Karnataka High Court
Nirvani Rayappa Matagar vs The State Of Karnataka on 15 March, 2013
Author: K Sreedhar Rao
Bench: K Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 15TH DAY OF MARCH 2013
: PRESENT :
THE HON'BLE MR.JUSTICE K SREEDHAR RAO
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
CRL. A. No.2924 OF 2012
Between:
1. Nirvani Rayappa Matagar,
Convict Prisoner No.1932
2. Balappa Rayappa Matagar,
Convict prisoner No.1933
At present in Central Prison,
Hindalaga, Belgaum,
(Both R/o Melamatti,
Tq. : Gokak). ...Appellants
(By Smt. Aruna Deshpande - Amicus Curie)
And:
The State of Karnataka. ...Respondent
(By Sri. A.A. Pathan, AGA)
This Criminal Appeal is filed under Section 374 (1) of
Code of Criminal Procedure, praying this Hon'ble Court be
pleased to call for records of proceedings from the Trial
Court and thereby examine the records by admitting the
appeal of the appellants; quash and set aside the conviction
2
and sentence order dated 3rd April 2012 in S.C.
No.363/2010 passed by the V Additional Sessions Judge,
Belgaum against the appellants/accused and be pleased to
acquit the appellants/accused from all charges.
This Crl. A. having been heard and reserved for
Judgment, this day V. SURI APPA RAO J., pronounced the
following: -
JUDGMENT
This appeal is directed against the Judgment of Conviction and order of sentence dated 3rd April 2012 passed in S.C. No.363/2010 on the file of the V Additional Sessions Judge, Belgaum, whereby the learned Sessions Judge convicted both the appellants for the offences punishable under Section 302 r/w 34 of IPC, 304B r/w 34 of IPC and 498(A) r/w 34 IPC and sentenced them to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to pay find of Rs.10,000/- each, in default to undergo further period of 3 years of simple imprisonment. Similarly, to undergo 10 years simple imprisonment for the offence punishable under Section 304(B) r/w Section 34 of IPC and to pay fine of Rs.10,000/- each, in default to 3 undergo simple imprisonment for 3 years and to undergo 2 years simple imprisonment for the offence punishable under Section 498(A) r/w 34 of IPC and to pay fine of Rs.5,000/- each, in default to undergo simple imprisonment for one year.
2. Aggrieved by the order of sentence and conviction, both the appellants have filed this appeal.
3. Brief facts of the case are as hereunder :
The complainant Mallappa had a son and six daughters. The deceased Nagavva was his 5th daughter. About six years back she was given in married to accused No.1 - Nirvani of Melamatti. At the time of marriage, the complainant paid Rs.10,000/-, one thola of gold as dowry. After the marriage, the deceased Nagavva went to her matrimonial home to discharge her marital obligations. Out of the wedlock, they were blessed with two sons by name Mallikarjun, aged about 5 years and Omkar, aged about 3 years. Right from the 4 date of marriage, accused No.1 was ill-treating deceased Nagavva to bring some more amount of Rs.20,000/-
from her parents and she used to inform the same to her father whenever she was visiting her parents house at Balobal. Accused No.2 - Balappa is the brother of accused No.1 was encouraging and abetting his brother accused No.1 - Nirvani in ill-treating the deceased Nagavva. About one year back, both the accused have sent the deceased Nagavva to her parents house to bring amount from her parents. At that time, the complainant accompanied by PW-17 - Ashok took the deceased Nagavva to Melamatti and consoled accused No.1 - Nirvani stating that the father of the deceased has no money as he has exhausted in life by performing the marriage of six daughters and in near future he will arrange for money. About 8 or 9 months back, accused No.1 with his wife Nagavva and children and accused No.2 - Balappa went to Shedbal for livelihood and residing in the house of PW-4 - Suresh Gonappagol on 5 rental basis. The complainant had also visited Shedbal to see the welfare of his daughter with her family members. At that time the deceased Nagavva disclosed to her father that the accused had not stopped demanding Rs.20,000/- and in this regard they are regularly quarrelling with her. Therefore, the complainant advised his daughter to tolerate the situation in the life. While so, on 17.6.2010 at 6.00 a.m. PW-4 Suresh informed the complainant over phone stating that previous night at about 1 O'clock he heard the loud voice of accused No.1 Nirvani and accused No.2 - Balappa abusing deceased Nagavva. So, himself and his son PW-5 - Shantinath @ Sanju and the neighbour PW-3 - Rajugouda rushed to their house and noticed that accused Nos.1 and 2 abusing the deceased Nagavva stating that she has not brought Rs.20,000/- from her parents and asked her to go to the parents house again and when the deceased Nagavva was saying that her father had no money as he has become 6 penniless on account of performing the marriages of his six sisters. Accused No.1 Nirvani being annoyed uttered like 'ni hinga helati, avaryaka kodatar' by saying so, picked spade and by its handle assaulted on the left part of face near the ear of the deceased. due to which she fell down by uttering 'ayyo'. Then PWs 3, 4 and 5 questioned and restrained accused No.1 - Nirvani from further assaulting the deceased who had sustained injuries and blood was oozing from her nose and died instantaneously. Accused No.2 - Balappa caught hold of the deceased while accused No.1 was assaulting the deceased with spade. After receiving information from PW-4, the complainant, his wife and son and other relatives, elders of village went to Shedbal in a Jeep and saw the dead body of the deceased Nagavva, which was lying in the rented house of PW-4 with injuries on the left part of the face and that they were informed by PW- 4 about the incident. Thereafter, seven to eight 7 members of Balobal came to Kagawada Police Station and lodged a complaint against accused.
4. The Sub-Inspector of Police, Kagawada Police Station registered the same in Crime No.135/2010 for the offences punishable under Sections 498(A), 304, 302 r/w Section 34 of IPC and took up the investigation. He requested the Tahsildar to conduct Inquest over the dead body of the deceased and subjected the dead body of the deceased to the Government Hospital for post- mortem examination.
5. On 18.06.2010 the Sub-Inspector of Police visited the scene of offence along with panchas Goudappa and Kumar, conducted scene of offence panchanama and recovered MO-6 - black blanket, MO-7 - yellow blanket, MO-8 - broken bangle pieces, MO-9 - kavadi. He recorded the statement of the complainant and examine the witnesses and recorded their statements. On 21.6.2010 he arrested accused Nos.1 and 2 and 8 produced before the Dy.S.P. Thereafter, the accused were interrogated separately and both of them gave their voluntary statements and admitted the commission of offence in the presence of panch witnesses. Basing on the confession statement of both the accused, led by the accused they all proceeded to Shedbal and Sheetal Nagar near Railway Station. Accused No.1 produced MO-1 - blood stained pant by removing the same from a heap of hay, MO-2 - shirt, MO-3 - spade and they were recovered and sealed under the panchanama. Accused No.2 went towards northern side about 190 feet and from the heap of tender coconut branches, removed MO-4 - pant and MO-5 - shirt, they were also seized in continuation of the same panchanama.
6. On 23.06.2010 the Investigation Officer visited to Balobal and recorded the further statements of the complainant. After completion of investigation, filed charge sheet against the two appellants. 9
7. After hearing the Public Prosecutor and the Counsel for the accused, the Trial Court framed the charges under Section 302, 304(B) and 498(A) r/w Section 34 of I.P.C. against both the appellants/accused and supplied the copy of the same to the accused. They have not pleaded guilty.
8. In order to bring home the guilt of the accused for the aforesaid offences, the prosecution has examined parole evidence of PWs 1 to 30 and relied upon documents Ex.P1 to Ex.P39 and MOs 1 to 19.
9. Considering the evidence available on record, the Trial Court found the appellants guilt of the offences, for which they are charged and passed the above order of conviction and sentence.
10. According to the prosecution, PWs 3, 4 and 5 are the eye witnesses to the incident. All of them on hearing the cries of deceased entered into the house of 10 the deceased and found accused Nos.1 and 2 abusing the deceased for not bringing Rs.20,000/- from her parents and when the deceased told accused Nos.1 and 2 that her father has no money and has become penniless as he performed the marriage of other five sisters and accused Nos.1 and 2 asked the deceased as to why she was telling that my father has no money, then accused No.1 annoyed and uttered 'you are asking why should your father will give amount' so saying he picked up spade and assaulted with handle on her left side of face near the ear. Due to which she fell down by crying 'ayyo'. Then PWs 3 to 5 restrained accused No.1 from further assaulting the deceased. At that time she had already sustained injuries and the blood was oozing from her nose and died instantaneously.
11. It is the further case of the prosecution that while accused No.1 was assaulting the deceased Nagavva with spade the accused No.2 Balappa Rayappa Matagar 11 caught hold of her. After that PW-4 informed the complainant about the incident and also about the death of the deceased Nagavva. PWs 3 to 5 who said to have been witnessed the incident did not support the case of the prosecution and have turned hostile.
12. PW-3 has stated in his evidence that he did not know who assaulted the deceased and the cause of death of the deceased and how she died. PW-4 also stated that he also did not know who assaulted the deceased and he had not witnessed the incident. PW-5 also stated that he did not know how the deceased died and who assaulted her. He also stated that he has not witnessed the incident. Thus, PWs 3 to 5 who are eye witnesses to the incident have not supported the case of the prosecution and also they have not stated about the presence and participation of the accused in the above crime.
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13. The prosecution examined PWs 1 and 2 who stated to have been witnesses to the seizure mahazar under which MOs 1 to 5 are seized basing on the confession statement of accused. PWs 1 and 2 also did not support the prosecution case about the seizure of MOs 1 to 3 - Pant, half shirt and spade on the basis of the confessional statement of accused No.1 and seizure of MOs 4 and 5 i.e. pant and full shirt.
14. As could be seen from the evidence of PW15, Uncle of the deceased that the accused No.1 himself informed the complainant about the death of the deceased but not PW-4. If the accused really committed the said offence he would not have informed the complainant about the death of the deceased Nagavva. Thus, there is no evidence on record to connect the accused with the crime. During the course of cross-examination of PWs 3 to 5 and Investigating Officer, it is suggested that some dacoits committed the murder of deceased during 13 night time when the accused gone for attending work. Thus, the prosecution failed to prove the charges levelled against the accused. The Trial Court without appreciating the evidence on record convicted the accused on the ground that the deceased was last seen in the company of the accused prior to her death and it is for the accused to explain the circumstances leading to the death of the deceased Nagavva. Admittedly, there is no evidence on record to prove the last seen theory adopted by the learned Trial Court for convicting the accused. None of the prosecution witnesses have deposed that the deceased last seen circumstances with the company of deceased. The eye witnesses PWs 3 to 5 have not supported the case of the prosecution. Further, the panch witness for seizure of MOs 1 to 5 also did not support the case of the prosecution. There is absolutely no evidence on record to connect the accused with the murder of the deceased Nagavva. The appellants are therefore, entitled for acquittal. 14
15. Considering the entire evidence on record, we are of the considered view that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. The accused are entitled for benefit of doubt.
16. Consequently, the order of conviction and sentence dated 3rd April 2012 in S.C. No.363/2010 passed by the learned Sessions Judge against the accused/appellant is hereby set aside. The appeal is allowed. The accused are acquitted for the offences for which they are charged. The appellants shall be released forthwith, if they are not required in any other case.
Sd/-
JUDGE.
Sd/-
JUDGE.
RBV/-