Karnataka High Court
Palangada P Darshan @ Devaiah vs State By Virajpet Rural Police Station on 22 November, 2018
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRL.A. NO.1254/2017 (C)
BETWEEN
PALANGADA P. DARSHAN @ DEVAIAH
S/O P. J. PONNAPPA
AGED ABOUT 32 YEARS
R/AT KALLUMOTTE
KADANGA MARUR VILLAGE
PRESENTLY R/AT NO.64
2ND FLOOR, MUNIYAPPA
BUILDING, NEAR SYNDICATE BANK
HEGGANAHALLY MAIN ROAD
SUNKADAKATTE,
BENGALURU - 560 091 ... APPELLANT
(BY SRI. SURESH H. S., ADV.)
AND
STATE BY VIRAJPET RURAL
POLICE STATION, VIRAJPET TALUK
KODAGU DISTRICT - 571 218
REP. BY ITS STATE PUBLIC
PROSECUTOR, HIGH COURT
BUILDING, HIGH COURT
BENGALURU - 560 001 ... RESPONDENT
(BY SRI. K. P. YOGANNA, HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED
30.05.2017 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, KODAGU - MADIKERI, SITTING
AT VIRAJPET IN S.C.NO.14/2012 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 450, 302, 397, 392 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED
THE FOLLOWING:
JUDGMENT
The appellant/accused in SC No.14/2012 has preferred this appeal against the judgment of conviction and sentence passed by the II Addl. District and Sessions Judge, Kodagu Madikeri sitting at Virajpet vide judgment dated 30.05.2017.
2. The Trial Court has convicted the appellant/accused for the offence punishable under Sections 450, 302, 397 and 392 of IPC; sentencing him to undergo imprisonment for a period of 10 years and a fine of Rs.5,000/- for the offence punishable under Section 450 of IPC with default sentence; sentencing him to undergo simple imprisonment for life for the offence punishable under section 302 of IPC; further 3 sentencing him to undergo simple imprisonment for a period of 7 years for the offence punishable under section 397 of IPC; and further sentencing him to undergo simple imprisonment for a period of 10 years and also to pay a fine of Rs.10,000/- for the offence punishable under Section 392 of IPC with default sentence of simple imprisonment for a period of six months.
3. The brief factual matrix of the case are that:
A person by name Maddanda A. Ganapati examined as PW-1, has lodged an FIR stating that on 27.5.2011 at about 9.15 p.m., while he was in his house, he received information from his brother Uddanda Mallappa residing in the Kadanga Maroor village over phone that one Bachettira Sharadamma residing adjacent to his house was murdered by somebody and kept her dead body in the portico covered with some coconut leaves. Inturn the said Uddanda Mallappa came to know about the same from one H.B. Satish. After receiving the said information, the complainant had been to the said place and seen 4 the dead body of the deceased Sharadamma in her house and thereafter, he lodged the FIR to the police and the same was registered in Crime No.81/2011 for the offence punishable under Sections 302 and 201 of IPC. The police after thorough investigation submitted a charge sheet against the accused.
4. As per the entire case of the prosecution, it is the case that the accused person in order to have wrongful gain, on 26.5.2011 at about 7.15 p.m., has gained a wrongful entry into the house of the deceased Smt. Sharadamma with an intention to rob her. In this context, he assaulted and committed the murder of Sharadamma and taken away all gold ornaments belonging to the said lady. After thorough investigation, the police found that there are sufficient materials to inculpate the accused into the crime. Therefore, charge sheet has been laid against the accused in this regard. The accused was arrested on 8.7.2011 and it appears, since then, he has been in judicial custody. The Trial Court after committal proceedings secured the presence of the accused and framed charges against him for the 5 above said offences, for which he was convicted and sentenced as noted above.
5. The prosecution in order to bring home the guilt of the accused, examined as many as 21 witnesses as PWs.1 to 21 and got marked exhibits P-1 to P-30 and MOs.1 to 28. After the examination of the prosecution witnesses, the accused was also examined u/s.313 of Cr.PC., and his statement was recorded. The accused was called upon to enter into the defence evidence and he did not choose to do so. After hearing both the sides, the Trial Court has recorded the impugned judgment of conviction and sentence.
6. We have heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent - State. We have carefully re-evaluated the materials on record.
7. The learned counsel for the appellant strenuously contends that the entire case revolves around the recovery of some incriminating articles at the instance of the accused. In this regard the 6 prosecution has made serious attempt to establish the recovery of some incriminating articles at the instance of the accused. But they have utterly failed to prove the same. He further contends that even if the recovery is accepted as it is, but there is no link between the recovery and the accused with that of the crime alleged against the accused. Therefore, the whole case of the prosecution i.e., mysteries surrounded by serious doubts. Therefore, the prosecution story cannot be accepted as it is.
8. The learned counsel taken us through the evidence of all the witnesses and submitted that the evidence of the prosecution witnesses will not create any credibility for acceptance and therefore, benefit of doubt i.e., the missing link in establishing the case against the accused shall be given in favour of the accused and consequently, the accused is entitled for acquittal. Therefore, he prayed for setting aside the judgment of the Trial Court and consequential acquittal of the accused.
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9. The learned High Court Government Pleader has contended that though there are some discrepancies with regard to the recovery proceedings, recovery of incriminating articles at the instance of the accused as examined by the prosecution that the accused is the custodian of the incriminating articles recovered under Mahazar Ex.P-13 for having pledged the gold ornaments of the deceased in a jewellary shop by the accused and those gold articles proved to be belonged to the deceased. Therefore, it is the onus on the accused to explain as to how the jewellaries came into his custody, in the absence of any explanation by the accused, an adverse inference has to be drawn against the accused, as rightly done by the Trial Court. Therefore, he contends that the prosecution has proved the case beyond reasonable doubt. There is no room to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, he pleaded for dismissal of the appeal.
10. As we have already narrated the brief factual matrix of the case as rightly contended by the learned 8 counsel, the entire case of the prosecution revolves around the recovery of the incriminating articles at the instance of the accused.
11. Hence, we would like to discuss about the incriminating articles, connecting of those materials with that of the crime. Before that, we would like to have a brief cursory look at the evidence of the prosecution witnesses.
12. PW-1 Maddanda A. Ganapathi is the complainant who lodged a complaint as per Ex.P1 and also he is the Mahazar witness Ex.P2 under which nighty and petticoat of the deceased MOs.1 & 2 were recovered. There is no dispute so far as this aspect, death of the deceased and the recovery of the clothes which were on the person of the deceased. This witness has not been cross examined at all.
13. PW-2 Bheemaiah is the inquest panchnama witness. He has supported the case of the prosecution stating that the dead body of Shardamma was found lying in the backyard of her house and it was in a pool 9 of blood and there was an injury to the neck of the deceased and the police have collected the blood stained mud, unstained mud from the spot under Ex.P- 3, and drawn the inquest proceedings. This witness was also not cross examined.
14. PW-3 C.A. Subbaiah is another panch witness to Ex.P-4 Spot mahazar, under which the police have seized Ex.P-5, a letter written by the victim and kept in the Godrej Almirah of the house of the deceased. The said Ex.P-5 is said to have been written by the deceased inculpating one Bachittira Kashi, stating that the said person was threatening to kill her with dire consequences.
15. Further, the learned counsel for the appellant seriously argued so far as the said Kashi might have committed the murder, but in the absence of any material on record, we cannot totally rely upon the evidence and draw any inference in this regard. This witness very casually cross examined by suggesting that no such mahazar was drawn in the house of the deceased.
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16. PW-4 B.S. Jayanthi is no other than the daughter of the deceased. She has identified the gold ornaments of her mother which are marked as MOs.3 to
8. She has stated that the said ornaments belonged to her mother. The prosecution case is that after murdering the deceased these gold ornaments were taken away by accused and later recovered at the instance of the accused. First we would like to discuss about it and later the judgment of the trial court.
17. The defence counsel has actually not cross examined so far as the aspect of ornaments of the deceased is concerned. Therefore, there is no dispute whatsoever with reference to the material objects i.e., MOs.3 to 8 belonging to the deceased.
18. PW-5 Sathish, is the person who saw the dead body at the first instance and gave information to his father and mother. There is no incriminating materials available.
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19. PW-6 C.D. Belliappa is a witness to Ex.P-4 Spot Mahazar, under which Ex.P-5 letter was seized by the police.
20. PW-7 A.M. Nijamuddeen, is another witness for Ex.P2 mahazar under which MOs.1 & 2 were recovered. As we have already referred to, this witness has turned hostile.
21. PW-8 N.N.Shivadas @ Shivu, is the panch witness to Exs.P-9 & P-10 under which the police alleged to have recovered one Pant, Shirt, Watch and a Mobile phone at the instance of the accused. But this witness has turned hostile to the prosecution. Even in the cross examination, he has not supported the case of the prosecution.
22. PWs.9, 10 and 11 are the important witnesses who speak about the recovery of incriminating articles at the instance of the accused.
23. PW-9 Rakesh, has deposed that on 8.7.2011 himself and CW-13 were called by the police. Accordingly, he and CW-13 were present near the 12 temple of Kalabhairava located in a place called Kakotu Parambu in relation to this case at about 11.30 a.m., on that day. At about 11.45 a.m., the police and the accused came to the said place in a jeep, from there the accused took them to his house and taken to the bathroom where in a Koukolu (Rafter) (wooden stick) was hidden and the same was produced by the accused and thereafter, he went to the bath room and produced one jeans pant and a shirt which were stained with blood and thereafter, he took the witnesses and police to the bed room and produced a pouch containing black studs, studded in a golden chain, a pair of ear studs, a pair of rold gold bangles which was kept in the said pouch. That apart, they also noticed a slip, which was kept in the said pouch when it was opened. The said slip pertaining to jewellary shop of M/s.Manipuram Finance Ltd., with regard to the pledging of jewelry. The said witness has identified the chopper as MO-9 and Jeans pant as MO-10, T-shirt as MO-11. He also identified one rold gold ornament kept in black pouch as MOs.12 and 13. Very peculiarly enough, that these 13 MOs.12 and 13 rold gold bangles and MOs.5, 7 and 8 were not identified by PW-4 Jayanthi, that they belonged to her mother. She only stated that MOs.3 to 8 were belonged to her mother. MOs.9 to 11 which are marked were nowhere connect to the extent because of the reason that these items i.e., MOs.9 to 11 were recovered from the accused were sent to FSL, particularly the FSL report is negative so far as these articles are concerned. The FSL report says that they do not contain any blood stains at all.
24. PW-10 B.A. Pemmaiah, has stated that on 7.9.2011, the police have brought the accused and one Somashekar @ Someshwar, both of them told the police that they would show the place where the jewels are pledged. On that day accused - Darshan, along with Somashekar, police and other witnesses, had been to Manipuram finance Ltd., Bengaluru. Somashekhar was possessing a receipt for having pledged the jewellary in the finance office. The said receipt was cross verified by the Manipuram finance Ltd., and thereafter they produced the jewels pledged i.e., a broad bangle, one 14 pair of ear ring studded with white stone, a ring made of gold studded with gold elephant tail (a pattern) and another studded with white stone. Ex.P-12 is the receipt and Ex.P-13 is the mahazar and this witness supported the case and identified his signature as per Ex.P-13a. Ex.P-12 carries the digital photograph of the said Someshwar. He identified the jewells marked at MOs.3 to 6. Therefore, these are all the important articles which were said to have been recovered at the instance of the accused. In the course of cross examination, nothing worth has been elicited from this witness, except suggesting that no such proceedings had taken place, but all those suggestions have been denied by the witness.
25. PW-11 Manjula, Manager of Muthoot Finance, Tumkur, in fact is a material witness, has deposed before the court that while she was working there, during the relevant time i.e., on 1.7.2011, one Mr. Someshwar S/o. Nanjappa approached the Branch at Kamakshi palya and pledged gold ornaments i.e., a broad bangles, one pair of ear stud, two golden rings 15 totally weighing 17.5 grams and after following the procedure the said articles were pledged and an amount of Rs.31,200/- was given as loan to Someshwar and issued receipt as per Ex.P12. She also cross verified and that is marked at Ex.P-14, which carried a photo of the said Someshwar, which was obtained to the web camara. The said Someshwar has affixed his signature which is marked at Ex.P14a on Ex.P14. She has further deposed that on 9.7.2011, the police had brought the said Someshwar and also the accused herein and asked them to produce the gold ornaments which were pledged under Ex.P-12 and P-14. On verification of Ex.P-12 and P-14, this witness has produced the said gold articles and they were all recovered by the police under Ex.P-13 mahazar. She has also signed the said mahazar at Ex.P-13b.
26. In the course of cross examination, again we find that nothing has been elicited except the suggestion and denial of evidence stated by this witness. From looking into the evidence of this witness, and Exhibits P-12 and P-14, it is clear that the police 16 have recovered at the instance of the accused i.e., MOs.10 and 11 which are Jeans pant and T shirt seized under Ex.P-11 Mahazar and also recovered Ex.P-12 receipt under Ex.P-13 mahazar and also recovered the gold ornaments MOs.3 to 6 at the instance of the accused.
27. Though the prosecution has successful in establishing recovery of these articles at the instance of the accused, the prosecution has to establish the connection between the recovery of these articles with that of the crime.
28. It is the case of the prosecution that the accused persons after robbing the deceased committed the murder of the deceased and has taken away these jewels along with him and handed over the same to CW-20 Someshwar for the purpose of obtaining some money. In turn the said Someshwar who was regular and old customer to Manipuram finance went to the Manager, where PW-11 Manjula was working as a Manager and he pledged the said articles and obtained an amount of Rs.31,200/- and handed over the said 17 amount and also the receipt of Ex.P-12 to the accused and in that context, it is the further case of the prosecution that the Investigating Officer has recovered Ex.P-12 from the house of the accused.
29. Very strangely enough, CW-20 Someshwar who is the star and key witness to the prosecution has not been examined before the court. With all curiosity, we have examined the order sheet of the Trial Court, wherein it establishes that the learned Public Prosecutor has taken summons, warrants to secure the presence of CW-20 Somasheka @ Someshwar, but the police could not able to secure and produce him before the court after giving much deliberation as well as warrants being issued against the said witness, the court also felt that it is unnecessary to issue further process against the said witness and virtually vide order dated 21.3.2017, the court has passed an order rejecting the prayer of the prosecution to issue further process against CW-20 and thereby the said witness examination was closed and the case of the prosecution was closed, though the court ought to have looked into the statement of the said 18 witnesses made before police in order to ascertain what exactly the role of the said witness in the prosecution case as we have observed the examination of the key witness to the prosecution who collects the incriminating articles with the accused in the absence of evidence of CW-20, the prosecution cannot prove the connection between the recovery of the incriminating articles with that of the accused. The said Someshwar is the person who could have stated before court the case that after the accused robbed the said articles from the body of the deceased, handed over the same to Someshwar who has taken money as to how Ex.P-12 came to the hands of the accused is a mystery and there is absolutely no evidence by the prosecution to establish the custody of Ex.P12 with the accused. Mere recovery of Ex.P-12 from the accused is bereft of any other evidence on record to establish as to how this Ex.P-12 came to the hands of accused, the court cannot draw any adverse inference against the accused only on the basis of that.
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30. If at all the prosecution has established the route under which Ex.P-12 had been to the hands of accused, then only the onus should have been shifted on to the accused to establish as to why Ex.P-12 was with him. Therefore, in the absence of such aspect being established no - burden on the accused to establish the same. Therefore from the above said evidence, though the prosecution has established recovery of some incriminating articles, but they failed to connect the accused to the recovery of the said articles.
31. Remaining witnesses are not so relevant.
32. PW-12 Mr. Sameer was examined to establish Ex.P-23 with reference to recovery of sonata Company watch, but he turned hostile to the prosecution.
33. PW-13 TP Manjunath, H.C. CID squad examined for the purpose of establishing that the accused was searched by this witness and thereafter apprehended the accused. There is no dispute 20 regarding the fact that the accused was arrested on 8.7.2011.
34. PW-14 E.C. Jeevan is examined to prove Ex.P9 seizure mahazar. But he has also turned hostile to the prosecution.
35. PW-15 Kasthuri is examined to establish Ex.P-7 seizure Mahazar under which Ex.P-6 photographs were seized. There is no dispute with regard to Ex.P-6 because under Ex.P6, the prosecution wants to prove that PW-4 B.S. Jayanthi is the daughter of the deceased. There is no dispute so far as this fact is concerned.
36. PW-16 Babu Durani, is the person who was examined to show that, the accused Darshan has obtained a room in Lawyer's lodge located in Mysuru. Though, he has supported the case of the prosecution, but there is no connectivity as to how this would connect the accused with the crime.
37. PW-17 C.S. Chandrashekar, H.C. 72, is the person who carried the incriminating articles to RFSL, 21 Mysuru and articles were taken by him and he handed over he same to RFSL, Mysuru and the same is not much disputed by the other side.
38. PW-18 H.K. Sannaiah is the person who went to the Kadanga Maruru village and on receiving the information that Sharada was killed, he went and present there. He observed CW1 was present near the spot and he received the complaint from him as per Ex.P-1 and he came back to the Police Station and registered a case in Crime No.81/2011 for the purpose of further investigation.
39. PW-19 H.M. Udaya PC No.485 is the person, who accompanied the Investigating Officer to the house of the accused for the purpose of seizure of some incriminating articles i.e., under mahazar Ex.P-9 purple colour half shirt and one mobile hand set which are marked at MOs.14-17 but these articles were never projected by the prosecution for the purpose of proving the case against the accused. These are all the incriminating articles said to have been recovered which do not connect the accused in any manner. 22
40. PW-20 Dr.Chayakumari, is the FSL Director. Her evidence is very important. It is the case of the prosecution that all the items which were seized and recovered in connection with this case were sent to FSL including the blood stained articles of the deceased and as well as the recovered articles at the instance of the accused and it is stated that blood was not detected in any of the items which were sent for the FSL, except item Nos.1-6, 8, 11 and 12.
41. But, the learned High Court Government Pleader for the respondent - State, also did not bring it to our notice whether any incriminating articles like Pant, T-shirt and other articles recovered at the instance of the accused, contained any blood which matches with the blood group of the deceased.
42. PW-21 H.M. Shylendra, is the DYSP, ACB, Mandya, is the person who conducted the investigation and after completion of the investigation laid the charge sheet against the accused. Except item Nos.1 to 6, 8, 11 and 12 which were stained with B-Group blood. On verification none of these items were recovered at the 23 instance of the accused and all these items belong to the deceased i.e., her clothes and blood stained mud and other items as per Ex.P-26. Ex.P-28 is another document spoken to by this witness which clearly goes to show that the items which were recovered at the instance of the accused one Kathi MO.9, Jeans Pant MO.10 and T.Shirt MO.11 were also sent to FSL and found that these items were not stained with blood. Therefore, nothing more is available so far as this witness is concerned. He has stated only recovery of the incriminating articles at the instance of the accused. Therefore, there is no connectivity with reference to the recovery of the items at the instance of the accused with reference to the FSL report and in connecting the same to the crime. But as we have already referred to recovery is bereft of any connection with the accused and the crime.
43. On overall evaluation and re-appreciation of the evidence on record, we are of the opinion that non- examination of CW-20 Someshwar gave a death blow to the case of the prosecution. He is a key witness, but 24 has not been examined to establish the connectivity with the recovery of the articles with the accused and in turn to the crime alleged. Therefore, benefit of such doubt has to be extended in favour of the accused.
44. With this observation, we proceed to pass the following:
ORDER The appeal is allowed. Consequently, the judgment of Conviction and Sentence dated 30.5.2017 passed by the II Additional District and Sessions Judge, Kodagu Madikeri, sitting at Virajpet, in S.C. No.14/2012, are hereby set aside. The appellant/accused is hereby acquitted of the offences punishable under Sections 450, 302, 397 and 392 of IPC The accused is ordered to be set at liberty forthwith, if he is not required in any other case.
Fine amount, if any, deposited by the appellant/accused, shall be refunded to him, on proper acknowledgement.25
The office is hereby directed to communicate this order to the concerned Jail Authority forthwith, for compliance.
Sd/-
JUDGE Sd/-
JUDGE PL*