Karnataka High Court
Umesha vs The State Of Karnataka on 27 July, 2023
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CRL.A No. 1920/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
CRIMINAL APPEAL NO. 1920/2018 (C)
BETWEEN:
UMESHA
S/O.MANJUNATHA
AGED 41 YEARS
R/O.SUBASHNAGAR JUNCTION
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT 576 261. ...APPELLANT
(BY SRI N.R.KRISHNAPPA, ADV.)
AND:
THE STATE OF KARNATAKA,
BY N.R.PURA POLICE, CHIKMAGALUR DIST.
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
Digitally HIGH COURT BUILDINGS
signed by
SHAKAMBARI BENGALURU-560001. ...RESPONDENT
Location:
HIGH COURT
OF (BY SRI JAGADEESHA B.N., ADDL.SPP)
KARNATAKA
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 14.09.2016 AND SENTENCE DATED 15.09.2016 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU IN SC NO.122/2015 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.
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CRL.A No. 1920/2018
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, RAMACHANDRA D. HUDDAR., J.
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of conviction and sentence dated 14.09.2016 passed by the Principal District and Sessions Judge, Chikkamagaluru in Sessions Case No.122/2015 registered for the offence punishable under Section 302 of IPC.
2. On the basis of complaint dated 25.08.2015 filed by one Manju S/o Ramaiah of Honnehadlu Village, N.R.Pura, police of Chikkamagalur Dist. registered Crime No.105/2015. It was stated in the complaint that, his father has eight children i.e. four sons and four daughters. All are married. His mother Siddamma died two years prior to filing of the complaint. His father and last sister Sharada used to reside together. Sharada was given in marriage to Umesh (the appellant-accused), a resident of Junction, Subhash Nagar, Bhadravathi Taluk, about 7 years prior to the complaint. Out of their wedlock, they have a daughter. Umesh was addicted to alcohol and used to ill treat Sharada. Unable to withstand that, Sharada returned to her father's house with the child and was residing with her father. The accused used to visit the house of her father and demand -3- NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 to send his wife back. But, her father used to say to the accused/Umesha that, unless he gives up his bad habit of drinking alcohol, he will not send his daughter with him. Therefore, accused used to quarrel with him.
3. It is alleged in the complaint that, on 23.8.2015, at about 8.30 p.m. accused came to the house of complainant's sister Devi situated at Simse village. Sharada also had gone there. Umesha asked Sharada to accompany him, but she refused stating that unless he gives up drinking habit, she does not join him. On 24.8.2015, as usual, Sharada went to work in the house of one Binu of Hemmar. Till 12 noon accused stayed in the house of Krishna and thereafter came to Honnehadlu. On that day, accused and complaint's father Ramaiah left the house together and did not return home. The complainant was under the impression that his father might have stayed in the house of Krishna his brother.
4. It is stated that, on 25.08.2015, at about 8 a.m., complainant received a telephonic call from Suresh stating that he noticed the dead body of his father Ramaiah in the forest. Therefore, complainant rushed to the said place along with his family members. He noticed the dead body of his father in the -4- NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 forest. He suspected that accused Umesha has committed the murder of Ramaiah. Accordingly, he lodged the complaint before the Police Sub-Inspector, N.R.Pura Police Station at 11.00 a.m. which was registered in Crime No.105/2015 of N.R.Pura Police Station and the criminal law was set in motion.
5. The Police thereafter, arrived at the forest area where the dead body was fallen. Conducted the Inquest Mahazar- Ex.P4 between 12.45 p.m to 3.15 p.m. in the presence of Panchas. Prepared the panchanama as per Ex.P2 and took the photographs of the dead body. After the Inquest panchanama, the dead body of Ramaiah was sent for post- mortem. During mahazar, MO Nos.1 to 3 were seized. PW.15/Dr. N. Sakaram Shetty conducted the post mortem examination of the dead body between 2.45 p.m. and 5.00 p.m. and noticed the following post mortem injuries on the dead body of Ramaiah:
"Body of a Male aged about 70 years moderately built and nourished. Dark in complexion, wearing a white shirt and blue coloured lungi. Height of the deceased 5 ft. scalp hair length 2 inches.
Face congested. Eyes closed and congested and protruded, sub-conjectival haemorrhage was found in both the eyes, tongue protruded and congested.
Abrasion present over the left side of the forehead measuring about 3 cm x 1 cm x ½ cm. in size. Bleeding is seen from the nose. Compression mark was seen over the left -5- NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 side of the neck in the anterior aspect of the neck in the upper part extending from mid part of the neck, extending obliquely upwards up to the submandibular region, measuring about 5 cm x ½ cm x ½ cms in size. Faint compression mark is seen on the right side extending towards submandibular region towards angle of the mandible measuring about 2 ½ x ½ x ½ cms in size.
Riger Mortis present in both right and left hands (Smaller joint)."
6. Doctor opined that death was due to cardio- respiratory failure secondary to asphyxia as a result of compression of the neck and head injury. It was opined that if any person assaulted on his ear and head and compressing the neck, such injury could be caused.
7. Accused was arrested on 26.8.2015 at 9.30 a.m. He gave his voluntary statement. As per his voluntary statement, he took the IO and panchas to the place where he took Ramaiah. IO prepared the Panchanama as per Ex.P7 and took a photograph as per Ex.P8. Thereafter, he took the IO and Panchas to Suryodaya Bar and Restaurant situated at B.H.Road, Kaimara. He showed the place stating that he had brought the deceased Ramaiah to the said Hotel for consuming alcohol. The IO prepared the panchanama as per Ex.P9 and snapped photographs as per Ex.P10. Thereafter, he took them to the plantation at Honnehadlu and showed the place stating that he killed Ramaiah there. IO prepared Panchanama as per -6- NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 Ex.P11, the sketch of the scene of offence as per Ex.P15 and seized MOs. 1 to 5.
8. After completing the investigation, charge sheet was filed against accused. He was tried in the Court of Prl. District and Sessions Judge, Chikkamagaluru in Sessions Case No.122/2015 for the offence under Section 302 of IPC. Prosecution in support of its case examined in all 17 witnesses and got marked Exs.P.1 to P.21 with respective signatures thereon and also MO nos. 1 to 5.
9. The trial Court, on hearing the parties and relying on the evidence of PWs.2,6 and 9 and other evidence held that the charge against accused-appellant was proved. It recorded a finding that deceased Ramaiah was in the house of his daughter Devi on 24.8.2015 where accused and his wife Sharada together came to the house of Devi. PW.9 and 13 stayed together in the house of PW.8. The evidence of PW.8, 9 and 13 shows that the prosecution has proved beyond reasonable doubt, on 23.8.2015, accused came to the house of Devi. PW.9 to 13 are closely related to the victim. Thus, from their evidence, as it is corroborative in nature about the presence of accused as well as these witnesses, the deceased -7- NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 was in the company of accused on 23.08.2015. It was also observed by the trial Court that accused used to quarrel with his wife Sharada and Ramaiah, since Ramaiah declined to sent Sharada with him unless he gives up his alcohol addiction. The trial Court accepted theory of accused showing the places namely the Bar and Restaurant where himself and Ramaiah consumed alcohol and he committed murder of Ramaiah. Thus, it is the finding of the trial Court that from the evidence of PW.2 to 9, 13 to 15, the prosecution has proved the chain of circumstances. Therefore, the Trial Court passed the impugned judgment of conviction and sentence.
10. Heard both sides. On examining the material on record, the question that arises for consideration is "whether the charge against the accused appellant under Section 302 of IPC was proved beyond reasonable doubt?"
Analysis
11. In this case, death of Ramaiah being homicidal is not in dispute. The Inquest Report and P.M.Report coupled with the report from the FSL show that death of Ramaiah was homicidal one.
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12. The case is based on circumstantial evidence. PW.1 is the complainant and son of the deceased. Evidently he is not an eye witness to the said incident. On receipt of information through telephone, he went to a place where dead body of Ramaiah was lying. As per his evidence, he had lodged a complaint suspecting that the accused has committed the murder of his father. In the examination-in-chief he has reiterated the contents of the complaint. In the cross- examination he deposes that himself and his wife were not on talking terms with his father and they were not visiting his father, he does not know whether his father had drinking habit. He states after he separated from his father, his sister Sharada was married to the accused. Throughout the cross-examination PW.1 demonstrates his ignorance. Therefore, the evidence of this PW.1 can be termed as hearsay evidence.
13. The star witness for the prosecution in this case is PW.2-K.Mohan S/o.Krishne Gowda He deposed that 24.8.2015, when he was tethering his cattle near the pond by the side of his lands, he noticed at 2.00 p.m. deceased Ramaiah and his Son-in-law Umesha walking together. He returned to his house at 4.00 p.m. On the following day, between 10.30 a.m. and -9- NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 11.00 a.m., he came to know about murder of Ramaiah. He was also present when panchanama was conducted on 25.8.2015 between 11.30 a.m. and 12.00 noon as per Ex.P2.
14. In the cross-examination, he states that he was not visiting the house of Ramaiah, he has not attended the marriage of Sharada and he never went to the house of accused situated at Bhadravathi junction. On 24.8.2015, at 2.00 p.m. he went to his lands to tether his cattle. He admits that on the main road towards Honnehadlu and Simse always there is movement of people. According to the case of the prosecution he has last seen deceased Ramaiah and accused together. But, the answers given by him in the cross- examination show that there was no possibility of he witnessing Ramaiah and deceased together. He states that he was at that time tethering the cattle. But, further states that at that time there was movement of people on the road. So how he spotted or remembered the movement of accused and deceased alone is not clarified.
15. The other witnesses examined are PW-3 Mahesha, pancha to Ex.P.4. To the extent of he signing panchanama, his evidence can be accepted. PW.4 Thomas P.V. deposed about
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 the quarrels between deceased and accused regarding deceased not sending Sharada with him and he noticing injuries on the neck of the deceased and blood oozing from his nostril. He speaks about the accused accompanying the police.
16. P.W.5-B.D.Poulus was Pancha to Ex.P.6 under which MO Nos. 4 and 5 were seized. His evidence shows that he also had the habit of consuming alcohol, he was taken to the bar and restaurant by the accused at B.H.Kaimara where Ex.P9 was prepared. He has denied the suggestion that he had not seen the accused earlier.
17. PW.6-Achyuth Gowda, was waiter/attendant in said Bar and Restaurant. According to him, both accused and deceased Ramaiah, came to his bar and restaurant at 2.00 p.m. and he supplied two quarter brandy to them. Then they left the Bar and Restaurant with another quarter bottle. One Sadananda was the owner of said Bar and Restaurant. It is elicited that everyday hundreds of customers visit the said bar and restaurant and he cannot remember and identify each of the customers. It is further elicited that since police brought the accused to his restaurant, he came to know that he might have committed the murder. Thus, the evidence of PW's.5 and 6
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 does not inspire the confidence of the court to believe their version in their examination-in-chief.
18. PW.7-Suresh informed PW.1 on phone about dead body of his father lying at the scene of offence. To that extent his evidence has to be accepted.
19. PW.8-Sharada is the daughter of the deceased and wife of the accused. She too corroborates evidence of PW.1 with regard to drinking habit of accused and she staying back in her father's house due to her husband's addiction to alcohol and she declining to return to her husbands house unless he gives up drinking habit. She states that on 23.08.2015, accused came to her brother's house and during night he consumed alcohol and slept in their another house. Her father, did not permit her to join her husband on the ground that he was drunk.
20. It has come in her cross-examination that her husband and herself were in cordial terms and earning their income by doing coolie work. She states since she was pregnant she came to her father's house. Evidence of PW.8 shows that, she is deposing against her husband on suspicion and she is not sure that her husband has murdered her father.
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21. PW.9-Nagarathna, is the wife of CW.8 and daughter-in-law of deceased Ramaiah. She says that as the accused was addicted to alcohol, Sharada was residing with her father, i.e. the deceased. She states that accused strangulated the deceased Ramaiah and killed him. She has deposed as if she is an eye witness to the said murder. She further deposes that accused, her father in law, PW.8/Sharada came to her house and after dinner accused slept in their new house, Sharada slept in their old house. On the following day, at about 9.00 a.m. her father-in- law went away from the house stating that he is going to his lands. Accused also left the house stating that he is going to his father-in-law's house. It is her further evidence that at 6.00 p.m. accused returned to her house and took the luggage and went away. She noticed that accused was in panic at that time. She asked him why he is in panic and to stay back as Krishna (CW-8) would come back. But, he left saying that he has an urgency.
22. She further deposed that on the following day, PW.7 called PW.1 and informed about murder of her father-in- law. Therefore, herself and her family members rushed to the plantation where the dead body was lying. She was thoroughly
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 cross-examined by the defence. She categorically states that she came to know that accused has killed her father-in-law by strangulating him. Thus, she is a hearsay witness to the alleged murder of Ramaiah.
23. PW.10-P.G.Mohan Kumar, the then RFO issued the report Ex.P13 to the effect that the place where dead body was found was reserve social forest area. PW.11 was the Head Constable of N.R.Pura Police Station who carried the FIR to the Court. PW.12-Y.L.Paramesh is the constable who apprehended the accused on 26.8.2015 at Bhadravathi Junction and produced him before the PSI. Arrest of the accused is not disputed. PW.13-Krishna a resident of Simse village is none else than the younger brother of PW.1 and son of deceased Ramaiah. He too is a hearsay witness. He states about accused staying in his house and on the following day Ramaiah leaving the house to go to his lands, thereafter the accused leaving at 12 noon. He has deposed that on receipt of telephone call from PW.1 he came to know about murder of his father. He rushed to the spot where the dead body was lying. It has come in his cross-examination that, PW.1 and his father were not on talking terms. Even at 9.00 p.m. on the previous
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 day, when accused and PW.8 were in his house, both were not on talking terms. He deposed that since last seven years accused and his wife Sharada (PW.8) were not in talking terms. He too is a hearsay witness.
24. Appellant's counsel submits that, the relatives of the deceased i.e. his daughter, his sons, his son-in-law were all hearsay witnesses, still the trial Court termed them as `last seen witnesses'. But, as per their own evidence the deceased and the accused left the house at different time and they did not go together.
25. The other witnesses are police officials and the doctor. PW.2 states that, he saw the accused and deceased were walking together near his land by the side of the pond. He returned to his house at 4.00 p.m. Thus, from the evidence of PW.2, this PW.2 is the last seen witness. But his evidence is contrary to the evidence of the aforesaid other witnesses.
26. According to PW.2 the victim was last seen in the company of accused at 2.00 p.m. The `last seen' theory in the present case has two facets; (1) in terms of proximity of time and (2) as regards the place itself as the dead body of victim Ramaiah was found in a forest area. There is no
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 evidence to show, what was the distance between the property of PW.2 referred by him and the place of murder of victim. The Hon'ble Supreme Court para 22 of judgment in State of Uttar Pradesh vs. Satish1 in this regard held as follows:
"The principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."
27. The `last seen' theory in the present case having dimensions in terms of time as well as place, would certainly clinch the matter in the testimony of PW.2-K.Mohan if accepted, everything hinges on his testimony. He is a sole witness. It was stated by the Hon'ble Supreme Court in Joseph vs. State of Kerala2 that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the material on record. Further, in State of Haryana vs. Inder Singh3, it was laid down that the testimony of sole witness must be confident, inspiring and beyond suspicion thus, leaving no doubt in the mind of the Court. On reading these two judgments, it is very much clear that the burden is on the prosecution to prove this 1 (2005) 3 SCC 114 2 (2003) 1 SCC 465 3 (2002) 9 SCC 537
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 last seen theory based upon sole evidence of PW.2. The Hon'ble Supreme Court in para 27 of the judgment in Ram Naresh vs. State of Chhattisgarh4, held as follows:
"All that is needed is that the statement of the sole- eye witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime."
28. The evidence of the sole witness thus needs to be considered with caution and after testing it against other material and further, such evidence must inspire confidence.
29. We have already discussed and examined the testimony of the sole witness in the context of the other evidence on record. According to PW.2, he was in his landed property along with his cattle on that particular day. At 2.00 p.m. he saw both accused and deceased together. But, his evidence is scanty and cannot be accepted as a truthful evidence. To prove that whether PW.2 was actually there in his landed property or not, there is no corroborative evidence. The reason for he being there and could see the accused and deceased walking together is not properly explained by the 4 (2012) 4 SCC 257
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 prosecution. Therefore, it is hard to believe the evidence of PW.2 in the absence of corroborative evidence.
30. The trial Court relies on the evidence of PW.6 the bartender of Suryodaya Restaurant to the effect that both accused and deceased came to his bar in the afternoon, consumed alcohol, thereafter they left with one quarter of whisky bottle to hold that `last seen together' theory is proved.
31. In host of judgments, the Hon'ble Apex Court has time and again laid down the ingredients to be made out by the prosecution to prove the `last seen theory'. The Court, for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. There must be close proximity, time wise and place wise, with reference to the last seen evidence. In this case, Ramaiah left the house of his son in the morning, whereas the accused left the house at 12.00 noon. The evidence of PW.2 is that, at 2.00 p.m. he saw both accused and deceased together. The evidence of PW.6 shows that number of customers visit the Bar and Restaurant everyday and he cannot remember all of them. At the instance of the police, he identified the accused. So the prosecution has failed to prove
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 the evidence which establishes the `last seen together' theory beyond reasonable doubt to prove the guilt of the accused.
32. Now the other features on record need consideration. On the following day, accused was apprehended. He gave his voluntary statement. As per his voluntary statement, the panchanama was conducted and accused lead the IO to the Suryodaya Bar and Restaurant and showed the place where himself and deceased consumed alcohol, then took the police to the place where he allegedly murdered Ramaiah. Dead body of Ramaiah was traced before that. There was no recovery from Bar. Thus the said evidence does not fall under the discovery of fact.
33. Learned Additional State Public Prosecutor submits that there was abnormal conduct of the accused when he returned to his brother-in-law's house and took away the bag and at that time he was in panic. No doubt in criminal cases as per the provisions of Indian Evidence Act, conduct of the accused plays a vital role in corroborating or establishing circumstantial evidence. Conduct of the accused which was unnatural and abnormal such as absconding, inability to provide an explanation, inability to disclose location during the
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 commission of offence, providing false alibi's, secretive cremation of dead body, which destroys the presumption of innocence, is a relevant factor in establishing guilt and building the chain of events.
34. Admittedly, the case was based solely on the circumstantial evidence. It is settled position of law that when the case is based on circumstantial evidence, the prosecution shall establish all the circumstances by cogent and consistent evidence leading to only hypothesis of guilt of the accused. Any break in the chain of circumstances shall enure to the benefit of the accused. The first thrust of the prosecution on the circumstance of last seen theory, the evidence adduced by the prosecution to establish the said circumstance was not satisfactory. When that fails, whole foundation of the prosecution case collapses. The appreciation of the evidence by the trial Court with regard to last seen theory was not judicious. Moreover, the said last seen theory was not proximate to place and time of death. Therefore, the impugned judgment and order of conviction is liable to be set aside and the appeal deserves to be allowed. Hence, the following:
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NC: 2023:KHC:36530-DB CRL.A No. 1920/2018 ORDER
(i) The appeal is allowed.
(ii) The judgment and order of conviction and sentence in Sessions Case No.122/2015 passed by the Principal District and Sessions Judge, Chikkamagaluru is hereby set aside.
(iii) The appellant/accused is acquitted of the charge for the offence punishable under Section 302 of IPC.
(iv) If the accused is in custody, he shall be set at liberty forthwith. Otherwise, bail bonds of the accused and his surety shall stand cancelled.
(v) Order of the Trial Court with regard to disposal of the properties is maintained.
Communicate this order to the trial Court and concerned Prison forthwith.
Sd/-
JUDGE Sd/-
JUDGE Sk/-
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