Karnataka High Court
State Of Karnataka vs Rajini @ Yuvaraja S/O V.B.Malleshgowda on 13 June, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE H.BILLAPPA
CRL.R.C.No.4/2009 c/w
Crl.A.No.308/2009
CRL.R.C.No.4/2009:
BETWEEN:
State of Karnataka,
Rep. by Advocate General. ...Petitioner
(By Sri.P.M.Nawaz, Addl.SPP)
AND:
1. Rajini @ Yuvaraja,
S/o.V.B.Malleshgowda,
Aged about 26 years,
Occ: Agriculture,
R/o.Valagerahalli,
Kundur Hobli,
Alur Taluk,
Hassan District.
2. Kumara @ Bakara,
S/o.Bettegowda,
2
Aged about 25 years,
Occ: Agriculture,
R/o.Kowshika Village,
Shantigrama Hobli,
Hassan Taluk & Dist. ...Respondents
(By Sri.R.B.Deshpande, Adv.,)
*******
This Criminal Reference case is registered as required
under Section 366 Cr.P.C. for confirmation of death sentence
awarded to the accused No.1 Rajini @ Yuvaraju,
S/o.V.B.Malleshgowda, and accused No.3 Kumara @ Bakara,
S/o.Bettegowda, by the Presiding Officer, Fast Track-II,
Hassan, by the judgment of conviction dtd.31.03.2009 in
S.C.No.6/2004.
Crl.A.No.308/2009
BETWEEN:
1. Rajini @ Yuvaraja,
S/o.V.B.Malleshgowda,
Aged about 26 years,
Occ: Agriculture,
R/o.Valagerahalli,
Kundur Hobli,
Alur Taluk,
Hassan District.
2. Kumara @ Bakara,
S/o.Bettegowda,
Aged about 25 years,
Occ: Agriculture,
R/o.Kowshika Village,
Shantigrama Hobli,
Hassan Taluk & District. ...Appellants
3
(By Sri.R.B.Deshpande, Adv.,)
AND:
The State of Karnataka,
By Alur Police. ...Respondent
(By Sri.P.M.Nawaz, Addl.SPP)
*****
This Crl.A. is filed under Section 374(2) Cr.P.C. by the
advocate for the appellant/s against the judgment dated 23rd
Day of March 2009 passed by the P.O. & Addl. Sessions
Jugde, Fast Track Court -II, Hassan, (Concurrent Charge) in
S.C.No.6/2004 & 61/2006 convicting the accused for the
offence P/U/S 302, 392 read with Section 34 of IPC etc.,
Crl. R.C and criminal appeal coming on for Hearing this
day, H.BILLAPPA J., delivered the following:
JUDGMENT
Crl.R.C.No.4/2009 and Crl. Appeal No.308/2009 arise out of the judgment and order dated 23.3.2009 passed by the Fast Track Court-II, Hassan and Addl. Session Judge, Hassan, in S.C.No.6/04 and S.C.No.61/06.
2. By the impugned judgment and order, the Trial Court has convicted the appellants-accused Nos.1 and 3 for the offences punishable under sections 392, 302 r/w 34 of 4 IPC. The appellants have been sentenced to undergo R.I. for a period of 10 years and to pay a fine of `.5,000/- each and in default of payment of fine, to undergo R.I. for a period of six months for the offence punishable under section 392 of IPC. For the offence punishable under section 302 r/w 34 of IPC the appellants-accused Nos.1 and 3 have been sentenced to death.
3. The Trial Court has referred the matter for confirmation of sentence in Crl.R.C.No.4/09. The appellants- accused Nos.1 and 3 have preferred Crl.A.No.308/09.
4. Briefly stated, the case of the prosecution is; That the complainant (PW.1) is the father of accused No.1 Rajini @ Yuvaraj. CW-3 M.N.Manjanna was the owner of mango and coffee garden at Valagarahalli village. Deceased Mallappa was the father-in-law of Manjanna. He was looking after the garden. He was residing with his wife Mallamma in the garden house. There was a servant by name Guruvaiah. He was also staying with Mallappa and Mallamma. The 5 deceased Mallappa and Mallamma are the parents of PW-3 Sheela who is the wife of M.N.Manjanna. Deceased Nagamma is the wife of Rajegowda and sister of Mallappa. Deceased Nagarathna is the sister-in-law of Mallappa and mother of H.R.Hemanthkumar @ Pradeep. The complainant Malleshgowda (PW.1) used to visit the garden house of Mallappa. He was working there. The accused No.1 Rajini @ Yuvaraja used to visit the house of Mallappa for making phone calls. During the night of 27.6.2003, Mallappa, his wife Mallamma, sister-in-law Nagarathna, sister Nagamma and servant Guruvaiah were in the garden house. The complainant left the house saying that he would come next day morning. Accordingly, on 28.06.2003 at about 7.00 a.m., when the complainant went to the house of Mallappa, he saw that the door was latched from outside. He did not get any response. Therefore, he opened the door and went inside the house. He found the dead bodies of Mallappagowda, Mallamma, Nagamma and another woman lying in the pool of blood. Guruvaiah was also murdered. 6 When the complainant shouted, people came there. Thereafter, the complaint has been lodged by PW.1 as per Ex.P1.
5. Based on Ex.P1, a case in Cr.No.123/03 of Alur police station has been registered for the offence punishable under section 302 of IPC.
6. In the course of investigation, witnesses statements have been recorded, inquest and post mortem have been conducted, gold rings, blood stained clothes and choppers have been recovered at the instance A1 and A3.
7. After investigation charge sheet has been filed against the accused Nos.1 to 3 for the offences punishable under sections 392, 302 r/w 34 of IPC.
8. A2 Satisha has been absconding. A1 and A3 have been tried.
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9. At the trial, the prosecution has examined in all 27 witnesses, exhibits P1 to P44 and MOs.1 to 39 have been marked.
10. The Trial Court on appreciation of the evidence on record has found the appellants-accused Nos.1 and 3 guilty of the offence punishable under sections 392 and 302 r/w 34 of the IPC. The appellants have been sentenced to undergo R.I for a period of ten years and to pay a fine of `.5,000/- each and in default of payment of fine, to undergo R.I. for a period six months for the offence punishable u/s 392 of IPC. For the offence punishable under section 302 of IPC, the appellants have been sentenced to death penalty.
11. Aggrieved by that, the appellants-accused Nos.1 and 3 have preferred Crl. Appeal No.308/09. The Trial Court has referred the matter for confirmation of death sentence.
12. The learned counsel for the appellants contended that the impugned judgment and order cannot be sustained 8 in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the case of the prosecution is based on circumstantial evidence mainly motive, recovery of gold rings M.Os.6 and 7 and blood stained clothes M.Os.12 and 13 and choppers MOs.11 and 14. The prosecution has not proved motive. Insofar as the recovery is concerned, it is doubtful. The gold rings have been planted for the purpose of this case. Accused No.3 has been arrested on 10.10.05. PW- 12 in his cross examination has stated that the police had brought A1 and A3 on 14.8.2003 at the time of recovery which falsifies the recovery. He also submitted that though it is alleged several ornaments were missing, only two gold rings have been recovered. Further he submitted that insofar as M.O.7 is concerned, it is pledged by PW-17 and not A3. Therefore, recovery of M.O.7 is no consequence. Further he submitted that though choppers M.Os.11 and 14 have been recovered, there is nothing incriminating in it. Insofar as recovery of M.Os 12 and 13 is concerned, it does not connect 9 the accused with the alleged crime. He therefore submitted that the impugned judgment and order cannot be sustained in law.
13. As against this, the learned SPP submitted that the impugned judgment and order does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly convicted the appellants-accused Nos.1 and 3 and therefore, the impugned judgment and order does not call for interference. Further he submitted that the prosecution relies upon the circumstances like motive, recovery of gold rings, recovery of blood stained clothes and recovery of choppers. The prosecution has proved the recovery of gold rings, blood stained clothes and choppers. PWs 3 and 4 have identified the gold rings. The gold rings have been recovered at the instance of accused Nos.1 and 3. The blood group of M.Os.12 and 13 tallies with the blood group of deceased persons clothing. It connects the accused with the alleged crime. He 10 therefore submitted that the material on record clearly establishes the guilt of the accused and therefore, the impugned judgment and order does not call for interference. Further he submitted that the accused have brutally killed five innocent persons and therefore, the death penalty may be confirmed.
14. We have carefully considered the submissions made by the learned counsel for the parties.
15. The point that arises for our consideration is, Whether the Trial Court was justified in convicting the appellants-accused Nos.1 and 3 for the offences punishable under sections 392 and 302 read with section 34 of IPC?
16. The death was homicidal is not in serious dispute. The evidence of PWs.13, 14 and 15 Dr.Mahesh, Dr.G.S.Nagappa and Dr.Nethrarani, the inquest reports exhibits P.34, P.35, P.36, P.37 and P.38 and post-mortem 11 reports exhibits P.19, P.20, P.21, P.22 and P.23 clearly show that the deceased persons had sustained injuries on their head, neck and other parts of the body and the death was due to shock and haemorrhage as a result of head and neck injuries sustained by the deceased persons. Therefore, it is clear, the death was homicidal.
17. The case is based on circumstantial evidence. The prosecution relies upon the following circumstances;
1. Motive
2. Recovery of two gold rings, Choppers and blood stained clothes at the instance of A1 and A3.
18. Insofar as motive is concerned, it is alleged that prior to the alleged incident, the deceased Mallamma had abused A1, his mother and sisters. Because of that, to kill the deceased Mallamma and to rob the ornaments A1 and others have committed this ghastly murder. None of the witnesses have deposed regarding the prior incident between 12 deceased Mallamma and A1, his mother and sisters. The inquest report Ex.P.35 shows that the ornaments were found on the dead body of deceased Mallamma. There is no evidence on record to prove the alleged motive.
19. Insofar as recovery of M.Os.6 and 7 are concerned, PW.12 has deposed that on 28.6.2003, at about 3.30 or 4.00 p.m., three persons came and sold the gold ring for `.2,300/- On 14.8.2003 at about 12.30 p.m., the accused and the I.O. came to his shop and asked for the gold ring. He gave M.O.6 gold ring. PWs.3 and 4 have identified M.O.6. They have stated that M.O.6 belongs to deceased Nagarathna. In his cross-examination, PW.12 has stated that he cannot name the three persons who had sold the gold ring to him and he cannot identify them. He has also stated that prior to seizure of M.O.6 police had taken him to the police station. The police came to his shop along with A1 and A3. A3 has been arrested on 10.10.2005. He was not in the police custody as on 14.08.2003. Therefore, it is difficult to believe how police 13 can take A1 and A3 to the shop of PW.12. This creates doubt about recovery of M.O.6. It is not acceptable.
20. In so far as M.O.7 is concerned, PW.18 has deposed that during July 2003 PW.17 Lokesha and his friend had come to his shop and pledged one gold ring i.e., M.O.7. The pawn receipt was issued in the name of PW.17 Lokesha. In his cross-examination, PW.18 has stated that Lokesha was known to him since 2-3 years and he used to pledge articles and borrow money. At the time of pledging the gold ring PW.17 did not introduce the person who had gone with him. PW.17 Lokesha has stated that during July 2003, A-3 gave one gold ring to him and asked him to pledge it and get money. He pledged the gold ring in his name and obtained receipt Ex.P.8. In his cross-examination, PW.17 has stated that he used to pledge articles in the shop of PW.18 and borrow money from him. The receipt Ex.P.8 is in the name of PW.17. PW.3 has identified M.O.7. She has stated M.O.7 belongs to one Nagamma. The evidence of PWs.17 and 18 14 and exhibit P8 show that M.O.7 was pledged by PW.17. He used to pledge articles and borrow money from PW.18. M.O.7 is pledged during July 2003 and recovered on 10.10.2005. The recovery of M.O.7 is doubtful and cannot be of any consequence.
21. In so far as recovery of choppers M.Os.11 and 14 are concerned, M.O.11 has been recovered at the instance of A.1 through Ex.P.15 Mahazar. M.O.14 has been recovered at the instance of A.3 through Ex.P.7. M.O.14 has been recovered after the lapse of more than two years. Ex.P.33 is the Serology report. It shows that blood group of item No.3 i.e., M.O.11 cannot be determined as the result of the test was inconclusive. There is nothing incriminating in M.Os.11 and M.O.14. It cannot connect the accused with the alleged crime.
22. The next circumstance is recovery of M.Os.12 and 13 i.e., shirt and pant from A1. M.Os.12 and 13 have been recovered at the instance of A1 through Ex.P.14. Ex.P.30 is 15 the FSL report. It relates to the articles belonging to the deceased persons. Ex.P.31 is another FSL report. It relates to M.Os.11, 12 and 13. Ex.P.32 is the Serology report relating to the articles belonging to the deceased persons. Ex.P.33 is the Serology report relating to M.Os.11, 12 and 13. Ex.P.30 shows that the articles belonging to the deceased persons were stained with blood. Ex.P.31 shows that M.Os. 12 and 13 were stained with human blood. Ex.P.32 shows that items Nos.1 to 16 were stained with human blood and item Nos.2, 4, 6, 7, 9 and 10 are stained with 'A' group blood and item Nos.15 and 16 were stained with 'B' group blood. In so far as items Nos.1, 3, 5, 11, 13 and 14 are concerned, the result was inconclusive. Ex.P.33 shows that M.Os.12 and 13 were stained with 'A' group blood. In so far M.O.11 is concerned, it is not determined. It is clear the blood group of deceased persons clothing was 'A' or 'B' group. The blood group of M.Os. 12 and 13 was 'A' group. This may create some doubt. But that is not sufficient to connect the accused with the alleged crime.
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23. From the evidence on record, it is clear, the prosecution has failed to prove its case beyond reasonable doubt. The motive is not proved. The inquest reports indicate that many ornaments were missing. Only two gold rings M.Os. 6 and 7 have recovered. It is doubtful. There is noting incriminating in M.Os. 11 and 14. The blood group of deceased persons clothing was 'A' or 'B' group. The blood group of M.O.12 and 13 was 'A' group. That is not sufficient to connect the accused with the alleged crime. Suspicion however grave cannot take the place of proof. The accused are entitled for benefit of doubt.
24. Therefore, in our considered view, the Trial Court was not justified in convicting the appellants-accused Nos.1 and 3 for the offences punishable under sections 392, 302 read with section 34 of IPC. The impugned judgment and order cannot be sustained in law.
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25. Accordingly, the appeal is allowed and the impugned judgment and order passed by the Fast Track Court-II and Additional Sessions Judge, Hassan, in S.C.No.6/2004 and S.C.No.61/2006 is hereby set-aside. The appellants -accused 1 and 3 are hereby acquitted of the offences punishable under sections 392, 302 read with section 34 of IPC. The appellants-accused 1 and 3 shall be released forthwith, if they are not required in any other case.
Communicate the operative portion of the order to the Jail authorities and also to the Trial Court for compliance.
As the judgment of the Trial Court is set-aside, criminal reference No.4/2009 is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE Dvr/Bss.