Karnataka High Court
Naganna @ Naga vs State Of Karnataka on 20 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1010/2013
Between:
Naganna @ Naga
S/o Late Chikkanna
Aged about 30 years
R/at Near Sugarcane
Crusher of Kappada Bittegowda
Huleenahalli Village
Dudda Hobli, Mandya Taluk-571 401
And Native of Dalimba Village
Kabaala near Sathanur, Kanakapura Taluk
Ramanagara District-562 159
...APPELANT
(By Sri Hemachandra.R.Rai, Advocate for
Sri Nehru.M.N, Advocate)
And:
State of Karnataka
By Shivalli Police Station
Mandya District-571 401.
...RESPONDENT
(By Sri Vijayakumar Majage,
Additional State Public Prosecutor)
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This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure 1973 by the Advocate for the
Appellant/Accused praying to set aside the judgment of
conviction order dated:08.08.2013 passed by the II Additional
District and S.J., Mandya in S.C.No.159/2009-convicting the
Appellant/Accused for the offence Punishable Under Section
302, 201 of Indian Penal Code.
This Appeal coming on for Hearing this day, Budihal
R.B. J., delivered the following:
JUDGMENT
This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction passed by the II Additional District and Sessions Judge at Mandya dated 8.8.2013 passed in Sessions Case No.159/2009 wherein the appellant-accused has been convicted for offences punishable under Sections 302 and 201 of IPC.
2. The brief facts of the case are as follows:
It is the case of the prosecution that one Krishnegowda lodged the complaint on 14.4.2009 stating that he is residing in Lakshmipura Village since three years. The complainant has a brother viz., Siddegowda, who is running an auto- 3 rickshaw at Bengaluru and has two sisters, viz., Padmakka (elder sister) who was given in marriage to Lakshmipura and presently they are residing in Bengaluru, and the younger sister Mangala was given in marriage to Chittanahalli village and about one and half years back, she expired. There are three children born to Mangala and the complainant's parents are looking after them. The complainant's father and mother and the three children of his sister Mangala are staying in the house and they are having 25 guntas of land. The complainant and Puttegowda, the husband of his younger sister often used to come to the village and attending to work and then they used to go back.
It is stated that on the evening of 14.4.2009, Bettegowda, the husband of Mangala, called him over telephone and informed that the complainant's mother Ningamma has been murdered near the land where the paddy is grown and some unknown persons have committed the murder and thrown the dead body at the said place. Thereafter, in the night, he left for his place and reached the 4 place where his mother was said to have murdered. He saw the dead body of his mother at the spot and alleged that some unknown persons with deadly weapon committed the murder of his mother Ningamma and there were injuries on her neck, shoulder portion and on the cheeks. He further alleged that her body was thrown into the water running between his paddy field and the paddy field of one Srinivasaiah and it was covered with the leaves. The mother of the complainant was wearing ear-studs, which were not found on her. The mangalya and the beads chain which were worn by her in the neck was present on her person. The complainant came to know that on 14.4.2009, at about 2P.M., his deceased mother went towards the land stating that she will go to the paddy field and she informed about the same to Siddegowda, the father of the complainant. He has stated that between 2.30p.m. and 6.30 p.m., some miscreants had committed her murder with deadly weapons and the dead body was thrown into the flowing water and the same was covered with leaves. 5
Therefore, the complainant requested the Police to trace the real culprit and take appropriate action against the accused.
3. On the basis of the said complaint, a case came to be registered in Crime No.28/2009 for the offences punishable under Sections 302 and 201 of IPC. After conducting the investigation, the Investigation Officer filed the charge sheet against the accused for the offences punishable under Sections 302 and 201 of IPC. When the learned Sessions Judge prepared the charges and read over to the accused person, the accused pleaded not guilty and claims to be tried in the matter. Accordingly the matter was set down for trial.
In support of its case, the prosecution in all examined 26 witnesses and got marked 12 exhibits, so also 2 material objects. Thereafter, the accused has been examined under Section 313 of Cr.PC and incriminating circumstances were read over to the accused persons by way of framing Questionnaire and the answers given by the accused were 6 recorded in the said statement. On behalf of the defendants, no witnesses were examined nor any document got marked.
After hearing the arguments on both sides and after considering the material, both oral and documentary, the learned Sessions Judge ultimately held that the prosecution has proved its case beyond all reasonable doubt in respect of both the charges and held the appellant-accused guilty and convicted him accordingly.
Being aggrieved by the judgment and order of conviction so also the sentence and also challenging the legality and correctness of the said judgment and order of conviction on the grounds as mentioned at ground Nos.8 to 18 of the appeal memorandum, the appellant-accused is before this court.
4. We have heard the arguments of the learned counsel for the appellant-accused so also the arguments of the learned Additional State Public Prosecutor for the respondent-State.
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5. The learned counsel appearing for the appellant- accused submitted that there are no direct eye-witnesses to the incident. The case of the prosecution rests on the circumstantial evidence. He has submitted that even with regard to the circumstances also, they were not established with worth believable material. He has also submitted that even the motive alleged by the prosecution is very remote and it is trivial in nature which will not give scope for the accused person to go to the extent of committing the murder of the deceased. He has further submitted that even with regard to the last seen theory, there is no consistency in the evidence of the prosecution witnesses and it is not worth believable also.
Insofar as the recovery of the clothes as well as the weapon is concerned, the learned counsel would submit that there were no blood stains on the clothes and insofar as the knife is concerned, though there were blood stains on it, the blood group is not at all ascertained. Hence, the learned Counsel would submit that there is no material to show the 8 involvement of the appellant-accused in committing the said offence.
He has submitted that he was not grazing goats as no crop was there. Hence, there is no question of he letting loose goats into the land of the deceased. Hence, the learned counsel would submit that the learned Sessions Judge has not at all considered these material aspects.
The learned counsel also submitted that admittedly, according to the case of the prosecution, the important object, knife is not at all referred to the Medical Officer for seeking his opinion as to whether with the said weapon, the injuries noticed in the post-mortem report can be caused or not and the doctor has deposed that it is for the first time that he is seeing the weapon in the Court. Hence, he submitted that even the medical evidence is not supporting the case of the prosecution. Hence, the learned counsel for the appellant prays that the appeal be allowed and the judgment and order of conviction be set aside and the 9 appellant-accused be acquitted of offences under Sections 302 and 201 of IPC.
6. The learned Additional State public Prosecutor, insofar as the motive aspect is concerned, has drawn our attention to the prosecution material, more particularly, the evidence of PWs.7, 9 and 11 and submitted that their evidence is not only with regard to the motive, but it is also with regard to the missing theory of the prosecution. He also submitted that those witnesses have consistently deposed in their evidence that they have seen the deceased going towards her land and at the same time, they have also seen the accused person also going there for grazing the goats. It is also his contention that the doctor has clearly deposed in his evidence that the injuries were caused with the weapon which was seized and the recovery of the clothes as well as the knife have been established with the evidence of the Investigation Officer and the panch witnesses. The FSL Report also supports the case of the prosecution. Insofar as the blood 10 stains on the knife is concerned, the learned Additional State Public Prosecutor has submitted that it was ascertained as human blood by the FSL, but insofar as the blood group is concerned, it was observed by the FSL that since it was disintegrated, it was not possible to ascertain the blood group. Hence, the Additional State Public Prosecutor has submitted that the circumstances relied upon by the prosecution have been consistently proved with the help of the evidence of the prosecution witnesses. Hence, he submitted that these aspects were properly appreciated by the learned Sessions Judge extensively and there is no illegality in coming to such conclusion. Hence, the learned Additional State Public Prosecutor has submitted that there is no merit in the appeal and the same ought to be dismissed.
7. We have perused the grounds in the appeal memorandum, judgment and order of conviction as also sentence imposed by the court below and the oral and documentary evidence produced by the prosecution. 11
Admittedly, even according to the prosecution case, there are no direct eye witnesses to the incident and the case of the prosecution rests on circumstantial evidence. In this regard, we deem it germane to refer to a judgment of the Apex Court in Umedbhai Jadavbhai vs. The State Of Gujarat, AIR 1978 SC 424, wherein the Apex Court has observed as under:
"It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonable be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. "
Therefore, keeping this principle in mind insofar as the case with regard to circumstantial evidence is concerned, let us examine whether the prosecution has been able to prove all the circumstances relied upon by it or not and whether the said aspect had been properly appreciated by the learned Sessions Judge.
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The prosecution has relied upon one of the circumstances i.e., the motive for the accused person in committing said offence. The motive for the commission of the crime is that the accused person, while grazing the goats, was letting loose the goats into the land of the deceased for the purpose of grazing and this was being objected to by the deceased number of times. In this connection, we have perused the prosecution material. Insofar as the averments made in the complaint is concerned, there is no such mention that the accused person was letting his goats into the land of the deceased and that may be the reason for at least raising a suspicion as against the accused person at the time of lodging the complaint under Exhibit P.1. Therefore, at the stage of filing of the complaint before the Police, there was no such suspicion raised as against the accused person.
8. We have perused the evidence of the prosecution witnesses. No doubt two witnesses who are the grand- children of the deceased were examined as PWs.5 and 6. They 13 are Ramya and Sowmya. So far as PW.5-Ramya is concerned, who was aged about 14 years, the Court put some questions to her to ascertain whether she is capable to understand the proceedings and after that she has been examined as PW5 in the said case. She has deposed in her evidence that evening at about 4.00 p.m. her father came from Chittanahalli and enquired about the welfare of herself and her sister. Then he asked whether grand-mother has gone. Then she told that she has gone to the land and her sister Sowmya told that Naga has left the goats in the land for grazing and stating so, grand-mother went towards the said land and she informed accordingly to her father and when he enquired with the grand-father, grand-father also told that she has gone towards the land. Her father came to the land and came back stating that she is not there. Same was informed to her grand-father also. In the cross examination by the defence it was suggested to the witness PW5 that her sister has not at all told before her father that grand-mother went towards the land. So according to the evidence of this PW5 it is not herself 14 told before father that grand-mother made statement before her that Naga has left his goats to the land of the deceased, therefore, she is going to the said land. Her statement is, hear say her sister Sowmya made the statement, but coming to the evidence of Sowmya, who has been examined as PW6, the Court before recording her evidence put some questions i.e. nine questions were put to her and it is observed by the learned Fast Track Court Judge that she answered to only one question i.e. question No.2 and as he has not given answer to any of the other questions, Court has asserted and come to the conclusion that she is not a competent witness to be examined. Accordingly, her evidence was dropped. Therefore, Sowmya told that the father, herself and PW5 that grand-mother made such statement that the accused left the goats into the land for grazing. That aspect has not been established.
9. Now coming to the evidence of PW7 one Ningaraju who deposed in his evidence in examination in chief that he 15 know the deceased Ningamma, so also the accused person. Accused was taking the goats towards halla and also towards the land and he was also grazing the goats towards the land of deceased Ningamma. Ningamma is having landed property. She is growing the paddy crop and about two years back when he was coming from his land near by the village, he met with deceased Ningamma. When he enquired with her she told before him that Naga let in goats into her land and because of that reason she is going towards the land. Thereafter, he came towards his house and on the same day at about 6.30 p.m. people of the village were running towards the place. Therefore, he also went there and he has seen the dead body of Ningamma.
In the cross examination he deposed that every day from 6.30 a.m. to 7.30 a.m. he is getting the water to wet his land. On that day he went to his land at about 12.00 noon and he was there for two hours. There is a distance of half kilo meter from his house and the land. At about 2.45 p.m. he met Ningamma nearby the village. No other persons were 16 present at that time. He denied the suggestion that Ningamma had not at all told before him that Naga has left his goats to her land for grazing and for that reason she is going to the land.
10. PW9 is the other witness examined by the prosecution who is Smt.Savitramma, who deposed in her evidence in the examination in chief that about two years back one day at about 1.30 p.m. when she was grazing her goats and the buffalos in the land of one Bettegowda, the goats of the accused persons were grazing in the land of Ningamma. At that time, Ningamma came from the village side and told before her that Naga is grazing the goats in the land, for that reason she is going towards her land to see the same. The witness also deposed that thereafter talks were going on between the accused and Ningamma. Then thinking that it is usual, she went towards her house. In the cross examination she deposed that at that time in the land of one Poojari only there was a crop. At that time there was ragi crop 17 in the land of Poojari and in the land of Ningamma there was a paddy, so also in the land of Bettegowda. She denied the suggestion that on that day she was not at all went to the said place for grazing the buffalos and Ningamma had not at all met with her. She has not made any statement before her about the accused and accused No.1 and Ningamma were also not talking with each other. Accused was not at all having the goats. All these suggestions were denied by the witnesses.
11. Another witness examined by the prosecution to prove the motive aspect is PW15 one Manchegowda who deposed in the examination in chief that he know accused and deceased Ningamma. He is having the land nearby the ditch. The accused person was working in the house of his master Channegowda and he was also grazing the goats for about three years back at about 1.00 p.m. When the accused was grazing the goats and going towards the land of Ningamma, at that time taking the water to his land to wet, 18 one and half hours thereafter Ningamma went to the said land and stated that at that time accused grazing the goats in her land. She came back to the house at about 3.30 p.m. In the cross-examination he deposed that police have enquired in connection with this accused, but he does not know on which day he was enquired. He does not know the date on which Ningamma went through his land. He further deposed that he does not know about the quarrel in between Ningamma and the accused person in connection with grazing of the goats. He does not remember the date on which he advised the accused person. He has stated before the police about the quarrel in between two, but he has not stated about he advising the accused person. He further deposed that on that day he has not seen the persons who were having the watch and he has not ascertain the time from such persons. He has not met with any persons who are having the wrist watch, denied the suggestion that accused was not at all grazing the goats. He deposed that on that date except he proceeding towards the land of Ningamma at about 19 6.30 p.m. he has not at all proceeding towards the said place at other time. This suggestion has been accepted as true by the witness.
12. PW3 is the another witness examined by the prosecution. In this connection one Javaregowda who deposed in his evidence in examination in chief that about 2 years 3-4 months back he has seen when he was going towards his land, accused grazing the goats when he was coming back after seeing the land, he has seen the accused person abusing Ningamma in connection with the goats grazing the crops. The accused was holding one katti in his hand as he was having fodder bundle on his head. Thinking that he was quarreling for some reason he went to his house. On next day morning at 8.00 a.m. he came to know that Ningamma was murdered. Therefore, he raised a suspicion that accused Naga might be the person who committed the said murder. In the cross examination he deposed that his land is by the side of the road and by the side of the road 20 there are Jagerry Producing Unit (Alemane) and it will be functioning through out the year. On the date of death of Ningamma he left his house at about 1.30 p.m. there is a distance of about one mile from his house to the land. He has seen accused was grazing his goats in the land of Ningamma. He does not know the boundaries of the land of Ningamma. Accused is not having landed property nearby the said place. There is a distance of about 5 km. from the place where the accused was grazing the goats and is landed property. He identified MO.10, but he deposed that it is not katti, but it is knife. He further deposed that he has not stated before the police that accused was holding the katti in his hand. Therefore, looking to the evidence of these witnesses with regards to the accused person grazing his goats in the land of deceased Ningamma is concerned, one of the witness is not able to say about the boundary marks of the land of Ningamma, even the survey number and PW3 though stated that he has seen the accused person at the said place holding 21 katti in his hand, about the said statement he has not given before the police.
13. Looking to the oral evidence of the prosecution witnesses about these aspects i.e. motive for the accused person, after perusing the evidence of the prosecution witnesses we are of the opinion that there is no consistent evidence on the side of the prosecution regarding the motive aspect is concerned. Even with regard to the last seen theory, the evidence of prosecution witness is not trust worthy as there is no consistency in the evidence of the said witness.
14. Regarding the recovery aspect is concerned, the case of the prosecution that accused after apprehending gave his voluntary statement before the Investigating Officer as per Ex.P20, wherein he has stated that he will show the place. We perused the documents Ex.P20 voluntary statement said to have been given by the accused. The relevant portion in the said statement if taken, he will show the place where he has committed the murder of Ningamma and he will also produce 22 the clothes which is worn on that day, so also the weapon used i.e. knife used to commit the murder which he has happened and he has produced those things. The trial Court marked Ex.P20 in his entire statement as Exhibit. The other contents of the said statement is not at all admissible in his evidence, then what we have observed the last portion which is relevant under Section 27 of the Indian Evidence Act as distinctly relates to the discovery of the fact. Therefore, according to Ex.P20 it is stated that the accused told before the Investigating Officer that he will point out the place which he has committed the murder of Ningamma. In this connection we are referring to the evidence of the Investigating Officer who has been examined as PW25, the voluntary statement under Ex.P20 came to be recorded on 20.4.2009. The Investigating Officer in the cross examination portion at para No.12 deposed that in Ex.P20 the time is not mentioned it is not in his handwriting, there is no mention who wrote the contents of Ex.P20. He denied the suggestion that on 20.4.2009 the accused has not at all given the 23 voluntary statement under Ex.P20. He has not issued the notice to the panch witnesses and the next sentence in the evidence of the Investigating Officer is very important that earlier to 20.4.2009 he went to the said place and he has admitted the said suggestion as true. This answer given by the Investigating Officer goes to show that he visited the place of offence even earlier to recording of Ex.P20 the voluntary statement. Once he has visited and he has seen the place of incident, then subsequently the question of accused person giving the voluntary statement that he will show the place of offence, there is no relevancy and it is not admissible in evidence. So far as the place of offence is concerned, Section 27 of the Indian Evidence Act will not be attracted.
15. Now coming to the production of clothes as well as knife is concerned it is mentioned by the Investigating Officer that the accused told that he has washed the clothes and the article seized i.e. one shirt, one lungi and the knife, they were sent to FSL along with other articles belonging to the 24 deceased. No doubt looking to the FSL report though it was not tendered in evidence and marked during the course of the trial, but as it is available in the file, we perused the FSL report. No doubt FSL report goes to show that so far as the clothes, lungi and shirt are concerned there were no bloodstains and so far as the katti is concerned it is mentioned by the FSL that there were bloodstains and there were stains of the human blood, to grouping is concerned the FSL report mentioned that it is not possible to ascertain the bloodstains, as the blood was disappeared. Therefore, the injuries as mentioned in Ex.P18, normally there will be bloodstains of the clothes of the assailants, but the doctor answered that if the bloodstains is spilled then only there is a possibility. Again when he was questioned that out of the injuries mentioned in Ex.P18, there are the injuries from which the blood spilled, but the doctor answered 'may be'. Therefore for saying so, he admitted that there are some injuries from which blood was spilled. Therefore, this evidence is also important to appreciate the say made by the 25 Investigating Officer that accused made the statement that he washed the clothes.
16. Now coming to the medical evidence of the doctor PW1 who has examined the deceased and conducted the autopsy over the dead body wherein he has noticed 12 external injuries on the body of the deceased and 16 injuries are ante mortem injuries and there is possibility of sustaining those injuries if the weapon like chopper has been used and he has also deposed that he has issued the post mortem report under Ex.P18 and the cause of death according to the doctor is because of the extra wastage of blood and death is also because of the shock. He further deposed that by the use of the weapon like MO.10 all the injuries that he has mentioned in Ex.P18, there is possibility of sustaining such injuries. In the cross examination by the defence as the doctor deposed that MO.10 weapon was not at all sent to him for seeking his opinion and for the first time he is seeing MO.10 before the Court and he has not mentioned in his post 26 mortem report Ex.P18 that injury No.12 can be considered as the defence wound. When the doctor was questioned whether injury Nos.1 to 12 mentioned in Ex.P8 is there possibility to sustained those injuries simultaneously, for this the doctor answered that it is not possible for him to answer. It is admitted suggestion as true that so far as the injury Nos.9 and 12 he has not mentioned that there the cut injuries. He has admitted the suggestion that when the injuries are muscled deep, it is necessary that the weapon which has been used has to go into the muscle deep. He further deposed in para 18 that out of the injuries he has noticed and as mentioned in Ex.P8 another portion of the weapon used it was not at all noticed in the said injuries. Therefore, looking to the evidence of the doctor also it does not make out the case of the prosecution about the involvement of the accused in committing the said offence. The evidence is not consistent with the other evidence also and there is omission with regard to the material aspect.
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17. The Investigating Officer PW25 deposed in paragraph 5 of his deposition that, on 19.4.2009 he has visited Hullenahalli Village and recorded the statement of Javaregowda, Sowmya. They raised suspicion that the accused committed the murder.
In the cross examination he deposed that PW13 and Shivana's statements are concerned there is no mention about raising suspicion as against the accused person. He further deposed that in Ex.P1 the complainant has not at all stated that about two and half years back his mother told on one day that he has left his goats into the land. Therefore, regarding this material aspect there is omission even in the further statement of the complainant. He further deposed that Exs.P9 and 10 are not in his own hand writing. Even there is no endorsement or mention who wrote the contents of these two documents. Even admitted that there is no mention that on whose dictation those documents were written. 28
18. Looking to the statement of PW15 Manchegowda there is no mention in his statement that he was wetting his land and he advised the accused person. The Investigating Officer at the end of paragraph 14 also admitted that he has not sent MO.10 to the Medical Officers for his opinion. Therefore, if these aspects were appreciated together we are of the clear opinion that reasonable doubt arises in the mind of the Court as to the case of the prosecution that it is accused and accused only committed the murder of the deceased Ningamma and no other person.
19. We have re-appreciated the entire material. All these important material aspect both legal and factual were not at all properly considered and appreciated by the learned trial Judge. He wrongly read the entire evidence, wrongly proceeded to hold that the prosecution proved its case beyond all reasonable doubt. The benefit of doubt will have to be given to the accused person.
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Accordingly the appeal is allowed. The judgment and order of conviction in S.C.No.159/2009 dated 08.08.2013 passed by the Court below is hereby set aside. The appellant- accused is acquitted of both the charges under Sections 302 and 201 of the IPC.
The concerned prison authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE nv/ap