Karnataka High Court
Smt Venkatalakshmi vs State By Kencharalahalli on 19 March, 2018
Author: R.B Budihal
Bench: R.B Budihal
1 Crl.A.No.1164/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1164 OF 2012
BETWEEN:
SMT. VENKATALAKSHMI
W/O LATE RAMANJULU
AGED ABOUT 31 YEARS
R/AT T.SADAM, TAMBALA PALLI TALUK
CHITOOR DISTRICT
ANDHRA PRADESH ...APPELLANT
(BY SRI B.RAVINDRA, ADVOCATE)
AND:
1. STATE BY KENCHARALAHALLI
POLICE STATION
REPRESENTED BY SPP HIGH COURT
BANGALORE
2. SRI P.SRINIVASULU
S/O NARASAPPA
AGED ABOUT 38 YEARS
R/AT NO.191, 1ST CROSS
1ST MAIN ROAD, BAGALAGUNTE NEAR
VENUGOPALASWAMY TEMPLE
PEENYA DASARAHALLI
BANGALORE - 560 073
2 Crl.A.No.1164/2012
3. SHIVANNA @ SHIVA
S/O VENKATASWAMY
AGED ABOUT 27 YEARS
WORKING AT AMS PVT FACTORY
R/AT MARINAYAKANAHALLI VILLAGE,
MURAGAMALA HOBLI
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT
4. SRINIVASA
S/O BYRAPPA
AGED ABOUT 40 YEARS
WORKING AS A TAILOR
R/AT ALAPALLI VILLAGE
MURAGAMALA HOBLI
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT
5. MUNIRAJU
S/O KRISHNAPPA
AGED ABOUT 30 YEARS
AGRICULTURIST
R/AT MARINAYAKANAHALLI VILLAGE
MURAGAMALA HOBLI
NANDHINGANAHALLI POST
CHITAMANI TALUK
CHIKKABALLAPURA DISTRICT ...RESPONDENTS
[(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P. FOR R1;
SRI R.BHASKARA AND SRI J.B.SHIVASHANKAR,
ADVOCATES FOR R3, R4 AND R5 (ABSENT);
R2-SERVED AND UNREPRESENTED]
THIS CRL.APPEAL IS FILED UNDER SECTION 372 OF
Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
ACQUITTAL PASSED BY THE ADHOC SESSIONS JUDGE,
FTC-II, CHINTAMANI IN S.C. NO.56/2011, DATED
3 Crl.A.No.1164/2012
11.07.2012 AND CONVICT THE ACCUSED NO.1 TO 4
(RESPONDENT NO.2 TO 5).
THIS CRL. APPEAL COMING ON FOR HEARING THIS
DAY, BUDIHAL.R.B. J., DELIVERED THE FOLLOWING:-
JUDGMENT
This is the appeal preferred by appellant-complainant being aggrieved by the Judgment and Order of acquittal dated 11.7.2012 passed by the Fast Track Court-II at Chintamani in SC No.56/11.
2. By the said Judgment and Order, the learned FTC Judge acquitted the accused nos. 1 to 4 for the offences punishable under Section 120-B, 307, 392 read with Sec.34 of the IPC.
3. Brief facts of the case of the complainant are that; PW.1 one T.Venkatalakshmi, wife of late Ramanjulu filed complaint wherein it is stated that she married Ramanjulu, S/o.Narasappa about 14 years back and couple are having one male and one female issues. About seven years back, her husband Ramanjulu expired because of electrocution. Two or 4 Crl.A.No.1164/2012 three months thereafter, accused no.1 T.Srinivasalu who is the brother of the husband of the complainant told the complainant to leave her children with her mother and she can accompany him to Bangalore so that they can lead the life happily. For this, complainant, did not agree and because of that reason, accused no.1 T.Srinivasalu was having enemity towards her and even in the property matter to which her husband was entitled to, accused no.1 was raising objections and in that connection, the complainant lodged the complaint before PTM Police Station and then they have allotted the property which was to be given to her husband.
4. About six years back to the incident, accused no.1 started to work in one factory at Bangalore and he was staying there along with his wife and children. Often he used to come to village. The accused no.1 was having evil eye towards her and for one and half months earlier to this incident, the father-in- law of the complainant Narasappa met with an accident nearby Dasa village and in that connection, Panchayath was going on, 5 Crl.A.No.1164/2012 on 22.11.2009, herself, one Srinivasalu S/o.Narayanappa, Sudhakara, Narayanareddy of Chelur in conneciton with Bajaj Alliance Insurance claim. They went to one village nearby Kolar and they asked about the Insurance amount to be payable to the complainant, they told that on the next month, they themselves will come and pay the amount. The complainant alone went to Kotilingeshwara temple for Darshan and thereafterwords, she went to relatives house at Hoskote and she stayed there and on the next day 23.11.2009, morning at about 7.30 a.m, accused no.1 and the mother-in-law Lakshmidevamma both phoned to the complainant stating that Panchayath will be held in connection with accident of father- in-law of the complainant. They have asked her to come immediately. Accordingly, at 1 p.m. she left Hoskote and came to KSRTC bus stand at Chintamani. There accused no.1 came on one two wheeler vehicle at the bus stand, she told the accused no.1 that she wanted to make the shopping of the grocery articles which are required and asked him to go she will 6 Crl.A.No.1164/2012 come later. That accused no.1 told that there is Panchayath in the village and they can purchase the articles at Chelur. Accordingly, she went along with him on his two wheeler vehicle and they were going via Siddepalli cross. At that time, accused no.1. told that, the battery in his mobile phone is exhausted and asked her to give her mobile. After that he was talking to somebody by using his sim. At 3.00 p.m., he took her to a lonely place near Nernahalli cross and she asked him as to why he stopped the vehicle and said he had to phone to somebody.
5. When she was standing by the side of the two wheeler vehicle, two unknown persons came from behind and put the towel to her face. She becomes perplexed and when she held accused no.1 he pushed her and she fell down. Thereafterwords, those two unknown persons dragged her to some distance and put the rope to her neck and made attempt to commit her murder. In that process, she sustained injuries to her right knee, 7 Crl.A.No.1164/2012 left elbow, there were abrasion injuries and even near right eye and after hearing the sound of some vehicle, she got relieved from that rope at that time, those persons snatched her Mangalya chain weighing about 32 grams, Lakshmi Kasu (Lakshmi Pendent) and they have also snatched one gold ring of 4 grams from her left finger and ran away from the said place. But, the accused no.1. was not present in the said place and then she boarded some bus and went to the village and she told before the elders as to what had happed and then on 24.11.2009, i.e. next day of occurrence of said incident at about 11 a.m. she went to Batlahalli Government Hospital along with her brother Sudhakar and others and she was admitted. Therefore, she has requested to take legal action against accused no.1 T.Srinivasalu and other two unknown persons.
6. Thus, the complaint came to be registered in Crime No.125/09 for the offences punishable under Section 392, 307 read with Section 34 of IPC. Thereafterwards, after completing investigation, IO filed a charge sheet against the accused for the 8 Crl.A.No.1164/2012 offences punishable under Sections 397, 302, 120-B read with Section 34 of IPC, against accused nos.1 to 4.
7. After hearing both the sides, the learned Fast Track Court Judge framed the charge for the said offences and when the charges were read over and explained, the accused denied the charges and claimed that they are to be tried. Charges were framed and pleas were also recorded and then the matter was set down for trial.
8. Prosecution, in support of its case, in all, examined 10 witnesses as PWs. 1 to 10 and got marked documents as Ex.P1 to P10 and got marked Material Objects as MOs 1 to 6. Then the statement of the accused were recorded under Section 313 of Cr.PC. On the side of defence, no witnesses were examined but one document was got marked as Ex.D1 at the time of cross-examination of PW.2.
9. After hearing the arguments of both sides, learned Fast Track Judge ultimately held, prosecution fails to prove its case beyond all reasonable doubt and acquitted all the accused i.e. 9 Crl.A.No.1164/2012 A1 to A4 of the offences. Being aggrieved by the Judgment and Order of acquittal and also challenging the legality and correctness of the said Judgment, the complainant is before this Court in this appeal and legality of Judgment and order of acquittal challenged on the grounds as mentioned at ground nos. 1(a) to 1(i) in the appeal memo.
10. We have heard the arguments of learned counsel for the appellant-complainant and also the learned Addl.SPP for respondent-No.1. The learned counsel appearing for respondent nos. 3, 4 and 5 so also the said respondents have remained absent and there is no representation. Respondent no.2 though served with the appeal notice, remained absent and there is no representation.
11. Learned counsel appearing for the appellant during the course of the argument made the submission, looking to the prosecution material, there is case made out by the prosecution. It is his submission that, PW. 1 is the injured witness. Her contention that she sustained injuries in the process when she 10 Crl.A.No.1164/2012 has been dragged by the unknown persons is supported by the evidence of the Doctor and even with the medical certificate. It is also his submission that even recovery of the articles at the instance of accused nos. 2 and 3 so also accused no.4 has been established by the prosecution to the satisfaction of the concerned Fast Track Court. Learned counsel drew our attention to Mahazar and made the submission that, the recovery Mahazar have been proved with the help of Panch witnesses who were examined before the Court. So far as the accused no.4 is concerned, learned counsel made the submission that, as the Lakshmi Kasu (Lakshmi Pendent) was seized from the house of accused no.4. Therefore, Investigating Officer arrayed accused no.4 as one of the accused in the said case. Learned counsel submitted that there is a motive for the accused no.1 to commit the offence by taking the assistance of the unknown persons. He submitted that, as the husband of the complainant expired, the accused no.1 was casting an evil eye on the complainant and even he told the complainant to leave 11 Crl.A.No.1164/2012 the children with her mother and she can accompany him so that himself and the complainant can lead a happy life. Learned counsel also made the submission that there is also motive that as the property was not given which the complainant was entitled to the share of her deceased husband, but, when the complainant gave complainant to the Police and after intervention of Police, her share which was due to her husband was given to her. Learned counsel submitted that even there is motive for accused no.1 to commit alleged offence i.e. attempting to commit murder of the complainant and also to secure the gold ornaments. There was criminal conspiracy between the accused persons for committing the said offence.
12. Learned counsel drew our attention to the Judgment of the Court below to the relevant paragraphs and made submission that, regarding delay in lodging the complaint, there is observation made by the learned Fast Track Judge though the incident took place previous day, she gave complaint on the next day. It is also his submission that even with regard to the 12 Crl.A.No.1164/2012 other aspects, learned Fast Track Court Judge proceeded on the wrong premise and recorded acquittal of the accused persons. Hence, learned counsel made submission in view of the material produced through evidence of prosecution witnesses relied in the case, Judgment and Order of acquittal is not in accordance with law. Thus, there is illegality in the Judgment and Order passed by the Court below. Hence, he submitted to allow the appeal and set aside the Judgment and Order of acquittal by the Court below by convicting the respondent- accused for the said offences.
13. Learned additional SPP would submit that, so far as the acquittal of the accused persons, the State has not preferred any appeal as yet. Hence, he submitted that he will leave the matter to the Court to pass the appropriate order in the matter. So far as the respondents are concerned, as we have already observed that there is no representation on their behalf.
14. We have perused the grounds in the appeal memo. Judgment and Order of acquittal passed by the Court below, 13 Crl.A.No.1164/2012 oral evidence of PW.1 to 10, documents Ex.P1 to P10 and document Ex.D1. So far as the case of the complainant is concerned that the property to be given to her husband was not given to her even after the demise of her husband, for that she filed a complainant against accused no.1. Though accused no.1 gave the property which was supposed to be given to her husband's share and it is also her case that accused casted an evil eye against the complainant, but it is the story of the complaint that, on 23.11.2009, when she was at Chintamani Bus stand accused no.1 and her brother-in-law came and informed that there is Panchayath going on in connection with the accident met out by her father-in-law, therefore, immediately she has to come. In the meanwhile, the accused no.1 came with two wheeler vehicle and asked her to board the vehicle. Eventhough the complainant told accused no.1. that she has to make purchase, accused no.1. told her that she can make purchase later, accused no.1 by mis-representating her that they can purchase articles at other place and forced her to board the 14 Crl.A.No.1164/2012 vehicle and took her to the lonely place. Looking to this evidence and the averments made in the complaint is concerned, admittedly according to the complainant, that earlier she filed a complaint against accused no.1 in connection with the share of the property of her husband and it is also her serious allegation against accused no.1 that he casted an evil eye on her and asked her to leave her children with her mother and she can accompany him to Bangalore so that they can live happily. When according to her this is the allegation against accused no.1, it is difficult for the Court to accept the contention that she accompanied him in the two wheeler along with accused no.1, unless, the said fact is established by some independent witness. Apart from that, it also appears to us that it is improbable and unnatural that still she went along with accused no.1. on two wheeler vehicle.
15. Even with regard to the complainant boarding the said vehicle of accused no.1 and traveling along with him for some distance and going to the lonely place, no other witnesses 15 Crl.A.No.1164/2012 have been examined by the prosecution that they have seen both of them together. But, it is no doubt PW.2 in the examination- in- chief deposed that on 23.11.2009, he has seen the accused no.1. and the complainant traveling on the two wheeler vehicle, he also deposed that Venkatalakshmi was sitting on the hind side of the said vehicle and he has talked to said Venkatalakshmi and she also asked him whether he was alright. He enquired whether she is going anywhere, as there was no time she went. But, looking to the cross-examination of this witness in para.2 on page. 2, this witness clearly admitted that he has not given statement as per Ex.D1. If this D1 is taken into consideration, it clearly goes to show that he is not the witness who has given statement that the accused no.1 as well as Venkatalakshmi went in two wheeler, but, except PW.2, no other witnesses were examined with regard to traveling of accused no.1. as well as complainant. Therefore, except the self serving testimony of PW.1, there is no independent supporting material on the side of the prosecution to show that both of 16 Crl.A.No.1164/2012 them were traveling on two wheeler vehicle as contended by the complainant in her complaint.
16. With regard to the incident in question is concerned, in her complaint itself, she has stated that, accused no.1. stopped the vehicle stating that he has to call somebody over the mobile phone, as battery of his mobile phone was exhausted, he asked her to give her mobile phone and he was calling somebody by using his sim card. She stood by the side of the said vehicle and by that time two persons came from behind, put towel on her face and dragged at some distance and in that process she sustained some injuries.
17. Now the question about the involvement of the respondent accused herein. She might stated in her evidence that she sustained injuries to her limbs which is also supported by the medical certificate issued by the Doctor so also the oral evidence of the Doctor but now, the question is who has caused the injuries and whether there is acceptable material in support of the said allegation. Admittedly, so far as two persons are 17 Crl.A.No.1164/2012 concerned, it is her own complaint averments as well as in the evidence that those two persons were unknown to her and immediately put towel on her face after that, what has happened who assaulted her, there is no evidence and in establishing the identify of the assailants is concerned, no test identification parade has been conducted by the prosecution, more so, so far as accused no.1. is concerned, though it is in her evidence that she was taken on two wheeler to the said place, but in her contention in complaint that when the towel put on her face was removed by her and accused no.1. was not there at that spot. Therefore, the question as to who made an attempt to commit her murder by putting the rope to her neck and caused injuries to the neck also and who are the persons responsible for dragging her from that place to a certain distance causing injuries to her is not clear. Hence, there is no acceptable and trustworthy material placed on record by the side of the prosecution and in the absence of said material, only on the say made by the complainant which is also not consistent, which is 18 Crl.A.No.1164/2012 not probable to be accepted by the Court, it cannot be held that it is accused persons who committed the said offence as against the complainant.
18. Even with regard to filing of the complaint, it is her case that incident had taken place on 23.11.2009. Since she sustained injuries, due to which she has not filed complaint on that day. She was also not admitted to the hospital on that day. But it is also on the next day of the incident i.e. on 24.11.2009, the complaint was submitted at 11 a.m.. Looking to this time gap from the time of incident and her admission into the hospital, later filed complaint, as it is rightly observed by the trial Judge that the delay in this process has not been properly explained by the prosecution with cogent and satisfactory material.
19. Apart from that, according to her own case, there was enemity between accused no.1 and herself because of the property dispute in respect of share of her husband. That is what is stated in the complaint and there is oral evidence of 19 Crl.A.No.1164/2012 PW.1. When she was already having such enemity against accused no.1, apart from that serious allegation is made that he casted an evil eye on her and he asked her to leave her children with her mother and accompany him to Bangalore so that they can live happily. Under such circumstances, unless the allegations in the complaint and story of the prosecution is supported by independent witnesses, it is not safe for the Court to accept and rely upon the evidence of the complainant in this case. Therefore, the learned trial Judge rightly observed in the Judgment that said contention is not supported by any other independent material.
20. We have heard and perused the evidence of the witnesses and also seizure of material objects. No doubt, it has come in the evidence that, from the house of accused no.1, Lakshmi Kasu (Lakshmi Pendent) has been seized at the instance of accused no.1 and Material Object nos. 2 and 3 were seized at the instance of accused nos.2 and 3. But, even if it is accepted and for the sake of appreciation of such recovery of 20 Crl.A.No.1164/2012 articles in the absence of other material only the recovery cannot form the basis to convict the accused persons but, looking to the evidence of these witnesses also more particularly the evidence of PW.5 one T.Srinivas, he turned hostile and he has not supported the case of the prosecution. He has specifically stated that nearby Gangamma Temple at Chinthamani, Sali Pet, he put his signature but he does not know for what purpose he put his signature. Even he has specifically stated that at the time of putting his signature, Police have not shown him gold ornaments and even stated, at the time when he put his signature to Ex.P3. Police have not at all seized the gold ornaments and also along with him no other persons put his signature. He alone put his signature to Ex.P3. When such is the evidence of PW.5 in respect of Ex.P3- Mahazar, it cannot be said that the said material is acceptable so far as the recovery of the gold ornaments. The prosecution examined one V.Narayanaswamy (PW.4), he has also been examined in respect of seizure of MO 2 and 3 under the 21 Crl.A.No.1164/2012 Mahazar Ex.P3. Even if PW.4 deposed that in his presence, the said seizure has taken place, but, the evidence of PW.5 and PW.4 are inconsistent with each other. PW.5 never stated in his evidence that presence of PW.4 V.Narayanaswamy therefore, the prosecution material is not consistent with each other and it will not inspire the confidence of this Court in the manner that they have stated to have taken place as deposed by PW.4 in his oral evidence. These aspects were properly taken into consideration by the learned Fast Track Court Judge in his Judgment and learned Judge after considering the independent material both oral and documentary, rightly comes to the conclusion in holding that the prosecution has failed to prove its case beyond all reasonable doubt.
21. As we have already observed, because of enmity between the accused no.1 and the complainant, the possibility of giving such complaint against accused no.1 and involving him in the said case falsely cannot also be completely ruled out by this Court.
22 Crl.A.No.1164/2012
22. We do not find any illegality in the Judgment and Order of acquittal passed by the Fast Track Court-II, Chintamani dated 11.7.2012 in SC No.56/2011. There are no valid and justifiable grounds to interfere with the said Judgment.
No merit in the appeal.
Accordingly, the appeal is hereby rejected.
Sd/-
JUDGE Sd/-
JUDGE Sk/-