Karnataka High Court
Mallesha @ Papaiah vs The State on 6 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2263
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRL.A. NO.1161/2015 (C)
BETWEEN
MALLESHA @ PAPAIAH
S/O RAMANNA
AGED ABOUT 35 YEARS
R/AT CHOODENAHALLI VILLAGE
ANEKAL TALUK-562 106 ... APPELLANT
(BY SRI. P. D. SUBRAMANYA, ADV.)
AND
THE STATE, REP. BY ANEKAL POLICE
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA-56O 001
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT ORDER DATED 28.02.2013 PASSED BY THE
II ADDL. S.J. AND SPL. JUDGE, BANGALORE IN
SPL.C.NO.626/2011 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF
IPC AND SEC. 3(2)(V) OF SC/ST (POA) ACT.
2
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED
THE FOLLOWING:
JUDGMENT
The appellant/accused in Special Case No.626/2011 preferred this appeal against the judgment dated 28.02.2013 passed by the II Addl. Sessions Judge and Special Judge, Bengaluru Rural District, Bengaluru, in convicting the appellant/accused for the offence punishable under section 302 of IPC and also u/s.3(2)(v) of the SC/ST(POA) Act, 1989, and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50,000/-, with default sentence of three years simple imprisonment and also ordering Rs.45,000/- to pay to PW-11 Prabhu and PW-14 Surya, as compensation.
2. We have heard the arguments of the learned counsel for the appellant as well as the 3 learned Addl. State Public Prosecutor. Perused the records.
3. The brief factual matrix of the case are that one Mr. Manjunatha S/o. late Narayanappa, PW-1, has lodged a complaint stating that, the complainant has two brothers and three sisters. The deceased Sharadamma was given in marriage to one Cheluvaraju @ Shekar, about 20 years back and they were blessed with three sons and a daughter and they were living together for some time and afterwards, Sharadamma and Cheluvaraju @ Shekar started living separately at a village called Chudenahalli, Kasaba Hobli, Anekal Taluk, by taking the house on rent from one Mahesh Babu.
4. It is the case of the prosecution that the accused was also doing coolie work along with Sharadamma and in that context they developed illegal intimacy with each other and the accused saying that he will look after Sharadamma and her 4 children, started living with Sharadamma in the same house. It is the further case of the prosecution that the accused and the deceased were quarreling each other and they were in the habit of consuming alcohol everyday. It is further alleged that in the intervening night of 14/15th February, 2011, the accused and the deceased after consuming alcohol, quarreled each other. In this regard, the accused enraged himself and, decided to kill her and in that context, when the deceased was sleeping in the corner of the house, the accused at about 12.30 midnight, strangulated her neck and committed her murder and thereafter, went to one of the sons of the deceased Surya and informed him that his mother is dead and ran away from the spot. Surya went to another brother Prabhu and informed him. All of them came and saw the dead body of the deceased and at that time, their sister Bhavani was also sleeping by the side of the dead body. On the above said 5 allegations, a complaint came to be lodged as per Ex.P-1. The Police have registered a case in Crime No.48/2011 for the offence punishable under section 302 of IPC and investigated the matter and submitted charge sheet against the accused.
5. The accused was also arrested in connection with this case on 15.2.2011 and since then, it appears he has been in Judicial Custody. After filing of the charge sheet and completion of the committal proceedings, the trial Court has secured the presence of the accused and framed charges against him for the above said offences. The accused pleaded not guilty. Hence, he was tried by the trial Court. The prosecution in order to bring home the guilt of the accused, examined as many as 18 witnesses as PWs.1 to 18 and got marked Exhibits P-1 to P-13 and also Material Objects MO-1 to MO-4. The accused was also 6 examined u/s.313 of Cr.P.C. and his statement was recorded.
6. The accused did not choose to lead defence evidence on his side. Therefore, after hearing both the sides, the trial Court has rendered the impugned judgment of conviction and sentence as noted supra.
7. The prosecution has examined as many as 18 witnesses. PW-1 Manjunatha, is no other than the complainant. He is none other than the brother of the deceased. He has deposed with regard to the marriage of the deceased Sharadamma with her first husband Cheluvaraju @ Shekar and thereafter, she started living at Chudenahalli. But this witness clearly pleads his ignorance regarding the accused. But he says that he came to know that the accused was also residing along with Sharadamma at Chudenahalli. He further says that after receiving the information 7 that his sister died on 15.2.2011, from the children of Sharadamma, he went to the house of Sharadamma and saw the dead body and thereafter lodged a complaint as per Ex.P-1. He has also stated that, the Police came to the spot and found near the dead body one match box and three pieces of Beedi and one Gutka packet and the same were seized by the Police under Mahazar Ex.P-2. He has also identified MOs.1 to 3 which are the clothes of the deceased. He again on the information given by somebody, he alleges that, the accused might have committed the murder of the deceased. There is no incriminating materials available in the evidence of this witness so far as the accused is concerned, he pleads his ignorance with regard to the relationship between the accused and the deceased.
8. PW-2 Ramappa is the resident of Mayasandra village. He also speak about the 8 marriage between Sharadamma and Cheluvaraju @ Shekar and they were blessed with four children and thereafter, she started living at Chudenahalli. After receiving the information about the death of Sharadamma, he visited the spot and there he has attested the inquest mahazar as per Ex.P-3. He never stated anything about the accused and the deceased. But he is also a hearsay witness so far as the death of the deceased is concerned. Therefore, there is absolutely no incriminating materials available so far as the accused is concerned.
9. PW-3 Manjunatha is also resident of Mayasandra village. He has also deposed that he was present when the inquest proceedings were conducted on the dead body of the deceased. He does not say anything about the incident and no incriminating evidence is adduced except stating 9 that he was an attestor to the inquest proceedings marked at Ex.P-3.
10. PW-4 Cheluvaraju @ Shekar is the husband of the deceased. He also speak about the fact that he has married the deceased Sharadamma and they were residing together happily with each other and they were blessed with four children and thereafter about one year prior to the death of the deceased Sharadamma, he left her and residing in Devanagundi village. He has also stated that the deceased Sharadamma started living at Chudenalli along with her children. He came to know the death of the deceased on 15.2.2011 and also came to know that the accused committed the murder of the deceased by strangulation.
11. Therefore, looking to the evidence , it reveals that he is also a hearsay witness. He does not know anything as to how and in what manner, the death of the deceased had occurred. Even in 10 the course of cross examination, he never made any allegations against the accused. He never stated even the accused and deceased living together as on the date of the incident.
12. PW-5 Dr. K.T. Venkatesh is the Medical Officer working in the Primary Health Centre at Anekal, who conducted autopsy on the dead body of the deceased on 14.2.2011 and he gave the opinion that the death of the deceased was due to asphyxia as a result of pressure exerted on the neck and consequent blockage of respiratory passage due to strangulation. He has given his opinion as per Ex.P-4 Post Mortem report.
13. PW-6 one Chandrappa resident of Mayasandra village, is an attestor to Ex.P-2, under which the Police have seized MO-4 i.e., the bus ticket which was found with the accused on 15.2.2011. He has stated that on that particular day, he had been to Chudenahalli village and he 11 saw the dead body of the deceased and after that he signed Ex.P-2 Mahazar. He has also stated that, he had been to the Police Station and saw the accused person, where the Police have seized MO-4 bus ticket under Ex.P-6 Mahazar. Except that he never stated anything or made any allegations against the accused. He has also stated that the Police have seized some articles as MOs.1 to 3 from the spot. In the course of cross examination also, he never stated anything with regard to the relationship between the accused and the deceased and he is an hearsay evidence that Sharadamma's son told this witness that accused has committed the murder of the deceased. He has no personal knowledge or he knew anything about the incident is concerned.
14. PW-7 Gopala, PW-8 Mohanbabu and PW- 10 Madesha are the witnesses from Chudenahalli. They are all residents of Chudenahalli village and 12 virtually they are the neighbours of the deceased Sharadamma. These witnesses have in fact turned hostile to the case of the prosecution on the material aspect. Though they have stated that, the accused and the deceased along with three children were residing in the house of PW-8 Mahesh Babu after taking the said house for rent and these witnesses came to know about the death of the deceased on 15.2.2011 in the morning hours, but they do not know how the death occurred in the house of the deceased. They all came to know that the accused committed the murder and ran away from the village.
15. These witnesses were examined by the prosecution to establish that on that particular day of the incident i.e., on 14/15.2.2011 in the night hours, the accused and the deceased came to the house consuming alcohol and they started quarreling with each other and these witnesses 13 thinking that it is the usual quarrel of the accused and the deceased, therefore, they did not come to the house of the accused. But, on the next day, Sharadamma's son came to PW-7 and informed that her mother is not responding in any manner and that the Sharadamma's son has told PW-7 that accused informed him that his mother is dead and ran away. So far as these aspects are concerned, these witnesses have turned hostile and they have not supported the case in any manner. Except these witnesses, no other witnesses evidence are available to exactly establish as on the date and time of the incident, the accused was very much present in the house and thereafter, he was seen going away from the spot by anybody.
16. PW-11 Prabhu is no other than the son of the deceased. He is a child witness aged 12 years. He also never stated anything about the incident as such. On the other hand, he has stated 14 that he was working with one Chandra, owner of a textile and even at the time of the incident, he was not residing in the house, where the deceased was residing. However, he has stated that, the accused was also residing along with her mother and both of them used to quarrel with each other and the accused used to demand money from his mother and assault his mother, if she do not give money etc., But so far as the incident is concerned, he pleads his ignorance. But he says that on the next day of the incident at about 5.00 a.m., in the morning, when he was present in the house of one Mr. Chandra, the accused came and informed him that his mother has expired, by informing him, he ran away from the spot. Thereafter, this witness went to another brother Surya, who was working in Chudenahalli in a garden land and informed his brother about the death of his mother and thereafter, they all came to the house of their mother at Chudenahalli and found the dead body of 15 their mother and at that time, their sister was sleeping by the side of the dead body. They all made attempts to awaken their mother, but it was in vain and they came to know that their mother is dead.
17. Even in the course of cross examination, he has not implicated the accused in any manner. Except stating that, the accused came to me and informed about the death of his mother. He has further stated that when the accused came and informed him, one Mr. Chandra was also present along with him. But the said Chandra was not examined before the court. This witness has also never stated that, the accused has made any Extra- judicial Confession before this witness that he has committed the murder of the deceased Sharadamma. Even the evidence of this witness has to be tested with the evidence of Surya PW-14. 16
18. PW-14 Surya is the another son of the deceased Sharadamma, who was working in the garden land of one Venugopal. He has specifically stated that he was not residing with his mother. He has also stated that the accused and deceased and Bhavani, their younger sister were residing together. On the next day of the incident, PW-11 Prabhu came to this witness and informed about the death of their mother. But, very conspicuously, he never stated that the accused was the person who informed PW-11 with regard to the death of the deceased. Therefore, it is very difficult to believe the evidence of PW-11 Prabhu to the effect that the accused had actually went to this witness and informed the death of the deceased. PW-14 also, never stated that on the day of the incident, the accused and deceased were living together on that particular night, because, he is also a resident of nearby village. He has also stated that he found some wound mark on the neck of the deceased, but 17 he pleads ignorance as to how those things have been caused. Except this, there is absolutely no other material are available against the accused.
19. PW-12 Venkatesh has deposed that about two days prior to the death of Sharadamma, Sharadamma and accused came together and received labour charges. Sharadamma received Rs.700/- and accused received Rs.800/- towards labour charges, as both of them were working under this witness. On the next day of the incident, accused came to this witness and approached him at Gorenahalli and informed him that Sharadamma's body had become cold and she was not talking. He asked the accused to go to Anekal Busstand, by assuring him that he will come to that place. He went to the bus stand, but the accused did not come there. Thereafter, at about 9.00 a.m., one Gopal told him that Sharadamma was murdered. Here also, there is no material to show 18 that the accused actually met this witness and made any Extra-judicial Confession. The prosecution examined this witness to establish that the accused told before this witness that on the previous night in between 14/15.2.2011, the accused and deceased quarreled with each other and both of them were in drunken state and accused killed her by pressing her neck and thereafter, remained absconding. So far as this aspect is concerned, that the accused coming to this witness and informing the commission of murder by means of giving Extra-judicial Confession also falls to the ground.
20. PW-13 Drakshayini is the Police personnel at Anekal, has deposed that she was deputed to watch the dead body. Therefore, she was there till the body being shifted for Post Mortem examination and thereafter handed over the dead body to the relatives of the deceased. 19
21. PW-15 Gopala is the resident of Madanayakanahalli. He has stated that, accused was secured by the Police on 15.2.2011 and recovered MO-4, bus ticket seized under Ex.P-6 Mahazar.
22. We have already discussed about the same. Even on perusal of MO-4, bus ticket, it discloses that the accused was travelling from Anekal to Kanakapura on 15.2.2011. Therefore, it is clear that the accused was present at Anekal on that particular day. This witness also does not say anything about the incident and he says that at no point of time, he had seen the accused except in the Police Station.
23. PW-16 H.S. Venkatesh, Circle Inspector of Police has deposed in his evidence that he has visited the spot. During the course of investigation, he conducted the inquest proceedings and also spot Mahazar and seized MOs.1 to 3. But, there is no 20 material to show that MOs.1 to 3 in any manner connect the accused person into the crime.
24. PW-17 M.L. Krishnamurthy, while working as PSI received the complaint as per Ex.P-1 from PW-1 and registered a case in Crime No.48/2011 and dispatched the FIR to the jurisdictional Magistrate and handed over the further investigation to the Investigating Officer PW-18.
25. PW-18 A Kumaraswamy is the Investigating Officer, who has stated that after recording the statement of the witnesses, collecting the Post Mortem examination report, he completed the investigation and submitted the charge sheet.
26. On overall re-evaluation of the entire oral and documentary evidence on record, the only strong circumstance sought to be proved before the court was that the accused and the deceased were residing together at Chudenahalli. On that 21 particular day, the accused stayed with the deceased in the night hours and they quarreled with each other after consuming alcohol. Thereafter, at about 12.30 hours, when the deceased was sleeping, the accused with an intention to commit the murder, strangulated the neck of the deceased and ran away from the spot. Though the prosecution was able to establish the factual aspect that the accused and deceased were residing together at Chudenahalli, along with one Bhavani, the child of the deceased Sharadamma and they were doing coolie work, about two days prior to the date of the incident, they went to their employer and received their labour charges etc., But the witnesses who were examined before the court to prove that, on the date of the incident i.e., on 14.2.2011, the accused was present in the house along with Sharadamma and they quarreled with each other, have not supported the case of the prosecution and they totally turned hostile. 22
27. The trial Court has mainly invoked the provision of Section 106 of the Indian Evidence Act and drawn the presumption that the accused and deceased were together on the date, and time and place of the incident and therefore, it is the responsibility of the accused to explain as to what happened on that particular day. But, as could be seen from the evidence, the prosecution has not beyond reasonable doubt established that the accused was present on the date, time and place of the incident with the deceased so as to throw the onus on the accused to explain the incriminating evidence against him. Even, the non explanation by the accused alone is not sufficient to bring home the guilt of the accused, unless the prosecution otherwise proves its case beyond reasonable doubt. Non explanation by the accused is only a suspicious conduct but it does not establish that, the accused is the only person perpetrator of the crime. Therefore, under the above said facts and 23 circumstances, though we find some materials on record, but we are of the opinion that the same is not so sufficient to hold that the prosecution has proved the guilt of the accused beyond reasonable doubt. Therefore, giving benefit of doubt on the above said circumstances, we are of the opinion that, the accused is entitled for acquittal. As such, we proceed to pass the following:
ORDER The appeal is allowed. The judgment of conviction dated 28.2.2013 and the order of sentence dated 27.3.2013 passed by the II Addl. Sessions Judge and Special Judge, Bengaluru Rural District, Bengaluru, in Special Case No.626/2011, is hereby set aside.
Consequently, the appellant/accused is hereby acquitted of the charges levelled against him for the offence punishable under Section 302 of IPC and Section 3(2)(v) of the SC/ST (POA) Act, 1989. The appellant/accused is ordered to be released forthwith, if he is not required in any other case. 24
If any fine amount has already deposited, the same is ordered to be refunded to the appellant on proper identification and acknowledgement.
Registry is hereby directed to communicate the operative portion of this order to the concerned jail authorities for release of the accused forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE PL*