Karnataka High Court
State Of Karnataka By Police Inspector vs K Suresh Gowda on 10 August, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF AUGUST, 2012
PRESENT
THE HON'BLE MR.JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE B V PINTO
CRIMINAL APPEAL No.1505/2007
BETWEEN
STATE OF KARNATAKA
BY POLICE INSPECTOR
PUTTUR, RURAL CIRCLE ... APPELLANT
(BY SRI.P.M.NAWAZ, ADDL.SPP.)
AND
K SURESH GOWDA
S/O HONNAPPA GOWDA
AGED 22 YEARS
R/AT KUKKUTHADI HOUSE
BALNADU VILLAGE
PUTTUR
TALUK, D.K ... RESPONDENT
(BY SRI. S VISHWAJITH SHETTY, ADV.,)
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C BY THE
STATE P.P. FOR THE STATE PRAYING TO GRANT LEAVE TO FILE AN
APPEAL AGAINST THE JUDGMENT DT.25.06.2007 IN
S.C.NO.108/2003 ON THE FILE OF THE III ADDL. DIST., &
SESSIONS JUDGE, D.K. MANGALORE - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S. 302 OF IPC.
THE APPELLANT/STATE PRAYS THAT ABOVE ORDER MAY BE SET
ASIDE.
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THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
THIS DAY, B.V.PINTO.J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the State challenging the Judgment dated 25.6.2007 passed by the III Addl. District & Sessions Judge, D.K., Mangalore in S.C.No.108/2003, acquitting the respondent/accused of an offence under Section 302 IPC. The parties have been referred according to their rank before the trial Court.
2. It is the case of the prosecution that on 14.8.2003, at about 1.30 p.m. at Arthipadavu in Balnadu Village of Puttur Taluk on the public road leading from Balnadu padavu- Vittala Mundoor, while proceeding as a pillion rider on motor cycle bearing No.KA-19K-536 driven by the deceased Surendra, the accused stabbed the deceased by means of Koli Balu (a small knife used during cock fighting in D.K. District) and inflicted multiple stab injuries on different parts of the body of deceased Surendra and caused his 3 instant death, thereby the accused is alleged to have committed an offence under Section 302 IPC.
3. In order to prove the case, the prosecution has examined in all 28 witnesses and got marked documents Exs.P1 to P77 and produced Mos.1 to 13. The defence of the accused was one of total denial. After hearing the prosecution and the witnesses, the learned Sessions Judge was pleased to hold that the prosecution has not been successful in proving the guilt of the accused beyond reasonable doubt and hence recorded an order of acquittal. The State has challenged this order of acquittal in this appeal.
4. The prosecution in this case commenced with lodging of a complaint by one Sri C.H.Mahalinga, who is the father of the deceased Surendra on 14.8.2003 before the Puttur Rural Police Station, Puttur Taluk, D.K.District. In his complaint, it is stated by the Complainant, who is aged about 75 years that he is a retired Forestor in the Forest Department and that he had four sons, out of whom, his 4 second son Surendra is residing with him and is carrying on private finance business in Darbe, Puttur and he is involved in purchase and sale of autorickshaws. His other sons are working elsewhere. His son Surendra usually leaves the house at 9.30 a.m. and comes for lunch at 1.30 p.m. and he used to go back at 2.30 or 3 p.m. again and by about 8.30 p.m., he would return from the work. As usual, on 14.8.2003 also he had left the house at 8.30 a.m. on his motor cycle, but he did not come for lunch in the afternoon. He telephoned to his office at about 4.30 p.m. but there was no response from the office even after trying again and again. Since nobody lifted the phone in his son's office, he went to Darbe, where the office was situated and his son was not found. When he enquired the attender near the STD booth, she was informed that at about 12 noon, his son had gone along with another person towards Puttur town. One Chandrashekar-PW.2 also informed that his son had gone out at about 11.30 a.m. in a motor cycle by making another person to sit as a pillion rider and both of them have proceeded towards Puttur Town. In the meantime, he heard 5 some passersby talking that at Balnadu, a dead body was found and hence he telephoned to one Balachandra, a relative and asked him to come to the office of his son. After Balachandra arrived, both of them went towards Puttur Town and they reached Balnadu and found that his son had fallen into drainage. The said place was on the Vittala Mundoor public road and his son had fallen on the right side of the road in the guttar. His son had sustained injuries on the back of his head and also on his left cheek, right eyelid and other parts of the body and had already breathed his last. Immediately, they left the place and came to the Police Station and on the way they had informed to their relatives. It is stated by PW.1 that since his son had some finance business and also business of sale of vehicles, some person has done his son to death by means of a sharp edged weapon, assaulting him and stabbing him. Hence, he has requested for action according to law.
5. The Puttur Rural Police registered the compliant in Crime No.61/2003 for an offence under Section 302 IPC and 6 commenced investigation. PW.25-Mukund Nayak, was the Inspector of Police during the relevant period at the Puttur Rural Police Station. After the FIR was transmitted to the Magistrate in the night itself by the SHO of the Puttur Rural Police Station, he took over the investigation in the morning at about 6 a.m. from ASI, Ramanna and proceeded to the scene of occurrence. After lifting the dead body from the drain, he conducted the inquest proceedings and observed the injuries on various parts of the body. He observed that a sum of `9,570/- was found in the purse which was in the pocket of the deceased person. He also found one neck chain, one ring and one bracelet on the dead body, appearing to be of gold and also one Nokia mobile phone was found in the person of the dead body. He has also found one Seiko watch in the left hand of the deceased. He has observed 22 injuries on the dead body. Thereafter PW.25 commenced investigation and recorded the statement of various witnesses. He has also deputed his staff for searching for the culprits and also inspected the shop of the deceased. On 18.8.2003, the accused was apprehended and 7 thereafter he has questioned the accused, the accused volunteered to disclose the place where the chappals of the deceased worn by him after the incident have been kept in his house. He has also disclosed the existence of the weapon of offence and also stated that if he were to be taken he would show both the weapon of offence and also the clothes worn by him, so also the chappals of the deceased worn by him while coming back from the scene of occurrence. He has also shown the place where he has kept the motor cycle after coming back from the scene of occurrence. PW.25 recovered all these articles during investigation and conducted respective mahazars in the presence of various witnesses. He has subjected the dead body for post mortem examination by PW.26-Dr.Kishore Kumar. He has also got the accused examined by PW.20-Dr.Bghavani Shankar, who has opined that there were old injuries on the person of the accused, which were 3 to 4 days old. He has sent the materials and the clothes of the deceased as well as articles recovered from the accused to the Forensic Science Laboratory and obtained the Chemical Examiner's report as well as the Serologist's 8 Report and found that the deceased had 'B' group blood. PW.20 has also given a certificate to the effect that the accused was having 'A' group blood. Therefore, after completion of investigation, PW.25 filed a charge sheet against the accused. After the presence of the accused was secured before the Sessions Court, the trial was conducted and the accused was found not guilty as mentioned above. The state is in appeal against the said finding.
6. Heard Sri P.M.Nawaz, learned Addl.SPP appearing for the Appellant/State and Sri Vishwajith Shetty, learned Counsel appearing for the Respondent/accused.
7. Learned Addl. SPP submitted that in this case the prosecution has established the following circumstances to prove the guilt of the accused, though there are no eyewitnesses to the incident:-
(i) Motive;
(ii) Evidence of last seen together;
(iii) Injuries sustained by the accused; and
(iv) Recovery of the incriminating articles at the instance of the accused.
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8. Learned Addl. SPP submits that the accused had purchased an autorickshaw for which the deceased was a guarantor for the loan taken by the accused. On 14.8.2003 itself, the said autorickshaw was seized by the finance- Company for non payment of installments and therefore the accused was entertaining a suspicion that it was the deceased who got the vehicle seized by the finance-company. It is the motive for commission of crime by the accused. So far as the last seen theory is concerned, the prosecution has examined PW.2 who has stated that on the date of incident he has seen the accused and the deceased going together in the motor cycle driven by the deceased and this PW.2 has been subjected to Test Identification Parade [T.I.P.] conducted by PW.13-D.C.Mariyappa Gowda - the Tahsildar. In the T.I.P. PW.2 has clearly identified the accused as the person, who has gone along with the deceased on 14.8.2003 from the shop of the deceased. Learned Counsel further submits that the prosecution has further placed on record, the recoveries, more particularly, the chappals worn by the 10 deceased at the time of the incident, which were worn by the accused after the incident and were kept in the house of the accused, the same having been recovered by PW.25 for which PW.15-Dhananjay Rai, is a witness. It is also submitted by him that the Pant, Shirt and the Koli Balu- MO.11 used as a weapon of offence has also been seized at the instance of the accused from his house, which is also supported by the evidence of PW.25 and PW.15. He has submitted that all these articles were subjected to FSL examination and were found to contain blood of 'A' group origin, which is that of the deceased. It is further submitted by him that when the accused was apprehended he was found to be having injuries on his person and therefore he was subjected to the medical examination by PW.26- Dr.Kishore Kumar, who has stated that the accused was having 3 to 4 days old injury. PW.20-Dr.Bhavani Shankar has stated that the blood group of accused is 'A' positive. It is therefore submitted by the learned Addl. SPP that the motor cycle which was used for going to the scene of occurrence by the accused along with the deceased was 11 brought back and kept in the Puttur Town near the Mayura Theatre, which was recovered by the police at the instance of the accused himself. It is therefore submitted by the learned Addl. SPP that all the circumstances which has been proved by the prosecution lead to the irresistible inference that it is the accused and accused alone who is the cause of death of the deceased and therefore the accused is liable to be convicted. It is further submitted by him that the learned Sessions Judge has erred in giving undue importance to the fact that Dr.Kishore Kumar-PW.26 has observed in the post mortem report that there were maggots in the dead body, when he conducted the post mortem examination between 9.30 a.m. and 11.30 a.m. on 15.8.2003 and therefore the learned Sessions Judge has erroneously held that the body of the deceased being decomposed, the death would have occurred much prior to the morning of 14.8.2003 and hence he has acquitted the accused. It is submitted by him that the said observation is neither correct nor borne out by any other record and that having regard to the fact that the dead body had fallen into the drain which was 5 feet deep, some 12 external insects would have touched the dead body and that could not have been a ground to discard the clear and cogent evidence of the prosecution witnesses. Hence, he submits that the appeal may be allowed and the order of acquittal may be set aside and the respondent/accused may be convicted.
9. Sri Vishwajith Shetty, learned Counsel appearing for the Respondent/accused on the other hand submits that though the case of the prosecution appears to be reasonable, there are several missing links in the story of prosecution and all the links proved by the prosecution put together will not lead the inference that the accused and accused alone is responsible for the death of the deceased. It is elicited in the evidence of PW.2, that he has seen the deceased along with the accused while they were starting to go in a motor cycle. The said evidence is sought to be corroborated by the evidence of Tahsildar-PW.13, who has conducted the T.I.P. It is submitted by the learned counsel that though the accused was arrested on 18.8.2003, the T.I.P. has been conducted on 13 7.10.2003 after a lapse of almost 45 days and from the records, it is seen that during the relevant period, the police have not taken care to see that the accused is not exposed to any other person, more particularly, when he was produced before the Court on various occasions. He submitted that in the order sheet of the learned Magistrate no where it is found that the face of the accused is covered with any clothes till the T.I.P. was conducted and therefore, the possibility of PWs.2 and 6 seeing the accused while he was being produced before the Court during the intervening period is not ruled out. It is therefore submitted by him that T.I.P. conducted by PW.13 cannot be pressed into service to establish the identity of the accused with the crime. It is further submitted by him that PW.25-Circle Inspector of Police while going to the scene of occurrence had observed that the maggots were present on the dead body and PW.26, who has conducted the post-mortem examination of the dead body has also confirmed that maggots were present on the dead body of the deceased. It is submitted by the learned Counsel that normally the maggots will appear on 14 the dead body only at the stage of decomposition and not earlier and the decomposition would not have started within 24 hours. He further submits that therefore the time of death as profounded by the prosecution namely., somewhere during the daytime on 14.8.2003 is not established by the medical evidence and that the death would have occurred much prior to the daytime on 14.8.2003. It is further submitted by him that the place of incident where the alleged occurrence has taken place according to the prosecution, is a public road and a busy road connecting two towns namely., Vittala and Puttur, and at the alleged time, that is during the afternoon there would be a busy traffic plying on the said road and the incident of this nature, where the deceased has sustained 13 injuries on the body would take some time and therefore the incident definitely attracted the attention of the passersby. Therefore, he submits that incident could not have taken place at the alleged time of incident and the prosecution has brought out a make-believe story of incident as having taken place during the daytime on 14.8.2003. It is further 15 submitted by him that the prosecution has also not brought out any evidence to show as to who had kept a watch on dead body after PW1 found it and that itself creates a doubt as to the manner in which the incident would have taken place. It is also submitted by him that having regard to the fact that MO.11-Koli Balu was only 4½ inches in length [10 cm]; injury Nos.1 and 2 mentioned in post-mortem examination, which is 18 cm and 15 cm respectively could not have caused by MO.11 and that Dr.Kishore Kumar- PW.26 does not categorically state as to which of the 13 injuries would be fatal, so as to cause instantaneous death of the deceased. If none of the injuries are individually fatal to the injured, the death could not have occurred instantaneously and in such a case injured would have suffered for quite a long time so that he could have attracted the passersby and therefore the entire story of prosecution case that the incident has occurred in the afternoon is not supported by any cogent evidence on record. He also submits that the prosecution case is contrary to the probabilities acceptable in law.
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10. So far as the recovery is concerned, it is submitted by him that a normal person would not have kept the worn chappals of another person in his house, particularly, when he was involved in a grave offence of this nature as suggested by the prosecution. Therefore, recovery of chappals is of no consequence.
11. So far as the injuries on his person is concerned, the accused has stated in his 313 Cr.P.C. statement that he was assaulted by the police and therefore he has explained the injuries on his person and therefore injuries cannot be connected with the crime. Under the circumstances, he submits that the order of acquittal passed by the learned Sessions Judge is proper and does not call for interference and hence he prays that the appeal may be dismissed.
12. We have gone through the evidence on record and also the Judgment of the trial court. Insofar as the first aspect, namely, motive is concerned, it is to be seen that the motive with reference to the accused person cannot be expressed by others and in this case we find that the autorickshaw was 17 seized on the same day on which the incident has happened. But, there is no material to show that as on the date of seizure of the autorickshaw the accused was aware of it in order to connect the motive that the accused was agitated and had exhibited his animosity regarding seizure of the autorickshaw for non payment of the installment. The prosecution has not clearly established the motive on behalf of the accused to commit the crime.
13. Insofar last seen theory is concerned, we find that on the date of the incident, PW.2 has seen the deceased driving the vehicle and some other person sitting as a pillion rider and such observation of PW.2 is only for fraction of a second. It is not the case of PW.2 that he had come near the place where the deceased had started his motor cycle or had verbal exchange with either the deceased or the person who was sitting as a pillion rider. Further, it is seen that the identity of the accused is established through the test identification parade conducted by PW.13 on 7.10.2003, that is almost more than forty five days after the incident. In 18 order to cross-check submissions made by learned counsel for the respondent that in the intervening period, the accused was produced before the court of Magistrate and that there are chances of PW.2 and other witnesses having seen the accused while being produced in the court, we have gone through the order sheet of the learned Magistrate also the remand applications, and we find that nowhere in the order sheet or in the remand applications it has been mentioned that the accused was produced by covering his face, from the date of his arrest till the test identification parade was conducted.
14. Further, in the evidence of witnesses it is found that the incident has attracted the attention of local media and hence chances of the photographs of the accused being published in the newspaper is not totally ruled out. In that view of the matter, evidence of PW.2 having seen the accused on the motor cycle and further having identified him in the test identification parade as the person who was seen by him on the date of offence cannot be accepted in its face value. 19
15. Insofar as recovery is concerned, though PW.15 - Dhananjay Rai has stated that he was present while recovering the koli balu - MO No.11 and also other articles, said MO No.11 is subjected to test by the Forensic Science Laboratory and was found to be having insufficient quantum of blood stains so as to enable the Forensic Science Laboratory officials to check the blood group found on the said weapon. Further, in view of the medical evidence indicating that injury Nos. 1 & 2 were of 25 centimeters and 15 centimeters in length and that the sharp edge of MO No.11 was only 10 centimeters in length, the possibility of injury Nos. 1 and 2 as found in the post mortem report being caused by MO No.11 is also not free from doubt. Under the circumstances recovery of MO No.11 at the instance of accused cannot be held to be one of the links in the case of the prosecution to establish the guilt of the accused.
16. The next circumstance that the learned Additional State Public Prosecutor has pointed out is the injuries found 20 on the accused as spoken to by PW.26 - Dr. Kishore Kumar. Learned counsel for the accused submits that in answer to question No.46 in the Statement under section 313 of Cr. PC, the accused has stated that there was assault on him by the Police and the injuries found on his person is attributed to the assault by the Police.
17. We are of the opinion that even this circumstance has been explained by the accused in his statement under section 313 of Cr.PC. Further, the presence of maggots on the deceased when the dead body was first seen by PW.25 - Circle Inspector of Police which was confirmed by PW.26 - Dr.Kishore Kumar while conducting post mortem examination further indicates that the prosecution case that the incident has happened after about 11.30 am on 14.08.2003 is also not free from doubt.
18. We have carefully gone through each and every circumstance which the prosecution wants to connect the accused with the crime and we find that there are more doubtful circumstances than believable. The learned 21 Sessions Judge has therefore held that these circumstances do not form a complete chain of circumstance to point out the guilt of the respondent and therefore he has given benefit of doubt and acquitted him.
19. On a thorough reappreciation of the entire material on record, we do not find there is any ground for interference in this appeal against the Judgment of the learned Sessions Judge which is neither perverse nor against the evidence on record, nor contrary to the settled principles of law.
20. In that view of the matter, we do not find any case for reversing the order of acquittal passed by the learned Sessions Judge while exercising the appellate jurisdiction and therefore this appeal is liable to be dismissed and accordingly the appeal is dismissed.
(Sd/-) JUDGE (Sd/-) JUDGE cp*, AN/-