Karnataka High Court
Siddappa S/O Jogappa vs The State Of Karnataka on 21 February, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUANTH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.698/2009
BETWEEN
Siddappa, S/o. Jogappa
Aged about 25 years
Occ: Agriculturist
R/o. Hunasekatte Gollarahatti Village
Taluk and Dist. Chitradurga.
...Appellant
(By Sri.Dinesh Kumar K. Rao, Adv., for
Sri. R.B.Deshpande, Adv.,)
AND:
The State of Karnataka
By Bharamasagara Police.
... Respondent
(By Sri.P.M.Nawaz, Addl.S.P.P.)
This Crl.A. is filed under Section 374 (2) Cr.P.C.
praying to set aside the order of conviction and sentence
dated 22.6.2009 passed by the Addl.Sessions Judge,
Chitradurga, in S.C.No.62/08 for the offence P/U/S.
302 of IPC and the appellant/accused is sentenced to
imprisonment for life and to pay a fine of Rs.10,000/-.
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This Crl.A. coming on for admission this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The appellant is questioning the legality and correctness of the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Chitradurga, dated 22.06.2009 passed in S.C.No.62/2008, wherein he has been convicted for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default of fine, to undergo S.I. for a period of six months.
2. We have heard the learned counsel for the appellant and Mr.Nawaz, learned Addl.S.P.P. for the State.
3. The appellant was tried for the aforesaid offence based on the complaint lodged by PW.1 - Thimmakka, wife of the deceased Mahalingappa. At about 9.00 a.m. on 23.03.2008 PW.1-Thimmakka submitted a written complaint to PW.19 - G.K.Prakash, Police Sub- 3 Inspector, stating that on the night of 20th March 2008 her husband Mahalingappa was sleeping in front of the hut to guard the sheep and she was sleeping with children inside the house. At about 1.30 a.m. on 21.3.2008 she heard a sound as 'dumm'. Having heard the said sound, she came out of the house and made an attempt to wake up her husband and he was not in a position to speak and he was bleeding, she raised scream, thereafter villagers PW.16 and PW.3 came near her house and she informed them that a thunderbolt has hit to her husband and they saw the deceased by litting a matchstick and learnt that a stone was put on his head and on account of the same, he was bleeding through right ear and right cheek. PW.16 Jayappa, her brother-in-law and one Chandrappa took her husband in an auto-rickshaw to Chitradurga Hospital. On the way, when the auto rickshaw was near the house of one Kunta Thimmappa, her husband breathed his last at about 1.40 a.m. Therefore, Jayappa and Chandrappa brought the dead body to her house. Next day morning 4 i.e. on 21.3.2008, it was informed to the police through phone and the police came to the spot and in their presence Ex.P.1 was handed over by PW.13 and Ex.P.1 was written by PW.8 - Suresh. Based on the same, spot mahazar was drawn as per Ex.P.2 and the inquest was conducted as per Ex.P.3. Body was sent for autopsy and the autopsy was conducted by PW.7 - Dr.R.Krishna Murthy, who issued postmortem report as per Ex.P.4. On the same day, PW.10 - Investigating Officer by name D.K.Gowalappa recorded the statement of all the witnesses and FIR was sent to JMFC, Chitradurga and the same reached to JMFC, Chitradurga at about 12.40 noon.
4. After completion of the investigation, charge sheet was filed against the accused based on extra-judicial confession made before PW.15 Rajappa stating the deceased was suspecting that the accused had illicit relationship with PW.1- Thimamma and also on the ground that prior to 20.1.2008, the accused had set fire to the maize stock of the deceased.
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5. The accused pleaded not guilty and he claims to be tried.
6. In order to bring home the guilt of the accused, the prosecution relied upon the evidence of PWs.1 to 20, Exs.P.1 to P.13 and MOs.1 to 10.
7. The accused denied all the incriminating circumstances found in the evidence of the prosecution witnesses while answering the statement recorded under Section 313 of Cr.P.C. No evidence was let in by the accused. His case was total denial.
8. The learned Sessions Judge after hearing the learned Public Prosecutor and the learned counsel for the appellant formulated the following points for consideration:
1. Whether the prosecution has proved beyond reasonable doubt that accused at about 1.30 a.m. on 21.3.2008 committed the murder of deceased Mahalingappa?6
2. Whether the accused is liable to be punished for the offence alleged?
3. What order?
9. After considering the entire evidence let in by the prosecution point Nos.1 and 2 held in affirmative and the learned Judge came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. Accordingly, the accused has been convicted and sentenced as aforesaid for the aforesaid offences. This judgment is called in question in this appeal.
10. Learned counsel for the appellant submits that the learned Sessions Judge has misdirected herself without understanding the case as projected by the prosecution against the accused and the appreciation of the evidence is perverse and liable to be set aside. According to him, the prosecution case is rest upon the extra judicial confession said to have been made by the accused before PW.15 - Rajappa on 21.3.2008 at about 7 5 p.m. in the village. But the complaint has been lodged by Thimmamma, against an unknown person as per Ex.P.1. PW.8 is the scribe of Ex.P.1. According to PW.8, Ex.P.1 was written by him as per the instructions of the police and that he does not know who signed Ex.P.1. Therefore, he contends that the learned Judge did not appreciate the evidence of PW.8 on the ground that Ex.P.1 has come into picture at the instance of the police and not at the instance of PW.1. According to him, much weight has been given to the evidence of PW.1 -Thimmamma - wife of the deceased, but she has deposed before the Court contrary to the contents of Ex.P.1 - complaint lodged by her. According to Ex.P.1, she heard the sound as dumm at about 1.30 a.m. in the early morning. Having heard the said sound, she came out of the house and having seen that her husband was bleeding, she screamed and then neighbours came there and noticed the deceased had sustained injuries on account of hitting by someone with MO.1 - a stone of 35 kgs. But she has deposed before the Court as of she had 8 illicit relationship with the accused and that the accused had come to her house at about 12 'O' clock in the mid night to enjoy her company. As she had refused to give company to the accused, the accused went out of the house and that she was watching what the accused was going to do. Then at about 1.30 a.m. in the early morning, the accused hit her husband with MO.1 and chased and taunted her, thereafter, left the house. But this evidence could not have been believed by the learned Sessions Judge because, the same is contrary to Ex.P.1 and that the learned Sessions Judge mainly relying upon the evidence of PW.1 has erroneously convicted the accused.
11. He further submits that the learned Sessions Judge also committed an error in believing the evidence of PW.15 in regard to the extra judicial confession said to have been made by the appellant. According to him, learned Judge did not consider the evidence of PW.20 - Investigating Officer, who deposed before the Court that on 21.3.2008 he recorded the statement of four 9 witnesses including PW.15 and the sketch of the scene of the occurrence has also drawn along with the spot mahazar and inquest mahazar and then he went to the police station. At about 5.30 p.m. when he was in the police station, he seized the cloths of the deceased in the police station, which would only go to show that he was in the police station earlier to 5.30 p.m. and the distance between police station and the scene of the occurrence is about 22 kms. as could be seen from Ex.P.9 - First Information Report. If he was in the police station before 5.30 p.m., by travelling a distance of 22 kms he could not record the statement of PW.15 earlier to 5 p.m. because, PW.15 has deposed that accused made extra judicial confession before him at about 5 p.m. while he was in Gollarahatti. Therefore, it is clear that if extra judicial confession is made at 5 p.m. and the statement of PW.15 could not have recorded by PW.20. Therefore, he contends that the learned Sessions Judge without considering the discrepancies in the evidence of the prosecution and the 10 improvements made by the prosecution while examining the witnesses, has erroneously convicted the appellant. In the circumstances, he requests the Court to re-appreciate the entire evidence and acquit the accused for the aforesaid offence.
12. Per contra, Sri.Nawaz, learned Addl.S.P.P. for the State submits that none of the grounds urged by the appellant are tenable because, it has come in the evidence of PW.1 and also in the evidence of PW.8 - scribe of Ex.P.1 that Ex.P.1 was written by scribe on the instruction of Thimmamma and the contents of Ex.P.1 cannot be doubted. He further submits that the illicit relationship between PW.1 and the accused could not be revealed by PW.1 as it affects her carrier and so also the reputation of the family. Merely because, she has omitted to mention the illicit relationship with the accused in Ex.P.1. cannot be a ground to disbelieve the case of the prosecution and since she is an eyewitness, the learned Sessions Judge is justified in believing her evidence. He further submits that even extra judicial 11 confession made by the accused to PW.15 has been proved by the prosecution by examining PW.15 and merely because there is discrepancy in regard to the time of PW.20 found in the police station at about 5.30 p.m. cannot be a ground to disbelieve the version of the prosecution. In the circumstances he requests the Court to dismiss the appeal.
13. Having heard the learned counsel for the parties, what is to be considered by us in this appeal is;
"Whether the appreciation of evidence by the Sessions Court is perverse and the judgment of conviction and order of sentence requires to be interfered?
14. The homicidal death of Mahalingappa is not disputed by the learned counsel for the appellant because he died due to the injuries sustained by him on the vital portion of the head due to throwing the stone on head which is supported by the evidence of PW7- Dr.R.Krishnamurthy, who conducted autopsy and issued PM report as per Ex.P4. On perusal of P4 the 12 cause of death is due to injuries to vital organs namely skull and brain. His only contention is that appellant is wrongly convicted on account of perverse appreciation of evidence led in by the prosecution. In the circumstances, we have to reconsider the evidence let in by the prosecution in order to examine whether the judgment is perverse and order of conviction and sentence has to be reversed.
15. It is not in dispute that based on Ex.P1, charge sheet is filed after investigation is complete. Ex.P1 is lodged by PW1 Thimmakka and PW8 Suresha is the scribe of Ex.P1. It is stated that on 20.03.2008 her husband after having dinner was sleeping in front of house to watch the goats and at about 1.30 a.m. in the early morning she heard sound of 'Dhab'. Having heard such a sound, she came out of house and made an attempt to wake up her husband and he did not respond and she noticed that there was bleeding from his right cheek and right ear. When she cried, PW16- Jayappa S/o Govindappa & PW3- Vijayappa came near 13 her house and she informed that her husband received injuries on account of thunderbolt. Then PW16 and PW3 lit a matchstick and saw the injuries sustained by her husband on account of throwing a stone which was lying by side. Immediately her brother in law Jayappa- PW6 along with one Chandrappa tried to shift the deceased in an auto-rickshaw to Chitradurga hospital. When the auto- rickshaw was near the house of one Kunta Thimmappa, her husband had taken his last breath. Therefore, dead body was brought back and laid in front of her house. She was not specific about the throwing of stone on her husband in Ex.P1. But contrary to her written complaint, she has deposed before the court as PW1 that at about 12.00 in the night, the accused had come inside her house and she quarreled with him to go out and that she had illicit relationship with the accused. On account of the quarrel accused left her house and that she was sitting by the side of the children. Later she came out of the house to ascertain where exactly the accused went out 14 of the house. At that time accused threw stone on her husband because she refused to join him for sexual intercourse and told her now onwards "you look after your husband only". Then she cried for the help. Thereafter CW3, 4 and 9 came to the spot and her husband while shifting to the hospital breathed his last. She admitted lodging of complaint Ex.P1 and her signature found in the spot mahazar P2. She has further stated that 1 ½ months prior to the incident the accused had set fire to maize stalk. From looking into the evidence of PW1 and Ex.P1, it is clear to the court that there is lot of discrepancies between the complaint and her deposition before the Court. In the complaint she has not disclosed the name of the assailant and also her illicit relationship with the accused. The contents of Ex.P1 is all together different from the evidence tendered before the Court, which deposition has been recorded one year after the incident. The learned judge has relied upon the evidence of PW1 without considering the glaring discrepancies between the 15 complaint and the evidence. Considering PW.1 as eye witnesses, the appellant has been convicted.
16. Ex.P1 is in the hand writing of PW8. PW8 has admitted in his evidence that Ex.P1 has been written by him as directed by the police. If Ex.P1 has been written by PW8 on the direction and instructions of the police, the same cannot be considered as a complaint at the instance of PW1. This aspect of the matter has also not been taken into consideration while appreciating the evidence of PW1 and PW.8. Then the learned judge has strongly relied on the evidence of PW15 Rajappa, before whom the accused said to have made an extra judicial confession at about 5.00 p.m. on 21.3.2008 when the accused met him in Gollarahatti village. According to PW15, on 21.3.2008 he came from Hunasekatte Village to Golllarahatti Village at about 5.00 p.m. He and the accused are classmates and he confessed before him that it is he who thrown MO1 stone on the head of the deceased and that he is who set fire on the maize stalk of the deceased and he requested him not to disclose 16 the same to any one. From the examination in chief of PW15, it is clear that prior to 5.00 p.m. on 21.3.2008 it was not within his knowledge about commission of offence said to have been committed by the accused. In this background we have to examine whether such an extra judicial confession was made by the accused before PW15 and whether the same is proved by the prosecution in accordance with law. In order to corroborate evidence of PW15, the prosecution has relied on the evidence of PW20- D.K.Kavalappa, Investigating Officer. According to him on 21.3.2008, Station House Officer informed him at 10.30 a.m. about the incident and then he visited Hunasekatte Village and he secured the dog squad and an attempt was made to collect the incriminating evidence. According to him no incriminating evidence was found on the spot and he recorded the statement of panchas namely PW2- Huchappa, Thimmanna- CW12, Hunnoorappa - CW13 and panchanama was made in the spot and thereafter he recorded the statement of Chandrappa - CW8, 17 Jayappa - CW6 and also the statement of Thimmanna - CW10 and Yogappa - CW11. Later dead body was sent for autopsy along with PC.1126 and PW10. He further deposed that inquest was conducted between 11.30 a.m to 1.30 p.m. As per Ex.P3 panchanama was also done at the instance of PW1 in the presence of Suresh- PW8, Nagaraja - PW9 and he seized MO1 to MO5 from the spot between 1.45 to 3.00 p.m. and he also recorded the statement of PW2, PW15, PW16 and PW3 and deputed his staff to apprehend the accused person. From this it is clear that the extra judicial confession was recorded by him along with statement of PW15, 16 and PW3, later he proceeded to police station which is at a distance of 23 k.m. from the spot. He has however deposed that when he was in the police station at about 5.30 p.m. PW10 PC1126 brought the cloths found on the dead body of the deceased and mahazar was drawn in the presence of CW 16 and CW 17 as per Ex.P8.
17. From the deposition of PW20, it is clear that when he seized the cloth of the deceased which were produced 18 by PC1126 in the presence of PW16 and 17, it was about 5.30 p.m. If he has seized the articles found on the body of the deceased in the police station, it was not possible for him to record the statement of PW15 Rajappa at 5.00 p.m. considering the distance between place of incident and the police station, which is at a distance of 23 kms. According to PW15 accused has made an extra judicial confession before him at Gollarahatti Village at about 5.00 p.m.. Therefore, before 5.00 p.m. he could not have disclosed extra judicial confession made by the accused to PW20 and PW20 could not have recorded the same. Therefore, there are lot of discrepancies and major contradictions between PW15 and PW20. If we carefully scrutinise the evidence of PW15 and PW20, we are of the view that the extra judicial confession said to have been made before PW15 on 21.3.2008 cannot be believed because the statement of PW15 is said to have been recorded by the PW20 much prior to 5.00 p.m. on 21.3.2008 which would falsify the entire case of the prosecution and this 19 material aspect of the matter has also not been considered by the learned session judge while appreciating the case of the prosecution in regard to the theory of extra judicial confession.
18. For the aforesaid reasons we are of the view that the appreciation of evidence by the Session Court is perverse because the extra judicial confession itself is a weak type of evidence and extra judicial confession made before PW15 has not been properly corroborated by any other evidence. We are also of the view that the theory of extra judicial confession put forth by the prosecution has not been established by the prosecution. Therefore, we are of the view that appreciation by the Session Court is perverse and on account of the same, the appellant is wrongly convicted and sentenced. Hence we pass the following:-
ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the Addl. Sessions 20 Judge, Chitradurga dated 22.6.2009 in S.C.No.62/2008 is set aside.
The appellant/accused is acquitted for the charges levelled against him. He is in custody and he is ordered to set at liberty forthwith, if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE SA/KLY