Karnataka High Court
The State Of Karnataka vs Samson S/O Shivaram Gaddadawar on 30 November, 2012
Bench: Mohan Shantanagoudar, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 30TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE MOHAN SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
CRIMINAL APPEAL NO.3596/2009 (A)
BETWEEN:
The State of Karnataka ... APPELLANT
(By Shri Subhash Mallapur, HCGP)
AND :
Samson
S/o Shivaram Gaddadawar
Age: 24 years, Caste: Christian
Occ: Pan Shop
R/o Ratna Lodge Backside
Shahgunj, Bidar. ... RESPONDENT
(By Sri Shivanand Pattan Shetty, Adv. )
This Criminal Appeal is filed under Section 378(1) &
(3) of Code of Criminal Procedure praying to grant leave to
file an appeal against the Judgment dated 19.1.2009
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passed by the Prl. Sessions Judge, Bidar in Sessions Case
No.83/2006 acquitting the respondent/accused for the
offences punishable under sections 341, 504 and 302 of
IPC.
This Criminal Appeal coming up for hearing this day,
MOHAN SHANTANAGOUDAR .J., delivered the following.
JUDGMENT
This appeal is filed by the State against the Judgment and Order of acquittal passed by the Prl. Sessions Judge, Bidar in S.C. No.83/2006.
2. The case of the prosecution in brief is that on 7.5.2006 at about 10-30 p.m. the accused - Samson came near Ambedkar Circle, opposite Nehal Fancy Dress Store, Bidar alongwith PW-1; that the accused wrongfully restrained the complainant Lokesh and his elder brother Ravi (deceased); that the accused started abusing Ravi in connection with theft of mobile; that the accused removed the knife from his pocket and stabbed Ravi on the right side 3 of neck and also near his naval; when Ravi started running from that place, the accused again assaulted him with the same knife on his buttocks and then ran away from that place; that the injured became unconscious and fell down. He was shifted to Government hospital by PWs.1,2 and 13; that the incident was reported to Police by the brother of the deceased viz., Lokesh; that the injured was treated at Bidar on two days; since the condition of the injured deteriorated, he was shifted to Hyderabad for better treatment; the injured Ravi succumbed to the injuries during the course of transit to Hyderabad. After due investigation, the Police laid the charge sheet. The accused was charged for the offences punishable under sections 341, 504 and 302 of IPC. In order to prove its case, the prosecution in all examined 18 witnesses and got marked 22 Exhibits and 4 Material Objects. 4
3. In his statement recorded under Section-313 of Code of Criminal Procedure, the accused explained that the deceased was a Goonda and has developed enmity with many persons and one of such enemies might have assaulted and murdered him, but he has been falsely implicated in the case. On evaluation of the material on record, the trial Court acquitted the accused.
4. PW-1 is the complainant. He is the eye-witness to the incident. PWs.2,3, 9, 10, 13 and 14 are also eye- witnesses to the incident. PWs.5 and 12 are the witnesses to the scene of offence panchanama. PWs.6 and 12 are the witnesses to the seizure panchanama. PW-7 is the witnesses for inquest mahazar. PW-8 is the doctor who conducted post-mortem examination. PW-4 is the mother of the deceased, who speaks about seeing his son lying injured in the hospital. PW-11 is the officer from the Electricity Department who speaks about the availability of power supply on the night of the incident. PWs-15 and 5 16 speak about the motive. PWs.17 and 18 are the police witnesses. Out of the eye-witnesses examined, PWs.1,2 and 10 have supported the case of the prosecution.
5. The evidence of PW-1 reveals that on 7.5.2006 himself and the deceased gone for work at about 9 a.m. and they were returning home by walk at about 10 p.m. after finishing their work; that when they came near Ambedkar circle, they were waylaid by the accused. PW-1 was little ahead of the deceased. The accused abused Ravi and assaulted him with knife on the right side of his neck. After stabbing incident, the victim cried loudly; that on hearing the cries, PW-1 turned back and saw the accused stabbing on the abdomen of the deceased. He also states about the presence of PWs.9 to 11 at the spot. According to PW-1, himself, PW-2 and PW-13 shifted Ravi to District Hospital, Bidar. At about midnight, the Police came to the hospital and enquired PW-1 and his statement was recorded and the same is converted as complaint as per Ex.P1. 6
In the cross-examination, PW-1 has admitted that the victim was taken in an autorickshaw on his lap to the hospital and during the course of transit, the clothes of PWs.2 and 13 were also blood stained. However, clothes of PW-1 were not blood stained. He has also admitted that his further statement is not recorded by the Police. The vital admission given by PW-1 is that the deceased was in a position to speak after regaining consciousness in the hospital and the statement of the injured was recorded in his presence by the Police. He emphatically denies the suggestion of defence that such a statement of the deceased is not recorded by the Police, which means that the statement of injured was recorded by the Police in the hospital.
6. PWs. 2 and 10 are the eye-witnesses who supported the case of the prosecution. They have also deposed on par with the evidence of PW-1. It is relevant to note that PW-10, the eye-witness has admitted that he 7 is required to drink at all times and that means 24 hours in a day. He has admitted that he is suffering from stomach ache and therefore he is taking drinks as per the advice. Even when he came before the trial Court for giving his deposition, he had come drunk. He has further admitted that he was taken by two Police people to the office of CPI on the previous day of deposition. He has further admitted in the cross-examination that the Police did not come to the spot and they did not record his statement.
7. Though at the first look, the evidence of Pws.1,2 and 10 appears to be consistent, learned Sessions Judge has rightly narrated number of loopholes in the case of the prosecution. As per the case of the prosecution, PW-1 has given his further statement to the effect that there was high mass lamp and that the incident was witnessed by him in view of the light from high mass lamp. PW-1 has himself stated that his further statement is not recorded by the Police. He has specifically stated in the cross-examination 8 that the Police recorded the statement of the deceased while he was in the hospital. There is no reason as to why such a statement of the victim should be suppressed by the Police. The incident has occurred on 7.5.2006. The injured was alive up to 9.5.2006. According to PW-1 - the brother of the deceased, the deceased regained consciousness and he was able to speak and the Police have recorded the statement of the deceased. The statement of the deceased would have been the best piece of evidence in the case. Had he stated against the accused, the same would have been treated as dying declaration, but the Police have suppressed such a vital material. Therefore the adverse inference is necessarily to be drawn against the Police. Had the deceased submits anything against the accused in his statement recorded while in the hospital, the same would have definitely found in the records. The very fact that the Police have suppressed the said material itself clearly reveals that the deceased must not have stated 9 anything against the accused. The suppression of the statement of the deceased will have to be viewed alongwith the statement of the accused recorded under Section-313 of Code of Criminal Procedure. According to the accused, the deceased was goonda and he had got number of enemies. Therefore the learned counsel for the accused is justified in arguing that the murder must have been taken place because of other persons not because of the accused herein.
8. As aforementioned, PW-10, another eye-witness has come to Court Hall of the trial Court in a drunken state. He is a drunkard. Even according to PW-10, he drinks all the time. He was taken by two Police people on the previous day to the office of CPI. All these admissions are given by PW-10 himself. Therefore the Court below is justified in disbelieving PW-10.
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9. PW-1 has specifically deposed in the cross- examination that the injured was taken in an autorickshaw on his lap by PW.1 and PWs. 2 and 13 accompanied them to the hospital. PW-1 has deposed that his clothes did not stain, but the clothes of PW-2 and 13 were stained. PW-2 also deposes in the cross-examination that his shirt and pant were stained with blood so also PW-13 has deposed that his clothes were also stained. But strangely, the blood stained clothes of PWs.2 and 13 are not seized and produced by the Police. As has been held by the Apex Court in the case of STATE OF PUNJAB -vs- HARBANS SINGH AND ANOTHER reported in 2003 SAR (Criminal) 394, non-production of blood stained clothes of the witnesses throws considerable doubt about the presence of the witnesses at the time of incident and transportation of the injured to the hospital.
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10. The motive alleged by the Police is that the accused had committed theft of mobile of the deceased. Such a incident has occurred one year prior to the murder of the deceased. Thus the Court below is justified in concluding that it is highly impossible to connect the incident which had occurred one year prior to the murder. Moreover no complaint as such is lodged relating to theft of mobile etc., Under these circumstances, the Court below is justified in observing that the effort of the prosecution to connect the incident to another trivial incident which has taken place about one year before the incident in question, has become futile.
11. The recovery of knife allegedly used for commission of the offence was supposed to be spoken by PWs.6 and 12. Both them have turned hostile. Thus the recovery is not proved by the prosecution. Even otherwise, the report of the FSL - Ex.P21 was not supported by the evidence of serologist, who gave his opinion. Since the 12 material on record clearly reveals that the prosecution has not proved its case beyond reasonable doubt, the Court below is justified in acquitting the accused.
12. It is by now well settled that even if two views are possible under the given facts and circumstances and if the trial Court's view cannot be said to be erroneous while acquitting the accused, the same should not be lightly interfere with. We find that there are number of suspicious circumstances which go against the case of the prosecution. In view of the same, no interference in judgment of acquittal is called for.
Appeal fails and the same stands dismissed.
Sd/-
JUDGE Sd/-
gss/- JUDGE