Karnataka High Court
D N Gopala vs State Of Karnataka on 4 January, 2018
Equivalent citations: 2018 (1) AKR 822, (2018) 2 ALLCRILR 766
Bench: Ravi Malimath, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 04TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.844 OF 2012
BETWEEN:
1. D N GOPALA
AGED ABOUT 23 YEARS,
S/O.H.NAGARAJ,
2. D N ARUNA @ ARUNKUMAR
AGED ABOUT 26 YEARS,
S/O.D.R.NAGARAJ,
BOTH ARE RESIDENTS OF
DIBBUR VILLAGE,
TUMAKURU TALUK AND DISTRICT. ... APPELLANTS
(BY SRI: H C HANUMAIAH, ADVOCATE)
AND
STATE OF KARNATAKA
BY KALASA POLICE
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560001. ... RESPONDENT
(BY SMT: B.G.NAMITHA MAHESH, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET-ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED AGAINST THEM
DATED 07/11.06.2012 PASSED BY THE PRL. SESSIONS
JUDGE CHIKMAGALUR IN S.C.NO.39 OF 2011 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 302,392 AND 201
READ WITH SECTION 34 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO LIFE
IMPRISONMENT AND TO PAY A FINE OF RS.25,000/-
(RUPEES TWENTY FIVE THOUSAND ONLY) EACH, IN
DEFAULT OF PAYMENT OF FINE, THEY SHALL UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF 1 YEAR FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 10 YEARS AND TO PAY A
FINE OF RS.10,000/- (RUPEES TEN THOUSAND ONLY)
EACH, IN DEFAULT OF PAYMENT OF FINE, THEY SHALL
UNDERGO RIGOROUS IMPRISONMENT FOR 1 YEAR FOR THE
OFFENCE PUNISHABLE UNDER SECTION 392 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 7 YEARS AND TO PAY A
FINE OF RS.10,000/- (RUPEES TEN THOUSAND ONLY)
EACH, IN DEFAULT TO UNDERGO RIGOROUS
IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 201 OF IPC. THE
SUBSTANTIVE SENTENCES SHOULD RUN CONCURRENTLY.
THE APPELLANTS/ACCUSED PRAYS THAT THEY BE
ACQUITTED.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
3
JUDGMENT
The case of the prosecution is that on 18.12.2010 at about 9.00 a.m., CW.11 Gopal who was working as a Maistry with CW.1 K.A.Vijaykumar, came and told him that in his estate, near Marasanagi village, he saw a dead body of a female beneath the silver oak tree. CW.1 went there and saw the dead body. He immediately informed the same to the Kalasa Police by filing a complaint. Thereafter, the police took photographs, held an inquest and sent the dead body for postmortem examination. Pamphlets were circulated with the photo of the deceased for the purpose of identification. Some of the persons identified the dead body as that of the wife of CW.17, who was working as a Conductor in a private bus and that the deceased was residing at Navile Village in Mandya District. The information was received by the Investigating Officer who thereafter contacted the Kestur Police, who identified the same with regard to a missing complaint in Crime No.133 of 2010 filed in Kestur Police Station and therefore, the deceased was identified as one Mamatha and the 4 complainant therein was the husband of the deceased. Thereafter, the husband was secured. He stated that his wife was the President of Sthree Shakthi Sangha and would often visit the house of CW.32. That on 17.12.2010 at about 6.30 a.m., she left home by stating that she intended to go to the house of CW.32, in relation to the activities pertaining to the Sangha. At about 7.00 a.m., she called him to intimate that she did not get the bus. Once again she called and stated that she has boarded the bus and asked him and their daughter to go to Hosadurga to the house of her parents to celebrate the festival. On the same day between 10.30 p.m. and 10.45 p.m., he received two missed calls from the phone of the deceased. When he tried to return the call, the mobile was switched off. On the next day morning, he went to Hosadurga along with his daughter. He did not find his wife there. After participating in the festival, he came back to his village Navile. He started making enquiries. Thereafter, he came to know that on the previous day at about 3.30 p.m., accused nos.1 and 5 2 came there in a white Indica car and she has gone with them. Thereafter, he filed a missing complaint.
2. Based on the complaint by CW.1, a case was registered in Crime No.57 of 2010 of Kalasa Police Station and investigation was taken up. Charge-sheet was filed against the accused for the offences punishable under sections 302, 392, 201 read with section 34 of Indian Penal Code. In order to prove its case, the prosecution in all examined 26 witnesses, marked 36 exhibits and 20 material objects. The defence marked Ex.D1 which is the relevant portion marked in section 161 of Criminal Procedure Code statement of PW.19. The accused pleaded not guilty and claimed to be tried. By the impugned order, both the accused were convicted for the offences punishable under sections 302, 392, 201 read with section 34 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- each and in default, to undergo rigorous imprisonment for one year for the offence punishable under section 302 of Indian Penal Code. They were also sentenced to undergo rigorous imprisonment for 6 ten years and to pay a fine of Rs.10,000/- each and in default, to undergo rigorous imprisonment for a period of one year for the offence punishable under section 392 of Indian Penal Code. They were also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- each and in default, to undergo rigorous imprisonment for one year for the offence punishable under section 201 of Indian Penal Code. Aggrieved by the same, the appellants -accused have filed this appeal.
3. Sri.H.C.Hanumaiah, learned counsel appearing for the appellants contends that the impugned order of the trial court is erroneous and liable to be set aside. That the trial court has failed to consider the evidence in the right perspective. That the trial court misdirected itself in convicting the appellants. That the prosecution having failed to prove its case beyond reasonable doubt, the impugned order therefore becomes unsustainable. Hence, he pleads that the appeal be allowed by acquitting the accused.
7
4. On the other hand, the learned Government Pleader disputes the same. She contends that the prosecution was able to prove its case beyond all reasonable doubt. That sufficient evidence has been led in order to prove its case. Therefore, the appeal requires to be rejected.
5. Heard learned counsels and examined the records.
6.(a) PW.1 is the witness to the seizure mahazar of the clothes and articles of the deceased and also recovery of articles of the deceased at the instance of accused No.1.
(b). PW.2 is the inquest mahazar panch to Ex.P3.
(c). PW.3 is the owner of the coffee estate, who after receipt of the information about the finding of a dead body of an unknown female, lodged the complaint (Ex.P7). He is also a witness to the spot mahazar (Ex.P8), the seizure mahazar of the car (Ex.P9), photograph of M.O.14 8 car (Ex.P10) and seizure mahazar of M.O.15 kurlon pillow (Ex.P11).
(d). PW.4 is the panch to the recovery of the mobile of the deceased under Ex.P12 and also of the clothes and articles of the deceased under Ex.P2.
(e). PWs.5, 6 and 8 are the witnesses who have seen the dead body below the silver oak tree.
(f). PW.7 is the witness to Ex.P13 -mahazar of the spot where the dead body was buried.
(g). PW.9 is the husband of the deceased.
(h). PW.10 is the witness to the seizure mahazar of the car under Ex.P9, seizure of the kurlon pillow under Ex.P11 and also recovery of gold articles at the instance of accused nos.1 and 2 and their seizure under Ex.P16.
(i). PW.11 is the pawn broker before whom the gold articles of the deceased were pledged.
9
(j). PW.12 is the Manager of the Gayathri Lodge, Tumakuru wherein the accused Nos.1 and 2 stayed after the incident on 18.12.2010.
(k). PW.13 is the owner of the bonda shop to whose shop accused nos.1 and 2 came in a car, purchased bonda and at that time, he saw a lady was sitting in the said car.
(l). PW.14 is a witness who has seen a lady sitting in the car of accused nos.1 and 2.
(m). PW.15 is the person who vulcanized the punctures of the car of accused nos.1 and 2.
(n). PW.16 is the boy working in the petrol bunk who put diesel to the said car.
(o). PW.17 is the person who sold cigarettes to the accused.
(p). PW.18 is another person who vulcanized the wheel of the car of the accused and at that time, saw a lady sitting in it.
10
(q). PW.19 is the Manager of the Ambika Lodge, Tumakuru, where accused nos.1 and 2 stayed prior to the incident namely on 15.12.2010.
(r). PW.20 is the owner of the car who has given his car on hire to accused no.2.
(s). PW.21 is the friend of the deceased in whose house the deceased had stayed when she received a call from the accused and thereafter had gone away with them.
(t). PW.22 is the Doctor who conducted the autopsy over the dead body of an unknown female and issued his opinion in terms of Ex.P25.
(u). PW.23 is the Junior Engineer at Kalasa who prepared the sketch of the scene where the dead body was found as per Ex.P27.
(v). PW.24 is the Police Sub-Inspector at Kalasa Police Station who registered the case, drew the inquest mahazar (Ex.P3), spot mahazar (Ex.P8), rough sketch (Ex.P29), seizure of clothes of the deceased (Ex.P1) and 11 mahazar drawn at the time of burying the dead body (Ex.P13).
(w). PW.25 is the Revenue Inspector who submitted the Record of Rights of the land in which the dead body was found in terms of Ex.P30.
(x). PW.26 is the Police Inspector who investigated the case and filed charge-sheet.
7. Based on this evidence, the trial court was of the view that the prosecution has established its case beyond all reasonable doubt. It was of the view that the accused had committed the murder of the deceased and had robbed her of the valuables.
8. Among the prosecution witnesses, PWs.2, 13, 14, 16, 17, 18, 20 and 21 have turned hostile.
9.(a) The entire case of the prosecution is based on circumstantial evidence. There are no eye witnesses. In order to prove its case, the prosecution attempts to establish the last seen theory through the evidence of 12 witnesses. The only witness who claimed to have seen the accused and deceased together immediately prior to the incident is PW.21, who has turned hostile. She has not supported the case of the prosecution with regard to having seen the accused and the deceased together. Therefore, she was cross-examined by the learned Public Prosecutor. In the course of the cross-examination, there is a stray sentence mentioned by her that, "It is true to suggest that thereafter she went and sat in the said car and at that time A1 and A2 were there and they all went in the said car." Based on this stray sentence of the witness, the prosecution contends that it has proved the last seen theory.
(b). We are unable to accept such a contention. The witness has been treated as hostile. She has not supported the case of the prosecution. It is only in the cross- examination such a stray sentence has been elicited. Therefore, much credence cannot be given to such a stray sentence. Even if such a sentence has to be weighed, there is no reiteration by her with regard to the factum of having seen the accused and the deceased together. Even though 13 various facts about the relationship between the accused and the deceased and other materials have been stated in detail by the witness, except this stray statement, there is no other material to indicate that she had seen the deceased and the accused together immediately prior to the commission of the offence. Therefore, the evidence of PW.21 cannot be accepted as proof of the fact of the deceased and the accused being last seen together prior to the commission of the offence.
10. So far as the other witnesses namely PW.12 - Manager of Gayathri Lodge, Tumakuru and PW.19 - Manager of Ambika Lodge, Tumakuru are concerned, they have narrated having given the room to accused nos.1 and
2. They have not seen the deceased. So far as PW.13 who is the owner of the bonda shop is concerned, he has not supported the case of the prosecution. PW.16 is the sales man in the petrol bunk who put fuel to the car. He has also turned hostile. PW.15 who vulcanized the car wheel of the accused, has also not seen the deceased. Therefore, there is no evidence at all led in by the prosecution, to show that 14 the accused and the deceased were last seen together before the commission of the offence. Therefore, we have no hesitation to hold that the trial court committed a perversity in coming to the conclusion that the prosecution has proved the last seen theory. Therefore, the finding of the trial court on this issue requires to be reversed.
11. So far as the recovery of the gold ornaments is concerned, the prosecution has examined PW.9, who is the husband of the deceased. He has not identified the gold articles M.Os.17 to 20. The case of the prosecution is that the accused committed the offence of murder for gain. Gain would be necessarily be the ornaments of the deceased. When the ornaments have been seized at the behest of the accused, necessarily the prosecution would have to link the same to the property belonging to the deceased and the property would have to be identified by a relative of the deceased who, in the instant case, is her husband PW.9. The articles were not even shown to him for the purpose of identification. In the absence of showing the articles M.Os.17 to 20 to PW.9, the question of identifying the 15 articles would not arise for consideration. Therefore, the recovery of the gold articles also, has not been proved.
12. Yet another factor is the inquest under Ex.P3 in terms whereof it is noted that a single gold earring, a gold watch and a pair of silver toe rings were found on the dead body of the deceased. Therefore, it shows that the murder could not have taken place for gain in view of the fact that precious gold and other articles were found on the dead body of the deceased.
13. Furthermore the material objects seized in terms of M.O.19 do not correlate with the inquest. M.O.19 is one pair of ear stud. What was found on the dead body was one single gold earring. Therefore, this also leads to a doubt as to whether recovery could be accepted or not. Hence, on this ground also, we find that the trial court committed a perversity in accepting the evidence of the prosecution with regard to the recovery of the gold and other articles from the accused.
16
14. Under these facts and circumstances, the prosecution has failed to prove the last seen theory. The recovery has not been established. The shop owners who sold eatables, cigarettes, have not supported the case of the prosecution. The evidence of the lodge owners are irrelevant. Under these circumstances, we have no hesitation to hold that the trial court committed a perversity in misreading the evidence on record. The evidence led-in by the prosecution does not point to the guilt of the accused. The trial court, therefore, misdirected itself in wrongly relying on such evidence while convicting the accused. In view of the perversity in appreciating the evidence, the findings recorded by the trial court requires to be reversed and consequently to acquit the accused.
15. For the aforesaid reasons, we pass the following:-
ORDER
(i) Criminal Appeal No.844 of 2012 is allowed. 17
(ii) The impugned judgment of conviction dated 07.06.2012 and the order of sentence dated 11.06.2012 passed by the Principal Sessions Judge, Chikmagalur, in Sessions Case No.39 of 2011 is set-aside.
(iii) Both the appellants - accused No.1 Sri.D.N.Gopala and accused No.2 Sri.D.N.Aruna @ Arun Kumar are acquitted of all the charges levelled against them. They shall be set at liberty forthwith in this case, if not required in any other case/s.
(iv) Registry is directed to communicate the operative portion of this order to the Jail Authorities at Central Prisons, Parappana Agrahara, Bengaluru, for necessary action.
Sd/-
JUDGE Sd/-
JUDGE Bss.