Karnataka High Court
Shri Durgappa vs State By Rural Police on 18 January, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 18TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL NO.1006 OF 2012
BETWEEN:
SHRI DURGAPPA
S/O NAGAPPA,
AGED ABOUT 47 YEARS,
COOLIE BY OCCUPATION,
R/O KONGANA HOSAHALLI,
BALLI BAILU - VILLAGE,
ANANDAPURA - HOBLI,
SAGAR - TALUK,
SHIVAMOGGA - DISTRICT,
KARNATAKA - STATE. ... APPELLANT
(BY SRI M.SHASHIDHARA, ADVOCATE)
AND:
STATE BY RURAL POLICE
REPRESENTED BY
RURAL POLICE STATION,
SAGAR- SHIVAMOGGA DISTRICT,
KARNATAKA STATE. ... RESPONDENT
2
(BY SMT.B.G.NAMITHA MAHESH, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE FAST TRACK
JUDGE, SAGAR IN S.C.NO.34 OF 2009 DATED 26.04.2012
- CONVICTING THE APPELLANT/ACCUSED FOR OFFENCES
PUNISHABLE UNDER SECTION 302 OF IPC.
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND TO PAY THE FINE OF
RS.50,000/-, IN DEFAULT HE SHALL UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF ONE YEAR.
*****
THIS CRL.A. COMING ON FOR HEARING THIS DAY,
RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 30.05.2008, at about 10.00 p.m., the complainant was in her house at Konganahosalli, Ballibailu Village, Anandapura Hobali, Sagar Taluk, along with her husband, the deceased. At that time, the accused came to their house and asked the deceased to come with him for fishing. The complainant i.e., the wife of the deceased requested her husband that he should not go with the accused, as there was a quarrel with the accused about 2-3 years ago and that they were 3 not in good terms. Inspite of the same, the deceased accompanied the accused stating that he will return early. Both of them went to the pond for fishing. Thereafter, the deceased returned to the house in the midnight at about 12.00 O' clock and asked her to give the lamp to catch the fishes and he took the lamp with him. Thereafter, he did not return.
2. At about 5.30 a.m., the accused came to the house of the complainant and enquired about the deceased. The complainant stated that after the accused and the deceased had gone together for fishing, the deceased had not yet returned. That the accused thereafter stated that the deceased might have gone to his father-in-law's house. She waited till noon on that day for the return of her husband. Since he did not return, she went in search of her husband. In the evening, she found the slippers of her deceased husband near the pond. Her brother-in-law stated that as it was too dark, they would search for the deceased on the next day morning. She 4 returned home and slept with her children. On the next day morning, the villagers were talking that they found a dead body in the pond. She went there and found the dead body of her husband.
3. A complaint was given by her at about 12.00 p.m., which was registered in Crime No.186 of 2008 for the offence punishable under Section-302 of IPC against the accused. The investigation was taken up. The accused was arrested. On completion of investigation, the accused was charged for committing the murder of the deceased by intentional pressing and throttling the neck of the deceased under Section-302 of IPC.
4. In order to prove its case, the prosecution examined 19 witnesses and marked Exhibits-1 to 16(b), along with 3 material objects. By the impugned judgment, the accused was convicted for the offence punishable under Section-302 of IPC and sentenced to life imprisonment and to pay a fine of Rs.50,000/- and in 5 default of payment of fine to undergo simple imprisonment for a period of one year. Aggrieved by the same, the present appeal is filed.
5. Shri.M.Shashidhara, learned counsel appearing for the appellant contends that the trial court committed a perversity in misreading the evidence on record. That it committed an error in accepting the case of the prosecution, which has not been supported by any evidence. That the medical evidence is doubtful. The last seen theory has not been accepted by the trial court. Hence, he pleads that the appeal be allowed by acquitting the accused .
6. On the other hand, Smt.Namitha Mahesh B.G., learned HCGP, defends the impugned order. She contends that the prosecution has proved its case beyond all reasonable doubt. That the motive has been proved. The evidence as led-in by the prosecution clearly proves the guilt of the accused. That the trial court has rightly 6 appreciated the material on record and hence no interference is called for.
7. Heard learned counsels and examined the records.
8. PW-1, is the complainant and the wife of the deceased. The complaint was lodged on 01.06.2008, at about 12.00 noon. She has stated in her complaint that the accused and the deceased were not in good terms. That there was a financial dispute between them for the past 3-4 years. That on the date of the incident, the accused came to their house and asked the deceased to come alongwith him for fishing. Even though the complainant resisted, the deceased went along with him. At about 12.00 midnight, the deceased came back alone to the house and took the lamp to catch the fishes. Thereafter he did not return. At about 5.30 a.m., the accused came to the house of the complainant and enquired about the deceased, as to whether he is sleeping 7 or where he is. The complainant stated that the deceased had gone along with the accused and therefore he should know where he is. In reply, the accused stated that he may have gone to his father-in-law's house. Therefore, she waited till the afternoon on that day. Later she went in search of her husband in the village. She did not find him. Thereafter, she went near the pond and found the slippers of her husband, but she did not find her husband. She came back home and slept waiting for her husband. The next day morning, she heard the villagers speak about a dead body in the pond. She went near the pond and identified the dead body as that of her husband. That the neck of her husband was pressed and he was murdered. She has been examined as PW-1.
9.(a) The narration of PW-1 who is the complainant is not in consonance with the complaint lodged by her. In the evidence she has stated that she has narrated the incident as on the date the offence took place. Thereafter she states that it is only in the evening 8 she went in search of her husband near the pond. On the bank of the pond, she found the slippers of her husband. That her brother-in-law told her that since it is late in the day and it is dark, they will search for her husband on the next day morning. Therefore, she went away and slept in the house. On the next day morning, the villagers were speaking that there was a dead body in the pond. She went there and identified the dead body of her husband. She noticed that the neck of her husband was broken.
(b). PW-2 is a villager who has seen the accused and the deceased together at about 10.00 p.m., on 30.05.2008.
(c). PW-3 is the Scribe who wrote the complaint on the say of PW-1.
(d). PW-4 is the elder brother of the deceased and a panch to the spot mahazar and also the inquest. 9
(e). PW-5 is the panch witness to Exhibit-P9, who is the owner of the land where the pond is situated.
(f). PW-6 and PW-7 are hearsay witnesses, and panch witnesses to the Inquest Panchanama, Exhibit-P9.
(g). PW-8 is the minor son of the deceased.
(h). PW-9 is a hearsay witness, who visited the spot and found the dead body.
(i). PW-10 is another hearsay witness.
(j). PW-11 is the panch witness to the spot mahazar.
(k). PW-12 is the panch to the document at Exhibit-P3, recovery panchanama of MOs-2 and 3.
(l). PW-13 is the Doctor who conducted the postmortem examination and issued the postmortem report in terms of Exhibit-P11 and also the opinion for cause of death as per Exhibit-P11(a). She has narrated 10 the cause of death is due to neurological shock as a result of cervical vertebrae fracture.
(m). PW-14 is the Police Constable, who arrested the accused.
(n). PW-15, is the PSI, who visited the spot and received the complaint.
(n). PW-16, is PSI who registered the complaint.
(o). PW-17 is the FSL Expert, who submitted his report in terms of Exhibit-P14.
(p). PW-18 and PW-19 are the Investigation Officers.
10. Based on these evidences, the trial court was of the view that the prosecution has established its case beyond reasonable doubt. We find various anomalies in the case of the prosecution which has not received due attention of the trial court.
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11. Firstly, as to whether the death was homicidal or not? The case of the prosecution from the complaint averments is that a dead body was found wherein the neck was pressed. In the evidence of PW-1, it is narrated that the neck was broken. The charge framed against the accused is that he committed murder by intentionally pressing the neck and twisting the neck of the deceased. The medical evidence indicates that the cause of death is due to neurological shock as a result of cervical vertebrae fracture. If the cause of death is due to pressing of neck, the question of the fracture of the cervical vertebrae would not arise for consideration. It is not disputed that the pressing of the neck would not lead to fracture of the cervical vertebrae. Therefore, we fail to accept the findings of the trial court that the death was homicidal.
12. So far as the evidence led-in by the prosecution is concerned, there are various anomalies in the say of PW-1. In her complaint as well as in her evidence, she narrates that when the accused came and 12 enquired about the deceased, she was told that he may have gone to her father-in-law's house. However, she does not make any effort to find him in the father-in-law's house. She does nothing upto noon on that day. Thereafter, she goes in search of her husband in the village and also goes to the house of the accused. The house of the accused was locked. Knowing the fact that the accused had gone with the deceased for fishing in the night, she makes no effort to go to the pond at all. Almost 12 hours after being intimated by the accused, she goes near the pond wherein she finds the slippers of the deceased. Even then she makes no effort to look into the pond. She has stated that the brother-in-law told her that it is too dark and they would search for her husband in the morning. There is no material to indicate as to how the brother-in-law reaches the scene of offence. In the evidence also, she does not narrate that the brother-in-law accompanied her when she went to pond. In fact she narrates that she went to the pond by herself. Therefore, 13 the presence of the brother-in-law is doubtful. In the morning since the villagers were talking that there was a dead body in the pond, she goes and identifies the same as his husband.
13. We find it difficult to accept the evidence of the wife of the deceased. Having come to know that her husband left the house along with the accused for fishing, in the first place, she should have searched for him in the fishing pond. She does not do so. Even though the husband does not return home, she does nothing about it. After almost six hours thereafter she goes in search of him to the pond and to the village and to the house of the accused. It is only late in the evening, she goes to the pond and finds the slippers of the husband and even then she does not search for her husband. Therefore, we are of the view that she is untrustworthy. The averments made by her in the complaint as well as in the evidence do not match. Her evidence is not natural. It would appear that the entire evidence is led-in to falsely implicate the 14 accused. In view of the aforesaid reasons, we do not find any ground to accept the evidence of PW-1 as being trustworthy.
14. The prosecution tries to prove its last seen theory by relying on the evidence of PWs-1, 2, 4 and 8. However, the trial court has disbelieved the same. We do not find any reason to take a different view. The last seen theory should include the deceased as well as the accused. Both of them were undoubtedly seen by the witnesses at about 10.00 p.m. Thereafter the deceased goes back alone to his house and seen by the complainant. Therefore, the question of the prosecution relying on the evidence of PWs-2, 4 and 8 to bring home the last seen theory runs contrary to the facts of the case. Therefore, we accept the findings of the trial court that the last seen theory has not been proved.
15. The further plea of the prosecution is based on the motive that there was a financial dispute between the 15 accused and the deceased. However, we find that even according to the case of the prosecution, the dispute was almost 3-4 years old. Therefore, an incident which occurred 3-4 years ago cannot form the motive for the commission of the offence.
16. Even otherwise, the extent of the financial dispute between both of them has not come on record. Therefore, it would appear that the motive set up by the prosecution is trivial in nature. There should be some indication by any of the witnesses with regard to the same. Therefore, in the background of the said motive set-up by the prosecution, we are of the view that the motive pleaded is too stale to accept. Therefore, the motive also has not been proved by the prosecution.
17. The recovery of MOs.2 and 3 namely, the lamp and the fishing net at the house of the accused has been identified by PW-1 - complainant. Even if the case of the prosecution on recovery is proved, the same would 16 become inconsequential in view of the fact that the prosecution has failed to prove the last seen theory, motive, as well as the cause of death.
18. For all the aforesaid reasons, we are of the view that the trial court misdirected itself in wrongly coming to the conclusion that the prosecution has proved its case beyond reasonable doubt. The material on record would indicate that it has failed to prove the last seen theory. The last seen theory was only at 10.00 p.m., on the date of the offence. However, the deceased was seen thereafter at 12.00 mid night by PW-1. The motive for commission of offence is almost 3-4 years old and therefore too stale to accept. There is substantial doubt as to whether the death was homicidal or not.
19. The Doctor, PW-13 has given his opinion that the death is due to cervical vertebrae fracture, whereas the case of the prosecution is that the death is due to pressing and twisting of the neck. Therefore, when the 17 prosecution has failed to prove any of these aspects, we find that the trial judge misdirected himself in wrongly convicting the accused .
20. For the aforesaid reasons, we pass the following:
ORDER Criminal Appeal No.1006 of 2012 is allowed. The judgment of conviction dated 26.04.2012 and the order of sentence dated 28.04.2012 in S.C.No.34 of 2009 passed by the Presiding Officer, Fast Track Court, at Sagar for the offences punishable under Section-302 of Indian Penal Code, is set-aside.
The appellant-accused, namely, Sri.Durgappa son of Nagappa, is acquitted of the charges leveled against him. He shall be set at liberty, forthwith, if not required in any other case/s.18
Registry to communicate the operative portion of this order to the Central Prisons, Parapanna Agrahara, Bengaluru, forthwith for necessary action.
SD/-
JUDGE SD/-
JUDGE JJ