Karnataka High Court
Dodda Hanuma vs State Of Karnataka By on 3 September, 2018
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 3RD DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.1875 OF 2017
BETWEEN:
1. DODDA HANUMA
SON OF VENKATAPPA
AGED ABOUT 30 YEARS
DANDUPALYA, HOSAKOTE
BENGALURU - 562 114
2. VENKATESH @ CHANDRA
SON OF VENKATASWAMY
AGED ABOUT 36 YEARS
DINNUR COLONY
KADUGODI
BENGALURU - 560 067
3. MUNIKRISHNA @ KRISHNA
SON OF VENKATASWAMY
AGED ABOUT 25 YEARS
DINNUR COLONY
KADUGODI
BENGALURU - 560 067
4. NALLATHIMMA @ THIMMA
SON OF GURUBOVI
AGED ABOUT 25 YEARS
RESIDING AT CHANNENAHALLI
MUTTUR POST
MYSURU DISTRICT
2
DINNUR COLONY
KADUGODI
BENGALURU - 560 067
5. LAKSHMAMMA @ LAKSHMI
WIFE OF DODDAHANUMA
AGED ABOUT 30 YEARS
DANDUPALYA VILLAGE
HOSAKOTE TALUK
BENGALURU - 562 114
... APPELLANTS
(BY SRI:HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KAMAKSHIPALYA POLICE STATION
BENGALURU - 560 079.
REPRESENTED BY
SPECIAL PUBLIC PROSEUCTOR
...RESPONDENT
(BY SMT:B.G.NAMITHA MAHESH, HIGH COURT
GOVERNMENT PLEADER)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
09.11.2017 PASSED BY THE XXXIV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU IN
S.C.NO.744 OF 2001 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 302 AND 396 READ WITH 34 OF IPC; THE
APPELLANTS/ACCUSED NOS.1 TO 5 ARE SENTENCED TO
UNDERGO LIFE IMPRISONMENT FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 396, 302 READ WITH 34 IPC;
PUNISHMENT FOR BOTH THE OFFENCES SHALL RUN
CONCURRENTLY; THE APPELLANTS/ACCUSED PRAYS THAT
THEY BE ACQUITTED.
*****
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THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, JOHN MICHAEL CUNHA.,J DELIVERED
THE FOLLOWING:
JUDGMENT
By an earlier order dated 27.07.2017 in Criminal Referred Case No.7 of 2010 connected with Criminal Appeal No.1289 of 2010 and Criminal Appeal No.810 of 2011, we had remanded this matter to the trial Court to record a finding on the charge under Section 302 of Indian Penal Code (for short 'IPC'). After remand, the learned Sessions Judge has passed the impugned judgment holding the appellants herein, namely, accused Nos.1 to 5 guilty of the offences punishable under Sections 302 and 396 read with 34 of IPC and each of the accused are sentenced to undergo imprisonment for life and a fine of Rs.5,000/- each. The appellants-accused Nos.1 to 5 are granted the benefit of set off and the substantive sentences of imprisonment are directed to run concurrently.
2. The case of the prosecution is that, the deceased Geetha was staying in her house bearing No.30, 7th Cross, Agrahara Dasarahalli, Magadi Main Road, Bengaluru along with her husband Jayaramaiah (PW-1) and two school going children. Her husband, PW-1 was working as a 'meter reader' 4 in K.E.B. On 07.11.2000, as usual, PW-1 had left home for his work and the children had gone to school. The deceased was alone in the house and at about 5.30 p.m., PW-1 is said to have received a phone call stating that some galata had taken place in his house; he rushed to the house and found the deceased fallen in a pool of blood in the hall.
3. PW-1 lodged a report, based on which, Crime No.438 of 2000 was registered against unknown persons and one suspected Ravi under Section 302 of IPC. Investigation was taken up. On 01.02.2001, accused Nos.1 to 5 were arrested. Based on the voluntary statements of the accused, valuables/ornaments said to have been robbed from the person of deceased were recovered at the instance of accused Nos.1 to 4. On completing the investigation, charge sheet came to be laid against the appellants-accused Nos.1 to 5 under Sections 302 and 396 read with 34 of IPC.
4. The accused persons having denied the charge, the prosecution examined 15 witnesses as PW-1 to PW-15 and got admitted in evidence Exhibits-P1 to P24 and Material Objects-1 to 17.
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5(a). PW-1 is the husband of deceased and the complainant.
(b). PW-2 is the witness for the spot mahazar, Exhibit- P2 and inquest mahazar, Exhibit-P3.
(c). PW-3 is the panch witness to the spot mahazar, Exhibit P5.
(d). PW-4 is the owner of 'Sathyanarayana Jewellery Mart' Rajamarket at Bengaluru. Through this witness, the prosecution has seized M.Os.1 to 5 under the mahazars Exhibits-P6 to P9. The said recovery is said to have been effected at the instance of accused Nos.1 to 4 respectively.
(e). PW-5 is the panch witness for seizure of jewels M.Os.1 to 5 under Exhibits-P6 and P7 dated 07.02.2001 and Exhibit-P8 dated 08.02.2001.
(f). PW-6 is a co-worker of PW-1 and signatory to the spot mahazar, Exhibit-P2 and the inquest mahazar, Exhibit- P3. Through this witness, the prosecution has got marked the clothes found on the dead body at M.Os.7 to 9 and 11. 6
(g). PW-7 is the son of deceased Geetha, who is only a circumstantial witness.
(h). PW-8 is the neighbor of deceased who has spoken about the fact of seeing the deceased lying dead.
(i). PW-9 is the Police Constable who carried the dead body for postmortem examination and collected the clothes found on the deceased and submitted them before the Investigating Officer under his report, Exhibit-P10. The clothes of the deceased are marked as M.Os.16 and 17.
(j). PW-10 is the panch witness for the seizure of gold chain and the blood stained shirt of accused No.3. He is also a witness for seizure of one ole, anklets and saree from accused No.5, namely, M.Os.1, 3, 6 and 11 under the mahazar, Exhibit-P11.
(k). PW-11 is the Police Sub Inspector of Vijaynagar Police Station who apprehended accused Nos.1 to 5 on the intervening night of 31.01.2001 and produced them before the Investigating Officer on 01.02.2001 at 12.15 a.m. 7
(l). PW-12 is the Medical Officer who conducted postmortem on the deceased and issued postmortem report as per Exhibit-P13. He has identified the clothes of deceased M.Os.16 and 17.
(m). PW-13 is the panch for seizure of jewels (M.Os.1 to 3) from PW-4. He has also spoken about the seizure of M.O.4 mati from accused No.4 under Exhibit-P8 and gold ear ring, M.O.5 at the instance of accused No.1 under Exhibit-P9.
(n). PW-14 is the Station House Officer, who received the complaint from PW-1 and registered the FIR as per Exhibit-P14 and conducted investigation and laid charge sheet against the accused.
(o) PW-15 is the Investigation Officer who arrested accused Nos.1 to 5 on 01.02.2001, recorded the voluntary statements and recovered the jewels M.Os.1 to 5 at the instance of accused Nos.1 to 4. Through this witness, two DVDs are marked as per Exhibits-P20 and P21. The admissible portion of voluntary statements of accused Nos.1 to 5 have been marked as Exhibits-P15 to P19. 8
6. Based on these evidences, the trial Court has held the accused guilty of the offence of murder and dacoity punishable under Sections 302 and 396 of IPC.
7(a). The learned counsel for the appellants, at the outset, submits that the material produced by the prosecution does not establish any of the ingredients of the offence of murder. The evidence adduced by the prosecution in proof of the recovery is too shaky and unacceptable. Even if the said evidence is accepted and believed, it would at the most make out a case under Section 379 of IPC and not for the offence of murder or dacoity as held by the Trial Court.
(b). The learned counsel has taken us through the evidence of the prosecution witnesses and has emphasized that there are no eye witnesses to the incident; none of the witnesses have deposed about the manner in which the incident had taken place. The postmortem report indicates 11 injuries most of which are stab wounds, but no weapon has been recovered to connect any of the accused to the act of murder. In the absence of any evidence to connect the 9 accused to the murder of deceased, the impugned judgment of conviction is liable to be set aside.
(c). Further, the learned counsel would submit that initially, the finger of suspicion was pointed at one Ravi. He was specifically named in the complaint. The Investigating Officer has conveniently dropped the aforesaid Ravi from the charge sheet and solely on the basis of alleged recovery, appellants are implicated in the alleged offences. Even though, the finger prints were found at the spot of occurrence, no attempt has been made by the Investigating agency to show that any of these finger prints tallied with the thumb impression of any one of the accused persons. These circumstances indicate that a deliberate attempt has been made to shield the real offenders. Withholding such crucial evidence throws doubt on the case of the prosecution. In so far as accused No.5 is concerned, there is not even an iota of evidence to prove her participation either in the murder of the deceased or in receiving the alleged stolen ornaments. In spite of it, an omnibus order is passed by the trial Judge against all the accused. The findings of the trial Court are not based on any legal evidence. Thus, the learned Counsel has 10 sought for reversal of the impugned judgment and prayed for acquittal of the accused of all the charges leveled against them.
8. Defending the impugned judgment, the learned High Court Government Pleader submitted that the trial Court has taken into consideration all the facts and circumstances of the case and has recorded proper findings which are based on legal evidence. The trial Court has mainly relied on the evidence relating to the recovery of ornaments at the instance of accused. Since there is a clear evidence to show that these articles were stolen from the person of deceased at the time of murder, the trial Court was justified in holding that the murder and robbery had taken place at the same time and hence, there is no reason to interfere with the impugned judgment and consequently he has sought to dismiss the appeal.
9. We have bestowed our careful attention to the submissions made at the bar and have carefully examined the oral and documentary evidence produced by the prosecution as well as the documents confronted to the prosecution 11 witnesses during the course of their cross examination. We have also considered the defence set up by the accused in the course of their examination under Section 313 Cr.P.C.
10. On going through the impugned judgment, we find that the Trial Court has not recorded any specific finding with regard to the ingredients of the offence under Section 302 of IPC. Nowhere in the impugned judgment, the trial Court has held that the murder and the dacoity was committed at the same time. The reasoning of the Trial Court in this regard finds place at paragraph 102 of the impugned judgment, which is extracted herein below:
"Hence, Court comes to the conclusion that it is just, proper, reasonable and equitable to consider both the offences even some lapses are found out in the evidence of the prosecution, that lapse will not come into effect as the murder and robbery are two faces of the same coin. If one offence is proved, another offence follows the same. Therefore, I have already stated in the above paragraphs that there is chance of interlink between the offences and the prosecution has also led the evidence in respect of use of knife in the said offence and the murder is committed through the knife only and it cannot be denied. Therefore, 12 in view of the said chain of interlink between the said offence, the Court comes to the conclusion that there are no circumstantial evidence or eye witnesses to the case of the prosecution although in murder cases only blood relatives and nearest persons or neighbouring house owners have deposed before the court including the I.O. evidence and it is also not possible to get the evidence of eye witnesses within the four walls of the house when the murder took place and the lady Smt.Gita, wife of P.W.1 was alone in the house and the inmates of the house Jayaramaiah and children were also not available by that time. Children had gone to school and husband had gone to duty. Therefore, in extreme circumstances of nature, the history sheets prevail. The police investigation has gone on the history of the similar offences committed by them."
(underlining supplied)
11. We are really astounded and appalled by the reasoning of the learned Sessions Judge. It is really shocking to note that the learned Sessions Judge has held the appellants-accused guilty of the offence of murder solely on the basis of history sheet of the accused. In the earlier paragraph of the judgment, the learned Sessions Judge has 13 noted that there were no eye witnesses to the incident. In the subsequent para No.98, it is observed that even the circumstantial evidence is not available in proof of the prosecution case. Thereafter, he has proceeded to refer to the confessional statement of the accused and has constructed a story of modus operandi adopted by the accused in targeting lone women at untimely hours when no one was likely to come to their aid. Fortunately, the learned Sessions Judge has not drawn any conclusion from these confessional statements, but has proceeded on the premise that since the death was caused with the use of knife, it affords a link connecting murder and dacoity. According to the learned Sessions Judge, the murder and robbery are two faces of the same coin and therefore, when robbery is proved, automatically the charge of murder also gets established.
12. The skewed and convoluted reasoning assigned by the learned Sessions Judge, in our opinion, needs to be deprecated in strongest terms. The approach of the learned Judge to say the least, smacks of perversity to the core. His reasoning that even if there are lapses in the prosecution case, same would not affect the charge of murder and 14 robbery, sadly reflects the dearth of basic knowledge of criminal jurisprudence. The further reasoning that 'there is a chance of interlink between the offence', is nothing short of absurdity and has resulted in total miscarriage of justice. In the said circumstance, we feel it is our duty to remind the learned trial Judge that criminal trial is not a fairy tale, where the learned Judge and the prosecution are free to give vent to their fantasy and fertile imagination. Criminal law postulates highest degree of proof before a person could be indicted of the offences charged against him. The prosecution is required to prove the guilt of the accused beyond reasonable doubt. It may be that, in regard to the proof of basic or primary facts, Court may judge the evidence in ordinary way and when it is held that a certain fact is proved, inference of guilt can be drawn provided the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. But under no circumstances, the proof of an offence can lead to the proof of another offence as erroneously understood by the learned Sessions Judge. No doubt, murder is an integral part of the offence under Section 396 of IPC. But from the mere factum of recovery of the stolen articles, it cannot be 15 deduced that the offence of murder and the robbery had taken place at the same time. Therefore, we are of the clear view that the reasoning assigned by the learned Magistrate to hold the accused persons guilty of the offence of murder punishable under Section 302 of IPC being perverse, whimsical, arbitrary and without any supporting evidence is wholly illegal and cannot be sustained.
13. On consideration of the entire material on record, we do not find even a shred of evidence to prove the complicity of appellants-accused in the murder of the deceased. As already mentioned above, the complainant as well as other neighbours examined by the prosecution reached the spot only after the commission of offence. None of these witnesses have implicated any of the accused persons in the murder of the deceased, nor have they stated in their evidence that they found any of the accused persons near the spot of offence immediately or after the commission of offence. Though the deceased is said to have been done to death by inflicting stab injuries, the weapon of offence is not recovered, as a result, the prosecution is not left with any 16 worthwhile evidence to connect the accused to the death of the deceased.
14. The evidence on record indicate that the accused were arrested on 01.02.2001, more than three months after the incident. As pointed out by the learned Counsel for the accused, the investigating officer has not made any attempt even to match the thumb impression of the accused with the chance finger prints found at the spot. In the said circumstance, there was absolutely no material before the Trial Court to hold the accused guilty of the offence of murder punishable under Section 302 of IPC. The reasoning assigned by the learned Sessions Judge that the offence relating to recovery of ornaments belonging to the deceased at the instance of accused leads to the proof of the offence of murder, cannot be accepted. As a result, we hold that the findings recorded by the learned Sessions Judge holding the appellants-accused person guilty of the offence under Section 302 IPC is patently illegal, perverse and is liable to be set aside.
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15. In so far as the offence under Section 396 IPC is concerned, the only material available in proof of the ingredients of this offence is the recovery of gold ornaments belonging to the deceased. It is the case of prosecution that after the arrest of accused persons, based on their voluntary statements, the gold ornaments of the deceased namely, M.Os.1 to 5 were recovered at the instance of accused Nos.1 to 4. We have examined the evidence adduced by the prosecution in proof of this circumstance. The voluntary statement attributed to the accused are duly proved by the evidence of PW-15. The admissible portion of the voluntary disclosure of accused Nos.1 to 4 leading to the recovery are marked in evidence as Exhibits-P15 to P19.
16. PW-4, the owner of 'Sathyanarayana Jewellery Mart', has stated that on 07.02.2001, accused No.2 was brought to his shop and at the instance of accused No.2, he produced 5 gold articles before the police and the same were seized under Mahazar Exhibit-P6. On the same day, at 2.00 p.m. at the instance of accused No.3, he produced 7 gold articles, which were seized under Exhibit-P7. On 08.02.2001, at the instance of accused No.1, he produced one pair of gold 18 ole and gold ingot between 3.00 and 4.00 p.m. at the instance of accused No.4 and he produced about 12 gold and silver articles which were seized under mahazar Exhibit-P8. He has identified M.Os.1 to 5. Nothing has been elicited in the cross examination of this witness to disbelieve the recovery of M.Os.1 to 5.
17. PW-1, in his evidence has deposed that one rope mangalya chain, a pair of red stone hangings, a pair of white stones ear hangings, a pair of gold mati and a pair of gold ole were missing from the person of the deceased at the time of her murder. In his evidence, PW-1 has identified M.Os.1 to 5 as the ornaments belonging to his wife and has further stated that M.O.6 belongs to him and other relatives of the deceased have also identified these gold ornaments.. Thus, there is a clear and cogent evidence on record in proof of the recovery of ornaments from the possession of accused Nos.2 to 4.
18. But, the question for consideration is:
"Whether on the basis of said recovery, can the accused be held guilty of the offence under Section 396 IPC?"19
19. Section 396 of IPC reads as under:
"Dacoity with murder - If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or (imprisonment for life), or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
20. In order to indict the accused persons for the offence under Section 396 of IPC, one of the essential ingredients required to be proved by the prosecution is that the murder and robbery should take place one at the same time. But in the instant case, we have already come to the conclusion that the prosecution has failed to prove that accused Nos.1 to 4 are involved in the murder of the deceased. The prosecution has also failed to adduce necessary evidence to prove that the robbery has taken place simultaneously with the death of deceased. Therefore, in our view, the ingredients of Section 396 of IPC do not get attracted to the facts of this case. In identical situation, the Hon'ble Supreme Court of India in RAJKUMAR ALIAS RAJU Vs 20 STATE (NCT OF DELHI) (AIR 2017 SC 614) following the earlier decision in the case of SANWAT KHAN AND ANOTHER Vs STATE OF RAJASTHAN (AIR 1956 SC 54) has observed that:
"11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16.09.1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e., 12.09.1991 and that they were going away to some other place. Even, if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were 21 seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused.
12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e., in the course of the same transaction. No such evidence is forthcoming.
21. Applying the ratio laid down in the above decision to the facts of the case, in our opinion, the circumstances of unexplained recovery of gold ornaments belonging to the deceased in the light of Illustration (a) of Section 114 of the Evidence Act, could lead to an inference that the accused 22 Nos.1 to 4 were receivers of stolen property or the persons who committed the theft. But it does not lead to the conclusion that the theft and murder had taken place one at the same time. Thus on analyzing the entire material on record and taking into account the proof of recovery of gold ornaments at the instance of accused Nos.1 to 4, we are of the view that accused Nos.1 to 4 are liable to be convicted for the offence punishable under Section 380 of IPC, and accordingly, they are convicted for the offence punishable under Section 380 of IPC. In so far as accused No.5 is concerned, she is liable to be acquitted of both the charges leveled against her.
22. Accordingly, we proceed to pass the following:
ORDER Criminal Appeal No.1875 of 2017 is allowed in part.
The judgment of conviction of appellants-accused Nos.1 to 5 and the order of sentence dated 09.11.2017 in S.C.No.744 of 2001 passed by the XXXIV Additional City Civil and Sessions Judge, (Special Court), Bengaluru, for the 23 offence punishable under Section 302 read with Section 34 of Indian Penal Code, is set aside.
The judgment of conviction of appellants-accused Nos.1 to 4 for the offence punishable under Section 396 of IPC is hereby modified and they are convicted for the offence punishable under Section 380 of IPC.
Having regard to the above circumstances and the antecedents of the accused as reflected in the impugned judgment, we find it appropriate to sentence the appellants-
accused Nos.1 to 4 to the maximum sentence of imprisonment for 7 years and a fine of Rs.5,000/- each. In default to the pay the fine amount, each shall undergo further imprisonment for a period of one year.
The appellant-accused No.5, namely, Smt.Lakshmamma @ Lakshmi, wife of Doddahanuma, is acquitted of the charges leveled against her under Sections 302 and 396 of IPC. She shall be set at liberty, forthwith, if not required in any other case/s.24
The appellants-accused Nos.1 to 5 are entitled to set off for the period of custody they have already undergone in terms of Section 428 of Cr.P.C.
The substantive sentence imposed on appellants-
accused Nos.1 to 4 is ordered to be run concurrently.
If the appellants-accused Nos.1 to 4 have already served the sentence of imprisonment including the default sentence, they be set at liberty, if not required in any other case/s.
Registry to communicate the operative portion of this order to the concerned jail authorities, forthwith.
A copy of the judgment be sent to the concerned Sessions Judge for his guidance and a copy to the Director, Karnataka Judicial Academy for case study.
Sd/- Sd/-
JUDGE JUDGE
*bgn/mn/-