PETITIONER: ESHWARIAH Vs. RESPONDENT: STATE OF KARNATAKA DATE OF JUDGMENT27/01/1994 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1994 SCR (1) 387 1994 SCC (2) 677 JT 1994 (1) 199 1994 SCALE (1)219 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
RAY, J.– This appeal is directed against the conviction of
the appellants under Section 302 read with Section 34 IPC
and imposing sentence of life imprisonment to both the
appellants by the Division Bench of the Karnataka High Court
by judgment dated April 1, 1987 in Criminal Appeal No. 138
of 1985. By the aforesaid judgment, the High Court set
aside the judgment of acquittal passed in favour of the
accused appellants by VIII Additional City and Sessions
Judge, Bangalore City on January 2, 1985 in Sessions Case
No. 32 of 1983.
2. The prosecution case in short is that the deceased
Ramesh was a bachelor and was residing in House No. 6/5, 9th
Cross, Adarsha Nagar, Chamarajpet, Bangalore. During the
night between December 14 and 15, 1982, he was murdered by
the accused persons. It is undisputed that the accused 2
Smt Mayamma, was a mistress of the deceased for about 3-4
years prior to the date of the incident and she was residing
in Ramachandra Rao’s Vatara in which the house of the
deceased was also situated. The said accused was often
visiting the house of the deceased Ramesh during the night
time. She had filed an application claiming maintenance
from her husband PW 7 and had secured an order in her
favour. While the said accused Mayamma was attending to her
case for maintenance, she became acquainted with accused I
Eshwaraiah, who was a Constable attached to the Wilson
Garden Police Station and intimacy developed between accused
2 and accused 1. On December 14, 1982, both the accused
witnessed a cinema show in Uma Talkies and returned
together. They were seen near the house of the deceased at
about I or 1.15 -a.m. on December 15, 1982. Accused 2
tapped on the front door of the house and Ramesh opened the
door. At that time accused I was standing at a little
distance from the house. After accused 2 entered the house,
accused I followed her and also entered the house. PW I
Ramachandra Rao who was residing in the house adjacent to
the house of the deceased heard a sound of cries and he woke
up. He came out and went to the house of his neighbour
Hemoji Rao (PW 3), a retired Constable
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and requested him to accompany him to find out what was the
cause for the sound. Both of them went near the house but
they did not hear any sound from the said house. PW 4
Sundaresh, the elder brother of the deceased had his house
nearby and PWs I and 3 went to his house and woke him up and
informed him about the sound which PW I had heard. The
three of them then came near the house of the deceased and
PW 4 tapped the door of the house but there was no response.
PW 4 thereafter left the place saying that he would inform
his brother Ramachandra Rao and also his cousin Inderesh.
The said two persons were informed and they returned
immediately to the house of the deceased. Seetharama Reddy
PW 2, was a neighbour of the deceased and he woke up on
hearing the barking of a dog and he came near the house of
the deceased. Then PW I and PW 3 told him what PW I had
heard. PW 2 also tapped the door of the house but there was
no response. By that time, PW 4 returned. One Raju known
to PW 4 happended to come there and PW 4 requested Raju to
go and inform the police. Raju thereafter went away and
returned with two Police Constables PW 5, H. Nanjundappa and
another Police Constable Basavaraju. After the two police
constables came to the place of incident, PW 4 broke open
the window-pane and flashed the torch inside. They did not
see anything. Then the front door of the house of the
deceased was broken open with the size stone MO I and all
the said persons entered the house. By that time other
residents of the Vatara also awoke including PW 13 Vijaya.
The light of the front door of Ramesh was switched on but
nothing was seen there. The door leading to the bedroom was
little open. They entered the bedroom and switched on the
light but they did not see anything. When PW 2 flashed the
torch underneath the cot they noticed accused I and accused
2 couched below it, shivering all the while. On being
called, both of them came out. They were given to the
custody of the said two police constables. The deceased
however, could not be seen there. The light of the Pooja
room which was adjacent to the kitchen was switched on. At
that stage, they saw the legs of the deceased in the
kitchen. When they switched on the light of the kitchen
room, they saw the deceased lying on his back in the kitchen
and a bloodstained turkish towel (MO 5) was found lying at a
little distance away from the body of Ramesh. Scratch marks
were found on the face of Ramesh. His neck was swollen and
blood was seen on the lips of Ramesh. PW 4 went to his
house and wrote a complaint Ext. P-3. He then went to the
police station where Pratap Singh Sub-Inspector of Police PW
14 was officer-in-charge. The complaint Ext. P-3 was
presented at the police station at 2.00 a.m. and the police
officer registered the crime and issued first information
report being Ext. P-1 1. Both the accused were arrested at
2.45 a.m. The Circle Inspector who on receipt of the
information took over the investigation from PW 14, noticed
that the shirt and pant of accused I appeared to be stained
with blood and he seized the said bloodstained wearing
apparels by securing Panchas. The counterfoils of the two
cinema tickets were also recovered from the accused I and
the said tickets were also seized in the presence of the
Panchas. The bloodstained towel, the stick with which the
window-pane was broken, some
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nude photos of accused 2 being MOs 12 to 89 were seized by
the police. The dead body was sent for autopsy. The
postmortem was conducted jointly by PW 17 and PW 18 at about
12.00 noon on December 15, 1982 and postmortem was prepared
being Ext. P- 14.
3. Both the accused made statements under Section 313
Criminal Procedure Code and they also submitted written
statements. Accused I had denied all the circumstances and
contended that he was taken to custody from his house.
Accused 2 though admitted that she was the mistress of the
deceased and the photos seized by the police were her
photos, she stated that the deceased was not only looking
after her but also looking after her children. She denied
that she had gone to the house of the deceased on the day of
occurrence. She stated that the deceased had instructed her
not to visit him on December 13 and 14, 1982 as he would
have guests on those dates. Hence, she was all alone in her
house and the police picked her up from her house. Dr C.B.
Gopalakrishna (DW 1) a retired Professor in Forensic
Medicine was examined by the accused as witness for the
defence. It was contended by the accused that the death of
the deceased was not homicidal in nature but he died a
natural death and the said doctor DW I also gave expert
opinion to that effect.
4. Learned Sessions Judge held that the prosecution case
was based on circumstantial evidence and the following
circumstances had been noted by the learned Sessions Judge:
1. Ramesh was alone residing in his house
on the night in between December 14 and 15,
1982.
2. At about 1.00 or 1.15 a.m. on December
15, 1982 Ramesh was found opening the front
door of his house when accused 2 Mayamma
tapped on the said door.
3. Both the accused entered the said house
of Ramesh at about 1.00 or 1. 15 a.m. on
December 15, 1982.
4. Some sound like cries were heard by the
next door neighbour Raghunatha Rao, from
inside the house of Ramesh.
5. Both the accused were found under a cot
in the bedroom of Ramesh at about 1.00 or 1.45
a.m. when the neighbours of the said house
including Sundaresh entered the house after
breaking open the front door.
6. The presence of bloodstain on the shirt
and pant of accused 1 was found.
7. Ramesh was found lying dead in the
kitchen.
8. Abrasions were found on the face and
swelling on the neck of Ramesh.
9. Chappals of both the accused found
inside the house and on the terrace of the
said house.
10. Evidence of Dr Patil and Prof. Somaiah
who had conducted the postmortem examination
on the dead body of Ramesh opined that
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death was due to asphyxia as a result of
smothering (closing mouth and nostrils and
pressure over the neck).
5. The learned Sessions Judge held that the prosecution
had satisfactorily established circumstances I to 5, 7 and
8. The learned Sessions Judge however, did not accept the
evidence of Panch witness PW 8 as he could not explain why
he was present in tailoring shop at 3.00 a.m. The learned
Sessions Judge also held that the prosecution case could not
establish that the blood of accused I was not of ‘A’ group.
Hence the report of the Chemical Examiner and Serologist in
regard to the bloodstain on shirt and pant of the deceased
would not be of any assistance. The learned Sessions Judge
also did not believe the statement as to recovery of
chappals of the accused as deposed by PW 13. The learned
Sessions Judge also did not accept the postmortem report
that the death of the deceased was due to asphyxia on
account of smothering but he accepted the expert opinion of
the doctor DW I to the effect that it was a case of natural
death. In that view of the matter, both the accused were
acquitted by the learned Sessions Judge.
6. On appeal, the High Court has accepted the evidence of
witness PW 6 an advocate, who had stated that he had also
witnessed the cinema show at night and while he was
returning by the side of the house of Ramesh the deceased,
he had seen accused 2 tapping the door and on the door being
opened, accused 2 had entered the house of Ramesh and
thereafter accused I who was standing a little away also
entered the house. The High Court has held that PW 6 is an
independent and disinterested witness and nothing was
brought out in cross-examination to show that he had any
animosity against any of the accused persons which prompted
him to depose falsely. The High Court has also accepted the
evidence that harsh sound was heard by one of the witnesses
being a close neighbour of the deceased. The High Court
after analysing the evidences and indicating reasons came to
the finding that the evidence of PW 5 is to be accepted and
if such evidence is accepted, the depositions of PWs I to 4
that the two accused were found in the house of the deceased
which was closed from inside should also be accepted. The
presence of the accused in the house of the deceased had not
been explained by the accused because both of them came out
with a case that they had been picked up by police from
their respective residences. The High Court has accepted
the evidence that the front door of the house of the
deceased was broken open and only on such breaking open the
door, the neighbours and relations could gain entry to the
house of the deceased and on such entry they could find out
that both the accused were hiding under the cot in the
bedroom of the deceased. The High Court has come to the
finding that both the doctors PWs 17 and 18 had performed
the autopsy on the dead body of the deceased and the expert
opinion of the doctor examined on behalf of the accused DW I
was not acceptable. It has also been noted by the High
Court that the said doctor DW I had not seen the deceased
but he gave the expert opinion only from the papers, namely
the postmortem report. Analysing the circumstances and the
injuries found on the person of the deceased, the High Court
came to the finding that the case sought to be made out by
the accused
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that the deceased had died on account of epileptic fit from
which he had been suffering cannot be accepted. The accused
has not examined the doctor who according to the accused had
been treating the deceased for epileptic fits for a long
time. The High Court has also observed that at the dead of
night, both the accused entered the house of the deceased.
Shortly after their entrance, cries were heard from the
house of the deceased and on tapping the door nobody opened
the door and on breaking open the door, both the accused
were found under the cot in the bedroom of the deceased and
the deceased was found dead in the kitchen with marks of
injuries and a bloodstained towel was lying near the body.
There were stains of blood on the shirt and pant of accused
1. It has also been observed by the High Court that there
was no reason for accused 2 to hide in the bedroom of the
deceased without opening the door if the deceased had in
fact suffered an epileptic fit. Admittedly, she used to
visit the house of the deceased quite often at night. Hence
if Ramesh had an epileptic fit in the presence of accused 2,
it was only natural for the said accused to respond to the
call of neighbours and seek their help to save Ramesh. The
High Court has also observed that if the blood had oozed out
from the body of the deceased when he was in epileptic fit,
it is not likely that the deceased himself would wipe out
such blood with the turkish towel which was lying near his
body. The High Court has held that all these circumstances
also support the postmortem report of PWs 17 and 18 that it
was a case of homicidal death and the expert opinion of
another doctor DW I should not be accepted in the facts of
the case. The, High Court has come to the finding that the
evidence, though circumstantial, clearly proves the guilt of
the accused persons and no other conclusion about the
innocence of the accused persons was possible. Accordingly,
the order of acquittal passed by the learned Sessions Judge
was set aside by the High Court and both the accused were
convicted for the offence of murder under Section 302 read
with Section 34 IPC and the sentence of life imprisonment
was awarded to both the accused persons.
7. At the hearing of this appeal, it has been very
strongly contended that the factum of homicidal death itself
was not established beyond reasonable doubt. Accordingly,
the question of conviction on a charge of murder was not
sustainable in law. The learned counsel for the appellant
has contended that the usual features suggesting homicidal
death were absent and the facts which were noted by the
doctors holding postmortem examination clearly fit in with
the case of natural death of the deceased. The expert
opinion of DW I should have been accepted by the High Court
and if there was a reasonable basis for such opinion of DW I
about the nature of death of the deceased and if the opinion
of the said doctor was not wholly perverse and had been
accepted by the learned Sessions Judge, the same should not
have been discarded by the High Court on reappraisal of the
evidences. It has been contended by the learned counsel for
the appellant that it is a case of circumstantial evidence
and unless from the circumstances fully established, the
chain is full and complete which only points to the
commission of murder by the accused and no other conclusion
is possible, then and then
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only the conviction on a charge of murder is permissible in
law. If there is any doubt in any aspect, the chain is
broken and the circumstances, however intriguing and
suspicious they may be, will not warrant conviction because
no conviction can be based on suspicion. It has been
contended by the learned counsel for the appellant that even
if it is assumed and accepted that both the accused were
found under the cot in the bedroom of the deceased, such
finding by itself does not establish that they had committed
the murder of the deceased. It is not unlikely that the
accused became frightened when the neighbours broke open the
door and entered the house and out of natural instinct they
hid their presence but that by itself does not indicate that
they had committed the murder.
8. It has also been contended that accused 2 was
admittedly the mistress of the deceased for a number of
years and the deceased had supported her and also her
children. Hence, there cannot be any motive for accused 2
to hatch any conspiracy for the murder and to take part in
the commission of the murder of the said deceased. Simply
because accused 2 was known to accused I and they were
friendly, there was no occasion for them to conspire
to murder the deceased and commit that murder as alleged by
the prosecution. The learned counsel has also contended that
it has not been proved that the bloodstains on the wearing
apparel of accused I contained the same blood group as of
the deceased. In the absence of such evidence,the presence
of bloodstains on the wearing apparel, even if it is
accepted is of no consequence. The learned counsel for the
appellant has contended that in any event, it could not be
established as to who among the accused had really murdered
the deceased even if the case of murder is accepted. Unless
it can be pinpointed as to who had taken part in the murder,
no conviction can be awarded against the accused. In the
aforesaid circumstances, the learned counsel has contended
that the order of acquittal passed by the learned Sessions
Judge was fully justified and no interference is called for.
9. After giving our anxious consideration to the facts and
circumstances of the case and the arguments advanced by the
learned counsel for the appellant, it appears to us that the
order of acquittal passed by the learned Sessions Judge
was not at all justified and the same was not consistent
with the evidence adduced in the case. Tile High Court, in
our view, has given very good reasons for accepting the
evidences adduced in the case including the evidences of PW
5 and PW 6. It has been clearly established from the
evidences adduced on behalf of the prosecution that shortly
before the death of Ramesh, both the accused entered the
house at the dead of night and both of them had witnessed a
cinema show and had come to the house. It is an admitted
position that accused 2 was the mistress of the deceased and
she used to visit the house of the deceased frequently at
night. It has been established from the evidence in the case
that accused 2 tapped the door which was opened by Ramesh
and she entered the house and accused I who had also come
with accused 2 and was waiting just at a little distance
away had also entered the house. When the door was broken
open by the neighbours and the relatives, the deceased was
found lying dead in the
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kitchen and under the cot in the bedroom of the deceased,
both the accused persons were hiding. Despite tapping the
door repeatedly by the neighbours and the relations of the
deceased, the accused persons who were inside the house did
not open the same and the door had to be broken. It may be
noted that both the accused had not given any explanation as
to why both of them were present in the house at that late
hours in the night. On the contrary, they had taken a bold
plea that both of them had been picked up from their
respective houses. The learned Sessions Judge has devoted
much of his attention in considering the expert opinion as
to the cause of the death and he preferred to accept the
expert opinion of the doctor examined by the accused namely
DW 1. In our view, the High Court has rightly held that the
said doctor had no occasion to see the dead body and the
injuries on the person of the deceased and only from the
report of the postmortem the said doctor gave an expert
opinion. On the contrary, two doctors who had held the
postmortem on the deceased had occasion to look and examine
the injuries on the person of the deceased and they had
given a clear opinion that the death was due to asphyxia and
it was a case of homicidal death. We agree with the High
Court in accepting prosecution case that it was a case of
homicidal death. When shortly before the death of the
deceased both the accused had entered the house and it was
bolted from inside and they did not open the door despite
tapping several times and the door had to be broken by the
neighbours and the relations and both the accused were found
hiding under the cot in the bedroom of the deceased and
Ramesh was lying dead with injuries on his person, the
accused had an obligation to explain their presence and the
circumstances under which Ramesh had died. But they did not
give any explanation whatsoever. On the contrary, they
tried to set up a false plea of their presence in their
respective houses. The High Court, in our view, has
rightly rejected the suggestion given by the accused that it
was a case of natural death on account of epileptic fit. If
the deceased had suffered from epileptic fit which
ultimately caused his death, the accused particularly
accused 2 ought to have called the neighbours for help or at
least should have answered to their call when they tapped
the door and should have requested the neighbours to render
some help to the deceased. The High Court, in our view, has
rightly observed that the turkish towel with bloodstains
could not have been found at a little distance from the dead
body if the deceased had met natural death. In an epileptic
fit, the blood was not expected to be found in that way and
in any event there was no occasion to wipe the same and
throw it away by the person who was under epileptic fit.
Though the group of the blood found on the wearing apparel
of accused I was not established as that of the blood group
of the deceased but the presence of the blood on the wearing
apparel has not been explained in any manner by the accused.
It is not the case of the accused that when accused had
tapped the door of Ramesh, someone else had opened the door.
Hence, it must be reasonably accepted that Ramesh opened the
door and he was alive. Hence he had met his death in the
presence of the accused in a house which was bolted from
inside thereby preventing anyone else to enter the house at
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the time of his death. Since the murder of Ramesh has been
established in presence of both the accused, the accused are
required to explain such murder. It is true that in a case
which is to be established by circumstantial evidence, the
circumstances must be very closely scrutinised and all the
circumstances must form an unbroken chain which would
establish the guilt of the accused and the case of
prosecution should not lie in the realm of surmise and
conjecture even if the facts and circumstances are very
intriguing raising serious suspicion. In the instant case,
as rightly analysed by the High Court, the circumstances
have formed a complete chain which clearly point out the
complicity of the accused in causing the murder and no other
conclusion suggesting innocence of the accused appears to be
reasonable or justified. Although, the prosecution could
not lead any evidence as to who had actually smothered the
deceased but since both of them were present at the time of
commission of the offence, the conviction under Section 302
read with Section 34 is warranted against both the accused.
We, therefore, find no reason to interfere with the decision
of the High Court and the instant appeal, therefore, fails
and is dismissed. If the appellants are on bail, they
should be taken into custody to serve out the sentence.
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