Karnataka High Court
State Of Karnataka vs Nadeem @ Mental Nadim on 10 December, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.306 OF 2015
BETWEEN:
STATE OF KARNATAKA
BY KUNIGAL POLICE - 572 130.
... APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
AND:
1. NADEEM @ MENTAL NADIM
S/O. BASHA,
23 YEARS, TRUCK DRIVER,
RESIDING AT NO.550, 'G' BLOCK,
BEEDI COLONY,
KENGERI SATELLITE TOWN,
BENGALURU - 560 060.
2. SHOAIB KHAN @ SHOAIB
S/O. BAKASH KAHAN,
23 YEARS, SALESMAN,
RESIDING AT NO.89, BEEDI COLONY,
NEW BLOCK, 2ND PHASE,
3RD CROSS, KENGERI UPANAGAR,
BENGALURU - 560 060.
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3. TOUSIF PASHA @ TOUSIF
S/O. MAHAMED RAFIQ,
23 YEARS, LABOUR,
RESIDING AT NO.28, 1 'A' CROSS,
BEEDI COLONY, KENGERI UPANAGARA,
BENGALURU - 560 060.
4. SAYED KHADIR
S/O. SAYED ANWAR,
34 YEARS, TRUCK DRIVER,
RESIDING AT KISHAN BAG, SOUTH ZONE,
BEHIND RTO OFFICE,
HASAD BABA NAGARA,
HYDERABAD - 500 008.
...RESPONDENTS
(BY SRI C.R. ABDUL RASHEED, ADV., FOR R1 TO 4-ABSENT)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 7-11-2014
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, TUMUKURU, IN S.C. NO.144 OF 2013 BY ALLOWING
THIS CRIMINAL APPEAL, AND ETC.
THIS CRIMINAL APPEAL IS COMING ON FOR
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is filed by the State being aggrieved by the impugned judgment and order of acquittal dated 7-11-2014 made in Sessions Case No.144 of 2013 by the II Additional District Sessions Judge, Tumukuru, acquitting the accused persons for the offences punishable under Sections 302, 392, 201 and 411 read with Section 149 of the Indian Penal Code (for short, 'the IPC').
2. It is the case of the prosecution that on 1-4-2013, one Mujahid (hereinafter referred to as 'deceased') was transporting tender coconut in a lorry, bearing Registration No.KA.01-AA-5456, from Maddur R.M.C. Yard to Bombay. Accused No.1, who was known to the deceased, requested him to take him in his lorry as he had parked his lorry at Tumukuru, which was under repair. Accordingly, 4 the deceased informed accused No.1 when he left R.M.C. Yard. Accused No.1 along with accused Nos.2 and 3 were waiting near Shivapura Cross of Maddur. When the lorry reached Shivapura Cross, accused Nos.1 to 3 boarded the lorry and accused No.1 took the driver seat from the deceased and asked him to sit at a Cleaner seat. When the lorry reached Huliyurdurga-Kunigal State Highway No.33 at about 11:30 p.m., as planned earlier, accused No.2 put belt around the neck of the deceased and held it tightly, accused No.3 slit the neck of the deceased with a knife and when the deceased tried to escape, accused No.1 asked other accused to finish him off, otherwise all of them will be killed, then accused No.3 stabbed on the chest of the deceased with a knife and murdered him. They threw the body on footpath at S.H.33 of Gavi Mutt and they also threw bed-sheet and the jerkin on the 5 dead body. Further, it is the case of the prosecution that accused Nos.1 to 3 took lorry to B.D. Colony, Bengaluru, and cleaned the lorry and then, accused Nos.1 and 2 took lorry to Hyderabad. While going towards Hyderabad, they sold stepney and jack to C.W.15 at Halalsandra, Bengaluru, for a sum of Rs.3,000/-, and sold the tender coconuts at Chikkaballapur and other places, and contacted accused No.4. The accused No.4 sold the remaining tender coconuts at Hyderabad and sold the lorry to accused No.5 for a sum of Rs.1,21,000/-. Accused Nos.4 to 6 tampered the vehicle registration number, chassis number and engine number so as to conceal the identity of the said lorry. Accused Nos.5 and 6 sold all the six wheels of the lorry. It is the case of the prosecution that on 2-4-2013 at about 8:30 p.m., Sri Kumar, who was proceeding towards Santhemavathur on Kunigal-Maddur S.H. 33, 6 noticed a dead body on the footpath and lodged a report with the Sub-Inspector of Police, Kunigal. On receipt of the complaint of C.W.1, the Station House Officer of Kunigal Police-P.W.18 registered a case in Crime No.113 of 2013 for the offences punishable under Sections 302 and 201 of the IPC and took up the investigation. After investigation, the Investigating Officer filed charge-sheet against the accused persons.
3. The jurisdictional Magistrate committed the case to the Sessions Court. The learned Sessions Judge framed the charges against the accused persons and read over the same to them, they pleaded not guilty and claimed to be tried.
4. In order to establish the case, the prosecution examined nineteen witnesses as per P.W.1 to P.W.19, got marked nineteen documents as 7 per Exs.P.1 to P.19 and marked eleven material objects as per M.O.1 to M.O.11.
5. After completion of evidence of the prosecution witnesses, the learned Sessions Judge recorded the statements of accused persons as contemplated under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.'). The accused persons denied all incriminating evidence adduced against them, but not led any defence evidence.
6. After considering the oral and documentary evidence on record, the learned Sessions Judge formulated four points for consideration and recorded a finding that, i. the prosecution failed to prove beyond reasonable doubt that on 1-4-2013 at about 8 11:30 p.m., near Karekallu Gudda of Gavi Mutt on S.H.33, situated within the limits of complainant Police Station with a common intention boarded the lorry, bearing Registration No.KA.01-AA-5456, which was being driven by Mujahid, and accused No.2 tied the belt around the neck of Mujahid and held him tightly, then accused Nos.2 and 3 pierced the knife to the neck and chest of Mujahid repeatedly and committed an offence under Section 302 read with Section 149 of the IPC.
ii. the prosecution failed to prove beyond all reasonable doubt that on the above said date, time and place, with a common object, accused No.1 took the lorry from Mujahid, accused Nos.2 and 3 held knife and threatened Mujahid and committed an offence under Section 392 read with Section 149 of the IPC;
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iii. the prosecution failed to prove beyond all reasonable doubt that on the above said date, time and place, with a common object to disappear evidence of the said offence, accused Nos.1 to 3 threw the dead body of Mujahid on the footpath and covered the dead body with a bed-sheet and jerkin with an intention of screening from legal punishment and committed an offence under Section 201 read with Section 149 of the IPC; and iv. the prosecution failed to prove that accused Nos.4 to 6 knowing that the lorry, bearing Registration No.KA.01 AA-5456, is a stolen property, dishonestly received the lorry from accused Nos.1 to 3 for a sum of Rs.1,21,000/- and committed an offence under Section 411 of the IPC. 10
7. Accordingly, the learned Sessions Judge by the impugned judgment and order of acquittal acquitted accused Nos.1 to 4 for the aforesaid offences. Hence, the present appeal is filed by the State.
8. We have heard the learned counsel for the parties.
9. Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the appellant-State, has contended with vehemence that the impugned judgment and order of acquittal acquitting the accused persons is erroneous and contrary to the material on record and is liable to be set aside. He has further contended that the trial Court failed to appreciate the evidence of P.W.8, who is the owner of the lorry, bearing Registration No.KA-01 AA 5456, to the extent that the deceased was transporting tender 11 coconuts to Bombay on the date of the incident and when he phoned the deceased, his mobile was switched off. So, he lodged a missing complaint to the Police and they have traced the dead body of the deceased and thereafter, informed the same to the relatives of the deceased and the relatives have identified the dead body of the deceased and thereafter, the lorry was found at Hyderabad in a garage and the Police have recovered the stepney, jack and rod and he has identified the same, but the trial Court has not appreciated all these facts and proceeded to pass the impugned judgment and order of acquittal.
10. Learned Additional State Public Prosecutor has further contended that P.W.11 in his evidence has stated that he is running a workshop and he has seen the accused in Hyderabad for the 12 first time and one Sardar brought the lorry to his garage and thereafter, the Police came to the garage in search of the lorry and took the lorry. The said material is not considered by the learned Sessions Judge while passing the impugned judgment. He has further contended that P.W.13, who is a purchaser of stepney, jack and rod has stated before the Court that when the Police came and identified the same, he returned the same to the Police and he has also identified the recoveries and P.W.17 is a mahazar witness for recovering the stolen articles and has supported the case of the prosecution. However, this fact has not been considered by the learned Sessions Judge. He has further contended that the learned Sessions Judge strongly relied upon the evidence of P.Ws.5, 10 and 12, who turned hostile to the case of the prosecution. Except these three witnesses, other prosecution witnesses have 13 supported the case of the prosecution, which has not been considered by the learned Sessions Judge. Therefore, he sought to allow the appeal.
11. Learned counsel for respondent Nos.1 to 4-accused remained absent. By looking to the facts and circumstances and the evidence on record, we felt not necessary to appoint any amicus curiae for the respondents.
12. In view of the contentions urged by the learned Additional State Public Prosecutor, the only point that arises for our consideration in this appeal is;
Whether the prosecution has made out a case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting all the accused persons for the offences under Sections 302, 392, 201 and 411 14 read with Section 149 of the IPC in the facts and circumstances of the case?
13. We have given our anxious consideration to the arguments advanced by the learned Additional State Public Prosecutor and perused the entire material including the original record carefully.
14. In order to re-appreciate the evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon;
i. P.W.1-Nagaraju has deposed that he found a mobile hand set at Gollarahatti Bore and his neighbourhood boy was using that sim card in his mobile. Somebody called over phone saying that the mobile belongs to him and collected the same stating that he is the owner of the lorry. He has further 15 deposed that he can identify the said mobile. Nothing has been elicited in the cross-examination.
ii. P.W.2-Kalimulla Khan is a witness to Exs.P.1 and P.2-mahazar. He identified M.O.1-T- shirt. He has supported the case of the prosecution. Nothing has been elicited in the cross-examination.
iii. P.W.3-Rajesh, Nodal Officer, issued call details of Mobile No.8748985560 as per Ex.P.3. He has supported the case of the prosecution.
iv. P.W.4-Tyagaraj, Nodal Officer, issued call details of Mobile No.9141999273 as per Ex.P.4. He has supported the case of the prosecution v. P.W.5-Sharathkumar is a witness to Ex.P.5- mahazar and Ex.P.6-inquest mahazar. He partially turned hostile. He identified M.Os.2 to 6. 16
vi. P.W.6-Kumar is the complainant. He lodged the complaint as per Ex.P.7 and stated that he found unknown dead body on the footpath and informed the same to the Police. He has witnessed Ex.P.5-mahazar and identified M.Os.2 to 6. He has supported the case of the prosecution.
vii. P.W.7-Fakrudin, father of the deceased, deposed that his son was working in a lorry as a Cleaner. He has identified the dead body of the deceased and has supported the case of the prosecution.
viii. P.W.8-Shabbir Khan, owner of the lorry, lodged a missing complaint of the deceased to Maddur Police Station. He received a message regarding the death of the deceased from Kunigal Police. He identified M.Os.7 to 9 and has supported the case of the prosecution.
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ix. P.W.9-Chand Pasha, cousin of the deceased. He identified the dead body of the deceased and has supported the case of the prosecution.
x. P.W.10-Umesh is a witness to Exs.P.8 and P.9-mahazar. He identified M.0.9-stepney and has supported the case of the prosecution in-part.
xi. P.W.11-Sheik Javeed, owner of the workshop. He has deposed that one Sardar brought the lorry and not the accused.
xii. P.W.12-Mohammed Ismail is a panch witness to Ex.P.8-mahazar. He has turned hostile and has not identified accused No.4.
xiii. P.W.13-Venkataraju, worker at gujary shop, has deposed that accused Nos.1 and 2 sold 18 stepney, jack and rod to him. He has witnessed Ex.P.9-mahazar and identified M.Os.7 to 9. He has supported the case of the prosecution.
xiv. P.W.14-Venkatesh, Junior Engineer, prepared spot sketch as per Ex.P.10. He has supported the case of the prosecution.
xv. P.W.15-Umesh is a panch witness to Ex.P.5-mahazar. He has supported the case of the prosecution.
xvi. P.W.16-Dr. Rudramurthy, who issued Post-Mortem report as per Ex.P.10 and opined that the death is due to combined effect of head injury, manual strangulation and ligature strangulation and incised injury to neck. He also issued Ex.P.12- Wound Certificate of accused No.2 and stated that the injury is consistent with being inflicted by sharp 19 edged weapon like knife as mentioned in the letter of the Circle Inspector of Police and being consistent with self infliction. He has identified M.Os.11 and 12 and has supported the case of the prosecution.
xvii. P.W.17-Nanjappa is a panch witness to Ex.P.13-mahazar and has identified M.Os.10 and 11. He has turned hostile.
xviii. P.W.18-Guruprasad, Sub-Inspector of Police, who received the complaint and registered a case. He has supported the case of the prosecution.
xix. P.W.19-Dharmendra, Circle Inspector of Police, who conducted investigation and filed final report.
15. Based upon the oral and documentary evidence on record, the learned Sessions Judge 20 passed the impugned judgment and order of acquittal against the accused persons.
16. In order to prove the homicidal death of the deceased, the prosecution relied on the evidence of P.W.16-Dr. Rudramurthy, Ex.P.10 to Ex.P12, and also Ex.P.6-inquest mahazar drawn by P.W.19- Investigating Officer on the dead body of the deceased. In his evidence, he has stated that on 2-4-2013, he conducted inquest mahazar on the dead body of the deceased and took photographs as per Ex.P.6 and also drawn spot mahazar as per Ex.P.5 and recovered M.Os.2 to 6. Though this witness is cross-examined by the learned counsel for the accused, nothing is elicited so as to disprove the contents of Ex.P.6. P.Ws.5 and 19 have stated about conducting of the mahazar and have subscribed their signatures. P.W.5, who is the mahazar 21 witness, has deposed in his evidence that the Police prepared a document near the dead body and he signed the same as per Ex.P.6. He was treated as hostile by the prosecution and during cross- examination, it is elicited that there are stab injuries and the Police have shown all those injuries to him. As could be seen from Ex.P.6, nothing can be made out so as to conclude that it is a concocted or manipulated document.
17. The evidence of P.W.5 and P.W.19 clearly establishes the preparation of Ex.P.6. P.W.16-Dr. Rudramurthy, who issued Wound Certificate of accused No.2 as per Ex.P.12, on examination, found a non-tender, brownish scar measuring 5.5 cms in length, horizontally placed, maximum width being 3 mm and falling towards inner aspect for a length of 2 cms present over upper third of left forearm and the 22 age of injury is more than three to four weeks. Further, when he conducted post-mortem examination on the dead body of the deceased, he found stab injuries and injury with ligature mark on the neck. According to him, the death was due to combined effect of head injury, manual strangulation and ligature strangulation and incised injury to neck. Accordingly, he issued Ex.P.10- Post-Mortem report. Further, he has opined in Ex.P.11-Letter that the injuries found on the dead body of the deceased can be caused by the weapons shown by the Investigating Officer. Though the learned counsel for the accused suggested to the Doctor that none of the injuries can be caused by M.O.10-knife, but the said suggestion has been denied as false. Nothing has been elicited during the course of cross-examination so as to show that the death was not due to the reason assigned by the 23 Doctor. In lieu of the evidence of P.W.16, Exs.P.10 to P.12 and Ex.P.6 it clearly depict that it is a homicidal death.
18. The prosecution mainly relied on the recovery of incriminating articles on the basis of voluntary statement of accused Nos.1 to 3 and also on the phone calls. It is the case of the prosecution that on 20-5-2013, when they searched the body of accused No.1, a mobile hand set with sim No.8748985560 was found and accused No.1 admitted that the same was used in committing crime. Accordingly, the said mobile hand set was seized under Ex.P.1. P.W.2 is a witness to the said mahazar and the said mahazar was drawn in the presence of P.W.19. Even, P.W.19 has stated with regard to seizure of the mobile hand set and also preparation of mahazar Ex.P.1. P.W.3 has stated 24 that the mobile hand set with sim No.8748985560 is of idea company and he has given the call list of the said mobile number as per Ex.P.3. P.W.2 has stated that Kunigal Sub-Inspector took him to B.D. Colony and accused Nos.1 to 3 were present with them. Police seized 3 to 4 mobile sets from the accused and drawn the mahazar as per Ex.P.1 and he signed as per Ex.P.1(a). But as could be seen from Ex.P.1, only one mobile hand set was seized from the possession of accused No.1 and the said mobile was of Nokia company. Therefore, the only witness who has been examined by the prosecution so as to prove Ex.P.1 has given evidence contrary to the contents of Ex.P.1. Though the prosecution has produced the call list pertaining to the above said sim number, nothing has been produced before the Court to show that the said sim has been used by accused No.1. 25
19. The prosecution has also placed evidence of P.W.1 with regard to the mobile hand set of the deceased. He has stated before the Court that he found a mobile hand set at Gollarahatti Bore and his neighborhood boy was using that sim card in his mobile, somebody called over phone saying that the mobile belongs to him and collected the same. P.W.8-owner of the lorry, bearing Registration No. K.A.01-AA-5456, has also deposed that he collected the mobile belonging to the deceased in a Village. Further, P.W.4 has deposed that as per the request of the Police, he has given the call details of mobile with sim No.9141999273. Surprisingly, the prosecution has not produced the said mobile or the sim card before the Court so as to prove the said mobile belongs to the deceased and he was using the same. Except producing the mobile seized under Ex.P.1 and Exs.P.3 and P.4-call list details, the 26 prosecution has not produced any evidence so as to prove that accused No.1 contacted the deceased over phone and trapped him. It is also not in dispute that in spite of alleged call details, the prosecution has not produced any material or Certificate issued by the competent Authority under Section 65B(4) of the Indian Evidence Act, 1872.
20. It is also not in dispute that the prosecution mainly proceeded on the basis of voluntary statement of accused No.2 and recovered the belt and knife which were used for commission of the crime and the same were seized by the Investigating Officer under Ex.P.13-mahazar. P.W.19 has stated that when accused No.2 was produced before him, he gave voluntary statement as per Ex.P.16 and took him to his house and produced a belt and a knife which were kept under a cot and 27 he seized the same under Ex.P.13 and he has also identified the said knife as M.O.10 and belt as M.O.11. P.W.17 has stated that on 25-5-2013, the Circle Inspector of Police took him along with accused Nos.1 to 3 to Kengeri, at that time, accused No.1 took him near his house and produced a belt and knife and a bundle of documents, which were kept under a cot. According to him, there were bloodstains on the knife and were seized under Ex.P.13. He has also identified the said articles as M.Os.10 and 11. Though P.W.17 appears to have supported the case of the prosecution, but he has given entirely different version before the Court. According to the prosecution, accused No.2 has produced M.Os.10 and 11 from his house, whereas P.W.17 has specifically stated that accused No.1 has produced the said articles from his house. 28
21. P.W.8, owner of the lorry, has deposed that one Sardar (accused No.6) brought the lorry to him and not the accused persons. During cross- examination, he has stated that M.Os.7 to 9-jack, rod and stepney will be in every lorry and he cannot identify the same as the stepney and jack which belongs to him only. He has also admitted that M.Os.7 to 9 were available in gujary shop. Though the prosecution has placed some evidence with regard to seizure of M.Os.7 to 9, but the same has not been proved as the one belongs to P.W.8. As such, the evidence placed by the prosecution with regard to seizure of M.Os.7 to 9 in no way connect the accused with the crime. It is further case of the prosecution that after murdering the deceased, the accused took the lorry to B.D. Colony and parked the same, removed the bloodstains by using a cloth and the said bloodstained cloth was seized under 29 Ex.P.2. Prosecution has examined P.Ws.2 and 19 in this regard and also produced M.O.1-T-shirt. P.W.19 has stated that all the accused took him to Kommaghatta and shown him a place where they removed the bloodstains found in the lorry and they have also identified bloodstained T-shirt as the one used by him to remove the bloodstains. Accordingly, the same was seized under Ex.P.2 and he identified the said T-shirt as M.O.1. P.W.2 has also stated that accused Nos.1 to 3 took him and the Police to B.D. Colony and produced a bloodstained cloth from a lorry and the same was seized. However, as could be seen from Ex.P.2, the Police have seized the bloodstained cloth in drainage, whereas P.W.2 has stated that the same was seized from a lorry. Prosecution has also relied on Ex.P.19-F.S.L. report wherein the bloodstained T-shirt is examined and found with 'O' group of human blood. The 30 prosecution has not placed any evidence before the Court with regard to the blood group of the deceased. Therefore, recovery of M.O.1-T-shirt is of no help to the prosecution to prove the guilt of the accused.
22. It is further case of the prosecution that lorry, bearing Registration No.KA.01-AA-5456, has been seized under Ex.P.8. The prosecution has also examined P.Ws.10, 11, 12 and 19 in order to prove Ex.P.8. P.W.10 has stated that about a year ago, the Police took him along with the accused to Hyderabad and seized a lorry as per Ex.P.8. P.W.11 has stated that one Sardar brought the lorry to his workshop for the purpose of repair, but the Police came and took it away and has not whispered anything about the accused persons. P.W.12 has stated that about a year ago, the Police came and took his signature. 31 Further, he has stated that he has never seen accused No.4 and therefore, the prosecution has treated him as hostile. P.W.19 has stated that on 23-5-2013, accused Nos.1 and 2 took him to Hyderabad and shown accused No.4 and accused No.4 was taken into custody and gave voluntary statement as per Ex.P.18 and took them to a shed of Javid where they found the lorry, the same was seized under Ex.P.8. Though it is contended by the prosecution that registration of lorry number has been changed and the chassis, engine numbers have been tampered, except the narration in the mahazar, no documentary evidence is placed before the Court to prove the registration number or tampering of engine and chassis number. The evidence of P.Ws.10 and 11 and 19 are not corroborative with each other.
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23. Considering the aforesaid material on record, the learned Sessions Judge proceeded to acquit the accused persons. The prosecution has not proved the charges framed against the accused persons beyond reasonable doubt. On meticulous reading of oral and documentary evidence on record, the learned Sessions Judge is justified in acquitting the accused persons for the offences punishable under Sections 302, 392, 201 and 411 read with Section 149 of the IPC. The prosecution has not made out any ground to interfere with the impugned judgment and order of acquittal.
24. For the reasons stated above, the point raised in the appeal is answered in the negative holding that the prosecution has not made out a case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions 33 Judge for the offences under Sections 302, 392, 201 and 411 read with Section 149 of the IPC.
25. Accordingly, the appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE kvk