Karnataka High Court
Govinda @ Govindaraj S/O Rajanna vs State Of Karnataka By Town Police on 22 March, 2013
Bench: Mohan.M.Shantanagoudar, B.S.Indrakala
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22nd DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MRS.JUSTICE B.S. INDRAKALA
CRIMINAL APPEAL Nos. 226/2008 and 284/2008
In Criminal Appeal No. 226/2008:
BETWEEN:
Govinda @ Govindaraj,
S/o Rajanna, Aged 24 years,
R/o Mavinakere,
Bhadravathi Taluk,
Shimoga District
(Now in J.C.) .. APPELLANT
(By Sri A.H. Bhagwan & Sri A.N. Radhakrishna, Adv.)
AND:
State of Karnataka,
By Town Police, Bhadravathi,
Represented by
The State Public Prosecutor,
High Court Buildings,
Bangalore. .. RESPONDENT
(By Sri P.M. Nawaz, Addl. SPP)
...
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This Criminal Appeal is filed under Sections 374(2) of
Cr.P.C. by the Advocate for the appellant against the
judgment and order, dated 17.1.2008 passed by the
Sessions Judge, Fast Track Court-I, Shimoga in S.C.No.
135/2005 convicting the respondent/accused No.1 for the
offence punishable under Sections 302 of IPC and
sentencing him to undergo imprisonment for life and to pay
a fine of Rs.5,000/- in default to undergo simple
imprisonment for 6 months.
In Criminal Appeal No. 284/2008:
BETWEEN:
Venkatesha @ Venki,
S/o Rajanna,
Aged 24 years,
Cooli,
R/o Velur Shed,
3rd Cross, New Town,
Badravathi,
Shimoga District. .. APPELLANT
(By Sri C.H. Hanumantharaya & G. Suresh, Adv.)
AND:
State of Karnataka,
By Old Town Police,
Bhadravathi,
Shimoga District. .. RESPONDENT
(By Sri P.M. Nawaz, Addl. SPP)
...
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This Criminal Appeal is filed under Section 374
Cr.P.C., by the advocate for the appellant against the
judgment and order dated 17.1.2007 passed by the Sessions
Judge, FTC-I, Shimoga, in S.C.No. 135/2005 convicting the
appellant/accused No.2 for the offence punishable under
Section 302 r/w 34 of IPC and sentencing him to undergo
imprisonment for life and to pay a fine of Rs.5,000/- in
default to undergo S.I. for 6 months.
These appeals coming on for Hearing this day, Mohan
.M. Shantanagoudar J., delivered the following:
JUDGMENT
The judgment and order of conviction, dated 17.1.2007 passed by the Sessions Judge, Fast Track Court-I, Shimoga S.C. 135/2005 is called in question by accused No.2 by filing Criminal Appeal No. 284/2008; whereas accused No.1 in has filed Criminal Appeal No. 226/2008.
2. Since both the appeals arise out of the same judgment and order of conviction, both the appeals are clubbed and heard together.
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3. Charge sheet came to be filed against the three accused for the offences punishable under Sections 120B and 302 of IPC. The trial Court originally framed charge on 2.6.2006 against accused No.1 for the offence punishable under Section 120-B of IPC and accused Nos. 2 and 3 were charged for the offence punishable under Section 302 r/w 34 of IPC. Subsequently, the charge was altered on 7.8.2007 and the altered charge reveals that accused No.1 was to be tried for the offence punishable under Section 302 of IPC and accused Nos. 2 and 3 were to be tried for the offence punishable under Sections 302 r/w 34 of IPC.
4. The trial Court on evaluation of the material on record, acquitted accused No.3 and convicted accused Nos. 1 and 2 for the offences punishable under Section 302 r/w 34 of IPC and they were sentenced to undergo imprisonment for life along with sentence of fine with default clause. -: 5 :-
5. The case of the prosecution in brief is that the deceased Sreekantha - the son of P.W.1 was working in Shiva Shankaraiah Petrol Bunk, Bhadravathi. Some days prior to the incident, quarrel took place between the deceased Sreekantha and accused No.1 in the matter of teasing the sister of the deceased by name Chetana. In that connection, the deceased had quarreled with accused No.1. At that point of time, the deceased had quarreled with accused No.1 and in turn accused tried to assault the deceased. However, P.W.2 came to the rescue of the deceased and he too was assaulted. So a complaint came to be filed against accused No.1. So also accused No.2 used to wander with Kum. Asha the daughter of P.W.4 at Bhadravathi Town. The deceased, who was knowing Kum. Asha, was aggrieved by the same and he informed P.W.4 - the mother of Kum. Asha about such incidents and consequently, the family members of Kum. Asha had quarreled with accused No.2. In that regard, accused No.2 -: 6 :- had also grouse against the deceased Sreekantha as he had generated such quarrels.
6. In this background, the incident had taken place at about 11 a.m. on 24.5.2005. While the deceased was working in Shivashankariah Petrol Bunk, Bhadravthi, P.W.13 - the uncle of the deceased came near the Petrol Bunk and was talking with the deceased Sreekantha. After a while, the deceased went towards pan beeda shop which is about 100 feet away from the petrol bunk. He was talking with three persons near the petrol bunk. All the three accused came on motor bike. Accused No.2 assaulted the deceased with chopper (blade) on the left side of the neck and accused No.3 was holding the deceased. Accused No.1 had instigated accused Nos. 2 and 3 to do away the life of the deceased. Due to the injury on the neck, the deceased sustained grievous injuries and he ran back towards the petrol bunk. Immediately thereafter, the owner of the petrol bunk, P.W.3 shifted the injured to the Bhadravathi Hospital -: 7 :- and thereafter, to the bigger medical centre at Shimoga for treatment.
7. During the course of investigation, all the accused were arrested, postmortem examination was conducted. After recording the statement of all the relevant witnesses, a charge sheet came to be filed against all the three accused. As aforementioned, the charge sheet is filed against accused No.1 for the offences punishable under Section 120-B of IPC and whereas against accused Nos. 2 and 3 for the offence punishable under Section 302 r/w 34 of IPC was alleged.
8. P.W.1 is the mother of the deceased. She has deposed about the motive for the incident in question. According to her, accused No.1 used to tease Chethana and accused No.2 used to wander with Kum. Asha - daughter of P.W.4. Since the deceased was knowing Kum.Asha's mother and family members and as Chethana was his own sister, the deceased used to quarrel with accused Nos.1 and 2 advising them to desist from doing so. In that context, there -: 8 :- was ill will and Accused Nos. 1 and 2 were grinding axe against the deceased.
P.W.2 is the witness for inquest panchanama - Ex.P.1. He has also deposed about the motive as against accused No.1.
P.W.3 is the owner of the Petrol Bunk wherein the deceased Sreekantha was working. Though he was supposed to be the eye witness, he has not supported the case of the prosecution. However, he supports the case of the prosecution to a certain extent by deposing that he saw the deceased coming to the petrol bunk with serious injuries and that he shifted him to the Bhadravathi Hospital and later to Shimoga Hospital.
P.W.4 is the mother of Kum. Asha. Though she was supposed to speak about the motive against accused No.2, she has turned hostile.
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P.W.5 is the sister of the deceased. She also speaks about the motive as against accused Nos. 1 and 2 on par with the evidence of P.W.1.
P.W.6 is the employee of petrol bunk and colleague of the deceased. He was also supposed to depose about the incident in question but he has turned hostile. However, he has deposed that he saw the deceased coming with injuries towards the petrol bunk. He is also the witness for the scene of offence - spot mahazar Ex.P.4 and 6 also.
P.W.7 is the doctor, who treated the injured at Bhadravathi Hospital and referred the injured to Mc.Gann Hospital at Shimoga for higher treatment. According to him, some unknown persons brought the injured to the hospital. He has not named P.W.3 as the person, who brought the injured to the hospital. It is further deposed by P.W.7 that the injured was not in a position to talk. It seems the said doctor was not informed about the names of the culprits as well as the victim though the victim was shifted by the colleagues of the petrol bunk.
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P.W.8 is the Head Constable, who apprehended accused Nos. 2 and 3 on 4.5.2005 and his report is marked as Ex.P.7.
P.W.9 is the Head Constable, who arrested accused No.1 on 4.5.2005 and his report is at Ex.P.8.
P.W.10 Assistant Sub Inspector of Police was summoned by P.W.16, who was in Mc.Gann Hospital. He carried the FIR to the Police Station and thereafter, sent the FIR to JMFC after registering a case in Crime No. 90/2005 at Bhadravathi Old Town Police Station against accused No.1.
P.W.11 is the eye witness, who has turned hostile. P.W.12, who was the witness for all the mahazars such as spot mahazar (scene of offence), seizure of the vehicle, etc., has also turned hostile.
P.W.13 is the complainant as well as the uncle of the victim. According to the case of the prosecution, he is the eye witness to the incident. His complaint is marked as Ex.P.9.
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P.W.14 - Umesh Naik is the Investigating Officer, who completed the investigation and laid the charge sheet.
P.W.15 is the doctor who conducted the postmortem examination as per Ex.P.14.
P.W.16 is the Circle Inspector of Police, who has conducted the major part of the investigation and handed over the investigation to P.W.14, who laid the charge sheet after completion of the investigation.
P.W.17 is the eye witness and has turned hostile. It is relevant to note that his statement is also not recorded by the police during the course of investigation by the police under Section 161 of Cr.P.C.
9. The death of the deceased Sreekantha is homicidal in nature. The same is not disputed by both parties. Even otherwise, we do not find any reason to disagree with the findings of the Sessions Court that the death of the deceased was homicidal in nature. The postmortem report as well as the evidence of the doctor, who conducted the postmortem -: 12 :- examination, clearly reveal that the death of the deceased is due to cardio respiratory failure due to hemorrhage consequent upon the injury to the left carotid artery and jugular vein.
10. The prosecution case mainly rests on the eye witnesses versions apart from motive.
The aspect of motive is deposed to by P.Ws. 1, 5 and
13. All these witnesses have deposed that accused No.1 used to tease Kum. Asha - the sister of the deceased and in that context, quarrels used to take place between the deceased and accused No.1. So also accused No.2 used to wander with Kum. Asha - the daughter of P.W.4 to various places at Bhadravathi. Since the deceased was knowing the family members of accused No.2, he was warning accused No.2 and insisting him that he should desist from doing so. Thus accused Nos. 1 and 2 had grouse against the deceased. Even the deceased had informed about the affair between accused No.2 and Kum. Asha to the mother of Asha and -: 13 :- therefore, accused No.2 was grinding axe against the deceased.
11. Case of the prosecution mainly rests on the versions of the eye witnesses. The complaint came to be lodged by P.W.13, the uncle of the victim. The eye witnesses to the incident are P.Ws. 3, 6, 11 and 16. All of them have turned hostile in so far as the actual incident is concerned. None of these witnesses have deposed about the actual incident. Even in the cross-examination by the Public Prosecutor, nothing is brought out from the evidence to show that they have seen the incident in question. In the cross-examination of P.Ws. 3, 6, 11 and 16, nothing is brought out by the prosecution to prove the offence of murder against the accused.
12. Hence, P.W.13 is the sole material eye witness to the incident, whose evidence is relied upon by the prosecution. As aforementioned, he is the complainant. -: 14 :-
13. The complaint Ex.P.9 is said to have been lodged at about 1.30 noon at Mc.Gann Hospital at Shimoga. The complainant (P.W.13) is none other than the uncle of the deceased. The complaint reveals that on the date of the incident, accused Nos. 2 and 3 held the deceased near a pan beeda shop and accused No.1 assaulted on the left side of the neck of the deceased with a sharp edged weapon and one of the accused was also assaulting the deceased with hands. The deceased rushed back to the petrol bunk wherein he was working by howling and crying. There was a profuse bleeding. The version of P.W.13, who is the complainant is that Rudrappa ( P.W.17) chased the accused on the motorcycle but they could not chase and caught hold of the accused. When they returned to the spot and enquired, they came to know that the injured was shifted to Bhadravathi Hospital. Immediately they went to Bhadravathi Hospital and on enquiry at Bhadravathi Hospital, they came to know that the injured is shifted to -: 15 :- Mc.Gann Hospital, Shimoga. By the time, they reached the hospital at Shimoga, the deceased had breathed his last.
14. The same is the version of P.W.13 before the Court. He has reiterated before the Court that on the date of the incident, he along with P.W.17 went on a motorcycle to Bhadravathi and had talked to Sreekantha after coming to the petrol bunk wherein he was working. At that point of time, when the deceased Sreekantha went to the pan beeda shop, accused Nos. 2 and 3 were holding deceased Sreekantha and accused No.1 was assault on the left side of the neck of the deceased with chopper. Immediately, thereafter all the three accused ran away from the scene of offence by sitting on a motorcycle. P.Ws. 13 and 17 chased the accused on their motor cycle but they could not apprehend the accused. Thereafter, P.Ws. 13 and 17 came to the spot and after enquiry, they went to the Government Hospital at Shimoga. In the said hospital at Shimoga, P.W.13 lodged a complaint as per Ex.P.9 before police. Thus -: 16 :- it is clear that the evidence of P.W.9 fully supports his case as found in the complaint Ex.P.9 to the effect that accused No.1 assaulted the deceased on the left side of the neck and accused Nos.2 and 3 had held the deceased at the time of the assault. But the evidence of P.W.13, the sole eye witness has to be scrutinised in view of the attending circumstances.
15. It is relevant to note that during the course of investigation, further statement of the P.W.13 is recorded as per Ex.D.2 on 5.5.2005. In this further statement, P.W.13 has taken a 'U' turn and gives go-bye to his earlier version as made by him in his complaint. In his further statement, he implicated accused Nos. 2 and 3 specifically by stating that accused No.2 stabbed the deceased and accused No.3 was holding the deceased. He has not deposed anything about accused No.1 in his further statement. He completely exonerated accused No.1 in his further statement recorded on 5.5.2005. On the other hand, he implicated accused Nos. 2 and 3 for the offences punishable under Section 302 of IPC -: 17 :- though such allegation was not found against accused Nos. 2 and 3 in his complaint Ex.P.9. Ex.D.2 is proved by the defence by bringing to the notice of the investigating officer, who recorded the further statement of P.W.13. Thus two versions of P.W.13 are forthcoming and both versions are contradictory to each other. Though in the cross- examination, P.W.13 has deposed that he has not made statement as per Ex.D.2, such version of P.W.13 cannot be believed in view of the fact that the investigating officer, who recorded the further statement of P.W.13 on 5.5.2005, testifies that he has recorded such further statement of P.W.13. Ex.D.2 specified that the earlier version of P.W.13 as made in Ex.P.9 is false and that he is not the eye witness to the incident and only with an anxiety to bring home the guilt against accused No.1, such allegations were made by him in the complaint Ex.P.9. From the aforementioned facts, it is clear that P.W.13 is not a truthful witness and he has not lodged the complaint with true facts wherefore, we are of the considered opinion, that it is unsafe to rely upon -: 18 :- the version of P.W.13 who is the sole eye witness to the incident in question.
16. It is relevant to note that as aforementioned, the police after investigation had laid the charge sheet with an allegation that accused No.1 was only the abettor and accused Nos. 2 and 3 have committed the offence punishable under Section 302 r/w 34 of IPC. There was no allegation against accused No.1 with regard to the offence punishable under Section 302 of IPC. Based on such charge sheet, charges came to be framed by the trial Court on 12th June 2006. The only charge against accused No.1 was the offence punishable under Section 120-B of IPC i.e., the offence of conspiracy. However, the charge against accused Nos. 2 and 3 was for the offence punishable under Section 302 r/w 34 of IPC. The trial went on based on such charge. The evidence of the witnesses was recorded. The deposition of P.W.17 - the last witness examined on behalf of the prosecution was recorded on 18.7.2007. Only thereafter, the -: 19 :- trial Court chose to alter the charge. The charge was altered on 7th of August, 2007 i.e., after recording the deposition of all the witnesses.
17. After altering the charge, once again the plea of the parties was recorded and the parties were given opportunity to lead further evidence. As per the altered charge, accused No.1 was tried for the offence punishable under Section 302 of IPC and accused Nos.2 and 3 were tried for the offences punishable under Section 302 r/w. Section 34 of IPC. Thus, by virtue of the altered charge, accused No.1 again tried for the offence punishable under Section 302 of IPC.
18. Be that as it may, since we find that the evidence of PW.13, the uncle of the victim is unbelievable and as his presence on the spot itself is doubtful, it is unsafe to rely upon the version of PW.13. In addition to the same, we find the conduct of PW.13 as unnatural. Admittedly, he is the younger brother of father of the deceased, i.e., uncle of the -: 20 :- deceased. He did not even try to save the deceased, inasmuch as he did not try to take the injured to the hospital immediately for treatment. Even he did not try to approach the police immediately, on the other hand, he goes to the Hospital at Shimoga, wherein he makes the statement as per Ex.P9 at about 1.30 p.m. As aforementioned, in his further statement, he exonerates accused No.1 completely and whereas he tries to make a case against accused Nos.2 and 3 for the offence punishable under Section 302 of IPC afresh. Having regard to the totality of the facts and circumstances of the case, in our considered opinion, the Trial Court is not justified in relying upon the evidence of PW.13.
19. If the evidence of PW.13 is eschewed from consideration, absolutely no materials are forthcoming to convict any of the accused for any of the offences. Merely on the basis of motive, the accused cannot be convicted in the absence of proof on other aspects. In view of the same, the -: 21 :- accused are entitled for acquittal. Accordingly, the following order is made:-
20. The judgment and order dated 17.1.2008 passed by FTC-I, Shimoga, in SC.No.135/2005 stands set aside. The accused-appellants herein are acquitted of all the charges levelled against them by giving benefit of doubt in their favour. The appellants herein shall be released from custody, if they are not required in any other cases.
Appeals are allowed accordingly.
Sd/-
JUDGE Sd/-
JUDGE *nsu/ck/-