Karnataka High Court
State Of Karnataka, vs Govinda on 2 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No. 100247/2016 c/w
CRIMINAL APPEAL No.100248/2016
IN CRIMINAL APPEAL No.100247/2016
BETWEEN:
State of Karnataka
Represented by the
Police Sub-Inspector,
Mulgund Police Station,
Gadag district
Through the Addl.
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka,
Dharwad Bench. ... Appellant
(By Shri V.M.Banakar, Additional State Public Prosecutor)
AND:
1. Govinda s/o Gopal @ Gopya Pawar,
Age:34 years, Occupation:Agriculture,
Resident of Halagimarol,
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Taluk and District:Haveri.
2. Jeevan s/o Rojappa Pawar,
Age:24 years, Occupation:Goundi,
Resident of Nadigatti Vaddarpalya,
Taluk:Shirahatti, District:Gadag.
3. Raja @ Sanni son of Gopal @ Gopay Pawar,
Age:22 years, Occupation:Goundi,
Resident of:Halagimarol,
Taluk and District:Haveri. ... Respondents
This Criminal appeal filed under Section 378(1) and(3)
of the Code of Criminal Procedure, praying to grant Special
Leave to Appeal against the Judgement and Order of acquittal
dated 23.12.2015 passed by the learned Additional District and
Sessions Judge, Gadag in Sessions Case No.51 of 2014 and set
aside the judgement and order of acquittal dated 23.12.2015
passed by the learned Additional District and Sessions Judge,
Gadag in Sessions Case No.51 of 2015 and convict the
respondent/accused for the offences punishable under Sections
392, 302, 201 read with Section 34 of the Indian Penal Code.
IN CRIMINAL APPEAL No.100248/2016
BETWEEN:
State of Karnataka
Represented by the
Police Sub-Inspector,
Mulgund Police Station,
Gadag district
Through the Addl.
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka,
Dharwad Bench. ... Appellant
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(By Shri V.M.Banakar, Additional State Public Prosecutor)
AND:
Gopal @ Gopya,
S/o Junjappa Pawar,
Age 65 years,
R/o Halagimarol,
Taluk and district Haveri. ... Respondent
This Criminal appeal filed under Section 378(1) and(3)
of the Code of Criminal Procedure, praying to grant Special
Leave to Appeal against the Judgement and Order of acquittal
dated 23.12.2015 passed by the learned Additional District and
Sessions Judge, Gadag in Sessions Case No.31 of 2015 and set
aside the judgement and order of acquittal dated 23.12.2015
passed by the learned Additional District and Sessions Judge,
Gadag in Sessions Case No.31 of 2015 and convict the
respondent/accused for the offences punishable under Sections
392, 302, 201 read with Section 34 of the Indian Penal Code.
These criminal appeals coming on for orders, this day,
the court made the following:
JUDGMENT
There is a delay of 156 days in filing these appeals. However, the appeal is considered on merits in order to decide whether notice should be issued on the application for condonation of delay.
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2. These two appeals arise out of a common judgement dated 23.12.2015 in Sessions Case No.51/2014 and Session Case No.31/2015 on the file of the Additional District and Sessions Judge at Gadag.
3. The background facts are as follows:
It transpires that the land of complainant Ningappa and the land of deceased Shekappa were adjacent to each other. The deceased was living in a shed belonging to the complainant on his land and he had a goat for company. It transpires that since he feared for the goat's life, he would also keep the goat inside the shed. On 25/05/2011, it transpires when the complainant had been to attend a funeral ceremony and the deceased was alone in the shed. He was said to have been attacked by the accused with a common intention of robbing him and accordingly had killed him and had taken away cash of Rs.2,000/- and a cell phone of the deceased. The said victim Shekappa was said to have been attacked with a stone and a knife and he had suffered injuries on his shoulder, waist and his eye and it is further alleged that on the same day after :5: committing the murder of the deceased and robbery and in order to destroy the evidence had thrown away the weapons used by them. It is on a complaint of the incident against unknown persons that the police had swung into action and thereafter had arrested the accused after 15 days. It transpires that the cell phone which was taken away from the deceased had been sold to PW-3 and it is on that clue that accused No.1 had been arrested first and taken into custody and on his voluntary statement other accused were also said to have been arrested and after further proceedings, accused No.1 stood trial and they pleaded not guilty and claimed to be tried. Since accused No.4 was absconding, the case against him had been split up. During the pendency of the trial in Sessions Case No.51/2014, accused No.4 also was said to have been apprehended and case in Sessions Case No.31/2015 also was taken up for trial along with the former case and it is on the basis of the evidence of the prosecution witnesses who were 18 in number and on the basis of the exhibits that were produced, particularly the cell phone which was said to have been taken :6: away from the deceased, the court below on a detailed analysis of the evidence has opined that there were no eye witnesses to the incident and it is only on the voluntary statement of accused No.1 that the other accused have been implicated and the main evidence which was relied upon by the prosecution was the cell phone which was said to have been taken away from the deceased having been purchased by PW-3 and the same being claimed to be the one which the accused had taken away from the deceased, the court below has very carefully addressed that aspect at paragraphs 38 and 40 of the judgement.
4. It is seen that the mobile number of the deceased was stated to be 8861075147. There is an IME number issued to every single cell phone. The IME number shown against the cell phone of the deceased was 354311041607860 and the brand of the cell phone was Idea and on inserting sim card of the Idea company, cell phone was said have been activated and it was found that the phone number was 7026282736 and for the same mobile number as per Ex.P.11, the IME number was shown as 3543110416078610 and it was admitted by PW-15 :7: that he had downloaded the IME number of the deceased as 3543110416078610. This, however, did not compare with the Idea company sim card number and the downloaded IME number and therefore it was opined by the court below that the IME number of the mobile belonging to the deceased was of 15 digits and the IME number of the mobile belonging to PW-3 is 16 digits and that even one digit could make big difference in so far as a cell phone is concerned and in this fashion that the court below has reasoned that the prosecution had failed to establish that the cell phone which was produced in evidence as belonging to the deceased was not really of the deceased and it is further expressed by the trial court that in so far as electronic records namely the call details of the cell phone which was sought to be produced at Ex.P.11 was not produced in accordance with the procedure prescribed under Section 65-B of the Evidence Act, 1872 and has placed reliance on a judgment of this court in the case of SRI HOSAMANERA PRAKASH VS. STATE OF KARNATAKA (2015 (3) KCCR 2406) in this regard and applying the said case law, the primary :8: evidence sought to be relied upon against the accused has been negated for otherwise the evidence of the other witnesses is either hearsay or that of formal witnesses which would not support the case of the prosecution in establishing the motive or commission of the offence by the accused. The reliance placed on the voluntary statement of accused No.1 cannot be foolproof and cannot be acted upon which the trial Court has rightly negated and accordingly there is no merit in these appeals.
Little purpose would be served in issuing notice on the application for condonation of delay. Accordingly, the appeals are rejected.
In view of dismissal of the appeals, application for condonation of delay do not survive for consideration.
Sd/-
JUDGE Sd/-
JUDGE Jm/-