Karnataka High Court
Ramesha vs State Of Karanataka on 7 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL No.920/2013
BETWEEN
RAMESHA,
S/O LATE SINGARAM,
AGED ABOUT 26 YEARS,
R/AT NO.199,
NEAR ANJANEYA TEMPLE,
AMBEDKAR NAGAR,
MAHADEVAPURA,
BANGALORE. ...APPELLANT
(BY SMT. BUDRUNNISA, ADV.)
AND
STATE OF KARNATAKA,
BY MAHADEVAPURA POLICE
STATION, BANGALORE. ...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 23.02.2013 PASSED BY THE P.O., F.T.C.-IV,
BANGALORE CITY IN S.C.NO.118/2011 - CONVICTING THE
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APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF
IPC. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I. FOR LIFE AND PAY FINE OF RS.25,000/-, IN
DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER R.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S 302 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR
HEARING, THIS DAY, B.A. PATIL, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant-accused being aggrieved by the judgment of conviction and order of sentence passed by the City Fast Track Court-IV, Bangalore City in S.C.No.118/2011 dated 23.02.2013.
2. Brief facts of the case as per the complaint- Ex.P1 are that, one Venkatesh, brother of the deceased filed a complaint alleging that he is residing in the address given therein and he is working in a private Trans A.C.N.R.Solution Company as an Office boy. Sri.Govindappa and Smt.Gowramma had one male and two female children. The complainant is the son and out 3 of two female daughters, one is Nagaratna and another is Savithri. Both are married. His parents are no more. He further contended that about 13 years back, his sister Nagaratna's marriage was solemnized with one Shivappa of Yerapatalu Grama of Bagepalli Village and they have got one male and one female children. About eight years back, the said Nagaratna left her husband and was residing in a rented house at Singayanapalya on rental basis. He further submitted that his sister Nagaratna is not doing any work and she used to be in the house and she is having illicit relationship with one Muniraju of RHB colony and he advised his sister many times not to have such relationship. It is further stated that on 12.08.2001 about 6.00 a.m. when he was in his house, his sister's daughter Shilpa came to his house and told that her mother is sleeping beneath the cot with blood seeping from the nose and in spite of trying to wake up, the said Nagaratna did not wake up. Immediately, the complainant went to his sister's house and saw his sister 4 was lying beneath the cot in the hall with blood seeping from the nose and he was not aware as to how his sister Nagaratna had died. He has further stated that on 11.08.2010 at about 8.30 p.m., one Muniraju came to his sister's house and gave Rs.1,000/- and the same has been notified by his sister's daughter Shilpa. As the complainant had suspicion about the death of his sister, he requested the Police to subject the said body to postmortem and take legal action against the culprits.
3. On the basis of the said complaint, a case was registered under UDR No.42/2010 under Section 174 (c) of Cr.P.C. Thereafter matter was referred for Investigation. After the investigation, the Investigating Officer filed the charge sheet against the accused under Section 302 of IPC. Thereafter, the learned Chief Judicial Magistrate committed the case to the Sessions Court. The Sessions Court took the cognizance of the said case and after hearing the learned Public Prosecutor and 5 learned counsel for the appellant, charges were framed and the same was read over and explained to the accused. The accused pleaded not guilty and he claims to be tried and pleaded ignorance.
4. In order to prove their case, the prosecution got examined 14 witnesses and got marked 14 documents and also got marked MOs.1 to 3. Thereafter, the statement of the accused came to be recorded under Section 313 of Cr.P.C. and the accused has not led any defence evidence but however, during the course of cross-examination of the prosecution witness, he got marked Ex.D1.
5. The Court below heard the learned public prosecutor and the learned counsel for the appellant and after considering the evidence produced before the Court, it held that it is sufficient to hold guilt of the accused, convicted the accused for the offence punishable under 6 Section 302 of IPC. Assailing the same, the accused- appellant is before this Court.
6. We have heard Smt.Budrunnisa, learned counsel for the appellant and Sri.Vijayakumar Majagi, learned Additional SPP on behalf of the respondent-State.
7. Learned counsel for the appellant-accused apart from the grounds Nos.1 to 7, she submitted that though the complaint was came to be filed on 12.08.2010 at about 12.05 p.m., in the complaint, the name of any other person including the accused person is not forthcoming. She also submitted that the complaint came to be filed against unknown persons and even in the complaint-Ex.P1, it has not been stated that PW.3-Shilpa has witnessed the incident of the accused assaulting her mother-Nagaratna, due to which her mother fell down beneath the cot and blood was seeping from her nose. If PW.3-Shilpa had witnessed the incident, she could have called PW.1-Venkatesh at that time itself. 7 Non-mentioning of the said fact clearly discloses that PW.3 has been subsequently included in the said fact only to suit the case. She further submitted that PW.3 was not an eyewitness and she was not present at the time of the alleged incident.
8. Learned counsel further submitted that though as per the case of the prosecution, PW.3 was present at the time of incident i.e. on 12.08.2010 and when the police visited the said place, her statement came to be recorded on 14.08.2010. There is inordinate delay in recording the statement of PW.3. She also submitted that though Sri.Manjunath, the brother of PW.3 was also present at the time of incident, the said eyewitness has not been treated as a witness and was not examined before the Court. Non-examination of the said witness creates a doubt in the case of the prosecution. She further submitted that the evidence of PW.3 has not been properly considered and appreciated 8 by the trial Court. The evidence of PW.3 is not reliable. Though such evidence was before the trial Court, the trial Court ignoring the evidence has wrongly convicted the accused-appellant. On these grounds, she prays to allow the appeal and set aside the impugned judgment of conviction and order of sentence and to acquit the appellant-accused.
9. Per contra, learned Additional SPP vehemently argued by submitting that PW.3 is an eyewitness to the alleged incident. He further submitted that PW.3 has categorically deposed before the Court that it is the accused who came to the house of the deceased as he had illicit relationship with the deceased and only with an intention to see that one Muniraju also coming to the house of the deceased. The accused warned the deceased that the said Muniraju should not come to the house and in that context, there was a quarrel and at that time, PW.3 and Manjunath, brother of PW.3 were 9 present. They are the eyewitnesses and the same has been deposed before the Court. He further submitted that prosecution has also got examined PW.10-Doctor who has clearly deposed that the death is due to strangulation and said injury also indicates that the death of deceased Nagaratna is Homicidal. He also submitted that by considering all the material evidence placed on record, the trial Court has rightly convicted the appellant-accused. The appellant has not made out any ground to allow the appeal. The same may be dismissed by confirming the judgment of the trial Court. On these grounds, he prays to dismiss the appeal.
10. We have carefully and consciously gone through the submission made by the learned counsel for the appellant and learned Additional SPP. We have also gone through the judgment of conviction and order of sentence passed by the trial Court, Memorandum of Appeal and the evidence led before the Court below. 10
11. PW.1, the brother of the deceased who filed the complaint as per Ex.P1 on the say of PW.3-Shilpa, daughter of deceased, in his evidence he has deposed that on 11.08.2010, he came to know that there was a quarrel between the said Ramesh and Nagaratna for having visited the house of Nagaratna by one Muniraju and the same has been stated by PW.3-Shilpa on 12.08.2010. He has further deposed that after PW.3- Shilpa came and told the said incident, he went to the house of the deceased and saw that the blood was seeping from the nose of the deceased and filed the complaint against one Muniraju and he has stated that the complaint is as per Ex.P1 and Ex.P1(a) is the signature. He has also deposed that on the same day, the police visited the spot and at that time, they recorded the statements of CWs.9, 3, 7, 12, 11, 10 and 4 and they have also drawn the spot mahazar as per Ex.P2. During the course of cross-examination, nothing has been elicited so as to discard the evidence of these witnesses. 11 PW.3 is the star witness in this case and she is the eyewitness to the alleged incident. After taking into consideration that as she was minor at the time of incident, the Court has put some question and thereafter, the evidence has been recorded that she is capable of giving the evidence. In her evidence, she has deposed that during 2010, herself, her brother Sri.Manjunath and her mother Nagaratna were staying in Singayanapalya, 1st Cross in the house of Srinivasa Reddy on rental basis.
12. She has further deposed that on 11.08.2010 at about 8.00 p.m. Muniraju came and gave Rs.1,000/- to her mother and went away. Thereafter at about 8.30 p.m., the accused Ramesh came to their house and started quarrelling with her mother and at that time, when PW.3 and her brother-Manjunath were watching TV after studying, the said Ramesh came and quarreled with her mother stating that Muniraju should not come 12 to their house and there is quarrel as he visits their house and in anger, the said Ramesh strangulated her neck with hands and gave a punch on her nose. She has further deposed that immediately thereafter, she and her brother went and slept. On the next day, the said Shilpa went to the house of PW.1-Venkatesh and CW.9- Prabhavathi and informed about the galata that took place between Ramesh and her mother earlier night. She has also further deposed that she requested PW.1 and CW.9 to come to her house and see her mother and when they came to her house and saw, her mother was lying beneath the cot with blood seeping from her nose. The said Shilpa identified the said accused through video conference.
13. During the course of cross-examination of this witness, she has deposed that since her birth, she is staying along with her mother in the house of Srinivasa Reddy and the said house in the Vatara, where there are 13 7 to 9 houses. She admitted the suggestion as true that if any galata takes place in the said Vatara the same was heard by other persons. Further, to a suggestion that if there is an injury to her brother or to her father-in-law i.e., brother of her mother, she admitted that she care for them. The other suggestions have been denied by the said witness PW.3-Shilpa.
14. When it has been suggested that on 11.08.2010 whether Muniraju came to her house at about 8.00 p.m. and gave Rs.1,000/- to her mother and thereafter, at about 8.30 p.m., Ramesh also came to his house, the same has been denied by her. She denied the suggestion that she has not been stated before the Police the aforesaid fact. She also further denied the fact that herself and her brother-Muniraju were watching TV after finishing their studies. To the further suggestion that whether quarrel ensued in the house between Ramesh and her mother, as the Muniraju should not visit their 14 house, the same has been denied by PW.3-Shilpa. She has also denied the suggestion that when there was a quarrel, the accused strangulated the neck and punched on the nose of her mother. The other suggestions have been denied by this witness.
15. P.W.10 is the doctor who conducted autopsy over the body of deceased Nagarathna. In his evidence he has deposed that he has conducted the autopsy over the body of the deceased and he found four external injuries and he has also opined that the death of the deceased is due to asphyxia as a result of manual strangulation and he has issued the post mortem report as per Ex.P8.
16. If we peruse the evidence of P.W.12, the Investigating officer, at paragraph No.8 he has admitted the suggestion as true that P.W.3 Shilpa has not stated that on 11.8.2010 at about 8.30 p.m. accused Ramesh came to her house and she has also further admitted 15 that Muniraju came to her house on the same day at about 8.30 p.m. and he has also admitted the fact that P.W.3 has not stated that herself and her brother Manjunath after reading they were watching TV.
17. By going through the above evidence, it is clear that the death of deceased Nagarathna is a homicidal death. In order to substantiate the said fact even the prosecution has got examined P.Ws.7 and 14 and the inquest mahazar has also been produced as per Ex.P3. Though the prosecution has proved the fact that the deceased died a homicidal death, but the entire case rests upon the evidence of P.W.3 who is said to be an eyewitness to the alleged incident. In her evidence she has deposed as narrated above. But when we compare the said fact with Ex.P1, the complaint filed by P.W.1, therein there is no narration or anything stated with regard to she being watching the accused coming to the house at about 8.30 p.m. in the night and then there the 16 galata took place in between the accused and the deceased and at that time the accused squeezed neck of the deceased and gave a blow on her nose and thereby he caused injuries and thereafter he pushed her down beneath the cot. Even on a close perusal of the evidence of P.W.3 her evidence is also not corroborated with Ex.P1.
18. We are conscious of the position of law that the deposition of the child witness if it is inspiring the confidence of the Court and there is no tutoring and improvement, then under such circumstances, the Court can rely upon the said evidence and convict the accused. Keeping in view the above said preposition of law , if the evidence of P.W.3 is looked into, the said evidence appears to be not trust worthy and believable. If really she has seen the alleged incident, then she might have told the said fact to P.W.1 and P.W.1 could have mentioned the said fact in Ex.P1, the complaint. But 17 Ex.P1 clearly shows that it is against unknown person and in the said complaint nothing has been described in this behalf. Even as could be seen from the evidence of P.W.1, the complainant, he himself has told that immediately the police have also visited on 12.8.2010 and at that time P.W.3 was also present at the place of incident. But her statement came to be recorded only on 14.8.2010, which creates a doubt with regard to the prosecution case. If really she has seen the alleged incident and was present on 12.8.2010 when police visited, definitely she could have stated the said fact before the police. Delay in recording of statement of prosecution witnesses under Section 161 Cr.P.C., although such witnesses were or could be available for examination when Investigating Officer visit scene of occurrence or soon thereafter might cast a doubt upon the prosecution cases. Such delay needs to be properly explained to believe it. This preposition of law has been laid down in the case of Harbeer Singh -vs- Sheeshpal 18 and Others with State of Rajasthan -vs-Sheeshpal and Others reported in (2016) 16 SCC 418 (para Nos.15 to
17) extracted as below:
"15. We have given careful consideration to the submissions made by the parties and we are inclined to agree with the observations of the High Court that PW 3 and PW 9 were not witnesses to the alleged conspiracy between the accused persons since not only the details of the conversation given by these two prosecution witnesses were different but also their presence at the alleged spot at the relevant time seems unnatural in view of the physical condition of PW 9 and the distance of Sheeshpal's Dhani from Sikar Road.
Besides, it appears that there have been improvements in the statements of PW 3. The Explanation to Section 162 Cr.P.C. provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 Cr.P.C., may amount to contradiction if the same appears to be significant and otherwise relevant 19 having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. [See Ashok Vishnu Davare Vs. State Of Maharashtra, (2004) 9 SCC 431; Radha Kumar Vs. State of Bihar (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC 473]. In our view, the High Court had rightly considered these omissions as material omissions amounting to contradictions covered by the Explanation to Section 162 Cr.P.C. Moreover, it has also come in evidence that there was a delay of 15-16 days from the date of the incident in recording the statements of PW 3 and PW 9 and the same was sought to be unconvincingly explained by reference to the 20 fact that the family had to sit for condolence meetings for 12 to 13 days. Needless to say, we are not impressed by this explanation and feel that the High Court was right in entertaining doubt in this regard.
16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW 1 and PW 5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW 6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of 21 the Court. [See Ganeshlal Vs. State of Maharashtra, (1992) 3 SCC 106; Mohd.
Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi Vs. Mam Raj (2004) 13 SCC 279]
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Maharashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 689]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case".
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19. In that light, the evidence produced in this behalf does not repose confidence of this Court so as to hold that she has seen the alleged incident when she was there in the house.
20. Be that as it may. Even when the said galata took place and P.W.3 has noticed that the blood was seeping from the nose, she has not informed the neighbours though so many houses have been closely associated with the house of the said witness and it is also the specific case of the prosecution that the brother of P.W.3, Manjunath was also present, but for the reasons best known to the prosecution he has also not been examined before the Court.
21. Even on perusal of the evidence of P.W.12 there are so many omissions which have been got marked in his evidence. If all these factors are cumulatively taken into consideration with the evidence of P.W.3, it does not 23 repose confidence and her evidence is not worth believable. In that light, even the evidence of P.W.3 is not worth believable and trust worthy. Under such circumstances, the other evidence which has been produced before the Court will not help the case of the prosecution in any manner to substantiate its case. These aspects have not been properly considered and appreciated by the trial Court in its right perspective. In that light, the judgment of the trial Court is liable to be set aside.
Accordingly, appeal is allowed. The judgment and order of conviction passed and sentence imposed by the learned City Fast Track Court-IV, Bangalore city in S.C.No.118/2011 as against the appellant-accused, is hereby set aside. Appellant-accused is acquitted of the charges leveled against him.
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Registry is directed to intimate the operative portion of this order to the concerned prison authorities immediately.
The concerned prison authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE VM/bkp