, Kunniga saw all of them walking towards Mavinahalla.
After some time he heard a cry "ayyayyo". He looked around but saw
nothing. A little later he saw A1 and A2 coming from that side. He approached
them and asked them how come they were three when they went and only two
returning. The accused replied that the girl was moving about eating groundnuts
and doing other things. He was not convinced with the reply.
took them to the Range Forest Office and narrated the incident to PW3, Forester
Linge Gowda. PW3 sent some of the Watchers including PW4, PW5 and both the
accused to the spot for further inquiry. They found the deceased girl lying
with tied hands behind the neck with a kerchief and neck with a towel. A green
jacket was found thrust into her mouth. Thereafter, PW1 B Nagaraj, Range
Officer was informed. PW1 verified the fact and forwarded a Report (Exb P-1) to
Bennerghatta Police Out Post. Later, PW 10, Police Head Constable arrested the
accused from the Forest Office. PW 10 took a personal search of A1 and found 9
tickets (MO 1). PW2, Dr. Shivaprakash, who conducted the post-mortem, found
that death was caused due to asphyxia on account of strangulation. A1 and A2
were charged under Section 302 read with Section 34 IPC. The accused pleaded
on the manner in which the body was recovered and the medical evidence of PW 2,
the Trial Court found that the deceased met with homicidal death as a result of
asphyxia due to strangulation. PW5 deposed that he saw the deceased last with
A1 and A2. He also saw them returning from the place where he heard the cry 'Ayyayyo'.
Moreover, the Trial Court found that he is not an interested witness and relied
upon his deposition. The Trial Court also placed reliance upon the deposition
of PW 3 wherein he stated that the accused made extra-judicial confession that
they murdered Neelamma because of her bad character. PW 6, bus conductor
identified the MO1 tickets that he issued to the accused to travel up to
National Park. Juxtaposing all this, the Trial Court found the chain of
circumstances complete. A1 and A2 were convicted, based on circumstantial
evidence lead before the Trial Court.
appeal the High Court re-appraised the evidence. Placing reliance on the Modi's
Medical Jurisprudence, the High Court observed that the medical evidence
tendered by PW2 fails to prove the homicidal death of deceased as a result of
asphyxia due to strangulation. Appraising the evidence of PW.5, the High Court
found that huge fence and bushes surround the place where he was working and
consequently, that the High Court held that the deposition of PW.5 to the
effect that he saw the deceased with A1 and A2 going towards Mavinahalla to be
unbelievable. Admittedly the place of occurrence is about 200 to 250 feet from
his place of work. He also stated that upon seeing him A1 or A2 had not tried
to run away or even attempted to do so. This circumstance was also held in favour
of the accused. The High Court impeaches the credibility of alleged
extra-judicial confession of accused before PW3. PW5 has not stated about the
extra-judicial confession nor has it a found a place in the Ex. P 1 prepared by
PW1 upon knowing of the incident from PW3. Thus the extra-judicial confession
was founded to be a concocted piece of evidence. Lastly, the High Court found
that it is difficult to believe the evidence of PW6, bus conductor. The High
Court reasoned that, it is difficult to identify the bus ticket without the aid
of trip sheet or any other reliable sources. In these circumstances, the High
Court set aside the conviction by the Trial Court.
fact of homicidal death of Neelamma was not disputed at any stage and hence
detailed consideration of the medico-legal aspects of the manner of her death
need not be examined. The only aspect which needs consideration is the
reliability of circumstantial evidence as put forward by the prosecution that
leads to the conviction of A1 and A2.
primary fact for consideration is the reliability of PW5. Admittedly it is
difficult to see the place from where he heard cry 'ayyayyo'. Fence and bushes
surround his place of work. Hence it is difficult to believe that he saw the
deceased along with A1 and A2 moving towards Mavinahalla. Upon hearing the cry,
he is said to have stood up on a rock and looked around. Thereafter he
continued with his work. When he saw A1 and A2, they did not attempt to escape
from the scene. Had they committed the murder they would have normally tried to
flee from the place. On the other hand they answered his query.
it is difficult to believe the prosecution version that the accused accompanied
PW3, a manual labourer, who does not hold any position of authority, to the
Forest Office. In that view of the matter, the finding of the High Court as
regards non-reliability of PW5's evidence needs no interference.
the fact of the alleged ill treatment by the accused and the so- called 'bad
character' of Neelamma, which could have been treated as the cause and motive
of the murder is also not sufficiently proved. This seems to be a cooked-up
aspect is the alleged extra-judicial confession made to PW3 but his deposition
is liable to be rejected on two counts. The fact of such a confession that was
said to have been made in the Forest Office during the detention of the accused
was not mentioned in the Report [Ex. P1] given by PW1. Since PW1 came to know
about the incident from PW3 it is improbable that this crucial fact of
extra-judicial confession has not found a place in the Report. Again neither
PW4 nor PW5 made any mention about such a confession.
the finding of the High Court on this aspect of the matter also does not need
stand of the accused that they had no motive to do away with Neelamma and they
were actually in search of her cannot be brushed aside and is consistent with
the material on record rather than the version of the prosecution.
that view of the matter, acquittal of the respondents by the High Court does
not call for any interference. The appeal stands dismissed accordingly.