Karnataka High Court
Devaraju S/O. Lakshmipathi vs The State Of Karnataka By ... on 2 July, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY 2013
:PRESENT:
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.138/2009
C/W
CRIMINAL APPEAL NO.294/2009
IN CRL.A.138/2009
BETWEEN:
DEVARAJU S/O. LAKSHMIPATHI
AGED 35 YEARS
AGRICULTURE
KEBBALU VILLAGE
CHANNARAYAPATNA TALUK
HASSAN DISTRICT ... APPELLANT
(BY SRI.R.B.DESHPANDE, ADV.)
AND:
THE STATE OF KARNATAKA BY
SHRAVANABELAGOLA POLICE ... RESPONDENT
(BY SRI.P.M.NAWAZ, ADDL.SPP)
2
THIS CRIMINAL APPEAL IS FILED U/S.374(2)
CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND
SENTENCE DATED 29.1.09 PASSED BY THE PRL. S.J.,
HASSAN IN S.C.NO.128/07 - CONVICTING THE
APPELLANT/ ACCUSED NO.2 FOR THE OFFENCE
P/U/S.448 AND 302 R/W SEC. 34 OF IPC. THE
APPELLANT/ACCUSED NO.2 SHALL UNDERGO R.I. FOR
LIFE AND SHALL SENTENCED TO PAY FINE OF
RS.20,000/- AND I.D. OF PAYMENT OF FINE, HE SHALL
UNDERGO S.I. FOR A PERIOD OF 4 YEARS FOR THE
OFFENCE P/U/S. 302 R/W SEC. 34 OF IPC. AND
FURTHER HE SHALL UNDERGO R.I. FOR ONE YEAR
AND SHALL SENTENCED TO PAY FINE OF RS.1,000/-
AND IN DEFAULT OF PAYMENT OF FINE, HE SHALL
UNDERGO S.I. FOR A PERIOD OF ONE MONTH FOR
THE OFFENCE P/U/S. 448 R/W SEC. 34 OF IPC. BOTH
THE SENTENCES SHALL RUN CONCURRENTLY.
IN CRL.A.294/2009
BETWEEN:
SRI.BASAVARAJU,
S/O. NANJAPPA,
AGED ABOUT 37 YEARS
AGRICULTURE,
KABBALU VILLAGE,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT. ... APPELLANT
(BY SRI.LINGARAJU.K.R., ADV.)
AND:
THE STATE OF KARNATAKA,
THROUGH SHRAVANABELGOLA POLICE,
3
REP. BY THE SPP,
HIGH COURT BUILDING,
BANGALORE-560001. ... RESPONDENT
(BY SRI.P.M.NAWAZ, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2)
CR.P.C, PRAYING TO SET ASIDE CONVICTION AND
SENTENCE DATED 29.1.09 PASSED BY THE PRL.
SESSIONS JUDGE, HASSAN IN S.C.NO.128/2007 -
CONVICTING THE APPELLANT/ ACCUSED NO.1 FOR
THE OFFENCE P/U/S.448 AND 302 R/W SEC. 34 OF
IPC. AND THE APPELLANT/ ACCUSED NO.1 SHALL
UNDERGO R.I. FOR LIFE AND SENTENCED TO PAY
FINE OF RS.20,000/- AND IN DEFAULT OF PAYMENT
OF FINE, FURTHER HE SHALL UNDERGO S.I. FOR A
PERIOD OF FOUR YEARS, FOR THE OFFENCE P/U/S.
302 R/W SEC. 34 OF IPC. AND FURTHER HE SHALL
UNDERGO R.I. FOR A PERIOD OF ONE YEAR AND
SENTENCED TO PAY FINE OF RS.1,000/- AND IN
DEFUALT OF PAYMENT OF FINE, FURTHER HE SHALL
UNDERGO S.I. FOR A PERIOD OF ONE MONTH FOR
THE OFFENCE P/U/S. 448 R/W SEC. 34 OF IPC. BOTH
THE SENTENCES SHALL RUN CONCURRENTLY.
THESE CRIMINAL APPEALS COMING ON FOR
FINAL HEARING THIS DAY, B.V.PINTO.J, DELIVERED
THE FOLLOWING
JUDGMENT
These two appeals arise out of the common Judgment of conviction passed by the Principal Sessions Judge, Hassan in SC No.128/2007 convicting the 4 accused No.1 & 2 therein for the offences under Section 302 and 448 r/w Section 34 of IPC and sentencing them to undergo rigorous imprisonment for life and to pay fine of `.20,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of four years for the offence under Section 302 r/w Section 34 of IPC and further sentencing them to undergo rigorous imprisonment for a period of one year and to pay fine of `.1,000/- each, in default of payment of fine to undergo simple imprisonment for a period of one month for the offence under Section 448 r/w Section 34 of IPC with a direction that both the sentences shall run concurrently.
2. It is the case of the prosecution that, the appellants in these cases are accused Nos.1 and 2. In the intervening night of 07.11.2006 and 08.11.2006, between 12.00 am to 1.00 am, accused have trespassed into the house of one Devegowda, while he was sleeping due to the vengeance regarding the property dispute and 5 assaulted the deceased-Devegowda by means of an axe and club on his head and caused bleeding injuries, thereby, they are alleged to have committed an offences under Section 302 and 448 r/w Section 34 of IPC.
3. It is further case of the prosecution that, accused No.3 had abetted the commission of offences by accused No.1 and 2. Hence, accused No.3-Manjegwoda is charged for the offences under Section 114, 448 and 302 r/w Section 34 of IPC.
4. The prosecution in order to prove the case has examined in all 19 witnesses and got marked Exs.P1 to 12 and produced MOs.1 to 24. The defence of the accused was one of total denial. However, the learned Sessions Judge found accused guilty of the offences and was pleased to convict accused Nos.1 and 2, while acquitting accused No.3 of all the charges leveled against him. The convicted accused have filed this appeal. 6
5. The complaint was filed by one Smt.Mariyamma @ Doddamma, the wife of the deceased Devegowda. In her complaint, she has stated that, she was suspecting the involvement of about six persons whose name have been mentioned in the complaint as having involved in the commission of the offence, including the names of the accused in the said six persons as accused Nos.1, 3 and 4 in the FIR. During the trial before the Court she has been examined as PW.1. She has stated that, on the night of the incident, some persons entered into her house and caused murder of her husband by causing injuries on his face, nose, legs and other parts of the body. She has also stated before the Court that, persons had got down from the roof of the house by removing the tiles. She has also stated before the Court that, she has suspected the commission of offence by accused persons mentioned in the FIR. In the cross-examination, the enimity regarding the property dispute has been challenged by the defence. 7
6. PW.2-Basavaraju is the son of the deceased. The evidence of PW.2 is similar to that of PW.1. PW.2 was not present in the house on the date of the incident.
7. PW.3-Chandrashekhar is the son-in-law of the deceased who was also not present in the house on the date of the incident.
8. PW.4-Hemavathi is the daughter of the deceased. All PWs.1 to 4, consistently spoke regarding the motive that, there was dispute regarding the property between the accused and the deceased.
9. W.5-Basavaraju.S.A is the brother of the deceased. He has also stated that, there was property dispute between the accused and the deceased and that accused was declaring that, they would finish the deceased and others. It is also in the evidence of PW.5 that, during the night of the incident, they were found moving near the residence of the deceased. 8
10. PW.6-Shobha is a neighbour of the deceased. She has turned hostile to the case of the prosecution. PW.7-Nagarajegowda is a witness to the inquest proceedings. PW.8-Lokesha is a witness to Ex.P5, in which the police have seized the clothes worn by the deceased. PW.9-Ravi is also a witness to Ex.P6. However, he has turned hostile to the case of the prosecution.
11. PW.10.Dr.Harshavardhan is the Medical Officer in the Community Health Centre, Shravanabelagola. He has conducted the postmortem examination on the dead body of the deceased and has found the following injuries on the dead body:-
"External appearance: Elderly male, moderately built and nourished height 164 cms, hairs partly black and Grey, roughly measuring 2 ½ inches. Eyes closed. All tooth intact, nose abrasion measuring 1 ½ x 0.1cm, grey moustache, clothes wearing loongi brown and blue checks, white checks shirt, blue 9 colour nicker with blood stained, waist thread, identification-black mole mark near the right nipple, black mole near the coastal margin, rigour mortis present all over the body, time since death less than 24 years. External injuries-
1) Chop wound measuring 5 x 3 x 3 cms over the right ear below the parietal region of the skull
2) Chop wound measuring 3 x 0.02 x 1 cm over right frontal region.
3) Chop wound measuring 4 x 0.3 x 1 cm over right temple region.
4) Chop wound measuring 10 x 2 x 4 cm from lateral end of right eye to right ear lobule
5) Lacerated wound 2 x 0.2 x 0.5 cm over right eye brow.
6) Chop wound measuring 10 x 0.2 x 3 cm extending from right ala of nose to right middle of mandible.
7) Chop wound measuring 4 x 1 cm over extensor aspect of right hand (fore arm)
8) Chop wound measuring 2 x 0.1 cm over extensor aspect of left hand fore arm 10 Fractures-
1) Depressed fracture of right lower
temporal bone
2) Linear fracture of right middle part of
maxilla.
On dissection of the dead body noticed the findings as below:
Brain and Skull- Subdural hemorrhage, extradural hemorrhage, subarachnoid hemorrhage, brain-congested.
Throax- Wall and cartilage are intact. Plura Inatct, larynx and trachea are intact, both the lungs are congested, pericardium intact and congested, coronary- intact, hear-intact.
Abdomen-Walls intact, peritoneum intact, mouth phalanx and esophagus empty, stomach and its contents- empty, small intestine- intact, large intestine- fecal matter and gas noticed. Liver- intact and pale, spleen-intact and pale.
Kidney- intact, bladder-intact and empty, organs of generation-external and internal - intact.11
He has opined that, death is due to shock and hemorrhage and the bleeding in the brain, secondary to head injury.
12. PW.11-Ramachandrappa has prepared the sketch of the scene of occurrence. PW.12-Virupaksha is the head constable who has apprehended the accused and produced him before the Investigating Officer. PW.13-Devaraju-Police Constable transmitted the FIR to the Court.
13. PW.14-Manchegowda and PW.15-Yogesha are the signatories to Ex.P6. However, both of them have turned hostile to the case of the prosecution.
14. PW.16-Siddegowda is the Police Constable who took the articles to FSL, Mysore. PW.17-N.Kumar is the Inspector of Police who has conducted the investigation and seized the weapons. He has led the dog 12 squad immediately after the incident and after conclusion of the investigation filed the charge sheet.
15. PW.18-Mallapur is the Sub-Inspector of Police who has registered FIR in Crime No.85/2006. PW.19- Krishna Raju is the Scientific Officer, F.S.L., Bangalore who has stated that, the articles sent by the I.O. have been examined and he has furnished his report as per Ex.P.12 by testing the said articles.
16. It is from the above evidence on record that, the learned Sessions Judge has found accused Nos.1 and 2 guilty of the offences and convicted them for the said offences and acquitted accused No.3 of all the charges leveled against him.
17. Heard Sri.R.B.Deshpande, learned Counsel for the appellants and Sri.P.M.Nawaz, learned Addl.SPP for the State/respondent.
13
18. Learned Counsel for the appellants submits that, while FIR has been filed against six persons and the charge sheet has been filed against three persons and out of the three persons, accused No.3 is alleged to have abetted the commission of offences, whereas, accused Nos.1 and 2 are alleged to have committed the aforesaid offences. The prosecution has relied only on the evidence of the Police Inspector-PW.17 who has led the dog squad to the house of the accused subsequent to the date of the incident. Other than this evidence, there is no other evidence to show that, the accused Nos.1 and 2/appellants have committed the offences. It is further submitted by him that, the serology report also does not connect the accused with the commission of the offence since the same is not furnished to the Court.
19. Under the circumstances, learned Counsel for the appellants submits that, the prosecution has not established all the links to connect the accused with the 14 crime. It is also submitted by him that, the statement of PW.5- who is none other than the brother of the deceased has been recorded after 45 days, therefore, the evidence of PW.5 cannot be taken into consideration for the purpose of conviction.
20. Sri.P.M.Nawaz, learned Addl.SPP on the other hand submits that, the evidence of the prosecution witnesses, more particularly, PWs.1 to 4 speak regarding the motive for the commission of offence. The evidence of PW.17-Investigating Officer further indicates that, immediately after the incident, dog squad had led him to the house of the accused. Therefore, the said evidence is a strong piece to directly connect the accused with the crime. Therefore, the appeals may be dismissed. It is further submitted by him that, in view of the enimity between the accused and the deceased, accused have committed the murder of the deceased and therefore, the learned Sessions Judge has rightly convicted the accused 15 for the charge leveled against them. Therefore, he submits that, the appeals may be dismissed.
21. We have carefully gone through the evidence on record and also re-appreciated the materials carefully. We have also gone through the entire documents submitted along with the charge sheet. It is seen in the complaint that, the allegation has been made against six persons who are alleged to have been involved in the case, whereas, ultimately, the charge sheet has been filed against three persons. It is the case of the prosecution that, accused No.3 has abetted to the commission of the offence and the learned Sessions Judge has found accused No.3 not guilty of the offence and he has acquitted him of all the charges leveled against him.
22. So far as the involvement of the accused Nos.1 and 2 are concerned, the only material witness available is the evidence of PW.17-Investigating Officer, who had followed the dog squad to the house of the 16 accused, after tracking the smell from the scene of occurrence. Admittedly, the said evidence is a very weak piece of evidence.
23. The learned counsel for the appellants submits that, apart from the said evidence of PW.17, whose evidence is a weak piece of evidence, there are no independent witnesses supporting or corroborating the evidence of PW.17 that the dog squad had led the police to the house of the accused. Hence, there is absolutely no corroboration to the evidence of PW.17 that, dog squad had led them to the residence of the accused. It is also further submitted that, serology report does not implicate the accused in the offence. The blood group of the deceased and the blood group of the seized materials has not been established. The clothes alleged to have been worn by accused at the time of the incident namely nicker and one small piece of clothes is not proved as containing the blood group of the deceased. Therefore, 17 the said articles also do not connect the accused for the commission of the offence in view of non-furnishing of the serology report and admittedly, there are no eye witnesses to the incident. The only other evidence available is that of PW.5 who has stated that, on the previous night accused were found moving in and around the scene of occurrence but that itself cannot be held against the accused, since the statement of PW.5 has been recorded after 45 days, after the date of the incident. Further, PW.5 is none other than the own brother of the deceased and if at all he has seen the accused moving around the scene of occurrence, he should have been the first person to approach the police mentioning the names of the accused on that day. On the contrary, the complaint is given mentioning six persons as suspected persons by the wife of the deceased to the police immediately after the incident. Hence, the evidence of PW.5 cannot be found to be corroborative with the evidence of other witnesses.
18
24. On a careful scrutiny of the entire materials, we find that the prosecution has not been successful in bringing home the guilt of the accused beyond all reasonable doubt and the Judgment of the learned Sessions Judge is not based on the evidence on record nor on the settled principles of law. Therefore, the said order of conviction deserves to be set aside. Accordingly, the following order:
ORDER The appeals are allowed.
The order of conviction and sentence passed against the appellants by the learned Sessions Judge are hereby set aside and the accused are acquitted of all the charges leveled against them.
It is submitted that, the accused are in custody and hence it is directed that, they shall be set at liberty forthwith, if not required in any other case.19
Office is directed to transmit the operative portion of this Judgment to the trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE KSR