Karnataka High Court
Sudhir S/O Bahusab Sindhe vs The State Of Karnataka on 25 August, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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CRL.A No. 100229 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100229 OF 2019
BETWEEN:
1. SUDHIR S/O BAHUSAB SINDHE
AGE: 22 YEARS, OCC: BUSINESS,
R/O: CHIKKALAKI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. GANAPATHI S/O BAHUSAB SINDHE
AGE: 28 YEARS, OCC: BUSINESS,
R/O: CHIKKALAKI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
...APPELLANTS
(BY SRI. S.S. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY JAMKHANDI P.S.,
NOW REP. BY SPP.
...RESPONDENT
(BY SRI. ADDL SPP.,ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS IN S.C.NO.111/2017
AND SET ASIDE THE JUDGMENT OF CONVICTION ORDER TO
APPELLANT NO.1 & 2 OF SENTENCE DATED 06.05.2019
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CRL.A No. 100229 of 2019
PASSED BY THE I-ADDL. DIST. & SESSIONS JUDGE,
BAGALKOT TO SIT AT JAMKHANDI, FOR THE OFFENCES
P/U/S 302 & 201 OF IPC AND ACQUIT THE APPELLANTS.
THIS CRIMINAL APPEAL COMING ON FOR
ORDER/ADMISSION/HEARING THIS DAY, B.M.SHYAM PRASAD,
J, DELIVERED THE FOLLOWING.
JUDGMENT
The appellants are convicted in SC.No.111/2017 on the file of the I Addl. District and Sessions Judge, Baglkot, sitting at Jamakhandi, (for short, 'the sessions Court') for the offences punishable under Sections 302, 201 read with Section 34 of IPC, and one of the co-accused (the accused No.3) is acquitted though charged simultaneously with the appellants for the aforesaid offences. The accused Nos.1 and 2 [who are hereafter referred to as the appellants] are sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and pay fine of Rs.40,000/- each. As regards the offence punishable under Section 201 of IPC is concerned, the appellants are sentenced to undergo simple imprisonment for three years -3- CRL.A No. 100229 of 2019 and to pay fine of Rs.10,000/- each with default simple imprisonment of six months.
2. The prosecution's case is that the appellants and the deceased Chandrasekhar Shetty were running respective eateries in the immediate vicinity, and because the deceased's business was doing well, the appellants' felt that their business was affected. Therefore, they nurtured a grievance against the deceased. There was a quarrel between the appellants and the deceased on 03.04.2017 with the deceased and his wife [P.W.1] informing certain elders who advised the first appellant not to be precipitous and the appellants to conduct their businesses without affecting the other. However, the appellants continued to nurse grudge against the deceased who went missing from 16.04.2017.
3. The prosecution's further case is that the deceased's wife filed a missing complaint with the jurisdictional Police on 18.04.2017. However, when the deceased's body was found on 21.04.2017, she lodged information with the jurisdictional Police alleging that the -4- CRL.A No. 100229 of 2019 appellants, along with co-accused No.3, had committed the murder of the deceased and buried his body in the land of Sri. Basappa Bhimappa Mudalagi [P.W.5]. Based on the appellants' voluntary statements, the prosecution has alleged that after the closure of business on 16.04.2017, the appellants [and the other accused) took the deceased from their hotel premises under the pretext of partying, and when the deceased was in their premises, the first appellant used nunchaku [a martial arts weapon] around the deceased's neck, the second appellant and the co-accused (a juvenile offender) caught hold of the deceased. The prosecution alleges that the appellants and the co-accused thus brought the deceased's death.
4. The appellants are arrested on 21.04.2017, and the jurisdictional police have filed charge sheet against the appellants and the other co-accused for the offences punishable under the aforesaid sections. The appellants, who were in custody, when produced before the Sessions Court on committal are released on bail on 27.02.2008. The Sessions Court has framed charges against the appellants -5- CRL.A No. 100229 of 2019 and the other co-accused for the offences punishable under Section 302, 201, 404 read with Section 34 of the Indian Penal Code.
5. The appellants and the other co-accused, on the charge sheet being read over, have pleaded not guilty and have claimed to be tried. The prosecution to prove its case, against the appellants and the co-accused, have examined eighteen out of twenty-eight witnesses cited and marked Exs.P.1 to P.45 and material objects M.Os.1 to 11. The appellants and the co-accused, in their statements under Section 313 of Cr.P.C., have denied the prosecution's evidence as against them, and in fact, have got certain portions of the statement by P.W.3 marked in cross-examination as Ex.D.1.
6. The prosecution's case is based on circumstantial evidence, and the circumstances relied upon by the prosecution are that the appellants and the co-accused were last seen with the deceased on 16.04.2017, the recovery of a gold finger ring [M.O.3] allegedly owned by the deceased, the -6- CRL.A No. 100229 of 2019 recovery of nunchucks and the motor bikes allegedly used by the appellant for commission of the offence, and the extra- judicial confession purportedly made to certain witnesses. The Sessions Court, after referring to the evidence of different witnesses, has opined that the recovery of M.O.3 [gold finger ring] and M.O.11 [nunchucks] are proved and the appellants' confessional statements, though not a substantive piece of evidence by itself, supports the prosecution's case. The Sessions Court has concluded that it would be appropriate to rely upon such voluntary statements to return the verdict against the appellants and in favour of the co-accused.
7. Sri. S.S.Patil, the learned counsel for the appellants submits that the Sessions court has erred in opining that the prosecution has proved the recovery of material objects viz., M.O.3 and M.O.11 and in relying upon the confessional statements of the accused despite the fact that P.W.17, to whom such confessional statement is purportedly made, has turned hostile. He submits that in -7- CRL.A No. 100229 of 2019 any event, such statement cannot inspire confidence or be the basis for conviction.
8. Sri. S.S.Patil further submits that if the prosecution has to succeed in a case based on circumstantial evidence, it must necessarily establish those circumstances which should be consistent only with the hypothesis of the accused's guilt and such circumstances cannot be explained by any other hypothesis. He also submits that the chain of events must be so built there cannot be any room for reasonable doubt about the accused's culpability, and in this regard he relies upon the decision of the Hon'ble Supreme Court in Mustkeem alias Sirajudeen Vs. State of Rajasthan1. Sri. S.S.Patil next submits that if the prosecution fails to establish all the circumstances relied upon by it, the motive, however strong, cannot take the place of evidence and cannot be basis by itself for conviction. He relies on the decision of the Hon'ble 1 AIR 2011 SC 2769 -8- CRL.A No. 100229 of 2019 Supreme Court in State of Punjab Vs. Sucha Singh and others2.
9. Sri. S.S.Patil canvasses that, in the present case, the only witnesses who have spoken about the motive for the appellants to commit murder of the deceased is the deceased's wife and another relative [P.W.1 and P.W.3]. The deceased wife has filed a missing complaint on 18.04.2017 but without mentioning the appellants as suspects for the deceased's disappearance or going missing, but after the body is found, she has mentioned in her next information- Ex.P.2 dated 21.04.2017 that the appellants are guilty of committing murder. This delay demonstrates, when there is no other strong evidence, that the allegations of appellants harbouring motive to commit murder of the deceased is very tenuous. None of the other witnesses cited by the prosecution have supported the motive alleged against the appellants.
2 2003 Crl.L.J.1210 -9- CRL.A No. 100229 of 2019
10. Sri. S.S.Patil also canvasses that according to the prosecution the deceased was killed by using nunchaku around his neck and if this were to be true, there should have been appropriate medical evidence. The doctor [P.W.2], who has conducted postmortem, is categorical in his evidence, and also in his report [Ex.P.22], that he cannot give a definite opinion for the reason for the death. The prosecution with this evidence is not able to establish that the deceased suffered fatal injuries in the neck because of use of nunchaku. The medical evidence also is not a circumstance that the prosecution can rely upon to bring home the guilt of the accused.
11. Sri. S.S.Patil lastly submits that the Sessions Court has placed heavy reliance on the testimonies of P.W.8 and P.W.9, the panchas at whose instance, amongst others, M.O.3 and M.O.11 are recovered. This Court must consider the indisputable fact that P.W.9 has not supported the alleged recovery. This witness has only supported the prosecution's case on the drawing up of inquest report and not the recovery of the aforesaid material objects. The
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CRL.A No. 100229 of 2019 evidence of P.W.9, which is relied upon by the Sessions Court to conclude that M.O.3 and M.O.11 are recovered, is an acquaintance of the deceased and his evidence must therefore be treated with all circumspection especially in the light of the undeniable discrepancies in his testimony. The prosecution has failed to establish that the appellant was last seen with the deceased, the motive, the death was caused by the use of nunchaku, and if there is no believable recovery and the reliance of voluntary statement must be eschewed in law, it must necessarily be concluded that the prosecution has failed to establish the appellants culpability beyond all reasonable doubt.
12. Sri. V.M.Banakar, the learned Additional State Public Prosecutor, on the other hand, submits that Ex.P.22 is a document issued by an expert which demonstrates that the deceased had suffered fracture of lower cornua and this is consistent with the prosecution's case that the deceased was put to death with the use of nunchaku around his neck. This evidence must receive due importance notwithstanding
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CRL.A No. 100229 of 2019 the doctor's evidence because this report is not contested by the appellants.
13. Sri. V.M.Banakar further submits that the testimony of P.W.1, which establishes the recovery of M.O.3 and M.O.11, shows that the second appellant the custody of the deceased's finger ringer [M.O.3], but this appellant has not offered any explanation. He also submits that the testimony of P.W.9, and for that matter P.W.8, who has also supported the prosecution's case insofar as his signature on the recovery mahazar, demonstrates the recovery. However, the learned Additional State Public Prosecutor is unable to defend the reliance by the Sessions Court on the voluntary statements of the appellants to return a verdict of guilt against the appellants. In fact, the learned Additional SPP draws the attention of this Court to the objections by the appellants' learned counsel before the Sessions Court to the marking of the voluntary statements and the Sessions Court rejecting the objection and proceeding to mark the entire voluntary statements.
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CRL.A No. 100229 of 2019
14. In the light of the rival submissions, the question for consideration is:
whether the Sessions Court has considered the material on record in accordance with law to return a verdict of guilt against the appellant for the offences punishable under Sections 302 and 201 read with Section 34 of IPC.
15. It is settled that if the prosecution's case is based on circumstantial evidence, it must then establish every chain of circumstances and this established chain of circumstances must be consistent only with the hypothesis of the accused's and no other hypothesis must be possible. The prosecution has relied upon the following circumstances. Firstly, on the appellants being last seen with the deceased on 16.04.2017 after 11.30 p.m.; secondly, the motive viz., the alleged grudge that the appellants harboured against the deceased for disrupting their business; thirdly, the recovery of deceased's gold ring from the second appellant's custody; fourthly, the use of nunchaku [M.O.11] to bring about the death of the deceased;
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CRL.A No. 100229 of 2019 and fifthly, the accused's voluntary statement before the Investigating Officer leading to recovery.
16. In the light of the settled proposition as aforesaid, the prosecution must establish each of these circumstances and only if these circumstances are established and it could be opined that these circumstances are consistent only with the hypothesis of the appellants being guilty, there could be a conviction followed by sentence. At the outset, this Court must observe that the Sessions Court has not considered each of these circumstances individually to conclude whether these circumstances are established much less whether these circumstances speak of the appellants' guilt and nothing else. The impugned judgment and order of sentence is therefore, very tenuous.
17. This Court, before proceeding further, must record that the deceased's body was found in the land of P.W.5 in a highly decomposed state when a by-passer, because of the foul smell, checked the surroundings and saw the dead body. If the missing complaint Ex.P.1 is filed
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CRL.A No. 100229 of 2019 on 18.04.2017, the information implicating the appellants and other accused is filed on 21.04.2017. The postmortem report, insofar as the dissection of the neck area, is that the skin over the neck was peeled off and Hyoid bone was intact. On 22.04.2017, the day on which the postmortem was conducted, the doctor has not given any opinion as he was awaiting chemical analysis report. On 22.09.2017, after receiving report from RFSL, Belagavi and Forensic Department, Shri B.M.Patil Medical College, Vijayapura, he has opined that he cannot be conclusive about the cause of death. The report from Shri. B.M.Patil Medical College, Vijayapura is that there is no evidence antemortem fracture of Hyoid bone, a finding that is consistent with the finding in the postmortem report.
18. This report also speaks of fracture of Hyoid bone near the lesser cornu on right and left side. But this description must be necessarily examined in the light of the categorical opinion that such injury cannot be antemortem and the prosecution has not examined any witness to establish otherwise. Thus, the medical evidence, one of the
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CRL.A No. 100229 of 2019 circumstances relied upon by the prosecution to bring home the guilt of the appellants, is indefinite and is not of any use to the prosecution. Therefore, case against the appellants must be examined independent of such evidence.
19. The prosecution on the appellant last being seen with the deceased has cited PW.16-Sri.Yaseen Jalavadi as the witness. This witness has turned hostile deposing categorically that he had not seen appellants in the company of the deceased on the relevant date. Even in the cross examination on behalf of the prosecution, he is consistent denying that he has said anything about the appellants being in the company of the deceased on 16.04.2017. The testimony of this witness is not helpful to the prosecution to establish that the appellants were last seen with the deceased, and as such this circumstance is also not established. The prosecution can then only rely upon the testimony of PW1 and PW3, the deceased's wife and her relative.
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CRL.A No. 100229 of 2019
20. The wife-PW1 has indeed spoken about the appellants nurturing grudge against the deceased because the deceased was doing well in the business at the cost of the appellants, and she has also mentioned about the quarrel between appellants and the deceased on 03.04.2017 in this regard. As rightly argued by Sri. S.S.Patil, this evidence must be received with all circumspection because when she lodged the first information informing the Police about her husband going missing on 18.04.2017 i.e. two days after the missing event, she did not mention that she suspected appellants guilty of the deceased's disappearance.
21. The delay in lodging the information regarding the deceased going missing and the failure to mention in the first information that appellants are suspected mitigate against the credibility of these witnesses as regards the alleged motive for murder. These failures also affect the testimony of the other witness, who is the deceased's brother-in-law, because his evidence is also in similar vein.
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CRL.A No. 100229 of 2019
22. The prosecution has relied upon the recoveries such as recovery of the clothes from the of dead body, bikes allegedly used by the appellants, Nanchaku (M.O.-11) and the gold finger ring (M.O. - 3) allegedly worn by the deceased. The recovery of clothes on the dead body is not of any significance in the present case insofar as the appellants' guilt and similarly, the recovery of the bikes would also be not of any significance. This Court is also of considered view that the recovery of M.O.-11 would also be not of any significance in view of the prosecution's failure of to establish anti-mortem injury to correspond with the use of this object. If the recovery of M.O.-11 is to constitute a strong circumstance to point to the appellants' culpability the prosecution should has shown that the deceased was put to death by the use of the said weapons. This recovery has spoken to by PW-9 would therefore is not of any significance by itself.
23. The reliance on the recovery of gold finger ring- M.O.3 is in the premises that the deceased owned it.. The ownership of this ring is spoken of only by PW1 and PW3.
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CRL.A No. 100229 of 2019 There is no independent material to establish that finger ring belonged to the deceased, and in the absence of independent material only on the basis of the testimony of the aforesaid witnesses, there cannot be a finding that this finger ring belonged to the deceased and therefore the recovery points to only the appellant's culpability. Additionally, PW.9, who is cited as an independent witness insofar as this recovery has turned hostile. He is categorical that he cannot testify to the recovery of property. The testimony of PW.9 and other witnesses to the recovery of M.O.3, most necessarily be examined in the light of these circumstances and the undisputed fact that he was acquainted with the deceased.
24. From the afore, this Court most opine that the prosecution has failed to establish the circumstances relied upon to bring home the appellants' guilt, and this Court also cannot conclude the circumstances relied upon by the prosecution are so established that it consistent only with the appellants' guilty. Therefore, the question for consideration is answered accordingly, and the appeal is allowed. The impugned judgment and the order of sentence
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CRL.A No. 100229 of 2019 imposed by the I Addl. District and Sessions Judge, Baglkot in SC.No.111/2017 are set aside acquitting the appellants for the offences alleged against them.
The bond executed by the appellants in terms of the interim order granted by this Court while suspending the sentence shall stand cancelled and the fine amount deposited by the appellants shall be refunded to them.
Sd/-
JUDGE Sd/-
JUDGE VB: p.1 & 2 KMS: p.2 to 11.
HMB:P.12 to end