Karnataka High Court
Sri.G.B.Umesh vs State By Sakaleshpura on 11 October, 2018
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 11TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.492 OF 2014
BETWEEN:
1. SRI.G.B.UMESH
SON OF BASAPPA GOWDA,
AGED ABOUT 32 YEARS,
GOLAGANDE VILLAGE,
BELAGODU HOBALI,
SAKALESHPURA TALUK,
HASSAN - 573 103.
2. SRI VIRUPAKSHA
SON OF SOME GOWDA,
AGED ABOUT 32 YEARS,
GOLAGANDE VILLAGE,
BELAGODU HOBALI,
SAKALESHPURA TALUK,
HASSAN - 573 103. ... APPELLANTS
(BY SRI AMAR CORREA, ADVOCATE)
AND:
STATE BY SAKALESHPURA
RURAL POLICE STATION,
2
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001. ... RESPONDENT
(BY SMT.NAMITHA MAHESH B.G,
HIGH COURT GOVERNMENT PLEADER)
THIS CRL.A IS FILED UNDER SECTION 374(2)
CR.P.C BY THE APPLLANTS/ACCUSED NO.1 AND 2
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 11.1.2013 PASSED BY THE PRESIDING OFFICER
FAST TRACK COURT-II, HASSAN IN S.C.NO.111 OF 2011 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS
447,341,504,382 AND 302 READ WITH 34 OF INDIAN
PENAL CODE.
THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 3 MONTHS AND
PAY FINE OF RS.500/- EACH, IN DEFAULT TO PAY FINE,
THEY SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 1 MONTH FOR THE OFFENCE PUNISHABLE UNDER
SECTION 447 OF INDIAN PENAL CODE.
THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 1 MONTH AND PAY
FINE OF RS.500/- EACH, IN DEFAULT TO PAY FINE, THEY
SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 1
MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTION
341 OF INDIAN PENAL CODE.
THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 2 YEARS AND PAY
FINE OF RS.1000/- EACH, IN DEFAULT TO PAY FINE, THEY
SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 2
MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION
504 OF INDIAN PENAL CODE.
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THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 10 YEARS AND
PAY FINE OF RS.2000/- EACH, IN DEFAULT TO PAY FINE,
THEY SHALL UNDERGO FURTHER RIGOROUS
IMPRISONMENT FOR 2 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 382 OF INDIAN PENAL
CODE.
THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO LIFE RIGOROUS IMPRISONMENT AND PAY FINE
OF RS.5000/- EACH, IN DEFAULT TO PAY FINE, THEY
SHALL UNDERGO FURTHER RIGOROUS IMPRISONMENT
FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF INDIAN PENAL CODE.
ALL THE SENTENCES SHALL RUN CONCURRENTLY.
*****
THIS CRL.A. COMING ON FOR HEARING THIS DAY,
RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution in brief is as follows:-
The deceased is one Karthik. He was employed as a watchman by PW.1 in his estate. About 1 ½ months prior to the incident, that is on 17-2-2011, at about 10.00 p.m. when the deceased was on guard duty at the coffee estate, four persons came there to steal pepper. The deceased 4 accosted them. They shouted at him that he is becoming a nuisance in their plucking of pepper. Thereafter one of them held Karthik, the other assaulted with a Machchu on his right leg. The third person assaulted with a Machchu on his right cheek, on both hands, on both thighs and the left knee. The fourth person assaulted him with his hands. They then threatened that if he continues to stop them, they will kill him. Thereafter they went away. That on 18-2-2011 at about 6.30 a.m., in the morning, two of the workmen in that estate namely, Krishnamurthy and Vijay came and saw him. They immediately telephoned the owner about the injuries sustained on the deceased. Thereafter, PW.1 shifted the deceased to the hospital at Sakaleshpur. The statement of the deceased was recorded at about 8.50 a.m. in the presence of the Doctor. The same was reduced into writing by PW.18 the PSI. Thereafter the case was registered against one Umesh and others for the offence punishable under Sections 447, 504, 341,323, 326, 506 read with 34 of IPC. Investigation was 5 taken up. Thereafter, yet another statement of the deceased was recorded in terms of Ex.P-19 on 18-2-2011 at about 3.00 p.m., by PW.18, who is the PSI, in the presence of the Doctor PW.11. Subsequently, the deceased died on 19-2-2011 at about 8.30 a.m. Section 302 was also added to the FIR. On investigation, the charge sheet was laid against two accused for the offences punishable under Sections 447, 341, 504, 382 and 302 read with 34 of IPC. The accused pleaded not guilty and claimed to be tried.
2. In order to prove its case, the prosecution examined 20 witnesses and marked 34 exhibits and 9 Material Objects. By the impugned order, both the accused were convicted for the offences punishable under Sections 447, 341, 504, 382, 302 read with Section 34 of IPC and sentenced as follows:
"Accused Nos.1 and 2 to undergo simple imprisonment for 3 months and to pay fine of Rs.500/- each and in default of the payment of 6 fine to undergo further simple imprisonment for a period of 1 month, for the offence punishable under Section - 447 of IPC; to undergo simple imprisonment for 1 month and to pay fine of Rs.500/- each and in default of the payment of fine to undergo further simple imprisonment for a period of 1 month, for the offence punishable under Section - 341 of IPC, to undergo simple imprisonment for 2 years and to pay fine of Rs.1,000/- each and in default of the payment of fine to undergo further simple imprisonment for a period of 2 month each, for the offence punishable under Section - 504 of IPC to undergo simple imprisonment for 10 years and to pay fine of Rs.2,000/- each and in default of the payment of fine to undergo further simple imprisonment for a period of 2 months, for the offence punishable under Section - 382 of IPC; and to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- each and in default of the payment of fine to undergo further rigorous imprisonment for a period of 1 year, for the offence punishable under Section - 302 of IPC."7
Aggrieved by the same Accused Nos.1 and 2 have filed this appeal.
3. Sri Amar Correa, learned counsel appearing for the appellants contends that the entire case of the prosecution is faulty. That the accused have been wrongly implicated in this case. That there is no material to suggest that the accused were identified by the deceased. That merely on hearsay basis, both have been added as accused and have been wrongly convicted.
4. On the other hand, the learned State Public Prosecutor disputes the same. She contends that the accused have been identified. That the recoveries have been proved. That the FSL report runs against the accused. The statement made by the deceased is sufficient to prove the case of the prosecution. Hence, she pleads that the appeal be dismissed by confirming the order of conviction passed by the trial Court. 8
5. Heard learned counsels and examined the records.
6.(a) PW.1 is the owner of the estate where the deceased was working. He is also a pancha to the spot Mahazar, vide Ex.P-2. He is also a pancha to the seizure Mahazar for the clothes of deceased, in terms of Ex.P-3, with reference to blood stained mud - MO.1, plain mud - MO2, MOs.3 to 5 which are clothes of the deceased, MO.6
- the weapon used for the commission of the offence. He is also a pancha to the spot Mahazar Ex.P-4, where the body of the deceased was buried.
(b) PW.2 is one of the labourers in the estate of PW.1. He saw the deceased in the estate at about 6.30 a.m. on the date of the incident. His statement was recorded in the hospital. He has turned hostile.
(c) PW.3 is the pancha for the seizure of the clothes of the deceased from the hospital in terms of Ex.P-
6. 9
(d) PW.4 is the pancha to the spot Mahazar in terms of Ex.P-2, with regard to the place of the incident as well as Ex.P-7, the inquest.
(e) PW.5 is the witness to the spot Mahazar Ex.P-8 as well as Ex.P-9 which is the seizure Mahazar for seizure of weapons at the instance of accused No.2, vide MO.6 & MO.8 at the instance of accused No.1. MO.9 is the pepper bag.
(f) PW.6 is the pancha to the spot mahazar Ex.P-2, with regard to the place of incidence. He is also pancha to the Mahazar drawn with regard to the burial of the deceased Ex.P-6.
(g) PW.7 is the pancha to the spot Mahazar Ex.P- 8, the seizure Mahazar Ex.P-9, Machchu and pepper bag recovered from the house of accused No.2, vide MOs 6, 8 & 9.
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(h) PW.8 is the Engineer who has drawn the sketch of the scene 06 offence, Ex.P-16.
(i) PW.9 is the KEB Engineer who speaks about the availability of electricity on the night of the incident and gave a report in terms of Ex.P-17.
(j) PW.10 is the pancha for the seizure of photos and CDs in terms of Ex.P-18 at the scene of occurrence.
(k) PW.11 speaks about the deceased being admitted to the hospital and giving statement in terms of Ex.19 before the Investigation Officer. He has identified the signature of the deceased on Ex.P-19, the second statement of the deceased.
(l) PW.12 is the Doctor who conducted the post mortem examination and has given his report in terms of Ex.P-20 and furnished opinion in terms of Ex.P-21 and has narrated that the deceased has sustained 18 injuries 11 and has opined that the death was due to the injuries caused.
(m) PW.13 is the Constable who arrested accused Nos. 1 & 2 on 27-2-2011 near Adalagadde, Subramanya Road.
(n) PW.14 is another Constable who kept guard over the dead body and who collected the clothes of the deceased vide Ex.P.6.
(o) PW.15 is the constable who delivered the FIR to the Court.
(p) PW.16 is the Constable who delivered the weapons to the Doctor for his opinion.
(q) PW.17 is the constable who speaks about apprehending both the accused on 27-2-2011. He speaks about the drawing of spot Mahazar vide Ex.P-8, spot Mahazar, Ex.P-9, seizure Mahazar, the photographs and 12 CDs as per Exs.P-12 to 16, as well as seizure Mahazar for photos and the CDS vide Exs.P-18 and 23.
(r) PW.18 is the pancha who conducted the initial investigation. He recorded the first statement of the deceased as per Ex.P-24 and registered the FIR in terms of Ex.P-25. He speaks about the seizure of clothes of injured vide Ex.P-3. He recorded the further statement of the deceased in terms of Ex.P-19.
(s) PW.19 is the Investigating Officer who conducted the further investigation and filed the charge sheet.
(t) PW.20 is the Forensic Officer who submitted the report in terms of Ex.P-33.
7. Based on the aforesaid evidence, the trial Court convicted both the accused for the offence charged against them.
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8.(a) The first contention of the appellants is that the accused have been wrongly implicated in the case. That the case of the prosecution was that the deceased was a stranger who was employed only about 1½ months earlier. Nobody knew him. He did not know anybody. In the first statement made by him in terms of Ex.P-24, he has narrated the manner in which the incident occurred and thereafter states that he was given to understand that one of the persons who assaulted him was one Umesh. That there was no other material to indicate as to whether the deceased had identified accused No.1 Umesh. There is not even a description of the accused made by him. Therefore, accused No.1 has been wrongly implicated.
(b) The same is disputed by the learned State Public Prosecutor. He contends that only because he is a stranger, does not mean that the accused could not have been identified. The evidence of PW.4 would indicate that accused Nos. 1 & 2 were accused in a case lodged by him under Section 307 of IPC. The issue was subsequently 14 closed. Therefore, they were habitual offenders. Therefore, they were easily identified.
(c) On considering the same what emerges is that the deceased did not know any of the accused. He has stated in his statement vide Ex.P-24, that he knew one of the accused, Umesh. In order to accept the case of the prosecution, they would have to indicate that the accused were identifiable at least in a physical form. The deceased should have narrated as to how each one of the accused were visible to him. From such physical identification of the accused, the same would have to match the physical appearance of the accused. However, none of it is forthcoming. The deceased did not even know anyone of the accused. He has not even identified any of the accused. He has merely stated that one of the accused was Umesh. Therefore, we are unable to accept the case of the prosecution that accused No.1 was clearly identifiable by the deceased.
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9. So far as the second statement in terms of Ex.P-19 is concerned, we have no hesitation to hold that the same is an absolute improvement of the initial statement made by the deceased in Ex.P-19, wherein, various details of the offence have been made. He has even identified accused No.2. When he has failed to identify accused No.2 in his first statement, it is difficult to accept as to how he can identify the second accused in the second statement made by him. Therefore, the second statement in terms of Ex.P-19 is a clear case of improvement. Such improvement cannot be accepted in order to prove the prosecution case. Under these circumstances, we are of the view that the trial Court committed an error in accepting Exs.P24 and P19. There was no reason to accept the said Exs.P-24 and P19 in the absence of any proof by the prosecution as held herein above. When the accused were not even physically identified by the accused, their implication becomes doubtful. We are of the view that the trial Court 16 committed an error in misconstruing Exs.P-24 and P19 and has wrongly come to the conclusion that the accused have been identified by the deceased. Therefore, we hold that neither Exs.P-24 nor Ex.P-19 could be accepted as material in support of the case of the prosecution.
10. The further contention that the accused have been identified in view of the fact that both the accused were accused in the earlier offence, also cannot be accepted. Only because both of them were accused in an earlier case, cannot be a ground to conclude that they are the very accused who committed this offence. Furthermore, no details of the case have been brought about by the prosecution. Neither the investigation in the earlier case nor what happened therein, have been brought on record. It is merely a statement made by the witness in his evidence. That cannot constitute sufficient proof that the accused were habitual offenders. 17
11.(a) The trial Court relied on the FSL report and came to the conclusion that the prosecution has established its case . The report of the FSL has been marked as Ex.P-33. It indicates that the weapon that was seized at the instance of the accused bore the blood of the deceased. Therefore, it is a case where the FSL report supports the case of the prosecution. The trial Court accepted the report to hold the accused guilty of the commission of the offence under Section 302.
(b) Here too, we are unable to accept the reasons of the trial Court. The matching of the blood of the deceased on the weapons does not lead to the conclusion that the offence of Section 302 has been committed. The post-mortem report in terms of Ex.P-20 would clearly narrate the various injuries sustained by the deceased. There are as many as 18 injuries noted therein. The Doctor has unfortunately not stated as to which are grievous or which are simply injuries. He has only opined that the death is due to shock and haemorrhage as a 18 result of the injuries caused. None of the injuries by themselves or in the totality would have caused the death. The deceased died on the third day after the incident. The deceased could not have died because of certain abrasions and lacerations. None of them are grievous injuries which themselves could have caused the death of the deceased. None of the vital organs have been damaged by any of the 18 injuries that have been caused. Therefore, the correlation between the FSL report and the cause of death of the accused was wrongly appreciated by the trial Court. Therefore, merely because the FSL report would indicate that the blood of the deceased was found on the weapon, by itself, cannot prove that the prosecution has established its case beyond all reasonable doubt.
12. The further material relied upon by the trial Court is the recovery of the pepper bag from the house of accused No.2 and the weapons at his instance vide Exihibit-P9. MO.6 which is a sickle (machchu) 19 and MO.9 is the pepper bag were recovered from the house of accused No.2 and MO.8 was recovered from the house of the brother of accused No.1. There is no evidence that the pepper alleged to have been stolen from the estate of PW-1, is the very pepper that has been seized in MO.9. Therefore, the pepper bag recovered from accused No.2 would really be of no consequence. The prosecution has failed to show that the pepper bag alleged to have been stolen is the very pepper that has been found in MO.9. Furthermore, neither in Exs-24 nor in P-19 which are the statements of the deceased, there is any reference that the accused stole the pepper. The entire narration is only of the assault. The best reference made by the deceased is there was an attempt to steal pepper. There is no statement made by him that the pepper was stolen. Therefore, the recovery by way of MO.9 and the alleged stealing of pepper has not been established.
13. So far as the recovery of MOs.6 and 8 (Machchu) is concerned, the same is also doubtful. It is 20 stated that the MOs were recovered at the behest of Accused No.2. The statement of the deceased in terms of Exhibits-P19 and P24 indicates that there were four accused. There is no material to indicate as to how and in what manner the two MOs could be relatable to the Accused. Therefore, this is also a doubtful circumstance.
14. The case of the prosecution is that the weapon MO.6 seized at the behest of accused No.2 was that of the deceased. That there is a particular mark which was identifiable as that belonging to the deceased. However, the evidence on record does not indicate that the sickle of the deceased was taken away by the accused either in Ex.P-24 nor in Ex.P-19. However, in the second statement there is clear improvement with regard to the snatching of the weapon by accused No.2. Thus as held hereinabove, the statements cannot be accepted, in view of the discrepancy as narrated therein. Therefore, the recovery of the weapons also, would not bring home the guilt of the accused so far as the commission of the offence is 21 concerned. Therefore, we are of the view that so far as recovery of the stolen pepper and the weapons are concerned, the same is sufficient to prove the case of prosecution against the accused.
15. Under these circumstances, what emerges is that the identification of accused No.1 in the first statement is based on hearsay. The identification of accused No.2 in the subsequent statement is a vast improvement. That such an improvement cannot be accepted by the Court. The recovery of the weapons and the stolen pepper are not sufficient to prove the case of the prosecution. The medical evidence also does not support the case of the prosecution that there was any intention on the part of the accused to commit any grievous offence on the deceased. The injuries as narrated in the post mortem report are all simple injuries.
16. For all these reasons, we are of the view that the trial Court misdirected itself in passing the impugned 22 order. It has not appreciated the evidence in a just and reasonable manner. There is a perversity in accepting Exs.P-24 and P19. In Ex.P-24 there is a wrong implication of accused No.1 which is purely based on hearsay information. Ex.P-19 which is the subsequent statement is a vast improvement of facts which do not find a place in Ex.P-24. Therefore, these documents are an after thought by the accused. They cannot be accepted. Therefore, we are of the opinion the trial Court misdirected itself in accepting these documents. Hence, we find that the findings recorded by the trial court is a wrong appreciation of evidence and when the prosecution has failed to prove its case beyond all reasonable doubt, the benefit of doubt would necessarily go to the accused. Hence, we pass the following:-
ORDER
a) The appeal is allowed.
b) The Judgment of conviction and order of sentence dated 11-1-2013 passed by the Presiding Officer, 23 Fast Track Court-II, Hassan, in S.C.No.111 of 2011 is set aside.
c) Accused No.1 - G.B.Umesh and Accused No.2 -
Virupaksha, are acquitted of all the charges levelled against them.
d) They shall be set at liberty, if not required in any other case/cases.
Registry to communicate the operative portion of the order to the concerned Jail Authorities for necessary action.
SD/- SD/-
JUDGE JUDGE
Rsk/-