Karnataka High Court
State Of Karnataka By vs Ramesh S/O Mariyappa on 10 December, 2012
Bench: K.L.Manjunath, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF DECEMBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
CRIMINAL APPEAL No.1835/2007 (A)
BETWEEN:
State of Karnataka by
Malur Police Station,
Kolar .. APPELLANT
(By Sri.P.M.Nawaz, Addl. SPP)
AND:
Ramesh s/o Mariyappa,
23 years, R/o Baragoorn
Village, Malur Tq. .. RESPONDENT
(By Advocate Sri.S.Shankarappa)
- - - - -
This Appeal is filed under Sec.378(1) & (3)
of Cr.P.C. to grant leave to file an appeal
against the judgment dated 1.2.2007 in SC
No.101/2005 on the file of II Addl. Sessions
Judge, Kolar acquitting the respondent/accused
for the offence punishable under Sec.302 IPC and
under Sec.3(2)(v) of SC/ST (POA) Act,1989 and to
set aside the above order.
2
This Appeal is coming on for final hearing
this day, MANJUNATH J. delivered the following:
J U D G M E N T
State through Malur Police has filed this appeal under Sec.378(1) & (3) of Cr.P.C. challenging the legality and correctness of the judgment and order of acquittal passed by II Addl. Sessions Judge, Kolar in SC No.101/2005. Based on the charge-sheet filed by Malur Police, respondent/accused was tried for the offence punishable under Sec.302 IPC and under Sec.3(2)(v) of SC/ST (POA) Act,1989.
2. It is the case of the prosecution that accused belongs to Vahnikula Kshatriya community and that accused used to quarrel under the influence of liquor with deceased Krishnappa and Kaveramma who belong to Adi-Karnataka community (Scheduled Caste) and a panchayat was convened earlier and panchayatdars had advised the 3 accused to behave properly with the deceased persons in future. On account of the panchayat held and advise given to the accused by the panchayatdars, the accused had grudge against the deceased Krishnappa and Kaveramma and that with an intention to commit murder of them at about 9 p.m. on 25.3.2005 while Krishnappa and Kaveramma were near tamarind grove of Ramachandrappa accused assaulted them with chopper on their head and other parts of the body and they succumbed to the injuries on the spot which was witnessed by PW-2 Chinnappa, uncle of Krishnappa who lodged the complaint before Malur Police at about 11-30 p.m. on the same day. According to Ex.P-1, complainant PW-1 Chinnappa is permanently residing with deceased Krishnappa and Kaveramma and that on 25.3.2005 one Chinnamma and Yellamma, relatives of him had come to the house of Krishnappa. Kaveramma served food to Chinnamma and Yellamma and PW-1 4 and later at about 8-30 p.m. deceased Krishnappa and Kaveramma went to a shop from their colony to buy beetle nut, beetlenut leaves and banana. Later PW-1 also went towards the village in order to bring beedi, at that point of time he saw the deceased assaulting with a chopper on Krishnappa and Kaveramma near tamarind groove of one Ramachandrappa and having heard scream of Krishnappa and Kaveramma PW-8 Rajappa, PW-7 Venkataramanappa and one Krishnappa son of Nagappa came to the spot and they along with PW-1 saw with the help of battery Krishnappa and Kaveramma had succumbed to the injuries on the spot and it is also further case of PW-1 that accused Ramesh threatened them with dire consequences and left the place with chopper. Based on the complaint of PW-1, PW-15 M.M.Prashanth, PSI, Malur registered a case in Cr.No.44/2005 for the aforesaid offences. PW-16 CPI conducted inquest and drew spot mahazar as 5 per Ex.P-2 and inquest was conducted as per Ex.P-3 and MO-1 to 14 were seized. Accused was arrested on 26.3.2005.
The case was committed to the Sessions Court by the JMFC., Malur. Accused pleaded not guilty, he claims to be tried. In order to prove the case of the prosecution, prosecution relied upon the evidence of PW-1 to 18, Exs.P-1 to 15 and MO-1 to 14.
After hearing the Public Prosecutor and the defence counsel, following points were framed by the Sessions Court for its consideration:
1. Whether the prosecution has proved that the death of deceased Krishnappa and Kaveramma was homicidal?
2. Whether the prosecution has proved that accused who belong to Vahnikula-
Kshathriya community, committed the murder of Krishnappa and Kaveramma who belong to Adi-Karnataka community which is a scheduled caste with an intention to commit atrocity on them?
After considering the oral and documentary evidence and the arguments of counsel for both 6 the parties, Sessions Judge held point No.1 in the affirmative holding that death of Krishnappa and Kaveramma as homicidal and point No.2 held against the prosecution holding that the prosecution has failed to bring home the guilt of the accused. Accordingly, accused was acquitted for the charges leveled against him. Being aggrieved by the judgment and order of acquittal of the Sessions Court, State has come up in this appeal.
3. We have heard the Addl. SPP for the State and the counsel for the respondent/accused.
4. It is the specific contention of the State that Sessions court has failed to consider the evidence of PWs-1, 7, 8 & 12, the eye witnesses and on account of the discarding evidence of these witnesses, Sessions Court has erroneously acquitted the accused even though prosecution has proved the guilt of the accused beyond all 7 reasonable doubt. According to him, prosecution has proved that deceased Krishnappa and Kaveramma belong to Scheduled castes and the accused person being not a member of Scheduled caste had a grudge against Krishnappa and Kaveramma which resulted in committing murder of two persons with a chopper MO-1. According to him, when PW-1 uncle of the deceased Krishnappa, PW-12 Lokesh son of the deceased persons have seen the accused committing murder of Krishnappa and Kaveramma with MO-1 in the presence of PW-7 & 8, Sessions Court was bound to convict the accused. According to him, by examining PW-11 Dr.C.Ravishankar PM report as per Exs.P-10 & 11 and that evidence of PW-11 reveals that MO-1 could cause the injuries found on the deceased persons. According to him, when point No.1 is held in the affirmative, trial court was bound to convict the accused in view of the direct evidence of the eye witnesses. In the 8 circumstances, he requests the court to re- appreciate the entire evidence and reverse the findings of the Sessions Court in accordance with law.
5. Per contra, learned defence counsel submits that none of the grounds urged by the State Public Prosecutor are tenable because there is no corroboration between the complaint and the evidence of PW-1. According to the evidence of PW-1 either PW-7, 8 or PW-2 or any other persons were not present when the accused assaulting the deceased persons with MO-1. According to PW-12 Lokesh son of the deceased, except him, no other persons have seen the accused assaulting his parents. Even according to PW-7 & 8, they have not seen the accused assaulting with MO-1 to the deceased persons and they came to the spot later and he further submits that since there is no consistency in the evidence of PW-1, 7, 8 & 12 and when PW-9 another alleged eye witness has 9 turned hostile, would only shows that the prosecution has failed to bring home the guilt of the accused. He further contends that when PW-1, the complainant, has admitted in his evidence that it is not MO-1 which was used by the accused for committing the offence, when PW- 7, 8 & 12 have identified MO-1 as the weapon used for committing the murder of Krishnappa and Kaveramma, entire theory of the prosecution has to be disbelieved which has been rightly done so by the Sessions Court. According to him, at the first instance, considering the evidence of PW-1 and Ex.P-1, charge framed against the accused for the offences punishable under Sec.3(1)(x) and 3(2)(v) of SC & ST (POA) Act itself is not attracted even though the death of Krishnappa and Kaveramma is a homicidal death. The prosecution has failed to link the accused persons with the aforesaid incident. In the circumstances, he contends that appreciation of 10 evidence by the Sessions Court is just and proper and does not calls for any interference.
6. Having heard the counsel for the parties, death of Krishnappa and Kaveramma is homicidal is not disputed by the learned Addl. SPP as well as by the defence counsel. Therefore, what is to be considered in this case is that whether the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt to connect the accused with the murder of deceased Krishnappa and Kaveramma and whether the provisions of Sec.3(1)(x) and 3(2)(v) of SC/ST (POA) Act is applicable or not.
7. On perusing the entire evidence and Ex.P-1 the complaint, it is clear to the court that none of the witnesses have stated before the court that Ramesh had grudge with the deceased persons and he intended to commit murder of them on account of the deceased persons belonging to Scheduled Caste and accused not belonging to 11 Scheduled Caste community. Therefore, the very charge framed against the accused under the provisions of SC/ST (POA) Act has to be discarded and this fact is not disputed by the learned Addl. SPP also.
8. Therefore what is to be considered in this appeal is whether the prosecution has proved beyond reasonable doubt that it is the accused/ respondent committed murder of Krishnappa and Kaveramma at about 9-15 p.m. on 28.3.2005 at Baragooru village in Malur Taluk.
9. To substantiate the case of the prosecution it has relied upon Ex.P-1 the complaint lodged by PW-1 at about 11-30 p.m. before PW-15 Prashanth PSI who registered the case. According to Ex.P-1 Kaveramma after serving food to his relatives Chinnamma and Yellamma and him along with Krishnappa at about 8-30 p.m. went inside the village in order to buy plaintain and 12 beetlenut and beetle leaves. Few minutes later PW-1 also went towards the village in order to purchase beedi. At that point of time, he saw Krishnappa and Kaveramma were near tamarind grove of Ramachandrappa and that the accused who was holding chopper in his right hand, assaulted Krishnappa and Kaveramma on their head, leg, hands. Having heard the scream of Krishnappa and Kaveramma, PW-8 Rajappa , PW-7 Venkataravanappa and one Krishnappa son of Nagappa came there and along with them PW-1 saw with the help of battery Krishnappa and Kaveramma lying on the land and Ramesh-accused left the place threatening PW-1 and others who were present there. PW-1 in his evidence has deposed that right hand of Kaveramma had severed on account of the assault made by the respondent with MO-1. But the evidence of PW-11 Dr.Ravishankar who conducted autopsy as per Ex.P-11 does not say that right hand of Kaveramma had severed from 13 her body. PW-1 in his cross-examination has admitted that he saw the incident with the help of an electric bulb in the land from a distance of 30 yards and he further stated that there is also a temple known as Anjaneya temple and in front of the temple there is an electric bulb. He does not say in his evidence that on account of the assault on the deceased persons, they were screaming, PW-7, 8 and others came therein and he saw along with them with the help of battery. It is also his case that a person was coming on a motor cycle, he stopped the mother cycle and requested him to take him to Malur police and he went to Malur police station and lodged the complaint. In his cross-examination he further stated that PW-7, 8 & others came to the spot only after the police came to the village and in his cross-examination he has admitted that except him there were no other witnesses who saw the incident. He further 14 stated that where dead bodies of Krishnappa and Kaveramma are found either plantain, or beetlenut and beetle leaves were found. He has further admitted when he saw Krishnappa and Kaveramma, Krishnappa's legs were found on the head of Kaveramma and when he saw them no other persons were there and he further admitted that for a period of 15 days he did not disclose the name of the accused to the villagers. He has further admitted that MO-1 is not the chopper used by the accused to assault the deceased persons. According to him, the chopper used by accused persons was thicker and larger in size than that of MO-1.
10. We have also seen the evidence of PW-7 who is also an eye witness. According to him, he saw the accused assaulting under the tamarind groove of Ramachandrappa from a distance of 100 feet and he saw through an electric bulb of the temple and he has further deposed that both 15 Krishnappa and Kaveramma died and accused left the place. He has identified MO-1 as the weapon used by the accused to commit the offence. In his cross-examination he has admitted that for the first time he went near the scene of occurrence only when police came to the spot. He has further admitted that he went to tamarind groove only after hearing from the villagers about the death of Krishnappa and Kaveramma. If we consider the evidence of PW-7, evidence of PW-1 has to be discarded and even PW-7 has admitted in his cross-examination that he went near the spot only when the police came to the village. Therefore, he cannot be considered as an eye witness.
11. Similarly, PW-8 Rajappa has stated that he along with PW-7 Venkataravanappa had been to the shop of Yamanna and while returning home in front of them deceased Krishnappa and Kaveramma were proceeding near the tamarind groove of 16 Ramachandrappa, suddenly accused started assaulting both husband and wife and having seen the same both PW-7 & 8, ran from the place. According to him, he saw the accused assaulting the deceased persons with the help of electric light of the temple and he further deposed that he learnt the death of Kaveramma and Krishnappa only in the early morning when he went near the place along with the villagers. He admits that the deceased persons are his relatives. He also admitted that no one was there when accused assaulted the deceased persons. He has also admitted that he did not state before the police that he saw the incident with the help of electric light situated in front of the temple and he further stated that MO-1 is seen by him for the first time in court. Though PW-9 has been examined as an eye witness, has not supported the case of the prosecution. PW-8 in his cross-examination has admitted that the 17 villagers were speaking that some one has committed murder of Krishnappa and Kaveramma and had thrown their body in the tamarind groove and that having heard such conversation he went and saw the dead bodies of Krishnappa and Kaveramma. If it is so, entire case of the prosecution cannot be believed. The other eye witness examined by the prosecution is Lokesh son of deceased persons. He was aged about 17 years when the incident took place. According to him, at about 8-30 p.m. when his parents did not return from the shop, he went to the bore-well of Rajanna and that one person informed him that accused assaulted the deceased near the tamarind tree, he went there which is at a distance of about half a kilometer from the bore-well and it was dark near the borewell, when he reached tamarind groove accused was assaulting his parents and he saw the incident through the street light, he ran away from the place to his 18 house out of fear and he informed one Seenappa about the incident, Seenappa is none other than the junior uncle of his father. According to him, police came to the village on the next day morning at 7 a.m. and he further stated in his examination-in-chief that except him, no other person has seen the accused assaulting his parents. From the above evidence, it is clear that PW-1 does not say about the presence of PW- 12 Lokesh when the incident took place either under Ex.P-1 or in his oral evidence. PW-7 & 8 have not deposed the presence of PW-1 as an eye witness when the incident took place. PW-7 & 8 themselves have admitted that they were not present when the incident took place and they came to the spot after the arrival of the police. Therefore, there is no corroboration or consistency in the evidence of PW-1, 7, 8 & 12. According PW-1 MO-1 is not the chopper which is said to have been used by the accused. PW-11 19 Dr.Ravishankar has deposed that MO-1 is used for the commission of offence. If MO-1 was not the weapon in the hands of the accused persons, if injuries have been caused to the deceased persons with MO-1, it is difficult to believe the version of the prosecution that it is the accused who committed murder of the deceased. Evidence of PW-1, 7, 8 & 12 is so unnatural it is difficult to believe their evidence and more so when PW-1 has stated that right hand of Kaveramma had severed from her body which is contrary to the medical evidence. In addition to that, PW-1 has stated that he saw the accused assaulting the deceased persons with the assistance of battery which had brought by PW-7 and 8. This has not been spoken to by PW-7 & 8 and that battery is also not seized. It is also difficult to believe the version of the State because deceased persons had been to the village to bring banana, beetle-nut and beetle leaves. 20 According to PW-1, these items were not found at the spot. For the reasons best known to the prosecution, prosecution has not produced the sketch though investigating officer has stated that sketch is prepared. Whether there was an electric light at a distance of 20' or 30' as stated by PW-7 & 8 or PW-12 and whether it was possible to identify a person who has assaulted the deceased persons or not. According to the spot mahazar Ex.P-2 electric bulb was at a distance of 30' and Ex.P-2 does not disclose that the existence of a temple. According to the prosecution, incident has taken place in a tamarind groove. If the electric bulb was there at a distance of 30 ft., if any incident has taken place inside the tamarind groove, is it possible to identify a person. Therefore, entire case of the prosecution cannot be believed under any circumstances. 21
12. In view of the above said evidence, we are of the opinion that at the first instance ill- will or enemity between the accused and the deceased persons is not established and further prosecution has failed to link the accused with the complicity of the murder of deceased Krishnappa and Kaveramma. Viewed from any angle, we cannot hold that Sessions Court has committed an error in appreciating the evidence of the prosecution witnesses and that we cannot take a different view than the one taken by the Sessions Court. Accordingly, we hold the points formulated by us against the prosecution.
13. In the result, the appeal is dismissed.
Sd/-
JUDGE.
Sd/-
JUDGE.
R/080113