Karnataka High Court
Sri Manikanta @ Ayyappa vs The State Of Karnataka on 22 July, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF JULY, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.844/2010
C/W
CRIMINAL APPEAL NO.811/2010
C/W
CRIMINAL APPEAL NO.1237/2010
In Crl.A.No.844/2010
BETWEEN:
MANIKANTA @ AYYAPPA,
AGED ABOUT 18 YEARS,
S/O LATE MAHADEVAPPA,
RESIDING AT:
HELAVARAHUNDI VILLAGE,
T. NARASIPURA TALUK. ... APPELLANT
(BY SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR
SMT. RENY SEBASTIAN, ADV.,)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY:
T. NARASIPURA POLICE
MYSORE DISTRICT ... RESPONDENT
(BY SRI. P.M. NAWZ, ADDL. SPP)
2
THIS CRL.A FILED U/S 374(2) CR.P.C PRAYING
TO SET ASIDE THE CONVICTIONS AND SETENCES
PASSED IN S.C.NO.199/2008 BY THE PRESIDING
OFFICER, FAST TRACK COURT-II, MYSORE ON
16.7.2010 - CONVICTING THE APPELLANT/ACCUSED
NO.2 FOR THE OFFENCE P/U/S 302 OF IPC. AND THE
APPELLANT/ ACCUSED NO.2 IS SENTENCED TO
UNDERGO RIGOROUS LIFE IMPRISONMENT AND HE
IS ALSO DIRECTED TO PAY A FINE OF RS.2,000/-. IN
DEFAULT, HE SHALL UNDERGO S.I.FOR 6 MONTHS.
THE SENTENCES SHALL RUN CONCURRENTLY. THE
APPELLANT/ACCUSED NO.2 PRAYS THAT THE ABOVE
ORDER MAY BE SET ASIDE.
In Crl.A.No.811/2010
BETWEEN:
1. CHETHANA @ HARMONIAM MASTER,
S/O. SIDDAPPA,
AGED ABOUT 20 YEARS,
BASAVESHWARANAGARA.
2. JAGADEESH @ JAGGA @ MANJUNATHA,
S/O. LATE GURUSIDDAPPA,
AGED ABOUT 25 YEARS,
3. MAHESH @ GUNDUMARI,
S/O. NANJUNDASWAMY,
AGED ABOUT 25 YEARS,
BASAVESHWARANAGARA.
ALL ARE RESIDING AT:
R/AT HELAVANAHUNDI VILLAGE,
HELAVARAHUNDI VILLAGE,
T. NARASIPURA TALUK. ... APPELLANTS
(BY SRI. C H JADHAV, SENIOR ADV.)
3
AND:
STATE OF KARNATAKA,
BY T. NARASIPURA POLICE STATION,
REPRESENTED BY:
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001. ... RESPONDENT
(BY SRI. P.M. NAWAZ, ADDL. SPP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DT.16/17.7.10 PASSED BY THE P.O.
FTC-II, MYSORE IN S.C.NO.199/08-CONVICTING THE
APPELLANTS /ACCUSED NO.1 AND 2 FOR THE
OFFENCE P/U/S 302 OF IPC AND
APPELLANTS/ACCUSED NO.3 AND 4 FOR THE
OFFENCE P/U/S 342 OF IPC. THE APPELLANTS/
ACCUSED NO.1 AND 2 ARE SENTENCED TO
UNDERGO RIGOROUS LIFE IMPRISONMENT AND PAY
A FINE OF RS.2,000/- EACH, IN DEFAULT OF
PAYMENT OF FINE THEY SHALL UNDERGO S.I. FOR
SIX MONTHS-FOR THE OFFENCE P/U/S 302 OF IPC.
THE APPELLANTS/ACCUSED NO.3 AND 4 ARE
SENTENCED TO UNDERGO R.I. FOR SIX MONTHS
AND PAY A FINE OF RS.500/- EACH, IN DEFAULT OF
PAYMENT OF FINE THEY SHALL UNDERGO S.I. FOR
ONE MONTH-FOR THE OFFENCE P/U/S 342 OF IPC.
THE SENTENCE SHALL RUN CONCURRENTLY.
In Crl.A.No.1237/2010
BETWEEN:
STATE BY T. NARASIPURA POLICE ... APPELLANT
(BY SRI. P.M. NAWAZ, ADDL. SPP)
4
AND:
1. CHETHANA @ HARMONIAM MASTER,
S/O.SIDDAPPA,
AGED ABOUT 19 YEARS,
BASAVESHWARANAGARA.
2. MANIKANTA @ AYYAPPA,
S/O.LATE MAHADEVAPPA,
BASAVESHWARANAGARA.
3. JAGADEESH @ JAGGA @ MANJUNATHA,
S/O.LATE GURUSIDDAPPA,
AGED ABOUT 23 YEARS,
BASAVESHWARANAGARA.
4. MAHESH @ GUNDUMARI,
S/O.NANJUNDASWAMY,
AGED ABOUT 23 YEARS,
BASAVESHWARANAGARA.
ALL ARE RESIDING AT
HELAVARAHUNDI VILLAGE
T. NARASIPURA TALUK ... RESPONDENTS
(BY SRI. C.H. JADHAV, SENIOR ADV.,FOR R1,R3 & R4,
SRI. TOMY SEBASTIAN, SENIOR ADV., FOR R2)
THIS CRL.A. FILED U/S. 378(1) & (3) CR.P.C BY
THE STATE P.P. PRAYING TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGEMENT DT:
16/17.7.10 PASSED BY THE P.O., FTC-II, MYSORE, IN
S.C.NO.199/08 - ACQUITTING THE RESPONDENTS 1
AND 2 FOR THE OFFENCE P/U/S 342 R/W 34 OF IPC
AND RESPONDENTS NO.S 3 AND 4 FOR THE
OFFENCE P/U/S 302 R/W 34 OF IPC. THE SPP/STATE
PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE.
THESE CRIMINAL APPEALS ARE COMING ON
FOR FURTHER HEARING THIS DAY, B.V.PINTO.J,
DELIVERED THE FOLLOWING :
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JUDGMENT
These three appeals are filed challenging the Judgment dated 16.07.2010 passed by Fast Track Court-II, Mysore in SC No.199/2008 whereunder the learned Sessions Judge has convicted accused Nos.1 and 2 for the offence under Section 302 r/w Section 34 of IPC and sentenced them to undergo rigorous life imprisonment and to pay fine of `2,000/- each in default to suffer simple imprisonment for six months and further convicted accused Nos.3 and 4 for the offence under Section 342 r/w Section 34 of IPC and sentenced them to undergo rigorous imprisonment for six months and to pay fine of `500/- each in default to suffer simple imprisonment for one month. Criminal Appeal No.844/2010 is filed by accused No.2, Criminal Appeal No.811/2010 is filed by accused Nos.1, 3 and 4, while Criminal Appeal No.1237/2010 is filed by the State seeking an order of conviction against accused Nos.1 and 2 for the offence under Section 342 r/w Section 34 of IPC and against accused Nos.3 and 4 for 6 the offence under Section 302 r/w Section 34 of IPC. Since, all these matters pertains to the single judgment all are taken up together for the purpose of disposal.
2. It is the case of the prosecution that, on 27.04.2008 at about 2.00 a.m in Sri.Gurumalleshwara Dasoha Mat, situated in a village Helavarahundi, within the limits of T.Narasipura Police Station, accused Nos.1 to 4 with a common intention of murdering the deceased Rudramuniswamyji wrongfully confined the said deceased in a room after bolting the room from outside and thereby, they are alleged to have committed an offence under Section 342 r/w Section 34 of IPC.
3. It is the further case of the prosecution that, on the aforesaid date, time and place in furtherance of common intention of the accused, accused No.1 threw kerosene on the deceased Rudramuniswamyji and after throwing the match stick on the said Rudramuniswamyji they set him to fire who succumbed to the injuries on 29.04.2008 at about 10.00 p.m while undergoing treatment in the Victoria Hospital and 7 thereby, they are alleged to have committed an offence under Section 302 r/w Section 34 of IPC.
4. The prosecution in order to prove the case has examined in all 29 witnesses and got marked Exs.P1 to 34 and produced MOs.1 to 6. The defence of the accused was one of total denial. However, the learned Sessions Judge after hearing the prosecution and the defence was pleased to convict the accused as stated above and sentenced them accordingly. It is this order of conviction and sentence which has been challenged by the accused in this appeal. Being aggrieved by the said order of acquittal against accused Nos.1 and 2 for the offence under Section 342 r/w Section 34 of IPC and also the order of acquittal passed against accused Nos.3 and 4 for the offence under Section 302 r/w Section 34 of IPC, the State has also challenged the very same Judgment of the trial Court.
5. The proceedings in this case commenced with PW.19-Srinivasa who is the Head Constable of T.Narasipura Police station, on receipt of the memo from 8 J.S.S. Hospital, Mysore on 27.04.2008 went to J.S.S.Hospital, Mysore and recorded the statement of the injured-Rudramuniswamyji. It is stated by the injured-Rudramuniswamyji that one year prior to the date of the incident, he had been to Sri.Gurumalleshwara Dasoha Mat as Swamyji and was working there as such. About a week prior to the date of the incident, accused herein came to him and asked him as to why he had come to their village and further asked him to leave the village otherwise they would not spare him. They also threatened him that they would pour kerosene on him and set fire on him. They also gave life threat to the injured. Inspite of that, he did not deter to their words and was doing his work hoping that the accused will become alright later. However, on 26.04.2008 after completing his regular work of giving food to the devotees, he went to his room which is situated on the eastern side of the temple and was sleeping. He had kept the window open. At about 2.00 a.m in the night, the aforesaid persons had poured kerosene upon him and thereafter they set him on fire. 9 He sustained the injuries on his face, mouth and legs, so also on his backside and stomach. He has stated that accused persons named above had set fire on him with an intention of chasing him from the temple. Since he started screaming some neighbours by name Chennaswamappa, Basappa, Yogesha and others removed him to J.S.S.Hospital in Mysore and he was got admitted. Hence, he requested action against accused.
6. T.Narasipura police registered the aforesaid compliant in Crime No.87/2008 for the offence under Section 307 r/w Section 34 of IPC against all the four accused persons. Two days later, the injured Rudramuniswamyji succumbed to the injuries and therefore the case came to be registered to the one under Section 302 r/w Section 34 of IPC. During the trial, the prosecution has examined 29 witnesses, out of them, PW.3-Murthy, PW.4-Naganna, PW.5-Puttanna, PW.11-Yogish, PW.13-Basavanna, PW.15-Chinnaswamy have turned hostile to the case of the prosecution. 10
7. PW.1-Prakash is the Junior Engineer, K.E.B. who has issued certificate as per Ex.P1 stating that on the night of the incident there was electric supply to the temple.
8. PW.2-Mahadeva is the Village Panchayat Secretary who has produced the extract regarding the property of the temple as per Ex.P2.
9. PW.6-Puttaswamy is the Assistant Sub- Inspector of Police who has conducted the inquest proceedings on the dead body of the deceased in the Victoria Hospital as per Ex.P8.
10. PW.7-Rajanna is the Assistant Sub-Inspector of Police who has registered the case in Crime No.87/2008 for the offence under Section 302 r/w Section 34 of IPC on receipt of an intimation regarding the death of the deceased.
11. PW.8-Srikantha is the police constable who has carried the FIR to the Court. PW.9-Smt.Leelavathi is 11 a woman head constable who has carried the articles to FSL, Bangalore.
12. PW.10-Balaji has stated that, on hearing the cry of the deceased, he went near the room of the deceased. However, he has stated that, he has not seen any person running from the scene of occurrence.
13. PW.12-Kempachari is the signatory to Ex.P8 which is the inquest proceedings. PW.14-Murthy is a signatory to Ex.P14 which is a spot mahazar. PW.16- Shivananda is also a signatory to Ex.P16 which is a spot mahazar.
14. PW.17-Shivaprasad has stated regarding the incident at whose instance the offence under Section 307 of IPC is registered. PW.18-Shivu is the constable who has carried 2nd FIR to the Court.
15. PW.19-Srinivas is the Head Constable who has received memo from the J.S.S. Hospital regarding admission of the injured to the hospital. Thereafter, he has visited the hospital and recorded the statement of 12 the injured-Rudramuniswamyji, after verifying with the duty Medical Officer regarding the condition of the injured to give the statement-Ex.P18. The said statement is recorded by PW.19 and has further stated that, since the finger of the injured was burnt, he has taken impression from the left leg toe. Thereafter, he has further conducted the preliminary investigation by visiting the scene of occurrence and has seized the articles, that is kerosene can and other materials for the purpose of investigation.
16. PW.20-B.Mahesh is the Sub-Inspector of Police who has registered the case in Crime No.87/2008 for the offence under Section 307 r/w Section 34 of IPC and transmitted the FIR to the Court. He has visited the scene of occurrence and recorded the statements of the witnesses. He has also arrested the accused. On the basis of the voluntary statement of accused, he has recovered the kerosene can and match stick at the instance of accused No.1.
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17. PW.21-Nayaz has turned hostile to the case of the prosecution.
18. PW.22-Dr.P.D.Kumar is the Medical Officer of J.S.S.Hospital, Mysore. He has stated that, on 27.04.2008 between 8.00 am to 2.00 p.m. he was on duty. On that day, the injured was in the hospital. Police of T.Narasipura police station had come to the hospital and requested him regarding the condition of the injured-Rudramuniswamyji to give the statement and he has stated that the injured was in a fit condition to give the statement and that he was talking properly. Hence, he had endorsed his opinion in Ex.P18 as per Ex.P18(c).
19. PW.23-Rajashekhara Murthy has stated that he had visited J.S.S.hospital and thereafter he has found that Swamyji was in the speaking condition. However, he has not talked with the Swamyji when he was taking treatment in the said hospital. Thereafter he has taken the injured to Victoria Hospital at Bangalore 14 and he had accompanied him till Bangalore. However, the police have not recorded the statement from him.
20. PW.24-Ravikumar is the Junior Engineer who has prepared the sketch of the scene of the occurrence.
21. PW.25-Dr.Gangadhara is the Senior Surgeon of Victoria Hospital who has stated that, on 27.04.2008 at about 3.15 p.m., injured was admitted to the hospital who was brought from J.S.S.Hospital Mysore with a history given to the doctor of Victoria Hospital that Chethan and Ayyappa and others have poured kerosene through the window and set him on fire. Injured- deceased sustained 85% of the burnt injuries.
22. PW.26-Sumathi is the woman head constable who has accompanied the Inspector to the scene of occurrence.
23. PW.27-Kumaraswamy is the Inspector of Police who has conducted the investigation and after 15 completion of investigation and on receipt of documents filed the charge sheet against accused persons.
24. PW.28-Dr.Sumangala is the Assistant Professor of FSL, Bangalore who has conducted postmortem examination on the dead body of the deceased and given a report as per Ex.P26.
25. PW.29-Manjappa is the Scientific Officer, FSL Bangalore who has stated that the articles sent for examination by the Investigating Officer contained the traces of kerosene.
26. It is from the aforesaid evidence on record that the learned Sessions Judge has found accused guilty of the offences and convicted and sentenced them as aforestated.
27. Heard Sri.Tomy Sebastain, learned Senior Counsel for accused No.2, Sri.C.H.Jadav, learned Senior Counsel for accused Nos.1, 3 and 4 and Sri.P.M.Nawaz, learned Addl.SPP for the State.
16
28. Learned Counsel for the accused submit that, the original complaint indicates that at the beginning, the deceased had given the statement that there was some unknown persons who had thrown the kerosene and set fire on him. It is further submitted by them that the word 'Yaro'/'someone' in Kannada has been replaced by the word 'Mele Kandavaru'/ 'aforestated persons' which indicates that accused had set fire. The prosecution has not given any clarification as to how the words 'unknown persons' has been replaced to the word 'people mentioned above'. Learned Counsel for accused further submitted that the intimation-Exs.P24 and 27 sent to the police station by J.S.S.Hospital indicates that, the deceased was admitted to the hospital at J.S.S.Hospital who got injured while sleeping, as the mosquito net caught fire by the kerosene lamp at about 2.30 a.m. on 27.04.2008. It is submitted by the learned Counsel that, somebody must have thrown the kerosene on the deceased and set on fire. In view of the fact of allegation about one week prior to the date of the incident, accused had spoken to 17 Swamyji regarding his continuance as a Priest in the said temple, names of accused have been added subsequently to make it appear that accused have committed the murder of the deceased. It is further submitted by them that the injured/complainant has not given any specific overt acts regarding pouring of kerosene against any one person and of setting on fire. The statement-Ex.P18 is an omnibius statement alleging overt acts against all four accused without mentioning the specific act by accused. Hence, they submitted that, the deceased was influenced to give such statement to the police which is totally discrepant from the one given earlier at 5.00 a.m., when the injured was first admitted to the hospital. Hence, they submit that the appellants are entitled to an order of acquittal.
29. Sri.P.M.Nawaz, learned Addl.SPP on the other hand submits that, the trial Court has considered these aspects of the case and has convicted the accused based on the said evidence as per Ex.P18. He submits 18 that the order of conviction may be confirmed. He also submits that the State has filed an appeal for convicting accused Nos.3 and 4 for the offence under Section 342 of IPC and further for convicting accused Nos.1 and 2 for the offence under Section 302 of IPC in view of the evidence more particularly the statement-Ex.P18. Hence, he submits that the appeal may be allowed.
30. We have carefully gone through the entire evidence on record and scrutinized the materials. It is seen that at 5.00 a.m., on the date of the incident, the injured has given statement that cause of fire was due to mosquito net catching fire while he was sleeping. The said statement was given at 5.00 a.m when the injured was admitted to the hospital. However, when PW.18 came to the hospital at about 10.00 a.m. on 27.04.2008, he has recorded the statement which reads that, it is the accused who have caused the incident by pouring kerosene and setting fire. It is seen from Ex.P18 that the said statement is recorded at 10.00 a.m and in the said statement nothing has been mentioned about 19 the earlier statement given by the injured himself. The earlier statement given by the injured to the duty Medical Officer is at Ex.P24. Under the circumstances, the contents of Ex.P18 do not inspire confidence in the mind of this Court and since in the absence of Ex.P18, there is no further evidence to connect accused with the crime, all the accused are entitled for an order of acquittal by giving benefit of doubt. Accordingly, the following order is passed:
ORDER Criminal Appeal Nos.844/2010 and 811/2010 are allowed.
Criminal Appeal No.1237/2010 filed by the State is hereby dismissed as having become infructuous.
The order of conviction and sentence passed against all the accused by the learned Sessions Judge is hereby set aside and the accused are acquitted of all the charges leveled against them. Bail bond executed by them stands discharged and fine amount if any deposited shall be refunded to them.20
It is submitted that the accused Nos.1 and 2 are in custody and hence it is directed that, they shall be set at liberty forthwith if not required in any other case.
Registry is directed to transmit the operative portion of this Judgment to the concerned learned Sessions Judge and the Jail authorities forthwith.
SD/-
JUDGE SD/-
JUDGE KSR