Karnataka High Court
Durgasetty @ Durgi vs The State on 10 September, 2018
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 10TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.6 OF 2017
BETWEEN:
DURGASETTY @ DURGI
S/O SHIVARANGASETTY,
AGED ABOUT 20 YEARS,
COOLIE,
R/O KADUSHIVANAHALLI VILLAGE,
KODIHALLI HOBLI, KANAKAPURA TALUK,
RAMANAGARA DISTRICT - 562 119.
... APPELLANT
(BY SRI: DILRAJ J ROHIT SEQUEIRA, ADVOCATE)
AND
THE STATE
REPRESENTED BY KODIHALLI POLICE,
KODIHALLI HOBLI, KANAKAPURA TALUK,
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
... RESPONDENT
(BY SMT: NAMITHA MAHESH, B.G., HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 12.01.2016 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, RAMANAGARA TO SIT AT KANAKAPURA
IN S.C.NO.90 OF 2010 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 398
OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR LIFE AND TO PAY FINE OF
RS.50,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO
RIGOROUS IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR 7 YEARS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 398 OF IPC. BOTH THE SENTENCES SHALL
RUN CONCURRENTLY.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 12.01.2016 in S.C.No.90/2010 whereby the appellant (hereinafter referred to as 'accused') is convicted for the offences punishable under Sections 302 and 398 of Indian Penal Code and sentenced to rigorous imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 302 of Indian Penal Code and rigorous imprisonment for seven years for the offence punishable under Section 398 of Indian Penal Code. Both the substantive sentences are directed to run concurrently.
2. The case of the prosecution is that on 16.05.2009, PW-1 Sri. Honnegowda lodged a written complaint before Kodihalli police stating that on 15.05.2009 in the morning, he had gone to graze his sheep. His wife had gone for coolie work leaving their son, aged about 12 years in the house. In the evening, they returned home. They found the door of the bureau open. Two gold finger rings, one pair of hangings, one pair of double row ole, one pair of mati and cash of Rs.500/- were 4 missing. His son was also not found in the house. When they searched for him, they found his dead body in a canal near the land of one Bommegowda. There were injuries on his face and chest.
3. Based on this complaint, FIR in Cr.No.58/2009 was registered against unknown persons under sections 302 and 201 of Indian Penal Code. A spot mahazar was conducted and a chappal was seized from the spot. The body was sent for post mortem examination. It was ascertained that the deceased died due to hemorrhagic shock, secondary to severe myocardial injury. According to the medical officer, who conducted the post mortem examination, the said injuries might have been caused due to blunt injury to chest. There was fracture of right 3rd and 5th ribs at Cortocondral junction.
4. The accused surrendered before the Investigating Officer on 01.04.2010. A double row designed gold hangings, gold earrings, two finger rings and a pair of white stone studded hangings were recovered under Exs-P6 and P8.
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5. Based on this material, a charge sheet was laid against the appellant/accused under Sections 302 and 398 of Indian Penal Code.
6. The appellant/accused denied the charges. In order to bring home the guilt of the accused, the prosecution adduced the evidence of 24 witnesses as PW-1 to PW-24 and marked documents at Exhibits-P1 to P14 and the material object viz., a chappal as MO.1.
7. On considering the above evidence, by the impugned judgment, the trial court found the appellant/accused guilty of both the above offences and accordingly, convicted and sentenced him as above.
8. Feeling aggrieved by the impugned judgment of conviction, the appellant has preferred this appeal.
9. We have heard Sri. Dilraj J. Rohit Sequeira, the learned counsel appearing for the appellant/accused and Smt.B.G. Namitha Mahesh, learned High Court Government 6 Pleader appearing for the respondent - State and have examined the records.
10. The learned counsel for the appellant contends that the prosecution has utterly failed to prove its case. The solitary circumstance relied on by the prosecution is the recovery of the gold ornaments. The said recovery is not proved. The material objects are not produced before the Court. The same are not identified by any one of the relatives of the deceased. As a result, no material whatsoever was available to connect the accused to the alleged offences. The extra judicial confession attributed to the accused is also not proved. The circumstances brought out in the evidence of PW.10 suggest that such a confession would not have been made by the accused to PW-10. Barring the above evidence, no other material is available on record to establish the guilt of the accused. Thus he seeks to allow the appeal by acquitting the appellant of the above charges.
11. Learned HCGP has argued in support of the impugned conviction contending that the prosecution has proved its case 7 beyond reasonable doubt. The circumstance of recovery of the gold ornaments is proved by the evidence of PW-13. These ornaments are duly identified by the father and mother of the deceased. These recoveries directly connect the accused to the alleged offence and establishes that the deceased was murdered for gain. Further, the extra judicial confession made by the accused to PW-10 clearly make out the ingredients of the offence of murder. Therefore, there is no reason to interfere with the impugned judgment.
12. We have bestowed our careful thought to the submissions made at the Bar and have carefully examined the records. After hearing the learned counsels appearing for the parties and on examining the material on record, we find serious flaws in the case of the prosecution. The prosecution has rested its case entirely on two circumstances. The first circumstance relied on by the prosecution is the recovery of gold ornaments said to be belonging to the deceased. In this regard, the case of the prosecution is that the accused committed the murder of the deceased with an intention to rob the gold ornaments worn by 8 the deceased. Undisputedly, the deceased was aged about twelve years as on the date of the incident. His father was a shepherd. His mother was a coolie by profession. It is difficult to believe that a young boy would move about wearing large items of jewellery like a pair of white stone studded hangings, a fish designed finger ring, a gold finger ring with inscription of instrument Veena and a stone studded gold earrings as projected by the prosecution.
13. A perusal of the complaint lodged by the father of the deceased creates a serious doubt as to whether infact the deceased was wearing such ornaments on his person at the time of the alleged incident. In the complaint Ex-P1, the father of the deceased has stated that when he returned home, he found the door of the bureau open and two finger rings, one pair of hangings, one pair thali and three grams of matti and cash of Rs.500/- were found missing from the bureau. Further, he has stated therein that his son was also not to be found and when they searched for him, they found the dead body near the land of Bommegowda. In his complaint, he has nowhere stated that 9 the deceased was wearing gold ornaments or that the gold ornaments on his person were found missing. This omission, in our considered opinion, leads to doubt the very substratum of the case of the prosecution that the deceased was murdered for gain. If such large items of gold were missing from the person of the deceased, it ought to have been mentioned in Ex.P1. Instead in his complaint, PW1 has asserted that the gold ornaments kept in the house were missing and in his evidence before the Court, PW-1 has stated about 15 days after the incident when police searched the house, they found cash of Rs.200/-, two finger rings and one neck chain underneath the fold of a saree. This evident is inconsistent to the contents of complaint Ex-P1.
14. Be that as it may, even with regard to recovery of these ornaments, we find that the evidence adduced by the prosecution in proof of this circumstance is far from satisfactory. In this regard, the prosecution has relied on the evidence of PW- 13 and PW-8. PW-13 was the owner of Mathaji Bankers, Bannerghatta Road, According to this witness, the sister of the 10 accused by name Girija had pledged two finger rings with him and on 06.04.2010, the police had brought the accused to his shop and at the instance of the accused, he returned the said finger rings to the police and the same were seized under mahazar Ex-P8. This witness has stated that the two finger rings which were seized under Ex-P8 are shown in the photographs Ex-P4. If this evidence is believed, it would go to show that the said finger rings were pledged by one Girija and not by the accused. Therefore, the accused leading the police party to the shop of PW-13 and he returning those rings at the instance of the accused does not arise at all. The manner in which PW-13 has deposed before the court gives a clear indication that PW-13 is a propped up witness and that he has given his evidence only to suit the case of the prosecution. It is not the case of PW-13 that the accused had any time come to his shop and had pledged the said finger rings. If accused had not come to his shop at any time, there was absolutely no occasion for him to see the accused. Therefore, the very evidence produced by the prosecution through PW-13 goes to show that the investigating 11 agency has fabricated false evidence to support the above circumstance.
15. Another serious lapse which dents the case of the prosecution is that PW-13 has not identified the gold ornaments said to have been pledged with him. He has merely stated in his evidence that two finger rings which were pledged by the sister of the accused are seen in Ex-P4. The sister of the accused is examined as PW-18. But she has turned hostile to the prosecution case. The prosecution has not bothered to prove her statements through the Investigating Officer. The statement of this witness is not marked, thereby the recovery said to have been effected through PW-13 is rendered inadmissible in evidence, and therefore, no reliance could be placed on the said recovery evidence relied on by the prosecution.
16. According to the prosecution, two other items of gold were also stolen from the person of the deceased and those articles were recovered from PW-17, another sister of the accused. This witness has also turned hostile to the prosecution case and no attempt has been made to prove her statement 12 through Investigating Officer to show that she was a false witness. Though the panch witness PW-8 has stated that the panchanama Ex-P6 was prepared in his presence, he has nowhere stated that the articles seized under the said mahazar Ex-P6 was at the instance of the accused. He has not even remotely stated about the presence of the accused at the time of said seizure. In their evidence, neither the Investigating Officer, nor the panch witnesses or PW-17 have reproduced the substances of the statement alleged to have been made before them by the accused in respect of the jewels. As a result, even the testimony of the Investigating Officer cannot be relied on in proof of the alleged recovery. Therefore, even this evidence does not avail to the benefit of the prosecution to prove the alleged recovery.
17. None of the prosecution witnesses have identified the seized properties. The property itself is not produced before the Court. Except marking a chappal M.O.1, the gold jewellery said to have been robbed from the person of the deceased and which is said to have been recovered at the instance of the 13 accused is not produced before the Court. This is fatal to the case of the prosecution. Even though the learned HCGP has taken up a plea that the property was released to the custody of PW-3-the mother of the deceased, even PW-3 has not identified those properties before the Court. Her evidence in this regard is too bald and general in nature. The translation of her evidence reads as under:-
"Two finger rings, one double row Ole, Hangings were missing. Police had called her. At that time, I came to know that the accused has murdered my son. Ornaments are seen in Ex-P4-photo. The accused is before the Court."
18. Learned HCGP has placed reliance on the decision of the Hon'ble Supreme Court in the case of SUNDERBHAI AMBALAL DESAI vs. STATE OF GUJARAT reported in (2002) 10 SCC 283 with reference to para 11 and 12 to buttress the point that in view of marking of the photograph Ex.P4, the non- production of properties does not vitiate the identification.
19. We have gone through the said decision. In the said decision, the Hon'ble Supreme Court has laid down the 14 guidelines in the matter of release of articles seized during the course of the investigation. The Hon'ble Supreme Court has laid down the procedure to be followed while releasing the properties to the persons from whose possession, the said properties were seized during investigation. The said decision does not dispense with the production of the released articles at the time of trial. On the other hand, in para 12 of the judgment, the Hon'ble Supreme Court has delineated the procedure and has specifically observed that while releasing the articles, a bond should be taken from the complainant that said articles would be produced if required at the time of trial. Further, section 457 of Cr.P.C. requires the Magistrate to prepare a detailed panchanama and also to get the photographs attested or countersigned by the complainant, accused as well as the person to whom the accused has handed over. These directions are blissfully ignored by the trial court. The photograph at Ex.P4 is neither attested nor was it prepared at the time of release of the articles to the complainant. This document, on the face of it, indicates that the said photograph was a part of the charge-sheet. Therefore, the argument of the learned HCGP that the photograph at Ex.P4 15 could replace the production of the original articles before the Court cannot be accepted. That apart, PW.3 has not given her evidence with reference to Ex.P4. She has nowhere stated in her deposition that the articles depicted in Ex.P4 were either worn by the deceased at the time of the incident or that the said articles were returned to her by the court. Such factual aspects cannot be inferred or assumed by the court. In the absence of identification of the seized jewels, the same cannot be correlated to the deceased. Therefore, the non-production of the alleged robbed jewels and the failure of the prosecution to get the said articles identified through the prosecution witnesses so as to connect them to the accused renders the case of the prosecution highly vulnerable.
20. The other decision relied on by the learned HCGP in the case of K.W. GANAPATHY vs. STATE OF KARNATAKA reported in 2002 Crl.L.J. 3867, also does not enure to the benefit of the prosecution to bring home the guilt of the accused. In the said case, it is observed that, "the production of property which has evidentiary value during evidence is a part of a fair trial. 16 With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law." The said decision also was rendered under section 457 of Cr.P.C. It has been held therein that when there is a possibility of having a secondary evidence of said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non-alienation. The ratio of the said decision is not applicable to the facts of the instant case. As already discussed above, Ex.P4 cannot be considered as a secondary evidence. No mahazar is produced by the prosecution in proof of return of the valuable to the complainant. As a result, the prosecution has failed to produce either the primary evidence or the secondary evidence in proof of the alleged recovery of the gold ornaments so as to connect the said evidence to the accused.
21. In the instant case, we do not dispute the fact that the photograph could be marked in evidence, when it is established that the seized properties are returned to the witnesses. But 17 what we see from the evidence of PW-3 is that, though she has stated that Ex-P4 depicts the photo of the ornaments, she has nowhere stated in her evidence that the said ornaments were worn by the deceased at the time of the incident. There is no clear evidence as to whether the ornaments were found stolen from the house of PW-3 or from the person of the deceased. The charge against the accused is that he robbed the gold ornaments from the person of the deceased. But as already discussed above, the prosecution has utterly failed to prove that the deceased was found wearing any of those ornaments at the time of his death. At the earliest instance, while lodging the complaint, PW-1-father of the deceased has nowhere stated that the deceased was wearing the ornaments when he was found dead. On the other hand, the evidence of PW-3 is to the effect that the gold ornaments kept in the house were missing. The mother of the deceased-PW-3 has also not stated that on the date of the incident, the deceased was wearing said gold ornaments. That apart, the prosecution has also failed to prove that the said gold ornaments are recovered at the instance of the accused. As we have already stated above, PW-13 the 18 jeweller was incompetent to state that the said ornaments were handed over to him at the instance of the accused. Therefore, viewed from any angle, we find that this evidence produced by the prosecution in support of the alleged recovery is not sufficient to connect the accused. In view of the discrepancies noted above, in our view, the benefit of doubt is required to be extended to the accused. Moreover, the gold ornaments which are said to have been robbed are not produced before the Court and none of the witnesses have stated that the said ornaments belonged to the deceased and therefore, the charge framed against the accused that the alleged murder had taken place for gain and the accused had committed the robbery of the gold ornaments found on the person of the deceased has not been proved, as a result, the conviction of the accused for the offence punishable under section 398 of Indian Penal Code cannot be sustained.
22. Insofar as the charge of murder is concerned, there is absolutely no material to prove the ingredients of this offence. There are no eyewitnesses to the incident. The only 19 circumstance relied on by the prosecution in support of this charge is the evidence of PW-10, who is a photographer by profession. He was aged 65 years as on the date of recording his evidence. According to him, about five years earlier to his examination, he had met the accused at Majestic and at that time, the accused confessed before him that he had murdered the deceased. Though the trial court has relied on this piece of evidence as extra judicial confession, in our view, the evidence of PW-10 does not satisfy the requirement of extra judicial confession so as to render the accused guilty for the murder of the deceased.
23. In this context, it may be useful to refer to the principles enunciated by the Hon'ble Supreme Court in the matter of appreciating the evidence regarding confession. In the case of SAHADEVAN & ANOTHER vs. STATE OF TAMIL NADU reported in (2012) 6 SCC 403 at para -16, the Hon'ble Supreme Court has stated thus:-
"16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate 20 to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.21
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be
proved like any other fact and in
accordance with law."
24. A reading of the evidence of PW-10 indicates that the accused was not acquainted with PW-10. Even if his evidence is believed, it would go to show that he met the accused by coincidence. There is nothing in the evidence to indicate that there was any transaction between PW-10 and the accused.
Naturally, he was not in a position to help the accused and therefore it cannot be believed that the accused would approach PW-10 and confess the alleged incident with him. The statement of PW-10 does not inspire confidence to hold that the accused had made such confession to PW-10. Even otherwise, when the case of the prosecution is based on circumstantial evidence, it is not safe to convict the accused based on a 22 single circumstance. Barring the above evidence, no other material is available to connect the accused to the murder of the deceased. Thus on overall consideration of the facts and circumstances of the case, we are of clear view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The evidence produced by the appellant/accused, at the most, may give rise to a suspicion; but the suspicion cannot take the place of proof so as to hold the accused guilty of the offences charged against him.
25. The trial court has misread the evidence of the prosecution witnesses. The findings recorded by the trial court are not based on legal evidence. On reconsideration of the entire evidence on record, we are of considered opinion that the evidence adduced by the prosecution is not sufficient to convict the accused for the offence of murder and robbery punishable under sections 302 and 398 of Indian Penal Code. Therefore, by extending the benefit of doubt, we find it proper to acquit the accused of all the above charges.
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26. Hence, the following order:-
Criminal Appeal No.6 of 2017 is allowed. The impugned judgment of conviction and the order of sentence dated 12.01.2016 in S.C.No.90 of 2010 on the file of II Additional District and Sessions Judge, Ramanagara to sit at Kanakapura, for the offences punishable under sections 302 and 398 of Indian Penal Code is set-aside.
The appellant-accused, namely, Sri. Durgasetty @ Durgi, S/o Shivarangasetty is acquitted of the charges levelled against him under Sections 302 and 398 of Indian Penal Code. He shall be set at liberty, if not required in any other case/s.
Registry to communicate the operative portion of this order to the concerned jail authorities, forthwith.
Sd/- Sd/-
JUDGE JUDGE
*mn/-