Karnataka High Court
The Registrar General vs Doddahanuma @ Hanuma on 22 September, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 22ND DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.1 OF 2012
CONNECTED WITH
CRIMINAL APPEAL NOS.600 OF 2012,
288 OF 2012 AND 1510 OF 2017
CRIMINAL REFERRED CASE NO.1 OF 2012
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU -560001
... APPELLANT
(BY SRI:H N NILOGAL, SPECIAL PUBLIC PROSECUTOR)
AND:
1. DODDAHANUMA @ HANUMA
S/O LATE VENKATAPPA
CONVICT NO 10176
R/AT DANDUPALYA NAGARA
HOSKOTE TALUK
BENGALURU CITY
2. VENKATESH @ CHANDRA
S/O VENKATASWAMY
CONVICT NO.10175
R/AT DINOOR COLONY
2
KADUGODI
BENGALURU RURAL
3. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY
CONVICT NO.10178
R/AT DINOOR COLONY
KADUGODI
BENGALURU RURAL
4. NALLATHIMMA @ THIMMA
S/O GURUBOVI
CONVICT NO.10177
R/AT CHANNENAHALLI
MUTTUR POST, PIRIYAPATNA TALUK
MYSURU DISTRICT AND DINOOR COLONY
KADUGODI, BENGALURU RURAL
5. KRISHNA @ DANDUPALYA KRISHNA
S/O LATE NEETHAPPA
CONVICT NO.10207
R/AT DANDUPALYA GRAMA
HOSKOTE TALUK
BENGALURU
... RESPONDENTS
(BY SRI:G M ANANDA, ADVOCATE FOR R1 & R4,
SRI:HASHMATH PASHA, ADV FOR R2, R3 AND R5)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) OF CR.P.C. FOR
CONFIRMATION OF DEATH SENTENCE AWARDED TO
ACCUSED NO.1) DODDAHANUMA @ HANUMA, SON OF
VENKATAPPA, CONVICT NO.10176, R/AT DANDUPALYA
NAGARA, HOSKOTE TALUK, BENGALURU CITY, 2) VENKATESH
@ CHANDRA, S/O VENKATASWAMY, CONVICT NO.10175,
R/AT DINOOR COLONY, KADUGODI, BENGALURU RURAL, 3)
MUNIKRISHNA @ KRISHNA, S/O VENKATASWAMY, CONVICT
NO.10178, R/AT DINOOR COLONY, KADUGODI, BENGALURU
RURAL, 4) NALLATHIMMA @ THIMMA, S/O GURUBOVI,
CONVICT NO.10177, R/AT CHANNENAHALLI, MUTTUR POST,
PIRIYAPATNA TALUK, MYSURU DISTRICT AND DINOOR
3
COLONY, KADUGODI, BENGALURU RURAL, 5) KRISHNA @
DANDUPALYA KRISHNA, S/O LATE NEETHAPPA, CONVICT
NO.10207, R/AT DANDUPALYA GRAMA, HOSKOTE TALUK,
BENGALURU BY THE 34TH ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, SPECIAL COURT, CENTRAL PRISON
PREMISES, BENGALURU BY JUDGMENT OF CONVICTION
DATED 09.01.2012/18.01.2012 IN SC NO.728/2010.
*****
CRIMINAL APPEAL NO.600 OF 2012
BETWEEN:
1. DODDAHANUMA @ HANUMA
S/O LATE VENKATAPPA
AGED ABOUT 44 YEARS
DANDUPALYA VILLAGE
HOSAKOTE TALUK
BENGALURU DISTRICT
2. NALLATHIMMA @ THIMMA
S/O GURUBHOVI
AGED ABOUT 27 YEARS
R/O CHANNENAHALLI, MUTHUR POST
PIRIYA PATNA TALUK, MYSURU DISTRICT
DINNURE COLONY, KADUGODI
BENGALURU RURAL
... APPELLANTS
(BY SRI:G M ANANDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY URVA POLICE
... RESPONDENT
(BY SRI:H N NILOGAL, SPECIAL PUBLIC PROSECUTOR)
4
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 09.01.2012/18.01.2012 PASSED BY THE XXXIV
ADDL.CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT),
CENTRAL PRISON COMPOUND, PARAPPANA AGRAHARA,
BENGALURU IN S.C.NO.728/2010 CONVICTING THE
APPELLANT/ACCUSED NO.1 AND 4 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 396,400 AND 460 OF IPC.
THE APPELLANT/ACCUSED NOS.1 AND 4 SENTENCED TO
HANG BY NECK TILL DEATH AND PAYMENT OF FINE OF
RS.5,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER
SECTION 396 OF IPC. THE APPELLANT/ACCUSED NOS.1 AND
4 SENTENCED TO IMPRISONMENT FOR 10 YEARS AND
PAYMENT OF FINE OF RS.10,000/- EACH, IN DEFAULT TO PAY
THE FINE AMOUNT TO UNDERGO IMPRISONMENT FOR 2
YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 400
OF IPC. THE APPELLANT/ACCUSED NOS.1 AND 4 SENTENCED
TO IMPRISONMENT FOR 10 YEARS AND PAYMENT OF FINE OF
RS.10,000/- EACH IN DEFAULT TO PAY THE FINE AMOUNT TO
UNDERGO IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 460 OF IPC.
*****
CRIMINAL APPEAL NO.288 OF 2012
BETWEEN:
KRISHNA @ DANDUPALYA KRISHNA
S/O SEETHAPPA
AGED ABOUT 40 YEARS
R/O DANDUPALYA VILLAGE
HOSAKOTE TALUK
BENGALURU RURAL DSITRICT.
... APPELLANT
(BY SRI:HASHMATH PASHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
5
BY URVA POLICE STATION
MANGALURU.
(REP. BY LEARNED STATE PUBLIC
PROSECUTOR)
... RESPONDENT
(BY SRI:H N NILOGAL, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
09.01.2012/18.01.2012 PASSED BY THE 34TH ADDL. CITY
CIVL AND SESSIONS JUDGE, (SPL.COURT), CENTRAL
PRISON, PARAPPANA AGRAHARA, BENGALURU IN
S.C.NO.728/2010 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 396, 400
AND 460 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED
DEATH. THE APPELLANT / ACCUSED SHALL BE HANGED BY
NECK TILL HE IS DEAD AND PAY A FINE OF RS.5,000/- FOR
THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR 10 YEARS, IN DEFAULT OF PAYMENT OF
FINE SHALL UNDERGO IMPRISONMENT FOR 2 YEARS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 400 OF IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO IMPRISONMENT
FOR 10 YEARS AND PAYMENT OF FINE OF RS.10,000/- AND
IN DEFAULT IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 460 OF IPC.
*****
CRIMINAL APPEAL NO.1510 OF 2017
BETWEEN:
1. VENKATESH @ CHANDRA
S/O VENKATASWAMY
AGED ABOUT 41 YEARS
RESIDENT OF DINNUR COLONY
KADUGODI-560067
BENGALURU RURAL
6
2. MUNIKRISHAN @ KRISHNA
S/O VENKATASWAMY
AGED ABOUT 36 YEARS
RESIDENTOF DINUR COLONY
KADUGODI-560067
BENGALURU RURAL
(NOW IN JUDICIAL CUSTODY,
HINDALGA PRISON, BELAGAVI)
... APPELLANTS
(BY SRI:HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA BY
URWA POLICE
MANGALURU -575006
REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR
... RESPONDENT
(BY SRI:H N NILOGAL, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 09.01.2012/18.01.2012 PASSED BY THE
XXXIV ADDL.CITY CIVIL AND SESSIONS JUDGE (SPECIAL
COURT), CENTRAL PRISON COMPOUND, PARAPPANA
AGRAHARA, BENGALURU IN S.C.NO.728/2010 CONVICTING
THE APPELLANTS/ACCUSED NO.2 AND 3 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 396,400 AND 460 OF IPC.
THE APPELLANTS/ACCUSED ARE SENTENCED TO HANG BY
NECK TILL DEATH AND PAYMENT OF FINE OF RS.5,000/-
EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 396
OF IPC. THE APPELLANTS / ACCUSED ARE SENTENCED TO
IMPRISONMENT FOR 10 YEARS AND PAYMENT OF FINE OF
RS.10,000/- EACH, IN DEFAULT TO PAY THE FINE AMOUNT
TO UNDERGO IMPRISONMENT FOR 2 YEARS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 400 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO IMPRISONMENT
7
FOR 10 YEARS AND PAYMENT OF FINE OF RS.10,000/- EACH
IN DEFAULT TO PAY THE FINE AMOUNT TO UNDERGO
IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 460 OF IPC.
*****
THESE CRIMINAL REFERRED CASE AND CRIMINAL
APPEALS COMING ON FOR FINAL HEARING THIS DAY,
RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 11.10.1997, at about 7.00 p.m., some persons trespassed into the house bearing No.1 of 18-1296, situated near Marigudi South Gate, Urva Market, Bolur Village, Mangaluru. The house was owned by Sri.Fedric Vas and Smt.Edns Vas. The accused were armed with deadly weapons. They entered into the house and committed robbery by taking away two gold chains, six gold bangles, yet another gold chain and murdered Luis D' Mello and Ranjith Vegas. A complaint was lodged by Sister Aliv Vas, which was registered before the Urva Police Station, Mangaluru in Crime No.113 of 1997 for the offence punishable under Sections 302, 394 read with Section 34 of Indian Penal 8 Code, 1860 (for short 'IPC') at about 6.00 p.m., on 12.10.1997 against unknown persons.
2. Investigation was taken up and a charge-sheet was filed against eight accused persons under Sections 396, 400 and 460 of IPC. A split up charge-sheet was filed against accused No.6. On 26.09.2009, charges were framed against the accused under Sections 396, 400 and 460 of IPC. The accused pleaded not guilty and claimed to be tried.
3. In order to prove the case, the prosecution examined 16 witnesses, got marked 39 exhibits, among 17 material objects. By the judgment dated 09.01.2012, accused Nos.1 to 5 were found guilty and by the order of sentence dated 18.01.2012, they were sentenced to death for the offence under Section 396 of IPC along with payment of fine of Rs.5,000/- each; they were sentenced to undergo imprisonment for ten years and to pay fine of Rs.10,000/- each for the offence punishable under Section 400 of IPC and they were sentenced to undergo imprisonment for 10 years and to pay fine of Rs.10,000/- each, for the offence punishable under Section 460 of IPC.
9
4. On a reference being made by the Trial Court, Criminal Referred Case No. 1 of 2012 has been registered before this Court. Criminal Appeal No.600 of 2012 is filed by accused Nos.1 and 4, Criminal Appeal No.288 of 2012 is filed by accused No.5 and Criminal Appeal No.1510 of 2017 is filed by accused Nos.2 and 3.
5. The learned Counsel for the appellants contend that the impugned judgment of the Trial Court is erroneous. That the Trial Court has failed to consider the evidence on record and that the reasons recorded by the Trial Court are not acceptable. Primarily, he contends that there is a serious flaw in the statement recorded under Section 313 of Cr.P.C. and the Trial Court has failed to consider this aspect. The accused were not given adequate opportunity to counter the case sought to be made out against them. Therefore, there is a serious lacuna in recording the statement under Section 313 of Cr.P.C. and consequently, the same affects the very root of the prosecution case. Therefore, the trial stands vitiated. Therefore, he pleads that in view of the failure in appropriately recording the statement under Section 313 of 10 Cr.P.C., no further contentions require to be answered. Therefore, he pleads that the findings be re-recorded so far as this issue is concerned.
6. On the other hand, the learned Special Public Prosecutor disputes the same. He contends that such a contention cannot be accepted. That only because there are certain blemishes in the statement of the accused recorded under Section 313 of Cr.P.C., that itself would not vitiate the entire trial. They do not make any material difference in the case of prosecution or to the defence of the accused. Therefore, the minor embellishment must be over-looked by this Court. However, substantial evidence has been led-in by the prosecution to prove its case against the accused. That the Trial Court was justified in recording the sentence of death for the heinous offences committed by the accused against the deceased.
7. Heard learned Counsels and examined the records.
8. The primary contention of the learned counsel for the appellants is, wrongful recording of the statement of 11 accused under Section 313 of Cr.P.C. In support of their case, reliance is placed on the judgment of this Court reported in ILR 1991 KAR 1542 in the case of STATE VS. DASHARATH, contending that putting questions to an accused must be fair and in a form which even an ignorant or illiterate person will be able to appreciate and understand. Therefore, it is imperative that the questions put to an accused must be couched in simple language and must be specific, only then the accused would be able to understand the case sought to be made against him. On failure to do so, the matter requires to be re-considered by the Trial Court.
9. We have considered the judgment at length. The Division bench was of the view that putting questions to the accused and recording the statement is not just a mere formality. That the questions must not only be in a simple language and specific, but should also not be unnecessarily lengthy. Various parameters were enunciated by the Division Bench with regard to the said issue. Under this background, in order to appreciate the contention of the appellants, we have considered the statement of the accused. 12
10. With regard to the question put to accused No.5, it is to be seen that the entire evidence of PWs.2 and 3 have virtually been re-written asking the accused to explain the same. The statements made by PWs.2 and 3 have formed the subject matter of the questions put to him. The question put to the accused is more than ordinary and too very lengthy. It cannot be said that the questions put to the accused were either specific or were to the point.
11. We are of the view that the manner adopted by the Trial Court in putting the said questions to the accused does not specify the requirement of law. Same is the position so far as putting question to the remaining accused Nos.1 to 4 are concerned. They are on the same lines. In fact, we have noticed that some of the questions put to the particular accused are not even related to the said accused. Various infirmities have been noticed by us with regard to the same. It is suffice to hold that the manner in which the questions have been put to the accused leaves much to be desired. It is under these circumstances, we have no hesitation to hold that in the absence of appropriate recording of the statement of the accused, the same has led to failure of justice. It is 13 therefore, imperative that the questions put to the accused are specific, clear and in a manner in which the accused understands the same. If not, the same has not only rendered failure of justice, but the accused would not even know what is the case sought to be proved against him. Therefore, we are of the view that this cannot be considered as an infirmity that can be over-ruled. This is a grave error committed by the Trial Court.
12. Having considered the statement of the accused, we are of the view that the same cannot be rectified by the Appellate Court. The error committed by the Trial Court in recording the statement under Section 313 of Cr.P.C., affects the very case of the prosecution. It is under these circumstances that we have placed reliance on the judgment of Hon'ble Supreme Court reported in AIR 2015 SC 310 in the case of NAR SINGH VS STATE OF HARYANA. The Hon'ble Supreme Court while considering the very provisions of Section 313 of Cr.P.C., was of the view that mere non- compliance of the mandatory provisions of Section 313 of Cr.P.C. by the Trial Court would not entitle the accused to an acquittal. While considering the previous judgments of 14 Hon'ble Supreme Court and holding the importance of the manner in which the statement of under Section-313 of Cr.P.C. has to be recorded, their Lordships enunciated that whenever there is an omission to put the questions to the accused on vital piece of evidence or failure to comply with the provisions of Section 313 of Cr.P.C., the options that are available to the Appellate Court were summarized in para 30 as follows:
"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:-
(i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;15
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused."16
13. Therefore, we are of the view that based on the facts and circumstances of the case and in the light of the judgment of the Supreme Court as referred hereinabove, the matter requires to be remanded to the Trial Court with a direction to re-record the statement of the accused under Section 313 of Cr.P.C.
14. At this stage, the learned counsel for the appellants would contend that remanding the matter at this belated stage would cause injustice to the appellants. In view of the infirmities in recording the statement of the accused, the appellants would be entitled to an acquittal. This question was also considered by the Hon'ble Supreme Court therein. The right of the accused was considered in the background of the rights of victim, who should not suffer because of the latches or omission of the Court and therefore, held in para 32 as follows:
"32. While we are of the view that the matter has to be remitted to the trial court for proceeding afresh from the stage of Section 313 Cr.P.C. questioning, we are not oblivious of the right of the accused to speedy trial and that the courts are to ensure speedy justice to the 17 accused. While it is incumbent upon the Court to see that persons accused of crime must be given a fair trial and get speedy justice, in our view, every reasonable latitude must be given to those who are entrusted with administration of justice. In the facts and circumstances of each case, court should examine whether remand of the matter to the trial court would amount to indefinite harassment of the accused. When there is omission to put material evidence to the accused in the course of examination under Section 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for latches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties."
15. Therefore, the plea of the appellants that they are entitled for an acquittal on the ground of non-compliance of the mandatory provisions of Section 313 of Cr.P.C. cannot be accepted.
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16. In view of recording of the finding with regard to the statement under Section 313 of Cr.P.C., it would not be necessary to go into the merits of the case so far as the other issues are concerned.
17. In the result, Criminal Appeal Nos.600 of 2012, 288 of 2012 and 1510 of 2017 are allowed. The judgment of conviction dated 09.01.2012 and the order of sentence dated 18.01.2012 passed by the XXXIV Additional City Civil and Sessions Judge (Special Court), Central Prison Premises, Parappana Agrahara, Bengaluru in SC No.728 of 2010 is set aside. Based on the aforesaid observations, the matter is remanded to the Court below with a direction to record the statement of accused Nos.1 to 5 in terms of the provisions of Section 313 of Cr.P.C and the above referred judgments and thereafter to proceed with the trial of the case from that stage onwards.
In view of allowing of the aforesaid appeals, Criminal Referred Case No.1 of 2012 stands dismissed. 19
Registry is directed to communicate the operative portion of this order to the Jail Authorities, Hindalga Jail, Belagavi / Central Prisons, Parapanna Agrahara, Bengaluru, to do the needful.
The matter is directed to be listed before the Trial Court on 30.10.2017. The learned counsels on both sides submit that they will co-operate in the early disposal of the matter. Hence, the Trial Court shall make an endeavor to dispose off the same as expeditiously as possible.
SD/- SD/-
JUDGE JUDGE
*bgn/-