NARAYANA Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed by the original accused Nos. 1 and 2 in Sessions Case No. 69/1992 from the Court of the Principal Sessions Judge, Mysore. The appellants have assailed the judgment and order dated 21-9-1995 whereunder they have been convicted of the offence of having committed the murder of one Nagendra @ Kumar at about 9. 30 P. M. on 12-2-1992 at a smashana near the Bamboo Bazaar at Mysore. The accused are alleged to have taken the deceased Kumara with them initially for purposes of consuming drinks and after that they are alleged to have kicked the deceased on the chest and the abdomen and accused No. 1 is alleged to have caused bleeding injuries to the deceased by cutting his testicles and the second accused is alleged to have strangulated him with a kerchief and a ladi. The police were informed on the next morning that the body was lying at that spot and in the course of the inquest that was being conducted PW. 2 Chandrakala identified the body as that of her brother. Incidentally, this PW. 2 Chandrakala is the wife of accused No. 1 and she informed the police that accused Nos. 1 and 2 had taken her brother the previous night for drinking and that at about 1 A. M. the first accused came to the house of his sister PW. 5 Saraswathi and knocked at the door. PW. 2 states that she heard her husband accused No. 1 telling PW. 5 that he had finished the deceased Kumar and that she could live peacefully with any one of her choice. PW. 2 is alleged to have questioned the accused No. 1 as to where her brother Kumar was and he is supposed to have abused her and threatened to kill her. PW. 2 in turn informed PW. 3 Mahadeva and was told that the matter could be sorted out in the morning. The accused No. 1 who had come home late at night left in the morning and did not come back. PW. 2 went to the police station the next morning and was told that a dead body was found in the smashana. She went there and identified the deceased. The accused were apprehended on 16-2-92 near Bal Bhavan of Banni Mantap. On interrogation of the first accused, he is alleged to have produced the blade which, according to the prosecution was used in the commission of the offence. On completion of the investigation, the two accused were charge sheeted and put up for trial. The learned Sessions Judge found both the accused guilty of the offence of murder and convicted them and sentenced them to rigorous imprisonment for life and a fine of Rs. 5000/- each in default six months rigorous imprisonment. The present appeal assails the conviction and sentence awarded to the two appellants.

(2.) SINCE this is a jail appeal, this Court appointed learned Advocate Mr. J. V. Hulsoor to appear as amicus curiae on behalf of the appellants. We have heard Mr. Hulsoor as also the learned S. P. P. in considerable detail and we have also had occasion to thoroughly review the entire record of this case. We need to mention straightway that there are no eye-witnesses in this case and neither is there any direct evdence. It is essentially a case on circumstantial evidence. Mr. Hulsoor's main line of attack has been that the learned trial Judge has been rather prejudiced or biased by what the prosecution alleges as the motive for the crime and he submits that the evidence in support of this aspect of the prosecution case is not at all conclusive. Secondly, what he submits is that even assuming that the prosecution has succeeded in establishing that there was some illicit connection between the deceased Kumar and PW. 5 that this would not provide sufficient motivation for the accused to commit the murder and that too, in the manner in which it has taken place. Undoubtedly, the deceased had left his wife and was supposed to have been carrying on with PW. 5 who incidentally is the sister of accused No. 1. The prosecution case is that accused No. 1 had reacted very strongly to the misconduct of the deceased who is alleged to have been openly carrying on with his sister and accused No. 2 was also in a sense an aggrieved party because the deceased had virtually deserted his wife who was the cousin of accused No. 2. The prosecution theory is that both accused No. 1 and accused No. 2 were extremely annoyed with the deceased for what he had been doing and that they joined together and decided to finish him. The prosecution allegation goes to the extent of demonstrating that the animus of the accused as against the deceased was extremely high because of the sexual misconduct of the deceased and that this was the reason why apart from killing him, they had mutilated his genitals.

(3.) MR. Hulsoor submitted that this may be true, as emerges from the evidence of PW. 5 who has not disputed the fact that an affair was going on between her and the deceased, but he submits that the prosecution evidence indicates that this had been carrying on for quite some time. His contention is that nothing has been brought on record to indicate that some serious development took place shortly before 12-2-1992 which would have infuriated accused Nos. 1 and 2 to a point that would motivate them to kill the deceased. His submission is that the prosecution has blown up the incident out of all proportion in order to establish an interconnection and that the Court should not accept this aspect of the case. On the other hand, the learned S. P. P. contended that this circumstance which is fully established, provides a very strong motive as to why the two accused decided to join together as also to finish off the deceased.