Karnataka High Court
The Registrar General vs Venkatesha @ Chandra Bin Venkataswamy on 7 August, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 7TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.10 OF 2010
C/W
CRIMINAL APPEAL NO.1032 OF 2011
C/W
CRIMINAL APPEAL NO.537 OF 2012
CRL.RC.NO.10 OF 2010:
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA,
BENGALURU`ALURU - 560 001. ... PETITIONER
(BY SRI H.N.NILOGAL, SPL.PP)
AND:
1. VENKATESHA @ CHANDRA
BIN VENKATASWAMY,
AGED ABOUT 36 YEARS,
DINNUR COLONY, KADUGODI, BENGALURU.
2. MUNIKRISHNA @ KRISHNA
BIN VENKATASWAMY,
AGED ABOUT 25 YEARS,
2
DINNUR COLONY, KADUGODI, BENGALURU.
3. NALLATHIMMA @ THIMMA
BIN GURUBHOVI,
CHANNENAHALLI, MUTHOOR POST,
PERIYAPATNA, MYSURU DISTRICT.
4. LAKSHMAMMA @ LAKSHMI
W/O DODDAHANUMA,
AGED ABOUT 30 YEARS,
DANDUPALYA GRAMA HOSKOTE TALUK,
BENGALURU. ... RESPONDENTS
(BY SRI HASHMATH PASHA, ADVOCATE A/W
SRI TEJAS N., ADVOCATE FOR R1 AND R2
SRI G.M.ANANDA, ADVOCATE FOR R3 AND R4)
THIS CRL.RC IS FILED UNDER SECTION 366(1) OF
CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE
AWARDED TO ACCUSED 1)VENKATESHA @ CHANDRA, UTP
NO.10175, 2)MUNIKRISHNA @ KRISHNA, UTP NO.10178,
3)NALLA THIMMA, UTP NO.10177 4) LAKSHMAMMA, UTP
NO.10179, BY JUDGMENT DATED 28.9.2010 / 30.09.2010
ON THE FILE OF THE XXXIV ADDL.CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON
PREMISES, BENGALURU.
*****
CRL.A.NO.1032 OF 2011:
BETWEEN:
1. VENKATESH @ CHANDRA
S/O VENKATASWAMY,
AGED ABOUT 36 YEARS,
R/O DINNUR COLONY,
KADUGODI,
BENGALURU.
3
2. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY,
AGED ABOUT 29 YEARS,
R/O DINNUR COLONY,
KADUGODI,
BENGALURU. ... APPELLANTS
(BY SRI HASHMATH PASHA, ADVOCATE A/W
SRI TEJAS N., ADVOCATE)
AND:
STATE OF KARNATAKA
BY KAMAKSHIPALYA POLICE STATION,
BENGALURU CITY. ... RESPONDENT
(BY SRI H.N.NILOGAL, SPL.PP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CRL.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
28.09.2010/ 30.09.2010 PASSED BY THE XXXIV
ADDL.CITY CIVIL AND S.J. (SPECIAL COURT), CENTRAL
PRISON, PARAPPANA AGRAHARA, BENGALURU IN
S.C.NO.245 OF 2002 - CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 396 OF IPC. THE APPELLANT/ACCUSED NOS.1
AND 2 ARE SENTENCED TO DEATH. THEY SHALL BE
HANGED BY NECK TILL DEAD AND PAY A FINE OF
RS.5,000/- EACH -FOR THE OFFENCE PUNISHABLE UNDER
SECTION 396 OF IPC. THE APPELLANTS/ ACCUSED PRAYS
THAT THEY BE ACQUITTED.
*****
CRL.A.NO.537 OF 2012:
BETWEEN:
1. NALLATHIMMA @ THIMMA
4
S/O GURUBHOVI,
AGED ABOUT 36 YEARS,
R/O CHANNENAHALLI, MUTHUR POST,
PIRIYA PATNA TALUK, MYSURU DISTRICT,
DINNUR COLONY, KADUGODI,
BENGALURU RURAL.
2. LAKSHMAMMA @ LAKSHMI
W/O DODDAHANUMA,
AGED ABOUT 42 YEARS,
R/O DANDUPALYA VILLAGE,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT. ... APPELLANTS
(BY SRI G.M.ANANDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY KAMAKSHIPALYA POLICE,
BENGALURU. ... RESPONDENT
(BY SRI H.N.NILOGAL, SPL.PP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
28.09.2010 AND ORDER OF CONVICTION DATED
30.09.2010 PASSED BY THE XXXIV ADDL.CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON
COMPOUND, PARAPANA AGRAHARA, BENGALURU IN
S.C.NO.245 OF 2002 - CONVICTING THE APPELLANTS/
ACCUSED NOS.3 AND 4 FOR OFFENCES PUNISHABLE
UNDER SECTION 396 R/W 34 OF IPC.
APPELLANT/ACCUSED 3 AND 4 EACH ARE SENTENCED FOR
DEATH. THEY BE HANGED BY NECK UNTIL DEATH
SUBJECT TO CONFIRMATION OF THE HON'BLE COURT
UNDER SECTION 366(1) OF CR.P.C. AND ALSO TO PAY A
FINE OF RS.5,000/- EACH FOR THE OFFENCE PUNISHABLE
5
UNDER SECTION 396 OF IPC. THE APPELLANTS/
ACCUSED 3 AND 4 PRAY THAT THEY BE ACQUITTED.
*****
THIS CRL.RC C/W CRL.As. COMING ON FOR
HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
JUDGMENT
The case of the prosecution is that on the night of 15-1-1999 the accused went to the house of Doddamuniyamma situated in the first floor in Sunkadakatte area, Magadi Road, Bengaluru. They got the door opened on some pretext. Accused Nos. 3 and 5 caught hold of her. Accused No.1 assaulted her by an iron rod, accused No.9 dashed her head to the wall, accused No.4 suffocated her using a pillow and murdered her. All the accused dragged her dead body over the steps. Accused No.1 removed the golden bangles, accused No.2 removed the golden chain. Accused No.3 removed the golden ear studs. Therefore, all the accused have committed the offence punishable under Section 396,302 read with 34 of IPC.
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2. Based on the complaint lodged by PW 1, a case was registered in Kamakshipalya Police Station, Bengaluru, in Crime No. 26 of 1999 for the offence punishable under Sections 396 and 302 of IPC against unknown persons. The investigation was taken up. The accused were arrested on 31-1-2001. The charge sheet was filed on 10-5-2001 against accused Nos. 1 to 4, 10 and 11 under Sections 396,302 read with 34 IPC. A split-up charge sheet was filed against accused Nos. 5 to 9 who were absconding. In order to prove its case, the prosecution examined 19 witnesses and marked 22 exhibits along with 7 Material Objects. By the impugned order, accused No.1 to 4 were convicted for the offence punishable under Section 396 of Indian Penal Code and sentenced to death along with payment of fine of Rs.5,000/-. Accused Nos. 10 and 11 were acquitted. A reference was made to this court in terms of Section 366 of Cr.P.C. which is numbered as Criminal RC No.10 of 2010. Accused Nos. 1 & 2 have 7 filed Criminal Appeal No.1032 of 2011. Accused Nos. 3 and 4 have filed Criminal Appeal 537 of 2012.
3. Heard Sri Hashmath Pasha and Sri G.M.Ananda, learned counsel appearing for the accused and Sri H.N.Nilogal, learned Special Public Prosecutor appearing for the respondent-State .
4. The learned counsel appearing for the appellants-accused contends that the trial court committed an error in convicting the accused. That there is no material to indicate that the appellants were guilty of the offence alleged against them. That based on the voluntary statements made by the accused, no conviction would lie. That even the so-called recoveries sought to have been made by the prosecution, do not tally with either the complaint or the evidence of the complainant. That since the recoveries do not match with the statements made by the complainant with regard to the said jewels, the same 8 cannot be held to be proved. Therefore, the trial court committed an error in convicting the accused.
5. On the other hand, Sri H.N.Nilogal, learned Special Public Prosecutor disputes the same. He contends that the conviction is based on the material and evidence on record. That the voluntary statements made by the accused has led to the recoveries. The recoveries are in tune with the articles that have been found missing at the time of the incident. Therefore, the prosecution has proved the nexus between the articles missing and the articles that are recovered. On this basis, the trial court has convicted the accused. Therefore, he pleads that the appeals be rejected by confirming the Judgment of conviction passed by the trial court.
6(a). PW.1 is the complainant. The deceased was his father's sister. He has stated that the deceased was staying in another house since his childhood. The husband of the deceased had left her and therefore she was living 9 with them. In the year 1991, she constructed a two storied building at Sunkadakatte, Magadi Main Road, Bengaluru. She was staying in the first floor of the said building. In the ground floor she had a Auto spare parts shop. The deceased was staying alone in the first floor. He used to provide all the needs to her. That on 16-1-1999, at about 8.35 a.m. he went to the house in the first floor to provide tiffin to her. The entrance gate of the first floor was opened. The front door of the house in the first floor was also opened. The electric lights and fans were on. He went inside the house by calling her name. There was no response. He found her dead body in the bathroom passage in a pool of blood. The body was lying on the floor, facing downwards. He noticed a number of injuries on her head. Thereafter he sent word to his brother Thimmegowda @ Raju. He informed the Kamakshipalya police. The police came to the spot about half an hour later. He narrated his oral complaint which was reduced into writing. A Mahazar was conducted by the police in his 10 presence. Blood scrapings were collected from the scene of offence. That the deceased was wearing six golden bangles, one pair of golden ear rings and one golden chain. All these were missing. In the year 2001, The Police Inspector of Vijayanagara Police Station, called him to enquire about this case. He was shown four pieces of golden bangles and one golden chain. The golden chain was a huri chain. He identified them as belonging to the deceased.
During the course of evidence 4 pieces of golden bangles, one two line golden chain of avalakki design with inscription SM and a pair of ear studs embedded with white and red stones were shown to him. The same were identified as that belonging to the deceased. Four pieces of golden bangles were marked as MO.4, one two line golden chain of avalakki design with inscription SM is marked as MO.5 and one pair of ear studs embedded with white and red stones is marked as MO.6. MO. 5 was prepared and gifted by him to the deceased. 11
(b). PW.2 is a pacnha to Ex.P-2.
(c). PW.3 is a witness to the Mahazar Ex.P-3. He has stated in his evidence that accused No.1 and the Police Inspector came to the house where the deceased was staying. He is a witness to Ex.P-3 the Mahazar since it was accused No.3 who has shown the scene of offence. This accused was treated as hostile and accordingly cross- examined by the learned State Public Prosecutor.
(d). P.W.4 is a businessman. He is a panch witness for Ex.P-3 who has turned hostile.
(e). P.W.5 has stated that she had acquaintance with the deceased. She is not aware of any other facts.
(f). P.W.6 is the jeweller in Bhagyalakshmi Jewellery. He has affixed his signature to Exs.P-4 and P-5 which are the recovery Mahazar. However, he denied its contents. Therefore, he was treated as hostile and cross- examined by the Additional Public Prosecutor. 12
(g). PW.7 is a jeweller running a jewellery shop by name Ganapathi Jewellers at Dharwad. He has not identified the accused. He was also treated as hostile.
(h). PW.8 is a panch witness for Exs.P-4, 5, 6 and
7. He has stated that accused No.3 led them to the jewellery shop. Accused No.3 went there and has taken all other golden articles. The shop owner has delivered the gold articles to the police. Thereafter, the panchanama was drawn. He has been cross-examined by the defence. But nothing worthwhile has been elicited to disbelieve his statement.
(i). PW.9 is the Police Inspector in Kamakshipalya police station. He rushed to the place of occurrence after receiving a telephone message and who registered the case. He seized the broken bangles which were found near the dead body of the deceased. He took blood samples and the mud containing blood from the spot under the same Mahazar. He initiated dog squad and brought the photographer to the scene of occurrence. He secured 13 panch witness and conducted the inquest on the dead body. He recorded the statement of blood relatives of the deceased who was examined as P.W.13 namely, Sri Thimme Gowda. He identified the properties seized by him. Nothing worthwhile has been elicited in his cross- examination to disbelieve his statement.
(j). PW.10 is the Police Inspector in the Kamakshipalya Police station. He took over the investigation from the Inspector Nagappa and took up further investigation. He filed a charge sheet against accused and recovered MO. 7 which is an iron rod at the instance of accused No.1 on 8-1-2001 under Mahazar Ex.P-14.
(k). PW.11 is the Head Constable who carried MOs. 1 to 3 to the Forensic Science Laboratory.
(l). PW.12 is the Assistant Director of FSL, Bengaluru who received the request and submitted his report vide Ex.P-12.
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(m). PW.13 is the brother of PW.1. He saw the deceased lying in the bathroom. He has stated that no ornaments were found on the deceased.
(n). PW.14 is the Head Constable who carried the dead body for post mortem and kept it in a mortuary. Thereafter he secured the postmortem report.
(o). PW.15 is the Head Constable who registered the FIR in crime No.26 of 1999 in terms of the FIR Ex.P-
13.
(p). PW.16 is the panch witness to the inquest Ex.P-1.
(q). PW.17 is the PSI, Kamakshipalya police station and one of the persons who apprehended the accused at Eachnur Village, Tiptur Taluk.
(r). PW.18 is the Doctor who conducted the postmortem and submitted report in terms of Ex.P-10. He has stated that the cause of death is due to asphyxia as a result of compression of the mouth and the nostrils. 15
(s). PW.19 is the Investigation Officer. He has stated that after receiving the information that the accused escaped from the Jail at Chittor, arrested accused Nos.1 to 4 on 31-1-2001. He brought them to the police station in the midnight. He recorded the voluntary statements of accused Nos.1 and 3. At the instance of accused No.3, he went to the place of incident and drew the Mahazar as per Ex.P-3. On 4-2-2001, accused No.1 led him to the shop of PW.6 Manjunath and seized two gold bangles under the Mahazar as per Ex.P-4. On the same day, he led him to the shop of PW.7 Venkatesh and seized the articles in terms of MO.5 gold chain under Mahazar Ex.P-7. On 5-2-2001, accused No.3 led him to the shop of PW.6 and seized the articles vide MO.6, namely, ear Stud in terms of Ex.P-5.
7. Based on these evidences, the trial Court convicted the accused. On considering the material on record we find substantial loopholes in the case of the prosecution. The incident is said to have taken place on 16 15-1-1999. The accused were arrested on 31-1-2010 namely, after two years. There is no explanation by the prosecution as to what efforts they did for the said two years. The case of the prosecution is that based on the voluntary statements recoveries were made from P.Ws 6 &
7. P.Ws 6 & 7 have turned hostile. Therefore, the recoveries have not been proved.
8. PW.1 complainant in the course of evidence has narrated that the deceased was wearing the following articles:-
1. 6 golden bangles,
2. one pair of golden ear rings
3. one golden chain.
He has further stated that the Police Inspector called him to enquire about the case. At that time, he was shown the following items:-
1) Four pieces of golden bangles
2) One golden chain
17
During the course of trial, PW.1 was shown the following items:
1) One 2 line golden chain of Avalakki design with inscription SM.
2) A pair of ear studs embedded with white and red stones.
During the course of trial also, PW.1 has stated that on the night, he saw 4 pieces of golden bangles of two line with the inscription SM and a pair of ear studs embedded with white and red stones.
9. A comparison of these articles do not match one another. These are the articles that have been identified on four different occasions. On the first occasion is when the complaint was lodged. The second occasion is when PW.1 narrated the same in his evidence. The 3rd is when the articles were shown to PW.2 during the course of evidence. The articles are different on every occasion. 18 The prosecution has failed to show that the articles that were found to be missing as complained by the complainant, the articles that have been seized, the articles that have been produced before the Court, match one another. In the absence of any match of these articles, the same cannot be referable to the accused herein. The prosecution, so far as recovery is concerned, has failed to show that the recovery of the articles even though at the behest of the accused, do not match one another at all. Therefore, the conclusion of the trial Court that the recoveries have been made at the behest of the accused and such recoveries are all those articles that belong to the deceased is an incorrect appreciation of evidence. Therefore, when the recoveries themselves have not been proved, when the jewellers namely, PWs 6 & 7 who were said to be the receivers of the stolen property have turned hostile, we fail to find any reason to sustain the order of conviction.
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10. The further case of the prosecution is that all these recoveries have been made based on the voluntary statements made by the accused. The Investigation Officer during the course of his evidence has narrated that on 31-1-2001, he received the credible information that the accused were hiding in Echanur Village, Tiptur Taluk, Tumakuru District, after having escaped from custody from the Chittor jail. He went there and arrested them. He recorded their voluntary statements. The same was read over and explained separately. Their signatures and LTM were obtained. It was on the basis of these statements that he proceeded to Dharwad to record the statements of the jewellers. He has further stated that he recorded the same. He has stated that he has produced the CD and 3 DVDs with respect to voluntary statements of accused Nos. 1 to 4, photographs of the dead person, recorded the programme of TV.channel by name "sutha mutha" and the voluntary statements of the individual cases. Even though the same was objected to by the defence counsel, the 20 same was marked. However, the evidence does not indicate as to in what manner the photograph or the CD recording was done by the IO. The evidence would indicate that the statements were recorded in writing. Their signatures and LTM were obtained. There is no reference as to how the video recording was done. The only submission made is that he produced the CDs and even if that is to be true the same cannot be admitted as an evidence. The trial court could not have taken note of the CD and the DVDs in order to record its finding one way or the other against the accused. The voluntary statements as narrated as hereinabove, would not constitute a ground to hold a conviction against the accused.
11. The further case of the prosecution is the recovery of MO.7 namely, the iron rod used for the commission of the offence. Even according to the prosecution, the same was recovered in terms of Ex.P-15 at the instance of accused No.1. There is no material to 21 indicate that the said iron rod was used by any one of the accused for the commission of the offence. There is no material to indicate that the incident occurred by using the said Material Object and that too, by any one of the accused. Therefore, the recovery of MO.7 does not implicate any of the accused. Even according to the prosecution, the iron rod was recovered in terms of Ex.P- 15 at the instance of accused No.1. There is no material to indicate that the said iron rod was used by any one of the accused for the commission of the offence. There is no material to indicate that the incident occurred by using the said material Object and that too by any one of the accused. Therefore, the recovery of MO.7 does not implicate any of the accused.
12. The postmortem report vide Ex.P-10 indicates that the cause of death is due to asphyxia. MO.7 is an iron rod which is said to be used in the commission of the offence. The weapon that has been recovered is not relatable to the cause of death. Therefore, the medical 22 evidence does not support the case of the prosecution. Therefore, on this ground also, the prosecution has failed to prove its case.
13. There is no other evidence led in by the prosecution in order to prove its case against the accused. The voluntary statement cannot constitute a ground for conviction. The recoveries made by the prosecution have not been proved. The receivers PWs.6 & 7 have turned hostile. There are different articles on four different occasions. None of them match the case of the prosecution. The cause of death is not supported by medical evidence.
14. Under these circumstances, we do not find any good ground to sustain the order of conviction. The reasons assigned by the trial court have no nexus with the evidence and the material on record. Therefore, the trial court in our considered view committed a perversity in misreading the evidence and by convicting the accused. 23 We have therefore no hesitation to hold, that the prosecution has miserably failed to establish its case against any one of the accused. There is not even an iota of evidence produced by the prosecution to bring home the guilt of the accused.
15. Even otherwise, we have considered the case of the prosecution, as to whether it is sufficient to attract a lesser offence. Based on the evidence placed by the prosecution, even that is not possible. In the given facts and circumstances of the case, even a lesser offence would not get attracted based on the evidence led-in by the prosecution.
Under these circumstances, the impugned Judgment requires to be set aside. Hence, we pass the following:-
ORDER Criminal Appeal No.1032 of 2011 and Criminal Appeal No.537 of 2012 are allowed. 24
The impugned Judgment of conviction dated 28-9-2010 and the order of sentence dated 30-9-2010 passed by the XXXIV Additional City Civil & Sessions Judge(Special Judge), Central Prison, Parappana Agrahara Bengaluru in S.C.No.245 of 2002 in Criminal Appeal No.1032 of 2011 and in Criminal Appeal No.537 of 2012 are set aside. The appellants/accused Nos.1, 2, 3 and 4 are acquitted of the offences punishable under Section 396 read with 34 of Indian Penal Code.
In view of the appellants/accused being acquitted, Criminal RC 10 of 2010 does not survive for consideration and it is accordingly disposed off.
The appellants/accused Nos.1, 2, 3 and 4, namely, Venkatesh @ Chandra, Munikrishna @ Krishna, Nallathimma @ Thimma and Lakshmamma @ Lakshmi are directed to be released from custody forthwith from these cases, in case they are not required in any other cases. 25
Office to communicate the operative portion of this order to the Jail Authorities, Hindalga Prison, Belagavi, forthwith.
SD/- SD/-
JUDGE JUDGE
Rsk/-