Karnataka High Court
Ningappa S/O Rachappa Kundargi vs State Of Karnataka on 8 November, 2017
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRL. A. NO. 2508/2010
BETWEEN:
1. SRI NINGAPPA S/O RACHAPPA KUNDARAGI,
AGE: 75 YEARS, R/O BAMBALWAD,
TAL: CHIKODI, DIST: BELGAUM.
2. SRI BASAPPA S/O NINGAPPA KUNDARAGI,
AGE: 50 YEARS, R/O BAMBALWAD,
TAL: CHIKODI, DIST: BELGAUM.
- APPELLANTS
(BY SRI SRINAND A PACHHAPURE, ADVOCATE FOR R2,
APPEAL AGAINST ACCUSED/APPELLANT NO. 1 IS ABATED
CONSEQUENT UPON HIS DEATH)
AND:
THE STATE OF KARNATAKA,
THROUGH PSI,
CHIKODI POLICE STATION,
NOW REP. BY HCGP.
- RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. AGAINST THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE DISTRICT JUDGE, FAST TRACK
COURT-1, CHIKODI, IN S.C. NO. 46/2009 FOR THE OFFENCE
PUNISHABLE U/S 201 R/W SEC. 34 OF IPC & ETC.
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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and sentence passed by the Presiding Officer, Fast Track Court, Chikodi in S.C. No. 46/2009 dated 07.12.2009. By the impugned judgment the appellants were convicted for the offences punishable under Section 201 r/w Sec. 34 of IPC and directed to undergo imprisonment for five years and to pay a fine of Rs.5,000/- each. In default of payment of fine, the accused shall undergo imprisonment for a further period of six months. The appellant No.1 during the course of this appeal was reported as dead. Hence, the appeal against the appellant no.1 had been abated and survived in respect of appellant no.2. Accordingly, the appeal is heard and disposed of by this judgment.
2. Brief facts of the prosecution is as under:
The accused No.1 /appellant no.1 is the father of accused No.2 so also the deceased-Arjun. Whereas the first 3 accused Ningappa own land bearing R.S. No. 110 situated in Bambalwad. The deceased Arjun was serving in the Defence and after his retirement was serving in a private company at Ballari. He had two wives and were residing separately and he had turned to alcoholic. Whenever Deceased Arjun come to Bambalwad he was insisting for his share in the aforesaid property and entry of diary of the said land in the revenue records. That being so, on 02.10.2008 at about 1.00 a.m. in the night, in the above said land, both the accused with a common intention to murder Arjun, picked up quarrel with Arjun and assaulted him with steel rod, clubs on his forehead, hands, legs and pressed on the neck (throttled) with steel rod and caused murder. After committing the murder, in order to cause disappearance the evidence of offence, both the accused put the body in a gunny bag and took the body on a bicycle and threw near Bambalwad cross by the side of the road, so as to appear, as if the deceased died in a road accident. Further, the accused threw the gunny bag by putting stones in the well. Later, the accused /appellant No.1 4 filed a complaint. On filing of the complaint, initially the case was registered in Crime No. 337/2008 for the offences punishable u/S 279 and 304(A) of IPC besides Sec. 134 r/w Sec. 187 of M.V. Act and thereafter proceeded for conducting investigation. After investigation the I.O. has laid charge sheet against the accused for the offences punishable under Section 302, 201 r/w Sec. 34 of IPC for committing the murder of Arjun besides screening of offence of evidence.
3. Subsequent to framing of charge against the accused the prosecution has adduced evidence of 28 witnesses as P.Ws.1 to 28 and got marked documents as per Exs.P.1 to P.49 besides marking material objects from M.Os.1 to 19. On closure of evidence, the incriminating statement of the accused u/S 313 of Cr.P.C. was recorded wherein the accused denied truth of the case of the prosecution and subsequently the accused did not come forward for adducing defence evidence. Thereafter the learned trial Judge had heard the arguments advanced by the learned Special Public 5 Prosecutor for the State and the defence counsel for the accused and passed the judgment which is challenged in this appeal.
4. Learned counsel appearing for the appellant No.2 has contended that, though the prosecution has examined P.Ws.1 to 28 and got marked documents as per Exs.P.1 to 49 and material objects from Exs.P.1 to 19, but the material witnesses have turned hostile to the case of the prosecution and did not come forward to corroborate the evidence recorded by the I.O. during the course of investigation relating to the offence punishable u/S 302 of IPC. But the trial Court has wrongly convicted the accused for the offence punishable u/S 201 r/w Sec. 34 of IPC. The impugned judgment suffers from infirmity in view of non-availability of cogent and corroborative evidence to prove the guilt alleged against the accused even to the extent of screening of evidence of offence to prove the guilt alleged against the accused u/S 201 r/w Sec. 34 of IPC regarding the gunny bag 6 containing stones found in the well. The gunny bag was allegedly used for putting the dead body and transported on a bicycle till the bambalwad cross and after throwing the dead body by the side of the road, the gunny bag was thrown in a well by putting stones, in order to screen the evidence of offence. The trial Court has not properly appreciated the evidence of P.W.27 in proper perspective and the impugned judgment patently suffers from infirmity and lack of cogent, corroborative and positive evidence. Hence, the learned counsel appearing for the appellant No.2 prays for setting aside the impugned judgment and consequently acquit the accused no.2.
5. On the other hand, learned HCGP appearing for the respondent-State supporting the impugned judgment contended that the offence punishable u/S 201 r/w Sec. 34 of IPC was proved in view of evidence of PW1 regarding drawing of the panchanama at Ex.P.1 and P.2 and the evidence of P.W.26, the photographer regarding the photos taken vide 7 Exs.P.3 to 5 and P.11 to 13 so also the evidence of P.W.27 regarding the gunny bag at M.O.16 with stones recovered from the well. The oral and documentary evidence with regard to screening of evidence of offence is proved beyond reasonable doubt. The trial Court has appreciated that part of evidence in proper perspective. The evidence of P.W.27 is corroborated with the evidence of P.W.22-Medical Officer who conducted autopsy over the dead body and issued report as per Ex.P.38 regarding the injuries on the person of the deceased. Hence, the trial Court is justified in convicting the accused for the offence u/S 201 r/w 34 of IPC and sought for dismissal of the appeal.
6. It is the case of the prosecution that the deceased Arjun who is none other than the son of the first accused and brother of the second accused, was insisting for his share in the landed property bearing Sy. No. 110 of Bambalwad village and also insisting for effecting revenue entries pertaining to the said land in his name. However, both the accused with a 8 common intention of committing murder of Arjun, on 02.10.2008 at about 1 a.m. in the night in the aforesaid land picked up quarrel with the deceased Arjun and assaulted him with steel rod, clubs on his forehead, hands, legs and pressed on the neck (throttled) with steel rod and caused his murder.
7. P.W.2-Mallappa is the panch witness to the seizure mahazar Ex.P.6, under which the clothes of the deceased were seized by the I.O. during the course of investigation in his presence. P.W.4-Gudusab and P.W.5-Shankar are cited as panch witnesses to the spot panchanama at Ex.P.7. All these witnesses, i.e., P.W.2, 4 and 5 have turned hostile to the case of prosecution relating to the complicity of the crime which is narrated in the complaint which is marked as Ex.P.27 filed by the first accused, who is none other than the father of the deceased Arjun.
8. The prosecution has examined P.W.1-Dundappa, who is said to be the panch witness to the inquest panchanama and spot panchanama. P.W.28 is the Investigating Officer who 9 conducted inquest panchanama of the dead body in the presence of the panch witnesses. Ex.P.2 is the panchanama of the scene of offence conducted by the I.O. in the presence of P.W.1 being the panch witness, but P.W.1 did not withstood the version of the facts found in Ex.P.1 and 2. Ex.P.6 is the panchanama under which the clothes of the deceased were recovered by P.W.28 during the course of investigation in the presence of P.W.1 and P.W.3, who did not withstood the version of the facts stated by the prosecution. Ex.P.7 is the another panchanama wherein P.Ws.4 and 5 are cited as panch witnesses but they did not support the case of the prosecution with regard to Ex.P.7. Ex.P.8, Ex.P.9 and Ex.P.10 are the seizure panchanamas of material objects in the presence of P.Ws.4 and 5, panch witnesses which were conducted by P.W.28 being the I.O. and laid charge sheet against the accused.
9. P.Ws.6 to 12 and 13 to 19 are the witnesses secured by P.W.28 being the I.O. for having recorded their statements. 10 But, all these witnesses have disown their statements at Exs.P.14 to 26 and 27A to 35 and they did not support the case of the prosecution to the extent regarding the averments made in the complaint and death of Arjun being the son of the first accused and brother of the second accused.
10. P.W.22-Dr.S.A. Konnure is the Doctor who conducted autopsy over the deceased and given postmortem report as per Ex.P.38. Signatures of P.W.22 on Ex.P.38 are marked as Ex.P.38A, B, C and D. Ex.P.39 is the opinion of the Doctor with regard to incriminating articles. Ex.P.40 is the provisional death opinion. Ex.P.41 is the report of P.W.23. Ex.P.42 is the report of P.W.24. Ex.P.43 is the FIR recorded by the Police based on the complaint filed by the complainant and thereafter proceeded with the case for investigation. But the evidence of P.W.22 relating to Ex.P.38 has not been supported by the prosecution witnesses to any extent and the same is seen from their evidence, i.e., the evidence of P.Ws.6 to 12 and 13 to 19, who are the material witnesses for the 11 prosecution but they have not supported the case of the prosecution with regard to the complicity of the crime for committing murder of Arjun and also disappearance of the evidence to escape from the legal punishment but the trial Court has taken into consideration relating to the gunny bag being used to carry the dead body of Arjun and after throwing the dead body by the side of the road at Dambalwadi cross, they have thrown the gunny gab by filling it with stones in the well belonging to P.W.27, in order to screen the evidence of offence. M.O. 16 is the gunny bag which was taken out from the well belonging to P.W.27, which is alleged to have been used by the accused for putting the deceased and later transported on a bicycle and thrown by the side of Bambalwadi cross. That evidence has been appreciated by the Court below and came to the conclusion to convict the accused for the offence punishable under Section 201 r/w Sec. 34 of IPC.
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11. The trial Court has appreciated the evidence of P.W.27- Bhimappa regarding the gunny bag at M.O.16 with stones taken out from the well and that evidence has been considered to hold conviction against the accused u/S 201 r/w Sec. 34 of IPC for causing disappearance of the evidence of offence to escape from the legal punishment. P.W.28 being the Investigating Officer who laid the charge sheet against the accused, has seized M.O.16 said to be used for putting the dead body of the deceased, M.O.17 rope and M.O.18 is the bicycle on which the dead body was transported and M.O.16 is the gunny bag with stones. But, merely because the gunny bag with stones was recovered from the well, the trial Court came to the conclusion that the accused have committed the offence u/S 201 r/w Sec. 34 of IPC. Though the independent evidence has not been forthcoming for the prosecution to prove the main offence u/S 302 of IPC but the trial Court has come to the conclusion that the prosecution has proved the guilt of the accused for the offence punishable u/S 201 r/w Sec. 34 of IPC on the evidence OF P.W.27. However, having 13 gone through the entire evidence put forth by the prosecution, it does not repose confidence that the accused have committed murder of the deceased by assaulting with means of iron rod over the person of the deceased. None of the prosecution witnesses have come forward to prove the guilt of the accused u/S 302 of IPC. Despite of it, the trial Court convicted the accused u/S 201 r/w 34 of IPC. Therefore, the trial Court has not properly appreciated the evidence of P.W.27 in proper perspective and the impugned judgment patently appears to be suffering from infirmity. The evidence is not sufficient to prove the guilt of the accused even to the offence u/S 201 r/w Sec. 34 of IPC. The conclusion of the trial Court is not based on cogent, corroborative and positive evidence to prove the guilt of the accused beyond reasonable doubt for the aforesaid offences.
12. Whereas in the instant appeal is concerned, it is relevant to state that the commission of the main offence u/S 302 of IPC is not brought home by the accused that they have 14 committed murder of Arjun, who is none other than the son of the first accused Ningappa and also the brother of accused no.2. The evidence put forth by the prosecution to establish the guilt against that they have not established the case by putting forth cogent, corroborative and acceptable evidence to commit murder of the deceased but the trial Court had held conviction against the accused for the offence punishable u/S 201 r/w Sec. 34 of IPC but the main offence has not been proved by the prosecution to establish the guilt against the accused. The trial Court has held acquittal from the main offence but convicted for causing disappearance of evidence to question as if the acquittal from charge of the main offence ipso facto would liquidate for the prosecution, it is based upon the evidence. Similarly, it is based upon the evidence for the offence u/S 201 of IPC. But, it does not free from difficulty but the prosecution was produced the evidence relating to this offence beyond all reasonable doubt and also unimpeachable circumstances to show that the accused were causing disappearance of the offence of murder. But in the 15 alleged offence u/S 302 of IPC and so also for the offence u/S 201 R/W Sec. 34 of IPC as whereas the accused Ningappa being the father of the deceased and accused No.2 who is none other than the brother of the deceased Arjun. But, for the altercation which took in between them it is relevant to the properties for having share which fell to the deceased and also to enter his name in respect of the land but the evidence which is putforth by the prosecution it appears to be camouflage regarding the main offence and so also disappearance of the evidence from the legal punishment u/S 201 of IPC has to be found as summersault. Therefore, it is said that the entire prosecution has to be at a cursory glance if looked into does not repose confidence and the same has to be appreciated in a proper perspective manner by the trial Court, that too the heinous offence u/S 302 of IPC as well as the offence u/S 201 r/w Sec. 34 of IPC wherein the charge has been framed against the accused also proceed with the case for the prosecution to establish the guilt against the accused.
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13. Even on perusal of the entire evidence and materials available on record the judgment of conviction and sentence held against the accused u/S 201 r/w Sec. 34 of IPC it is relevant to hold that the prosecution did not place reliable evidence in order to prove the guilt against the accused for the offence u/S 302 r/w Sec. 34 of IPC. The material witnesses have not withstood the guilt and the same has not been held by the trial Court and rightly come to the conclusion that the prosecution has not established the guilt against the accused for the main offence punishable u/S 302 r/w Sec. 34 of IPC.
14. In the present case it cannot be said that the prosecution has established the guilt against the accused for the offence punishable u/S 201 of IPC by putting forth cogent, corroborative and positive evidence to probabalize that the accused were causing disappearance of the evidence from the legal punishment. Therefore, for the aforesaid 17 reasons the impugned judgment requires interference by this Court and this appeal requires to be allowed.
15. For the aforesaid reasons, I am of the considered opinion that the impugned judgment calls for interference by this Court. Hence, the following order is passed.
ORDER Appeal filed by the appellant/accused No.2 filed u/S 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and sentence passed by the District Judge, Fast Track Court-1, Chikodi, in S.C. NO. 46/2009 dated 07.12.2009 for the offence u/S 201 r/w Sec. 34 of IPC is hereby set aside and the accused are acquitted.
The bail bond shall stands cancelled. Fine amount, if deposited by the appellants, shall be refunded, in accordance with law.
Sd/-
JUDGE bvv