Karnataka High Court
Sri. Lingaraj S/O. Gurunath Jalagar vs The State Of Karnataka on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100427 OF 2021
BETWEEN:
SRI. LINGARAJ S/O. GURUNATH JALAGAR
AGE: 24 YEARS, OCC: COOLIE,
R/O: SECTOR NO.45/15,
NAVANAGAR, BAGALKOT,
DIST: BAGALKOT.
...APPELLANT
(BY SRI. VIDYASHANKAR G.DALAWAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
CIRCLE INSPECTOR,
BAGALKOT TOWN CIRCLE,
NOW REP. BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD,
DHARWAD.
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO CALL FOR RECORDS AND SET-ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 07.03.2018
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT IN SC NO.54/2009 FOR THE OFFENCES PUNISHABLE
U/S 143, 147, 148, 400, 120B, 396, 302 AND 201 R/W SECTION
149 OF IPC RESPECTIVELY AND ACQUIT THE APPELLANT/ACCUSED
NO.1 FROM THE CHARGES LEVELED AGAINST HIM.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 11.12.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, H.P.SANDESH, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed being aggrieved by his conviction and sentence passed in S.C.No.54/2009 for the offences punishable under Section 143, 147, 148, 400, 120B, 396, 302, 201 R/w Section 149 of Indian Penal Code, 1860 (herein after referred to as IPC for short)
2. This appellant is arrayed as accused No.1 and he had invoked the provisions under Section 374(2) of Code of Criminal Procedure, 1973 (herein after referred to as "Cr.P.C"
for short).
3. The factual matrix of case of prosecution is that accused Nos.1 to 9 are habitually involved in robbery and for the said purpose, all of them have formed into an unlawful assembly and were staying in house No.121/B of Kaulpet as tenants and all of them entered into criminal conspiracy to 3 commit robbery and murder. In furtherance of the said common object and conspiracy, on 06.02.2008 at about 9.00 p.m., all the accused persons went to the house of deceased Lakshminarayana @ Sathyanarayana Rathi which is situated at No.158(A), Bagalkot.
4. The case of prosecution is that accused Nos.1, 4 and 8 were waiting outside the house keeping a vigil, accused No.6 made deceased Lakshminarayana @ Sathyanarayana open the door by saying that he is having a courier. When deceased Lakshminarayana @ Sathyanarayana open the door, accused Nos.2, 3, 5 to 7 and 9 entered the house and forced deceased Lakshminarayana @ Sathyanarayana and his wife deceased Leelavathi to hand over cash and gold, when they did not agree, they tied their hands with rope and covered their mouth with salophin tape and by using the said rope which was wounded around two bicycles in which the accused had taken with them, they strangled both of them, they robbed sum of Rs.23,000/-, gold ornaments, silver articles and also gold ornaments which were on the person of the 4 deceased and total worth of Rs.62,090/-. In order to destroy the evidence, accused No.5 poured a pot of water on the deceased and after locking the house all the accused persons left the house and thereby accused persons have committed the offences which have been invoked against them.
5. It is emerged in the records that during the pendency of the case accused Nos.5 and 9 have died and hence, the case against them is abated (as per order sheet dated 17.09.2009).
6. The charges framed against accused Nos.1 to 4, 6 to 8 for the above offences and they have not pleaded guilty and claimed the trial and hence the prosecution relied upon the evidence of PW1 to PW21 and Ex.P1 to Ex.P78 and MOs.1 to 40 are marked. The prosecution after their oral and documentary evidence, the incriminating evidence against the accused Nos.1 to 4, 6 to 8 have been put to the accused persons under Section 313 of Cr.P.C and all of them have denied the incriminating evidence. None of the accused persons have chosen to lead defence evidence. However, 5 during the course of trial, got marked the document of Ex.D1 to Ex.D3 and Ex.D4 through the witnesses PW2 and PW19 respectively.
7. The Trial Court having considered the evidence available on record, acquitted other accused persons and convicted only accused No.1 who is the appellant herein and accused No.6. The accused No.6 has filed separate Crl.A No.100108/2018 and this Court vide order dated 1st day of June, 2022 confirmed the judgment of the Trial Court and dismissed the appeal.
8. In this appeal, the counsel for the appellant/accused No.1 would vehemently contend that the accused No.1 is innocent person and he has not committed any offences as alleged by the prosecution. The impugned order of conviction and sentence is against the law, well established procedure, facts and probabilities of case. The Trial Court has erred in considering the material on record in a proper prospective. The counsel would vehemently contend that the allegation against this accused/appellant that he was 6 watching outside the house at the time of committing the alleged offences. The Trial Judge has failed to analyze the evidence in a legal manner and fails to take note of contradictions, omissions and relied upon unreliable evidence.
9. The counsel also would vehemently contend that the fact which has been attributed, it does not attract any of the ingredients of the alleged offences. The counsel also would vehemently contend that there is no direct evidence to link accused No.1 to the alleged incident. None of the witnesses have deposed regarding his identity and no Test Identification Parade is conducted. The circumstantial evidence sought to be proved is not supported by corroborative evidence. The counsel also would vehemently contend that the chain of circumstances is not complete to point the involvement of this accused No.1. The counsel also would vehemently contend that the investing officer has not conducted the investigation in a proper manner and even prosecution has doubted against the complainant.
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10. The Trial Court committed an error in believing the recovery at the instance of this accused and though Trial Court comes to the conclusion that with regard to the recovery against the other accused persons have not been proved, but committed an error in accepting the case of prosecution against this appellant. The counsel would vehemently contend that the prosecution mainly relies upon the evidence of PW1, PW4 and PW21 and their evidence is not credible and not inspires the confidence of the Court. However, committed an error in convicting this appellant.
11. Per Contra, the learned Additional State Public Prosecutor for the State in his argument, he supported the impugned Judgment and conviction and sentence. The counsel would vehemently contend that the very involvement of accused is proved through recovery of material objects. The counsel would vehemently contend that MO.1 and MO.2 - watch and ring are belongs to both the deceased and the same were recovered at the instance of PW1 and PW4. The counsel would vehemently contend that during the incident 8 they have committed two murders and robbed belongings of the deceased. The PW4 is the mahazar witness of this accused and also the PW1 is also relative and recovery witness. Both the evidence of PW1 and PW2 who are the independent witnesses prove the very involvement of this appellant and recovery.
12. Having heard the appellant's counsel and also the counsel appearing for the respondent/State, the point that would arise for the consideration of this Court are:
1) Whether the Trial Court committed an error in convicting this appellant and whether it requires interference of this Court?
2) What Order?
POINT No.1:
13. Having heard the arguments of appellant's counsel and also the counsel appearing for the State-respondent, it is the case of the prosecution that the charges levelled against this accused along with other accused that all of them have 9 formed unlawful assembly and conspired each other and implemented their conspiracy by causing death of inmates of the house and robbed their belongings.
14. It is pertinent to note that the deceased couple were issueless and their residence was in the back portion of the complex where the deceased Lakshminarayana was running a shop. It has to be noted that it is the case of the prosecution that the docoity was committed on 06.02.2008 and complaint is lodged on 08.02.2008 by Dwarakdas Nandakishore Rathi, a nephew of the deceased Lakshminarayana. The Court has to look into the contents of the complaint averments and also the evidence which has been relied upon by the prosecution particularly the evidence of PW1, PW2, PW4 and PW12. It is clear that on 05.02.2008 at about 4.00 p.m., complainant and his family members went to Tirupathi via Solhapur and on 07.02.2008 at about 5.00 p.m., his brother PW11- Sachin Rathi and Gokul Rathi informed the PW1 that deceased are not to be seen and their house also locked and they are not responding to phone calls. It is also 10 the evidence of PW1 that immediately he returned from Tirupathi via Raichur and they found the house of the deceased locked and both deceased had undergone open heart surgery and were aged, they were searched in the hospital and they called to K.L.E hospital where they had undergone open heart surgery and enquired as to whether the deceased persons are admitted to the hospital. When they made all efforts and their efforts become vain. They got the lock of the house opened and found the two dead bodies inside the house with ligature mark on the Neck and hence complaint is filed in terms of Ex.P1.
15. The counsel would vehemently contend in his argument that no details of missing of valuables has been stated, only after recovery and on the basis of the alleged voluntary statement, they have identified the same. It has to be noted that when the complaint is lodged, the Court cannot expect all details in the compliant itself and complaint only first information with regard to the incident and that too having found dead body in the house, a complaint was lodged. 11 On perusal of Ex.P1, it does not point out against any person and the complaint is against the unknown persons. It is also important to note that in the cross-examination of PW1, it is elicited that earlier he was tenant of deceased Lakshminarayana and at his insistence he had to vacate the same. No doubt suspected the role of complainant at the first instance.
16. It is also important to note that the prosecution when examined the witness-PW20, an answer was elicited from the PW20 that the complainant was also a suspect and the fact that he was subjected to Narco-analysis test and he came clean out of it is emerged on evidence. Mere suspecting the role of complainant cannot be the basis and he was not absconded and he himself has lodged the complaint. It is also important to note that when the case is rest upon the circumstantial evidences, there must be a chain link for each act.
17. It is important to note that the evidence of PW1, he narrated the contents of the complaint and also he was called 12 to Police Station and voluntary statement of this accused was recorded. The Police also requested to accompany them for recovery and in the Police Station they have showed 7-8 accused persons. In the first week of January, Police took all of them along with photographer in respect of house of accused-Deepak. It is also his evidence that on 31.12.2008, the Police secured him and panch witnesses. The accused No.1 led all of them to his house stating that he would produce the belongings of the deceased and he took all of them to Sector No.45 and informed that the said house belongs to him. He had removed trunk wherein he had kept Rs.90,000/-, one Titan watch, one ring, button knife and a hand bag and the same has been seized and drawn the mahazar. The evidence of the PW1 is clear with regard to this appellant has led all of them to his house and produced these articles. The watch and ring are marked as MO.1 and MO.2. In the cross-examination it is elicited that he studied upto B.Com., and he worked as a Contractor and also in detail cross-examination was made with regard to location of the house of the victims. No doubt, it is elicited that surrounding the said house there are other 13 houses and also there is a high school. He also admits that his uncle was subjected to heart surgery. He also clarified that when he had lodged the compliant in terms of Ex.P1, he did not mention the names of the accused persons since he was not aware of who are the culprits. No doubt, it is elicited that the said watch and ring belongs to their uncle and aunt, he has not given any document and he cannot give all the details of the houses in which mahazars were drawn. It is his evidence that while going to the house of the accused, he himself, Ravi Kumatagi, Pattar and Police were there along with him. In the cross-examination suggestion was made that this appellant did not lead him to his house and nothing is recovered at the instance of the accused and the same was specifically denied by the PW1.
18. The prosecution in order to prove the recovery at the instance of this accused relies upon the evidence of PW4. It is also his evidence that on 31.12.2008, the Police called him to Police Station and by that time CW7 was also present and his evidence is that the accused No.1 led Police as well as 14 the panch witnesses and he had produced the trunk wherein found Rs.90,000/-, gold ring, watch, button knife and Police have drawn the mahazar in terms of Ex.P17 and Ex.P18 and he identifies the signature on both as Ex.P17(a) and Ex.P18(a) and also identifies the button knife as MO.17. But, he identifies item No.23 of gold ring, but it is wrongly typed as it was marked as MO.18 and carry bag as MO.19. This witness was subjected to cross-examination and no doubt in the cross- examination, it is elicited that he is a friend of PW1 and also he has given description where all of them were sitting in the jeep. It is suggested that he did not go inside the house and the said suggestion was denied, but he says that he went inside the house and trunk was in the room and the room was measuring 8 x 10 and another room measuring 6 x 8 and all of them went inside the room. He also gives the description of notes as Rs.500/- denominations and also Rs.100/- denominations. He also admits that the button knife and mobile would be available in any of the shops and ring weighs around 3-4 gms. He says that they were there for about 2 hrs. He had signed the mahazar. It is suggested that he is not 15 having any information with regard to the contents of mahazar, but he denies the same and also even description of house of the accused No.1. He also gives the description that amount, ring, button knife and watch all were kept in a bag and suggestion was made that he deposing falsely at the instance of the Police and the said suggestion was denied.
19. The other witness is PW21 with regard to the recovery of articles at the instance of this appellant. It is important to note that the evidence of PW21 is that he accompanied the I.O on the particular date and the I.O who recovered at the instance of the appellant in the presence of the witnesses is no more and the same is emerged in the evidence of PW21. The PW21 in Cr.No.20/2008 on 30.12.2008, the D.S.P - I.A. Patil recorded his voluntary statement and also his evidence is that in S.C No.35/2009 true copy of voluntary statement is marked as Ex.P72 and also identifies the signature of I.A.Patil as Ex.P72(a). Based on the voluntary statement, recoveries are made at the instance of the accused and also his evidence that original panchanama is 16 marked as Ex.P10 in S.C No.35/2009 and attested copies marked as Ex.P18. He also identifies the signature of I.O as Ex.P18(c). This witness speaks about the recovery. This witness was subjected to cross-examination and in the cross- examination he admits that he had not signed the voluntary statement of this appellant and also not signed the mahazar, but he claims that his photo appears in the said process. He also admits that he has not given any statement to the I.O, but his evidence is clear that when he worked along with I.A.Patil, D.S.P he is having acquaintance with his hand writing and signature. While cross-examining him a suggestion was made that the accused has not given any voluntary statement and also he has not produced articles and no such mahazar was drawn in terms of Ex.P10 and Ex.P18 and he is deposing falsely before the Court. The said suggestion was denied.
20. The material witnesses are PW1, PW4 and PW21 and also the evidence of I.O with regard to the cause of death of both the deceased. The Doctor who conducted the P.M is 17 also no more but, I.O has been examined and through the I.O, P.M reports are marked as Ex.P53 and Ex.P54.
21. Having perused the evidence of the I.O and also Ex.P53 and Ex.P54, it is clear that both Lakshminarayana and his wife Leelavathi were died on account of strangulation. The death of CW54 - Dr.S.S.Chincholi who conducted the P.M is evident from the order sheet dated 18.09.2017. The prosecution was unable to examine him on account of his death but P.M was marked through PW18 as per the Ex.P53 and Ex.P54, the cause of death is as asphyxia, as a result of strangulation and time since death is also 24-48 hrs prior to the post mortem examination. Moreover defence also not disputed the cause of death of the deceased or not demonstrated that their cause of death is inconsistent with the case putforth by the prosecution.
22. Having taken note of the evidence of PW18 as well as P.M report at Ex.P53 and Ex.P54 and the same corroborates with the case of the prosecution. Hence, it is a case of homicidal.
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23. Now, we have to examine with regard to the material available on record against this appellant is concerned. Admittedly, there are no eye witnesses to the incident. The entire case of the prosecution is based on recovery of material objects belonging to the victims at the instance of this accused. This Court also taken note of the conviction is only against accused Nos.1 and 6. This Court already confirmed the judgment of conviction against the accused No.6. It is settled law that the Court cannot consider the confirmation of conviction of the other accused is also a basis for confirmation against this accused. This Court has to weigh the evidence independently. .
24. Now coming to the evidence led by the prosecution with regard to the recovery of incriminating material at the instance of this accused No.1, the Court has to take note of evidence of PW1 who is the complainant. It is also important to note that he is also a close relative of the deceased being brother's son and investigation officer has secured his presence to ascertain whether recovered articles belongs to 19 the deceased or not and to proceed with a proper direction. The evidence of PW1 is very clear that recovery was made at the instance of the accused No.1 i.e., MO.1 and MO.2 and also it is important to note that witness-PW4 is also a panch witness for recovery at the instance of accused. The PW4 also in his evidence categorically says that he was called to Police Station and the accused No.1 led all of them to his house No.45 and he had produced the trunk wherein he had kept Rs.90,000/-, MO.1 and MO.2 and button knife in a bag and the same are also marked. No doubt there is a discrepancy in mentioning the MOs' at the instance of PW4, but MO.1 and MO.2 are the watch and ring, PW1 identifies that the same belongs to their uncle and aunt respectively. It is also important to note that this accused was apprehended in another matter and thereafter they gave voluntary statement with regard to the involvement of this accused along with the other accused in committing the dacoity in the house of these two victims. Based on his voluntary statement, recovery is made at the instance of this appellant and specifically the relatives of the victims i.e., PW1 identifies MO.1 and MO.2 that 20 the same belongs to their uncle and aunt. The witness-PW4 is also the recovery witness and his evidence is also specific. The evidence of PW21 who is the part of recovery and he was assisting the Deputy Superintendent of Police who conducted the recovery at the instance of the accused along with the presence of PW1 and PW4. Having taken note of the person who conducted the recovery at the instance of the accused along with the presence of PW1 and PW4 and having taken note of the cross-examination of PW1 and PW4 except making suggestion that no such recovery was made at the instance of this appellant and nothing is elicited from the mouth of those two witnesses to disbelieve the evidence of the prosecution witnesses.
25. The PW1 categorically deposes that watch belongs to his uncle and ring belongs to his aunt Smt.Leelavathi. No doubt in the cross examination of PW1, it is elicited that he has not produced any document with regard to both of the MOs' belongs to the victims, but the Court has to take note of recovery of those at the instance of the accused that too in his 21 house and found the same in the trunk in a bag and bag is also marked. The PW4 also categorically deposes that recovery was made at the instance of this appellant.
26. Having considered the evidence of PW1 and PW4 and also though PW21 is not signed the mahazar but he was along with the I.O- I.A. Patil at the time of recovery and he is having acquaintance with the hand writing of the I.O and the said I.O is no more. Hence, the evidence of PW21 is taken note of, since the evidence of PW21 is admissible under Section 32 of Indian Evidence Act and the testimony of PW1 with regard to the investigation conducted by the CW62- I.A.Patil is admissible. During the course of evidence of PW21, the defence has raised objections regarding marking of document pertaining to the investigation conducted by CW62- I.A.Patil. But under 32(2) of Indian Evidence Act, statements written are verbal of relevant facts made by a person, who is dead or who cannot be found or who has incapable of giving evidence or whose evidence cannot be procured, without an amount of delay or expenses which under the circumstances 22 of the case appears to the Court unreasonable, are relevant when they are made in the ordinary course of business and in particular in the discharge of professional duty.
27. Having taken note of the same and also objections with regard to the marking of document and signature through PW21 is not tenable. The prosecution has proved the recovery made at the instance of the accused and not only relies upon the evidence of PW21 and particularly relies upon the evidence of PW1 and PW4 who are the witnesses to the recovery and the fact that PW1 and PW4 have also categorically depose that they have accompanied with CW52 when the accused No.1 led all of them to their house.
28. The counsel appearing for the appellant also vehemently contend that when the other accused persons have been acquitted and the Trial Court ought not to have adopted the different yardstick in convicting this appellant along with accused No.6, the same benefit of doubt would have been extended to this appellant also. The said contention cannot be accepted, since the prosecution has proved the case 23 against this appellant. In respect of other accused is concerned, the same has not been proved. Hence, the benefit of doubt was given in favour of other accused persons. The acquittal of accused Nos.2 to 4 and 6 to 8 is only on the ground of lack of support by independent witnesses to recovery at their instance. But in the case on hand, the PW1 and PW4 have categorically deposed with regard to the recovery and the recovery made only at their instance. Therefore, the contention of the defence that the provisions of Section 149 of IPC cannot be pressed into service cannot be accepted.
29. We have carefully analyzed the oral and documentary evidence placed on record by the prosecution and having re-analyzed the evidence available on record, we are of the considered opinion that the prosecution has proved the charges levelled against this appellant/accused No.1 beyond reasonable doubt and as such, the appeal filed by the appellant fails since there is a corroborative evidence of PW1, PW4 and PW 21 with regard to the involvement of this 24 appellant and the recovery is made at the instance of this appellant particularly MO.1 and MO.2 belongs to both the victims and the evidence of PW1 and PW4 is consistent for recovery of the material objects which are belongs to the victim Lakshminarayana and his wife Leelavathi Rathi and hence the charges levelled against this appellant are proved beyond reasonable doubt.
30. As discussed earlier, there are no eye witnesses to the incident and the I.O has collected the material against this appellant and the recovery has been proved and the fact that accused Nos.5 and 9 died during the pendency of the trial is also not in dispute and the benefit of doubt is extended in favour of accused Nos.2 to 4 and 6 to 8 also cannot be extended against this appellant as contended by the appellant's counse. When there are sufficient and corroborative material available against this appellant and hence we do not find any error committed by the Trial Court in relying upon particularly the evidence of PW1, PW4 and PW21 25 and hence, no merit in the appeal. Hence, we answer the point No.1 as Negative.
POINT No.2 In view of the discussions made above, we pass the following:
ORDER The appeal is dismissed. The conviction and sentence passed against the appellant in S.C No.54/2009 is confirmed.
The Registry is directed to return the Trial Court record along with the copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE RHS