Karnataka High Court
Ravi vs The State Of Karnataka on 19 June, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 19TH DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR. JUSTICE H. BILLAPPA
Crl.A. No.935 of 2010
BETWEEN:-
1. Ravi,
Aged about 32 years,
S/o. Maralegowda,
2. Kumara,
Aged about 30 years,
S/o. Thimmaiah.
Both are residents of
Kannamangaladoddi village,
Ramanagara Taluk and District.
Appellants
(By Sri H..Hanumaiah & K.S.A. Reddy, Advocates)
AND:-
The State of Karnataka,
By Channapatna Rural Police,
By State Public Prosecutor,
High Court Buildings,
Bangalore-01.
Respondent
(By Sri N.S.Sampangiramaiah, HCGP)
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This Crl.A. is filed U/s.37(2) of Cr.P.C. by the advocate
for the appellants/accused praying that this Hon'ble Court
may be pleased to set aside the judgment and conviction and
sentence dated 24/25.08.2010 passed by the P.O., FTC,
Ramanagara in S.C.No.330/2005 - convicting the
Appellants/Accused for the offence punishable U/s.302 of
IPC. The Appellants/Accused are sentenced to undergo
imprisonment for life and pay a fine of Rs.10,000/- each, in
default of payment of fine they shall undergo R.I. for three
months, for the offence punishable U/s.302 of IPC. The
Appellants/Accused prays that they be acquitted.
This appeal is coming on for hearing this day,
SREEDHAR RAO, J., delivered the following:
JUDGMENT
The material facts of the prosecution case disclose that one Radhakrishna @ Ganesh is the deceased. PW1 is the wife of the deceased. The deceased has suffered loss in the hotel business. Then he started selling fruits. The deceased had borrowed loan of Rs.5,000/- from the accused persons and with that financial assistance, he started vending fruits at Ramanagaram Town. The deceased since he has suffered loss in vending fruits, he shifted himself to Kengeri and started to work as painter. PW1 - wife of the deceased and PW2 - mother-in-law of the deceased were staying in Ramanagaram.
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2. On 26.12.2004, the accused took PW1 and PW2 along with two others in a Maruti van belonging to A1 to where the deceased was staying. The deceased accompanied A1 and A2 and PW1 and PW2 and other two persons to Ramanagaram and they reached Ramanagaram at 1.30 p.m. The A1 and A2 told PW1 and PW2 to go to their home as they want to make enquiries with the deceased in their office. PW1 and PW2 went back to their home. The deceased did not return. PW1 thought that her husband had gone to Kengeri. PW1 comes to know through the police that her husband has been killed. She was called to Channapatna where she identified the dead body of her husband.
3. The complaint is lodged on 31.12.2004 at 4.00 p.m. A case is registered U/Ss.364, 302, 201 r/w. Sec.34 of IPC against A1 and A2. The complaint discloses that the dead body was found in Eucalyptus bush nearby Kengeri Hanuman temple which was noticed by one Thammaiah and he informed the same to the police. A UDR case is registered. The dead body is subjected to post - mortem. The PM report discloses that there was injury 4 at the right mandible and ante mortem in nature. The death is said to have taken place 36 hours prior to the P.M. report and the death is due to pressure over the neck and due to asphyxia as a result of strangulation and that the death is homicidal.
4. The prosecution relies upon the following circumstances to support the order of conviction.
(i) the deceased borrowed loan and he did not return and decamped from Ramanagaram
(ii) the deceased is in the company of A1 and A2 as spoken to by PW1 and PW2 and
(iii) the report of the Doctor suggests that the death is homicidal.
5. The trial court on the basis of the above circumstances as testified by concerned witnesses, convicted the accused for the offences with which they were charged. The convicted persons are in appeal.
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6. Sri H.C.Hanumaiah, learned counsel for the appellants relied upon the following circumstances to assail the order of conviction:-
(i) The PM report does not categorically disclose the cause of death. There is nothing mentioned in the PM report that the death is due strangulation or for any other reasons.
(ii) The conduct of the accused in taking PW1 and PW2 with them to Kengeri and bringing the accused in a polite and courteous manner, does not suggests any criminal intention on their part.
(iii) The last seen circumstance is concocted.
The last seen circumstance is on 26.12.2004 around 1.30 p.m. & the dead body was found at 30.12.2004. There is a gap of 4 days.
7. The learned counsel for the appellants relied upon the decision of the Supreme Court in the case of State of Goa Vs. Pandurang Mohite reported in AIR 2009 SC 1066 and in the case of Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh reported in AIR 2008 SC 1656 and the decision of the Chattisgarh 6 High Court in the case of Jethu Vs. State of M.P. reported ion 2011 Crl.L.J. 490, to bring home the point that when there is discrepancy of long gap between the time of death of the deceased and last seen circumstance, it cannot be considered as incriminating circumstance.
8. The appellants counsel further argued that the contents of the FIR discloses that PW1 was informed on 31.12.2004 about the death of her husband and asked to see the dead body. It is not the case of the prosecution that PW1 had given missing complaint to the police. Therefore, the circumstance of police asking PW1 and PW2 to identify the deceased without there being missing complaint, is artificial. In view of the above discrepant circumstances, the learned counsel for the appellants submits that the order of conviction is bad in law.
9. The learned High Court Government Pleader on the other hand submitted that the material circumstances and evidence produced by the prosecution, clinchingly establish the guilt of the accused and there is no doubt 7 about the veracity of the witnesses regarding the said circumstance. Therefore, the order of conviction is sound and proper.
10. Upon thorough consideration of facts and evidence, we find that there is absolutely no vagueness in the P.M. report. May be the doctor has not used the familiar phrase to show that the death is due to asphyxia by strangulation. However, it is said in the P.M. report that death is due to pressure over the neck which categorically suggests that it is a case of strangulation which ultimately results that the death is due to asphyxia. Therefore, the opinion of the doctor that the death is homicidal is fully corroborated by the observations and opinion expressed in the P.M. report.
11. The contention that the accused took PW1 and PW2 and brought the deceased from Kengeri to Ramnagar in a polite and courteous manner, therefore, they have no criminal intention, is not substantial enough to establish that the accused are innocent and there was no criminal 8 intention. It may be that the accused may suppressed their anger and vengeance in the presence of PW1 and PW2. The contention that there is long gap between last seen circumstance and tracing of the dead body and the time of death, cannot be considered as discrepant circumstance to dent the case of the prosecution. In the present case the PM report states that approximately 36 hours prior to the PM report on 30.12.2004, the death has taken place. May be around 2 days prior to PM report, the death is said to have taken place. The time gap between last seen circumstance and PM report is around 2 days.
12. The Supreme Court in the case of State of Goa Vs. Pandurang Mohite reported in AIR 2009 SC 1066 in para 16, the following observations are made:-
"16. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In state of U.P. V. Satish (2005 (3) SCC 114) it was noted as follows:-
"22. The last seen theory comes into play where the accused and the deceased were seen last 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. It would be difficult in some 9 cases to positively establish that the deceased was last seen with the accused when there is long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs.3 and 5, in addition to the evidence of PW2."
13. In the case of Ramreddy Rajeshkhanna Reddy and another Vs. State of Andhra Pradesh reported in AIR 2006 SC 1656, it discloses that where the evidence relating to the witnesses with regard to last seen circumstances was belatedly recorded. Hence, their evidence was disbelieved. The facts and the ratio laid down in the case is distinguishable from the case on hand. Therefore, the evidence with regard to last seen circumstance was disbelieved.
14. In case of last seen circumstance, presumption would arise against the accused U/s.106 of Evidence Act. The accused has to rebut the presumption by producing 10 cogent material that the accused left their company and he is in no way connected with the homicidal death. In this case, there is absolutely no evidence adduced by the accused. Therefore, we do not find any discrepancy in the last seen circumstance established by the prosecution.
15. The contention that PW1 did not come and report the police about missing of her husband and after 5 days she was asked to come to Channapatna to identify the dead body is argued to be concocted and artificial circumstance. In the cross-examination of Pw1 it is elicited that PW1 become anxious about the whereabouts of her husband and prior to death she made enquiries with the relatives at Bangalore and whereabouts of her husband. It is quite natural PW1 would have informed to the police which would not have taken as missing complaint. Otherwise there was no occasion for the police to call PW1 to identify the dead body of her husband, if they are not aware of missing of her husband. The complaint is a written complaint, the scribe is not examined, PW1 is an illiterate lady, the contents of Ex.P1 might have been written for the convenience of the 11 police to suppress their mistake in not registering the missing complaint. Therefore, on over all consideration of facts and circumstances, we find that the order of conviction passed by the trial court is sound and proper. The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE NM*