Karnataka High Court
State By Subrahmanyanagar Police vs Venkatesh S/O Thimmaiah on 15 June, 2010
Author: K.L.Manjunath
Bench: K.L.Manjunath
IN THE HIGH COURT OF KARNATAKA AT BAN DATED THIS THE 15TH DAY OF JUNE 20 1'0 -1 __ PRESENT: THE HONBLE MR. JUsT:cE..K,1L.La4xNWJ'L§$Ig:, Tr: _' AND THE HONBLE MR. JUSTECE:_;<.N.'mSImv;§NAm.Yz1;NA% CRIMINAL APPE£_\_§'hfC).~ .479 / _ E BETWEEN: State by I Bangalore4_Cjty.;f . " , Appeilant [By Srj_.Q.VB.1;;éwV ? AND: 1. _ yeajzs, ' V. 3 N0, 3.93 1*--,.. 8th Cross Road, T Gaya_th.r'i:3agaI, Venkafesh', A /"0; .Thix1i1n.aiah, . araslrfihaxnurthy, S /0. "Late Thlmmalah, x , 21 years, No.3931, 891 Cross Road, V' * - Gayathrinagar, Bangalore. (3/, 3. Sreenivas @ Seena, S / o. Tinmmaiah, 19 years. No. 3931, 8th Cross Road, Gayathrinagar, 1- Bangalore. ....Respon__den*ts' ._ [By Sri.B.K.Chandrashekar, Adxfocate' 1oia_R>42 1&3 do 0 7 Appeal against Rmi is abated} A 3 3' . This Crirninai Appeal 'flied A.I;1I1__d€I'._ 1'/'8( 1)' ' & (3) of the Code of Criminal Procedure", praying to grant leave to appeal against the judgment dated 29/11/2001 passed' by-the-5 X;rAdd1tiana1 City Sessions Judge, Bangalore Citydin' S.,C*.N0_,gI'Q'Z.,/311997, acquitting the respondents - aor:1.1>sed'fo1ig the o'ffence punishable
under Sections'i20--E§,and'J3O2"iFfCV, ' "
This; on for Hearing this day, Manjunath;_VJ., delive'1 'ed_"thejfo11owing:--
" M E N '1' The" s11a1edi11asoco1fie up in this appeal challenging A_ theiegaiity correctness of the judgment and order '*aVoqui'tta1.é:"passed by the 15111 Additional Sessions J'udge,vBa1j_ga10re dated 29.11.2001 in S.C.No.107/97 for t11.eV""Qffences punishable under Section 120--B and hi if 13021 "of IPC.
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2. We have heard the Iearned counsei -the parties.
3. The case of the prosecution in_.a--r1.iit:sI1ei14.is .. under:
On 14.11.1996, PW;.1o~chAegfi11am;:ia,.1o;1g§:dihaff compiaint as per Ex.P.14 at stating__ that she is residing withvizrer' in a vatarah at premises No.3£).:31, Bangalore and that it residing in another tenen'1ent:'ir1.V:th1e.; the accused persons had iiigwilii heriideccased son Ashwathga on the committed rape on.«.ithe~ siste"1'~«v.Vcv__>__f___'g,'athe accused persons. by name Padma; that though her son ASI1Wai1 was eniarged on bail, the accused persontshstill had grudge against him; that at about 8.00 V' a.rr'1,, virhen her son AshWath@% was brushing his teeth in front of the vatarah, accused Nos. 1 to 3 came §/ there, accused No.3 stabbed her son on the back side and similarly accused Nos. 1 and 2 also stabbed"
back side on right and left side of later accused No.1 threw a storieonAshwathgotivda, l a result of which he succurnbedlto injuries aridlthat, the accused ran away a1'tefw.r»ass.ault this incident was w1'tr1essed_by Vihcluding her daughter PW. a case was registered VfSubra_rr1az1yanagar police about 11.30 a.m., accus'ed--VN'os,5»V'_V1 before the police and accused on 15.1 1.1996. Based on the same; charge' sheet."-was filed before the 7"' Additional thereafter the learned Magistrate thecase to the Sessions Court and the same was registered as S.C.No.107/99. 2 4. The accused having appeared before the court ' fzéleaded not guilty and claimed to be tried. In order to W. bring home the guilt of the accused, the prosecution relied upon the evidence of PWs.1 to 14 and gotprnflariced Exs.P.1 to 13.16 and M.Os.1 to 8. On _ accused, Exs.D.1 to D.3 came to be mar}-zed; V i
5. The learned Sessions the arguments advanced hythe learned counsei parties formulated the fovl1_ow_iVngf 'points for his consideration:
(1) Wh_et1?i_er_» the '1-p1'0S--(:'C'Lul'[10pI'lVV has proved ?bey_,C}nd"Kreasimahle 7._doubt that the accused person'sbe.fore Court, had 'co.r£spiré;d with each" other to do away ._ with V the' ' ll ife» ._of .. Shri. Ashwathappa and
-. ther'ebyA:_i'~comrnit.ted an offence under sec. 120-13 o£_I;aP.c?
(2) Whether the prosecution has proved V' beyond "reasonable doubt that the =.a.ccu__sed persons on 14/ 11 / 1996 have cornrnitted the murder of Ashwathappa ' .''.and thereby committed an offence ~ punishable under Sec.302 I.P.C?
if On appreciation of the evidence let in by the parties, the learned Sessions Judge held points 1 and 2 «&u/ 6 in the negative and acquitted all the accused persons by his order of acquittal dated 29.11.2001. __._Being aggrieved by the said order of acquittal, the appeal is filed. During the pendency accused No.1--Venkatesh died. :~T'herefo_re passed on 9.6.2010 to delete :i'«espondentl..VV case against him came to beivpjabatedl; '
7. Though several grounds are 'urged by the learned SPP In the.._..':pappieal--_» p at the tirne of arguments he has re1y.--uponv--.th,e points for the '0 According' " the trial Court did not aprir-ecia.te of PWs. 10, 12 and 13 properly. air» .Vthe_v'«evi:dence of PWs.10, 12 and 13 had been H 'apprevciatedlfproperly, the trial Court would not have actjuittedy the accused persons. He further submitted it that' even though PWs.10, 12 and 13 are related to 'deceased Ashwathgowda, their evidence could not have at been disbelieved by the Court only on account of their relationship with the deceased. He further contends that even though they are relatives, cor1side:%fir1g«tr_ that they are eve witnesses to "the inclderitv _ti1:a.t" . their evidence is so natural, and c'ons.id'eri1ig..A "th'e corroboration as their evidence has not been-vseriousiy.t' challenged by the their:,._'Aevifdence is unimpeachabie, not justified in acquitting the:"accused;' ' life' that the evidence is also not appreciatediin In the circumstances he retlzlests the.»Courtjjto«re-appreciate the evidence of FWS;.,}~) 1(4)") 12 and to reverse the findings of the
-' v étriai' (*3'ourt.Aand dtomconvict the accused for the aforesaid 'Pier contra, the learned counsel for the V' 'resépontdent contends as under:
&/ 8 That the trial Court has properly appreciated the evidence of PWS. 10, 12 and 13 and that the trial:-Cgourt has not committed any error in the evidence of these three witnesses; that it case of the prosecution that thev'JcAorn'p1aint lodged at about 8.30 a.1n._.on 1éL;.6;'1996 of the deceased who has""'b:een eXarni'ned mPW.1O stating that at about».r'8.O(jm:a.1n_5,.v,'VviWhen her' son was brushing his teeth of the accused persons carr_ie,}2.eci1s3ed €N'o.34"stab'b'ed" on his waist from backivand'sirr:i1ari§faceu'sed 1 and 2 stabbed on the deceased his this incident was witnessed by severala"person*s are residing in the vatarah; that
-' 1;he.{'po"st "morte1nM"report discloses that there were no back of deceased Ashwathgowda; that vvhen vvere no corresponding injuries on the body of pdeceased Ashwathgowda, the allegations of PW.10 in it 'i,t}'1e-iiécomplaint Ex.P.14 could not have been believed.
-»v-Therefore, he contends that the trial Court has rightly «V eouidynott been caused either by M.Os. 2, 3, , gr. disbelieved the evidence of PW.lO. He further contends that though PW. 12 was not an eye witness she haisbeen stated as an eye witness by PW.1O in H Ex.P. 14 and that PW. 13 was not at all pggme ;at.. V» the time of complaint as contends that the trial Co=ur.t_ 2 is credit worthiness of evidence: and 13 who are the mother, "brothe>r--in--1aw of the deceased. He furtlicrify PW.l2 has admitted _ Was a rowdy in the rowdy sheet niaintainedt and the evidence of PW.1 clearly injuries found on the dead Vmfiqkm w_u,(gm.h4.1«'0}§ms U, there is §wm the eviidencr: PWs.10, 12 and 13 and the medical evidence. Therefore, he contends that when there are Jcorresponding injuries as per the deposition of
-~.----i°Ws.10, 12 and 13 with the medical evidence, the trial 6/ 10 Court was justified in acquitting the accused. He further contends that when several people in the vatarah have seen the incident as per the evidence of complainant, the prosecution has not explanation as to why the names~of.other the it ' vatarah are not cited as eyei".Wi'tnessesrand.' absence of such exp1anat1or'1';~~._%it vvould-._b"e difficuit for"? any Court to acceptvthe inte'restedVVtestirrrony of evidence of PWs.10, 12 and 13.' He iagtiy that 1:-w. 10 in her evidence. c>on_tencLi_s Whenashejvvent to the police station to"1o:dge 'cornp:1'aint'.."VatVthat time accused Nos.1 and 2z'were police station. But the record discloses authatithedactéused Nos.1 and 2 surrendered before-."ii.the' polictemtstation at about 11.30 a.m. on the complaint is received by the }5o1iceV___v'at.if8.d30 a.m. Therefore, he submits that the nevidenee of PWs.10 has been rightly been rejected by it gthefttrial Court. In the circumstances, he requests the " - eourt to dismiss the appeal.
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9. Having heard the learned counsel for the parties, the only point that requires to be considered by this Court is, ' whether the order of acquittal is.jjn:sti_and Pr0Per and does it cail for any interference? 'i t :0. The homicidal death the jfiisjhtfizathgozirjdaj not in dispute. It is admitteduthat' "
injuries sustained on his Ahamed stated before the Ashurathgowda died due 'to shockpmdiii. a result of injuries 'evidence has not been chailenged Therefore, the death is ho1r1icidaL'_4."I'he" whether the injuries found on«5¥.the'~bod3}' "is:_c_aused by the accused and whether ' ;pr0.sec_uti0n"'has proved the guilt of the accused.
' to prove the case against accused Nos.1 to the prosecution has reiied on the evidence of Ainother' of Ashwathgowda -- PW.10 who is aiso the complainant and Gowramma, the sister of the deceased 8/ 12 who has been examined as PW.12 and her husband Rangaswamy, who has been examined as i?_W.13. Though the prosecution has relied evidence"wof.'_p'one Ir~I.Nanjundaswamy, who has been examined he has not supported the case ofthec he it ' was treated hostile and though it has _,ApAh.e',en examination at length, the 'pr'osecutio_n'has: faiied to get"
any admission from... hisp..i"evidence. Therefoze, the evidence of PW.10 is of .cno'as5sista.nce.to»__ prove the case of the prosecu'ti_on.
--. to" consider the evidence of PWS. 10,"l.2ia.:1d is i theinicompiaint, PW.10 has not mentioned the the husband of PW.12 and the of the deceased and the trial Court considering Ex.I-".14 and the evidence of these three witnesses has disbeiieved their evidence because of 'various discrepancies found in their depositions and the 6% E3 learned Sessions Judge has also given the reasons for not accepting the evidence of PWs. 10, 12 and 1V£j.';'a'.:'_i:n_the context that the medical evidence let «'_ prosecution PWs.1~Dr. who conducted _ti1cv--}j:o.st'~I:n0rte_tn* examination has clearly adrnitted' i tha'tJ,_n'one"' injuries found on the body"-.._of caused by using M;__.Os. medical evidence is f_?Ws.10, 12 and I3 is of no assistance"to* the accused. 4 12 and 13 it is ' that the accused perisovnsg: on the back of the deceasgedidltidis-thevefsion of PW. 10 that accused No.3 ~' Astabbed an theivvaist of the deceased from back side. is not found on the body of the decease'd.,d' .VSimi1ar1y, it is the version of PWs.10, 12 and .. accused No .1 stabbed on right and left side of ' ''A._VtheA'''deceased from back. But no injury is found on the " -"back of the deceased. Considering the nature of the <''/ 14 injuries found on the body of the deceased, the Sessions Court has rightly held that the prosecution has to prove the guilt of the accused. Considefing:.the'_'inediai evidence and the evidence of these three"'wi.:tnesVse's, We are of the opinion that the trial disbelieving the theory of the-prosecution L' accused. In addition strong circumstance to dishelierev of PW.10. According to her,' iéfllice station at about 8.30 2 were present in the »f'eva1i$r_"Vaccused Nos} and 2 were foundytinfi the' at the time of lodging the con;--p1aintL'E;§{P.»i"4, thetspolice would have arrested them 'Of; the spot. as per the records, they have the police at 11.30 a.rn. This di's_cre.pa.nc3f has not been explained by the prosecution. .. t "13. Considering the totality of the evidence, we are t in a position to take a different View than the one :3"
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arrived at by the learned Sessions Judge. In the circumstances, we do not see any merit in the appeal.
14. In the result, the appeal is impugned order of acquittal is confinnedi lime RS/*