Karnataka High Court
The Registrar General vs Dodda Hanuma Son Of Venkatappa on 9 August, 2017
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 09TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.12 OF 2010
CONNECTED WITH
CRIMINAL APPEAL NO.1277 OF 2010,
CRIMINAL APPEAL NO.1278 OF 2010
AND
CRIMINAL APPEAL NO.1030 OF 2011
CRIMINAL REFERRED CASE NO.12 OF 2010:
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU - 560001
... PETITIONER
(BY SRI H.N.NILOGAL, SPECIAL PUBLIC PROSECUTOR)
AND:
1. DODDA HANUMA, SON OF VENKATAPPA
36 YEARS, DANDUPALYA VILLAGE
HOSKOTE TALUK, BENGALURU RURAL.
2. VENKATESH @ CHANDRA
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SON OF VENKATASWAMY
36 YEARS
DINNUR COLONY KADUGODI
BENGALURU RURAL
3. MUNIKRISHNA @ KRISHNA
SON OF VENKATASWAMY
AGED 29 YEARS, DINNUR COLONY
KADUGODI
BENGALURU RURAL
4. NALLATHIMMA
SON OF GURABHOVI
AGED 35 YEARS
BALEKATTE
CHANNENAHALLI GRAMA
MUTHOOR, PERIYAPATNA TALUK
MYSURU DIST.
5. LAKSHMAMMA
WIFE OF DODDAHANUMA
AGED 30 YEARS
DANDUPALYA GRAMA
HOSAKOTE TALUK
BENGALURU RURAL
6. KRISHNUDU @ KRISHNA @ CHANDRA
SON OF LATE RAMAIAH @ VENKATAPPA
AGED 22 YEARS
DANDUPALYA GRAMA
HOSAKOTE TALUK
BENGALURU RURAL
... RESPONDENTS
(BY SRI HASHMATH PASHA, ADVOCATE FOR RESPONDENT
Nos.2 AND 3
SRI VENKATESH P.DALWAI, ADVOCATE FOR RESPONDENT
Nos.1 AND 4 TO 6)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) OF CODE OF CRIMINAL
PROCEDURE FOR CONFIRMATION OF DEATH SENTENCE
AWARDED TO ACCUSED 1) DODDA HANUMA, UTP
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NO.10176, 2) VENKATESHA @ CHANDRA, UTP NO.10175, 3)
MUNIKRISHNA @ KRISHNA, UTP NO.10178, 4) NALLA
THIMMA, UTP NO.10177, 5) LAKSHMAMMA, UTP NO.10179
(ACCUSED IN S.C. NO.766 OF 2001) AND 6) KRISHNUDU,
UTP NO.8913 (ACCUSED IN S.C.NO.526 OF 2004), BY
JUDGMENT DATED 31.9.2010 PASSED IN S.C.NO.766 OF
2001 AND S.C.NO.526 OF 2004 ON THE FILE OF THE XXXIV
- ADDL. CITY CIVIL AND SESSIONS JUDGE (SPECIAL
COURT), CENTRAL PRISON PREMISES, BENGALURU.
*******
CRIMINAL APPEAL NO.1277 OF 2010:
BETWEEN:
KRISHNUDU @ KRISHNA @ CHANDRA
AGED 30 YEARS
SON LATE RAMAYYA @ VENKATA
OCCUPATION: NIL,
ADDRESS: DANDUPALYA VILLAGE
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT.
... APPELLANT
(BY SRI VENKATESH P. DALWAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
BY CHAMARAJPET POLICE
...RESPONDENT
(BY SRI H.N.NILOGAL, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO
SET ASIDE THE JUDGMENT DATED 31.8.10/30.9.10 PASSED
BY THE XXXIV ADDL. CITY CIVIL & SESSIONS JUDGE,
(SPECIAL COURT), CENTRAL PRISON, PARAPPANA
AGRAHARA, BENGALURU, IN S.C.NO.526 OF 2004 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 396 OF INDIAN PENAL CODE.
THE APPELLANT/ACCUSED NO.7 IS SENTENCED TO DEATH.
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HE SHALL BE HANGED BY NECK TILL HE IS DEAD AND PAY
A FINE OF RS.5,000/- FOR THE OFFENCES PUNISHABLE
UNDER SECTION 396 OF INDIAN PENAL CODE ETC. THE
APPELLANT / ACCUSED PRAYS THAT HE BE ACQUITTED.
*******
CRIMINAL APPEAL NO.1278 OF 2010:
BETWEEN:
1. DODDA HANUMA
AGED 42 YEARS,
SON OF VENKATAPPA,
OCCUPATION: NIL
ADDRESS: DANDU PALYA VILLAGE
HOSKOTE TALUK,
BENGALURU RURAL DISTRICT
2. VENKATESH @ CHANDRA
SON OF VENKATA SWAMY
AGED 42 YEARS
ADDRESS: DINNUR COLONY, KADUGODI
BENGALURU RURAL DISTRICT
3. MUNIKRISHNA @ KRISHNA
AGED 35 YEARS
SON OF VENKATA SWAMY
ADDRESS: DINNUR COLONY
KADUGODI
BENGALURU RURAL DISTRICT
(THIS APPEAL IS DISMISSED AS AGAINST APPELLANT
NOS.2 AND 3 VIDE ORDER DATED 26.09.2015)
4. NALLA THIMMA
AGED 41 YEARS
SON OF GURABHOVI,
OCCUPATION: NIL,
BALEKATTE
CHANNENAHALLI VILLAGE
MUTTUR, PERIYAPATNA TALUK
MYSURU DISTRICT
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5. LAKSHMAMMA
WIFE OF DODDAHANUMA
AGED 36 YEARS
ADDRESS: DANDUPALYA VILLAGE
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT
... APPELLANTS
(BY SRI VENKATESH P. DALWAI, ADVOCATE FOR
APPELLANT NOS.1, 4 AND 5)
AND:
STATE OF KARNATAKA
BY CHAMARAJPET POLICE
...RESPONDENT
(BY SRI H.N.NILOGAL, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT DATED 31.8.10/30.9.10 PASSED BY
THE XXXIV ADDL. CITY CIVIL & SESSIONS JUDGE,
(SPECIAL COURT), CENTRAL PRISON, PARAPPANA
AGRAHARA, BENGALURU, IN S.C.NO.766 OF 2001 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 396 OF INDIAN
PENAL CODE. THE APPELLANTS/ACCUSED NOS.1, 4 AND
5 ARE SENTENCED TO DEATH. THEY SHALL BE HANGED BY
NECK TILL DEAD AND PAY A FINE OF RS.5,000/- EACH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 396 OF
INDIAN PENAL CODE. THE APPELLANTS/ACCUSED PRAYS
THAT THEY BE ACQUITTED.
*******
CRIMINAL APPEAL NO.1030 OF 2011:
BETWEEN:
1. VENKATESH @ CHANDRA
SON OF VENKATA SWAMY
AGED 42 YEARS
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ADDRESS: DINNUR COLONY, KADUGODI
BENGALURU RURAL DISTRICT
2. MUNIKRISHNA @ KRISHNA
AGED 35 YEARS
SON OF VENKATA SWAMY
ADDRESS: DINNUR COLONY
KADUGODI
BENGALURU RURAL DISTRICT
... APPELLANTS
(BY SRI HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CHAMARAJAPET POLICE STATION
BENGALURU CITY
(REPRESENTED BY
LEARNED STATE PUBLIC PROSECUTOR
...RESPONDENT
(BY SRI H.N.NILOGAL, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 31.8.2010
AND ORDER OF SENTENCE DATED 30.09.2010 PASSED BY
THE XXXIV ADDL.CITY CIVIL AND SESSIONS JUDGE
(SPECIAL COURT), CENTRAL PRISON, PARAPPANA
AGRAHARA, BENGALURU, IN S.C.NO.766 OF 2001 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 396 OF INDIAN
PENAL CODE. THE APPELLANTS/ACCUSED NOS.2 AND 3
ARE SENTENCED TO DEATH. THEY SHALL BE HANGED BY
NECK TILL DEAD AND PAY A FINE OF RS.5,000/- EACH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 396 OF
INDIAN PENAL CODE. THE APPELLANTS/ACCUSED PRAYS
THAT THEY BE ACQUITTED.
*******
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THIS CRIMINAL REFERRED CASE AND CRIMINAL
APPEALS COMING ON FOR FINAL HEARING THIS DAY,
MR. RAVI MALIMATH J., DELIVERED THE FOLLOWING:-
JUDGMENT
The case of the prosecution is that, in the afternoon of 30.10.2000, the appellants / accused Nos.1 to 6 along with other accused entered into the house bearing No.42/14, II Cross, II Main, Vittal Nagar, Chamarajpet, Bengaluru. On the pretext of demanding food and drinking water, they went to the said house. Smt. Jaya Lakshmamma aged about 60 years, opened the door and the accused persons entered into the said house. They robbed valuable ornaments like eight bangles, ear studs and chain worth Rs.50,000/- worn by her and using a nylon rope tied it around her neck and killed her. Thereby, they committed dacoity with murder. Based on the complaint filed by PW.1
- Nagarathna, the daughter-in-law of the deceased, a case was registered in crime No.299/2000 for offence punishable under Section 302 of IPC by Chamarajpet Police Station against unknown persons. Investigation was taken up. Thereafter, charges were framed against accused Nos.1 to 5, 8 and 10 under Section 396 read with Section 34 of Indian Penal Code and against absconding accused Nos.6, 7, -8- 9 and 11 under Section 396 read with Section 34 of Indian Penal Code. Accused No.11 died during the pendency of the trial. Since accused No.9 was absconding, a split-up charge sheet was filed against her. The accused pleaded not guilty and claimed to be tried.
2. In order to prove its case, the prosecution examined 17 witnesses and marked 30 exhibits along with 9 material objects on their behalf. By the impugned judgment, accused Nos.1 to 5 and 7 were convicted for the offences punishable under Section 396 read with Section 34 of Indian Penal Code and were sentenced to death and ordered to pay a fine of Rs.5,000/- each. Accused Nos.6, 8 and 10 were acquitted. The Sessions Court, in terms of Section 366(1) of Criminal Procedure Code made a reference to this Court and the same is registered as Criminal Referred Case No.12 of 2010. Accused Nos.1, 4 and 5 have filed Criminal Appeal No.1278 of 2010, accused No.7 has filed Criminal Appeal No.1277 of 2010 and accused No.2 and 3 have filed Criminal Appeal No.1030 of 2011.
3. Sri H.N.Nilogal, learned Special Public Prosecutor appears on behalf of the State, Sri Hasmath Pasha, learned -9- counsel appears for appellants in Criminal Appeal No.1030 of 2011 and Sri Venkatesh P. Dalwai, learned counsel appears for appellants in Criminal Appeal Nos.1277 and 1278 of 2010.
4. The defence counsels' contend that the order of conviction passed by the Sessions Court is erroneous. That the Sessions Court committed a blunder in recording a conviction against the accused. That no conviction would lie based on the voluntary statement of accused persons. The second ground for convicting the accused is based on the recoveries made from PWs.7 and 8, who have turned hostile and therefore, the recoveries were not proved by the prosecution. Hence, it is pleaded that the appeals be allowed by acquitting the accused.
5. Learned Special Public Prosecutor appearing for the State defends the impugned judgment. He contends that the recoveries are made after the arrest of the accused and based on the voluntary statement of the accused persons, gold and other jewels have been recovered. The recoveries are made at the instance of the accused persons. Hence, nothing more remains for the prosecution to prove. Hence,
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he pleads that the appeals be dismissed by confirming the judgment of conviction passed by the trial Court.
6. Heard learned counsels and examined the records.
7. PW.1 is the daughter-in-law of the deceased Jaya Lakshmamma. She speaks of the incidence of dacoity and murder of her mother-in-law. She has lodged the complaint in terms of Ex.P.1. She has stated in her evidence that when she returned home late at night, the door was locked and when she opened it, by using the keys with her, she saw the dead body of her mother-in-law. PW.2 is the brother of PW.1. The information about the death of the deceased was known to him based on the information furnished by PW.1. He also identifies the gold articles in terms of MOs.1 to 3. PW.3 is the mother of PW.1. She has also identified the properties in the police station. PW.4 is the panch witness to the inquest panchnama and his signature is at Ex.P.2(a). PW.5 is the head constable who carried the FIR to the Court. PW.6 is one of the mahazaar witness for seizure of blood stained clothes, nylon ligature and nose stud in terms of Ex.P.3. PW.7 is the receiver of the golden articles from the accused. He is the owner of
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Ganapathy Jewellers, Dharwad, who has turned hostile and cross-examined by the public prosecutor. PW.8 is the owner of Bhagyalakshmi Jewellers, who received the golden articles from the accused No.2 - Venkatesh. He has affixed his signature on the mahazaar Exs.P.7 and P.8. He has turned hostile to the case of the prosecution. PW.9 is the police constable of Chamarajpet Police Station who carried the blood stained clothes, nylon ligature and nose stud from the hospital and produced them before the Inspector, which are marked as MOs.4 to 9 and has sent the dead body for post mortem. He has also carried MOs.4 to 9 to FSL. PW.10 is the doctor who conducted the post mortem examination in terms of the report at Ex.P.9. He has deposed that the death was due to Asphyxia as a result of ligature strangulation. PW.11 is the Investigating Officer. He speaks about the investigation done by him. He has thereafter filed the charge sheet against accused Nos.1 to
11. PW.12 is the panch witness who identified the gold ornaments, namely MO.1 - rope design gold chain, MOs.2(a) and 2(b) - each four gold bangles with 'J' mark and MO.2(c) - two gold bangles. He has affixed his signature to the mahazaar - Ex.P.13. He has stated that the
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photocopy at Ex.P.7 is the same copy of original mahazaar and all the gold articles were recovered at the instance of accused Nos.3 and 4 from the shop of Ganapathy Jewellers, Dharwad owned by PW.7. PW.13 is the Sub-Inspector of Police of Vijayanagara Police Station who has accompanied PW.15, to apprehend the accused persons from Eachanur Taluk, Tiptur on 31.01.2001. PW.14 - H.S.Manjunath who is one of the panch witness whose signature is found at Ex.P.14(a). PW.15 is the main Investigating Officer. He secured the accused and seized the gold and other articles at their instance. He has stated in his evidence that he received information from CB - CID, Chittor (AP), that the accused along with other accused persons have escaped from Chittor prison. On 31.01.2001, on receiving credible information that accused No.1 - Doddahanuma and his companions were hiding in Echanur village in Tiptur Taluk, Tumkur District, he along with his staff arrested accused Nos.1 to 5 at about 9 p.m. He interrogated them. All of them were also involved in a case registered at Vijayanagar Police Station in crime No.674/1999. He has recorded their voluntary statement. On the next day, he produced them before the 3rd A.C.M.M., Bengaluru and took them into
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remand upto 15.02.2001. He called the witnesses Babu S.R. Hanumanthegowda and C.K.Murthy and asked them to accompany him to Dharwad to act as panch witnesses. When they reached Dharwad, accused No.1 led him and the panchas to the shop by name Ganapathy Jewellers, owned by Venkatesh - PW.7. Accused identified and asked him to return the gold sold to him. The same was denied by the owner of Ganapathy Jewellers, namely Venkatesh - PW.7, who reiterated that he has no idea that he is the holder of the stolen articles. He handed over 4 gold bangles - Mo.2(a) weighing 45 grams which were having 'J' mark on it. On the same day, accused No.2 - Venkatesh @ Chandra led him to the shop by name Bhagyalakshmi Jewellers owned by PW.8. Accused identified him and asked him to return the gold sold to him. The same was denied. When the investigating officer reiterated the demand for the same, two gold bangles with 'J' mark were recovered in terms of MO.2(b). Accused No.3 took him to PW.7 - the owner of Ganapathy Jewellers. PW.7 produced the gold ornaments and stated that he has no idea that the articles were involved in a criminal offence. He seized gold chains having 'J' mark which is marked as MO.1. On 05.02.2001, accused
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No.4 - Nallathimma took PW.15 to Bhagyalakshmi Jewellers and seized two gold bangles with 'J' mark on each bangle and a pair of ear stud which is marked as MOs.2(c) and 3. PW.16 was the PSI of Chamarajpet Police Station who took down the complaint as per Ex.P.1 and sent the FIR to the Court. PW.17 is the panch witness for the recovery of gold articles - MOs.1 to 3 at the instance of accused at Dharwad.
8. Based on these evidences, the trial Court considered the recoveries at the behest of the accused and their voluntary statement. The trial Court held that even though the jewellers - PWs.7 and 8 have turned hostile, the evidence of the panch witnesses and Investigating Officer - PWs.12 and 17 and PW.15 respectively, is sufficient to hold that the prosecution has proved its case. Hence, the trial Court convicted the accused.
9. We are unable to accept the reasons recorded by the trial Court. The incident is said to have taken place on 30.10.2000. The accused were arrested on 31.01.2001, namely three months after the incident. Based on their voluntary statement they were taken to the jewellers, who have turned hostile. The recovery is not supported by the
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evidence of the jewellers. The jewellers having turned hostile to the case of the prosecution, it cannot be said that the case of the prosecution is proved. Evidence of PWs.12 and 17 and I.O. - P.W.15, cannot over ride the hostile witnesses so far as the jewelers are concerned. Further more, there are discrepancies with regard to the articles mentioned in the complaint in terms of Ex.P.1 and the recoveries made in terms of MOs.1 to 3. In the complaint, it is narrated that there were 8 bangles with flower design and a chain with a rope design, two ear studs with two rounds of white stones. In terms of evidence of PW.1, she has stated that what is missing is, one gold chain, one pair of ear stud and 8 bangles. However, what has been recovered in terms of MOs.1 to 3 are, one gold chain, 8 bangles and one pair of ear rings. The evidence of PW.12 namely the witness to the recovery would indicate that what was produced were 4 gold bangles, 4 gold necklace, 10 grams gold ingot other than some miscellaneous gold articles and other gold ornaments which were seized at the instance of accused No.4 - Nallathimma.
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10. A reading of these evidences would clearly indicate that there is total discrepancy insofar as the gold articles are concerned. What is stated in the complaint and the evidence do not match one another nor they support the seizure and the statement of the panch witness - PW.12. In view of the serious discrepancy with regard to the recoveries, it cannot be said that the prosecution has proved its case so far recoveries of gold articles are concerned. It is not a case of a minor discrepancy with regard to the jewels. There is a huge and substantial discrepancy in respect of recoveries and seizure and the recoveries stated by the mahazaar witnesses as well as the complainant - PW.1. It would appear that a whole lot of jewellery were seized and that the witnesses could not have identified as referable to the accused involvement in the case. On considering these evidences, we are unable to correlate whether the seized gold articles are relatable to the concerned appellants or not. It is a serious lacuna.
11. Further more, even though the prosecution has led in evidence on the recoveries made from PWs.7 and 8, there is no material to indicate that the appellants have sold the
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said articles to PWs.7 and 8. Prosecution has to prove that the jewellery are the same gold articles stolen from the deceased are the ones sold to PWs.7 and 8. This factor is missing from the case of the prosecution. On this ground also, we find it difficult to accept the case of the prosecution.
12. Furthermore, it is needless to state that no conviction could lie based on the voluntary statement made by the accused. Therefore, the conviction based on the voluntary statement made by the accused become unsustainable.
13. On considering the evidence in totality and the reasons recorded by the trial Court, we are of the view that appropriate interference is called for. The trial Court has misread the evidence on record. It has erroneously recorded an order of conviction based on the voluntary statement and recoveries. The evidence does not indicate that the recoveries have been proved. A conviction cannot lie based purely on the voluntary statement of the accused.
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14. The trial Court was at a tangent in misreading the evidence on record. It failed to consider the evidence of the prosecution which is insufficient to prove the guilty of the accused. When there are various loopholes in the case of the prosecution, the conviction of the accused therefore is incorrect. It is not based on evidence. Such being the case and on re-appreciating the entire evidence, we are of the view that the trial Court committed an error in sentencing the accused to death. When there is no evidence even to prove the case of the prosecution against the accused, the question of awarding a death sentence would not arise.
15. Having come to the conclusion that the prosecution has failed to prove the case under Section 396 read with Section 34 of Indian Penal Code, we examined the evidence as to whether it would be sufficient to convict the accused for a lesser offence. Even then, we are of the view that based on the evidence and material on record, the accused cannot be held guilty even for a lesser offence.
16. When the prosecution has failed to prove its case beyond reasonable doubt, the conviction becomes
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unsustainable. Under these circumstances, sentencing the appellants to death would therefore be misconceived.
17. For the aforesaid reasons, we are of the view that the judgment of conviction is unsustainable. Therefore, the appellants require to be acquitted.
18. With these observations, the following order:
1. Criminal Appeal Nos.1277 and 1278 of 2010 and 1030 of 2011 are allowed.
2. The impugned Judgment of conviction dated 31.08.2010 and the order of sentence dated 30.09.2010 passed by the XXXIV Additional City Civil & Sessions Judge (Special Judge), Central Prison, Parappana Agrahara, Bengaluru in S.C.Nos.526 of 2004 in Criminal Appeal No.1277, S.C.No.766 of 2001 in Criminal Appeal Nos.1278 of 2010 and 1030 of 2011 are set aside. The appellants / accused Nos.1 to 5 and 7 are acquitted of the offences punishable under Sections 396 read with 34 of the Indian Penal Code.
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3. In view of the appellants/accused being acquitted, Criminal Referred Case No.12 of 2010 does not survive for consideration and it is accordingly disposed off.
4. The appellants/accused No.1 namely - Dodda Hanuma, accused No.2 - Venkatesh @ Chandra, accused No.3 - Munikrishna @ Krishna, accused No.4 - Nalla Timma, accused No.5 - Laxmamma and accused No.7 - Krishnadu @ Krishna are directed to be set at liberty forthwith from these cases, if they are not required in any other case/s. Registry to communicate the operative portion of this order to the Jail Authorities, Hindalga Prison, Belagavi, forthwith.
SD/- SD/-
JUDGE JUDGE
nvj