Karnataka High Court
Rachaiah vs The State Of Karnataka on 24 November, 2018
Bench: G.Narendar, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER 2018
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.770 OF 2015
BETWEEN:
RACHAIAH
S/O BELAGUNDADA SIDDHAIAH
AGED ABOUT 61 YEARS
OCC: COOLIE
R/O MUDAHALLI VILLAGE
NANJANAGOODU TALUK
MYSORE DISTRICT-571 301. ... APPELLANT
(BY SRI DINESHKUMAR RAO K, ADV.)
AND:
THE STATE OF KARNATAKA BY
ARAKERE POLICE STATION
MANDYA DISTRICT-571 415. ... RESPONDENT
(BY SRI PRAMOD CHANDRA, S.P.P.[II])
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE CONVICTION
AND SENTENCE DATED: 11.03.2014, PASSED BY THE III
ADDL. DIST. & SESSIONS JUDGE, MANDYA, IN
S.C.NO.106/2013 - CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCES P/U/S 302 OF IPC.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
H.P. SANDESH, J. DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 374(2) of Cr.P.C. challenging the impugned judgment of conviction and sentence in S.C.No.106/2013 for the offences punishable under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default to undergo S.I for six months.
2. The main ground urged in the appeal is that the learned Sessions Judge has committed a serious error in holding that the prosecution has proved the case beyond all reasonable doubt and that the Court below ought to have acquitted the appellant on the ground that there is delay in filing the complaint and the delay has been conveniently used by the complainant and other interested persons to file a false 3 case against the appellant. The Court below has committed a serious error in holding that there was motive for the appellant to commit the alleged offence. Further, the Court below has erred in convicting the appellant relying upon his voluntary statement and the recoveries which are made are not in accordance with law.
The Court below has erred in convicting the appellant when the entire evidence of prosecution relies on circumstantial evidence and in the absence of chain link of the circumstances. The Court below has committed an error by solely relying upon the circumstantial evidence and that too mainly erred in relying upon the interested sole testimony of P.Ws.2 and 5 who are none other than the complainant and his brother and in whose evidence no incriminating circumstances are elicited by the prosecution. The doctor who has been examined as P.W.8 has 4 categorically admitted with regard to the defence taken by the accused in respect of the injuries caused to the deceased and therefore, the Court below ought to have extended the benefit of doubt and acquitted the appellant/accused. The counsel for the appellant in his arguments also vehemently contended that in the absence of an unbroken chain link of the circumstances the Court below has committed an error in convicting the appellant and further contended that the prosecution has utterly failed to prove the case beyond all reasonable doubt, that the appellant himself has committed the offence and erred in giving undue importance to the last seen theory and also other reasons for abscondence of the appellant after the alleged incident and erroneously observed that the defence taken by the accused is inconsistent and the defence can take any number of defences and it is for the prosecution to depend on their own evidence and in the absence of evidence, the Court below ought to have 5 acquitted the accused but instead has convicted the appellant.
3. On the other hand, the learned SPP has vehemently contended that the Court below while discussing the evidence available on record considered the evidence of PWs.2 and 5 who have spoken about the last seen theory and further they themselves having provided food around 7.30 p.m. on the day, the alleged incident took place. Further, the accused has not given any explanation for his abscondence and further contended that in the 313 statement he has categorically admitted that he was arrested when he was in the bus stand and all these facts were taken into consideration while convicting the appellant.
4. After having heard the arguments of counsel for the appellant as well as the learned SPP-II, the point that arises for consideration is as to whether the Court below has erred in convicting the accused for the 6 offence punishable under Section 302 of IPC and it requires interference by this Court?
5. The main charge against the accused is that the accused and victim were engaged as labourers in brick manufacturing unit of C.W.1 situated in Sy.No.437 of Mahadevapura Village and that on 11.3.2012 at about 9.00 P.M., the complainant and C.W.7 gave chicken curry and rice for their dinner, i.e. to the accused and the victim. The accused and the victim quarreled with each other with regard to the distribution of chicken meat and because of that, at about 11.00 p.m. when the victim was sleeping the accused hit him on his face with sickle and spade and caused homicidal death of the victim.
6. The prosecution in order to prove the said charges examined P.Ws.1 to 19 and got marked Exs.P1 to P23 and also got marked material objects M.Os.1 to
9. The Court below also examined the accused under 7 Section 313 and after having heard both the counsel has come to the conclusion that the prosecution has proved the case beyond all reasonable doubt.
7. Now this Court ventures to appreciate the case on hand. The case of the prosecution is that the accused and the victim both have quarreled each other regarding sharing of chicken meat which had been supplied by P.Ws.2 and 5. Thereafter the accused hit the victim on his face with sickle and spade. On perusal of evidence of P.W.2 who is also the complainant, he has deposed that himself and P.W.5 went and supplied the food and on perusal of evidence of P.W.2, he has deposed that on 11.3.2012 himself and P.W.5 supplied food and except accused and victim, no other persons were present in the hut which was built for their stay. In the cross-examination P.W.2 has categorically admitted that they had supplied the food and that both the accused and victim were cordially 8 working together. Further, P.Ws.2 and 5 have deposed that one of them had food in their presence and one of them told that he will take the food later. They have not deposed that in their presence galata took place between them. Ex.P3- the complaint given by P.W.2 discloses that on the next day morning they came to know about the death of the victim. However, no where have they stated that they went and supplied food and only an allegation is made to take action against the accused-appellant. If really, P.Ws.2 and 5 went and supplied food on the previous day night, they would have stated so in the complaint. Hence, the theory of the prosecution that both the accused and victim were last seen together by P.Ws.2 and 5 is doubtful and it is nothing but an improvement during the course of investigation and the same is not forthcoming in the complaint, which is marked as Ex.P3.
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8. The prosecution first of all failed to prove the very fact that both were last seen together. No doubt, the Court below has observed with regard to the abscondence of the appellant after the incident. The appellant ought to have given explanation under Section 106 of the Evidence Act and the same has not been done. But only in the 313 statement he has stated that he was arrested in the bus stand. As such abscondence of the appellant itself is not a ground to convict the accused-appellant. In a case of circumstantial evidence there must be link to each of the incident. In the case on hand, there is no cogent evidence with regard to the last seen theory and it is only an improvement of the prosecution case. Further, it has emerged in the evidence that finger print/forensic expert came to spot immediately after they came to know about the death of the victim and there is no piece of material before the Court to show that the finger print of the accused person was available. Further, though theory of the 10 prosecution is that the motive for killing the victim by the accused is that there was galata between them, we have already pointed out that P.Ws.2 and 5 have not spoken that in their presence the galata took place between them after taking meal. No material was seized when the mahazar was conducted and further important to note that the weapon was seized at the spot and no recovery is made at the instance of the accused. Only voluntary statement was recorded and based on the voluntary statement the accused cannot be convicted. It is further more important to note that no blood stained cloth of the accused is also seized. No doubt the doctor who has been examined before the Court as P.W.8 categorically says that he found the human blood in M.Os.1 to 9 except M.O.7. There is no material before the Court that the accused only committed the murder.
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9. Having discussed the evidence of the prosecution and the contention of the appellant's counsel and on perusal of the reasoning given by the Court below, we are of the opinion that the trial Court has erred in coming to the conclusion that the appellant-accused himself committed the offence of murder mainly relying upon the last seen theory, which is rendered doubtful by the evidence on record and deposition of the prosecution witnesses themselves. We have already pointed out that the complaint-Ex.P3 does not disclose anything regarding the last seen theory. On the other hand, the defence taken by the accused is that the very day, the payment was made and after payment, he left the place. It was also the defence taken that hard object might have fallen on the head of the deceased. Further, contra defence was also taken that P.Ws.2 and 5 might have committed the murder in order to avoid payment of wages. It is important to note that the Court below has also observed that contra 12 defence was taken but has not tested it. It is also settled law that accused can take any number of defences, but there must be consistency. In the case on hand, the prosecution has failed to prove the chain link with the circumstances to arrive at the conclusion that the accused only committed the murder and the premises in which the body is found is only temporary hut and anybody can enter the said hut and prosecution failed to probablise its case and nothing is proved by the prosecution. Hence, we are of the opinion that the impugned judgment of the Court below requires to be set aside.
10. Hence, we pass the following:-
ORDER The appeal is allowed. The judgment and order of conviction dated 11.03.2014 passed by the III Additional District & Sessions Judge, Mandya (Sitting at Srirangapatna) in S.C. No.106/2013 for the offence punishable under Section 302 of the Indian Penal Code is 13 hereby set-aside. The accused is acquitted for the offence punishable under Section 302 of IPC.
The accused who is in prison may be released forthwith if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE *alb/-.