- (1.)THE two appellants before us were originally charged with having committed offences punishable under Sections 392 and 302 read with 34 IPC in S. C. No. 14/92 in the Court of the I Additional Sessions judge, Mysore. Briefly stated, the prosecution case was that a well known Medical Practitioner of the city of Mysore by the name of Dr. Chandrashekhar was residing in a house at Gopalaswamy shishuvihar, one the better residential areas of Mysore city. On the morning of 8. 8. 1991 the milk vendor who is PW. 11 Kalaiah found the outer door of the verandah open and that there was no response from the doctor and he therefore informed PW. 12 Nanaiah who in turn informed the police because the house was found locked and a foul smell was emanating. The police had the front door opened and discovered that Dr. Chandrashekhar was lying, dead in the bed room under one of the beds and that many of the items particularly from the cup-boards where found scattered. On a closer examination it was discovered that there were apparent marks of strangulation. The brother of the deceased was contacted and he in turn contacted the wife of Dr. Chandrashekar who was in America. The doctor and his wife had spent about four months in America and Dr. Chandrashekhar had come back alone approximately on 4. 4. 1991 and was the only occupant of the house. It is relevant for us to mention here that the two dogs belonging to Dr. Chandrashekhar were found locked in the garage/toilet, there being some slight ambiguity with regard to which of the rooms they were locked in mrs. Chandrashekhar who is PW. 18 states that on receiving intimation she immediately returned to Mysore on 10. 8. 1991. The record indicates that on 21. 8. 1991 she submitted, a list of items missing from the house which essentially consisted of ornaments, silver items, a tape recorder, a camera and four watches. Thereafter, according to the investigating officer the police received information around 25. 9. 1991 that accused No. 1 who was a servant in a hotel was supposed to have been spending money very lavishly and the police arrested accused No. 1 at Bhyrige village at H. D, Kote Taluk which is about 45 Kms. from Mysore and interrogated him. The prosecution alleges that accused No. 1 made a voluntary statement pursuant to which he led the police to four persons Pws. 5, 6, 8 and 9 and that the items of property which we shall subsequently describe are alleged to have been recovered at the instance of accused No. 1 trom these persons. Accused No. 1 is also supposed to have led the police to his house on the same day from where they recovered certain original pawn tickets and a platinum ring M. O. 44 under Ex. P 37. On the same day accused No. 2 was arrested in the afternoon and it is the prosecution case that accused No. 2 maae a voluntary statement pursuant to which he led the police to the Sujatha Bar where he was normally employed and that he took the police to a room where the employees used to keep their belongings. Accused no. 2 is alleged to have pointed out a brown coloured suit case and opened the same and produced certain articles being essentially a sony Taperecorder, a camera bag containing a camera etc. It is further alleged that after this, accused No. 2 led the police to an open place where there as parthenium grass growing and that accused No. 2 is supposed to have searched in the grass and produced a white cotton rope of the length of about 65" which was heavily discoloured and smeared with mud. The prosecution, on the basis of the recovery evidence alone sought to contend that accused no. 1 and accused No. 2 in furtherance of their common intention gained entry into Dr. Chandrashekhar's house and that they had strangulated him with the rope that had been recovered and that they thereafter looted the place and made away with valuable property worth about Rs. 89,890/ -. We need to record here that there is no dispute with regard to the fact that Dr. Chandrashekar died a homicidal death in so far as the medical evidence establishes this fact. We need to mention in passing that a question was put to the doctor when the rope MO. 38 was shown to him and the doctor did opine that the strangulation could have been caused by using such a rope. The learned trial Judge after evaluating all the evidence on record came to the conclusion that the recovery evidence is not good enough for acceptance and that consequently, none of the charges were established and acquitted the accused. The state, through the present appeal has assailed the correctness of this acquittal.
(2.)AT the hearing of the appeal, we have heard the learned S. P. P. Mr. Mohan Shanthangoudar as also the learned defence counsel smt. Anasuya. We are conscious of the fact that this is an appeal against acquittal and that therefore, the first stage of the hearing must necessarily proceed through an examination of the judgment of the trial Court as it is well settled law that if the judgment is correct and sustainable that no interference is called for merely because another view is possible. In fact, Smt. Anasuya very vehemently submitted that the only evidence in this case consists of the recovery evidence, that this has been virtually dissected and evaluated by the learned trial Judge very carefully and that in this background, this Court ought not to interfere with the findings in so far as they are perfectly logical and correct. The learned S. P. P. pointed out to us that there are flaws in the reasoning that the learned trial Judge has been too harsh with regard to his evaluation of the calibre of the evidence and that this bias appears to have manifested itself in his totally rejecting the recovery evidence. On a careful perusal of the reasoning and the conclusions, we did come to the conclusion that this cannot be upheld as far as one head of charge is concerned even though the reasoning would perhaps be good enough as far as the main offence was concerned.
(3.)AS indicated by us earlier, the evidence in this case narrows down to the recoveries which are alleged to have been done at the instance of the accused. Accused No. 1 and accused No. 2 were both employees in eating houses or hotels. It has not been established that they were in any manner connected with Dr. Chandrashekhar's family and for all intentions and purposes, they will have to be recorded as total outsiders. The defence has brought on record the fact that Dr. Chandrashekhar was also connected with an educational institution by the name of Sharada Vilas Education Society in so far as he was the Hon'rary Secretary thereof. This institution is one of the finest educational institutions in the city of Mysore and mrs. Chandrashekhar who is PW. 18 has admitted that the doctor was not satisfied with some of the happenings in that institution and that he had even taken strong corrective action which was resented by certain persons. She has also admitted that ostensibly because of these steps that the doctor had been attacked by some persons with a matchu in the year 1989 and that he was hospitalised due to the injury. The defence theory is that in connection with some such affair of the society that the doctor had incurred either the wrath or displeasure of some persons who were responsible for his murder. The defence contends that when the police were not able to trace the real culprits because there were no sufficient clues that the accused persons were virtually picked up by the police and that the recovery of property has been foisted on them and that the documents in relation thereto are all fabrications. Mrs. Chandrashekhar has clarified that the doctor had resigned from the hon'rary Secretaryship of that society prior to their leaving for America but the defence theory is that because of various issues and steps that had been taken prior to his departure that the persons who were at the receiving end ultimately decided to do away with him. Smt. Anasuya goes a step further and submits that from the inventory of the house it is clear that the documents from the cupboard were found scattered at the surrounding place and she submits that this was the real reason for the murder and that since the police could not trace out those culprits that they have utilised various items of property of considerable value for purposes of building up a false case against the accused. The defence of the accused is one of total denial and we refer to this aspect of the matter because in a case where the prosecution alleges that the property has been recovered from the accused or at the instance of the accused, one of the requirements of law is that the accused must put forward some satisfactory explanation for the possession and if this is not forthcoming then an adverse inference follows.