Karnataka High Court
Sri. Akash @ Neelakanta vs State Of Karnataka By on 5 October, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL APPEAL NO.677 OF 2015
Between:
Sri Akash @ Neelakanta
S/o Rangappa
Aged about 28 years
Occu: Auto driver
R/at behind Court
Anekal Town
Anekal-562 106.
...Appellant
(By Shri H P Leeladhar, Advocate)
And:
State of Karnataka by
Jigani Police Station
Bangalore - 562 106.
...Respondent
(By Shri Vijayakumar Majage, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure praying to reverse and set-aside
the impugned judgment order dated 10.03.2015 passed by
the III Additional District and Sessions Judge, Bangalore
Rural Distirct sit at Anekal in SC No.5002 of 2014 convicting
the appellant/accused No.1 for the offence punishable under
Sections 302 read with Section 34 of the Indian Penal Code.
This Criminal Appeal coming on for hearing, this day,
VEERAPPA J., delivered the following:
JUDGMENT
The present appeal is filed by accused No.1 against the impugned judgment of conviction and order of sentence dated 10.03.2015 made in S.C No.5002/2014 on the file of III Additional District and Sessions Judge, Bengaluru Rural District, Sitting at Anekal convicting accused No.1 for the offence punishable under Section 302 of IPC for imprisonment of life and acquitted accused No.2 for the offence punishable under Section 302 read with 34 of Indian Penal Code. Accused No.1 is in judicial custody from the date of his arrest.
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2. It is the case of the prosecution that accused No.1 married deceased Sharmila and they were residing at Kallaballu Cross since three months prior to the date of death of deceased. Accused No.1 used to say to the deceased that he is not interested with her and he told her to marry another person and he is ready to give Rs.1.00 lakh. On 10.04.2013 at 7.30 p.m accused No.1 and 2 came in front of Shanimahatma Temple in Maruthi Auto Rickshaw bearing No.KA-05/D-6187 and accused No.1 asked the deceased that as to why she is following him despite warning her not to follow him, saying so, he poured kerosene on the deceased and set her on fire. At that time, one Babu-PW4 came to the spot and intimated the same to the parents of the deceased on her instructions. Immediately, the parents of the deceased came to the spot and extinguished the fire and took her to Suhas Hospital for first aid treatment, thereafter shifted the injured to Victoria Hospital for further treatment. The Authorities of Victoria Hospital have intimated to Jigani Police Station about taking treatment by deceased Sharmila. PW- 4 14 along with PW-7 have visited Victoria Hospital recorded the statement of the deceased and submitted the same before PW-18-H.Umashankar, PSI of Jigani Police Station. PW18 received the Report of the deceased through PW7 and registered the same under Crime No.72/2013 and sent FIR to the Court. He submitted the requisition to the Tahsildar to record dying declaration of the deceased. PW18 has visited the spot and drawn the spot panchanama in presence of panch witnesses. He seized MO1 and MO2 under the said panchanama. He has drawn up hand sketch of the spot. He further submitted the requisition to the jail authorities to include offence punishable under Section 302 read with 34 of IPC and thereafter, handed over the investigation to PW-19- Prem Sai G. Rai, for further investigation. PW19 has visited the spot recorded the statement of CW-4 to CW-6 on 17.04.2013 and gave requisition to Tahsildar to conduct inquest panchanama. PW-16-Ramnath, Tahsildar has conducted inquest panchanama of the deceased Sharmila in the Victoria Hospital. He recorded the statement of CW-4 and 5 CW-11 and handed over the inquest panchanama to PW19. After investigation, charge sheet is filed against the accused persons for the offence punishable under Section 302 read with 34 of IPC before the learned Civil Judge and JMFC Court at Anekal.
3. The learned Civil Judge and JMFC took cognizance of the offences against accused Nos.1 and 2 and committed the case to the Court of Session. The learned Sessions Judge framed the charges and read over the charges and accused persons pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution examined PW-1 to PW-20 and got marked material documents at Exs.P1 to Exs.P19 and material objects as MO1 and MO2. After completion of evidence of the prosecution witness, the statement of accused Nos.1 and 2 were recorded under Section 313 of Cr.P.C. The accused persons denied all the incriminating evidence adduced by the 6 prosecution and they have neither led any evidence nor produced any documents.
5. The learned Sessions Judge after considering the material on record by impugned judgment of conviction and order of sentence recorded a finding that the prosecution proved beyond reasonable doubt that accused Nos.1 and 2 with common intention to commit an offence of murder of deceased Sharmila brought the kerosene oil in a plastic bottle and accused No.1 has poured kerosene oil on deceased Sharmila and set the fire. Accused No.1 and 2 ran away in Auto Rickshaw bearing No.KA-05/D-6187 and the deceased Sharmila while taking treatment at Victoria Hospital at 1.00 p.m succumbed to the injuries, thereby, accused No.1 and 2 committed the offence punishable under Section 302 read with 34 of IPC and recorded a finding that nowhere the prosecution witnesses have deposed against accused No.2 and there is no reference of accused No.2 in Ex.P2 and Ex.P11. As such, absolutely there is no evidence against accused No.2 in respect of involvement of him in the case. 7 Accordingly, learned Sessions Judge acquitted accused No.2 for the offence punishable under Section 302 read with 34 of IPC and convicted accused No.1 for the offence punishable under Section 302 of IPC to undergo life imprisonment with fine of Rs.20,000/-. Hence, the present appeal is filed by accused No.1.
6. The State Government has not filed any appeal against the impugned judgment and order of acquittal of accused No.2 for the offence punishable under Section 302 read with 34 of IPC.
7. We have heard the learned counsel for the parties.
8. Sri Leeladhar, learned counsel for the appellant contended with vehemence that the learned Sessions Judge erred in convicting accused No.1 mainly on the basis of Ex.P9 and Ex.P11 claiming to be dying declarations of the deceased Sharmila and other material documents and the impugned judgment of conviction and order of sentence against accused No.1 is liable to be set aside. He would 8 further contend that there is no dispute with regard to homicidal death, but the prosecution failed to prove that death is due to homicidal occurred at the instance of accused No.1 in the absence of material documents produced. The earlier statement of the deceased Sharmila as per Ex.P9 dated 14.04.2013 at 3.00 p.m. recorded by PW-7 and the case was registered by the prosecution only on 15.04.2013, absolutely there is no explanation for the delay. He would further contend that though PW-7 has stated that he recorded the statement of deceased Sharmila dated 14.04.2013 in presence of Dr.Sunil Kumar, but his evidence is totally contrary to the evidence of PW14. PW14 who has recorded the statement under Ex.P9 clearly demonstrates that the existence of Ex.P9 is shrouded with cloud. He would further contend that the entire version of PWs-7, 9 and 14 is unbelievable and taking into consideration the evidence of PW-6 and PW-8 who are the parents of the deceased Sharmila have turned hostile.
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9. He further contended that Ex.P11, the second dying declaration recorded by PW-20 is not in accordance with law and the same cannot be looked into as the said document is shrouded with cloud and it is a typed format. Though Ex.P9, the alleged statement is stated to have been recorded by PW-7 and the subsequent second dying declaration which is in printed format, it is not in consonance with Exs.P9 and P11 and therefore, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is erroneous contrary to law, cannot be sustained. He would further contend that the common charge was made against accused Nos.1 and 2 and other person was absconding, the finding recorded while acquitting accused No.2, ought to have applied the said principles to the accused No.1 also. He further contended that there are no eye witnesses to the incident, except the alleged witness Babu @ Nagaraju who turned hostile. Absolutely there is no material to prove by the prosecution beyond reasonable doubt about the 10 involvement of accused No.1 in the homicidal death of the deceased. Therefore, he sought to allow the appeal.
10. Per contra, Sri.Vijaya Kumar Majage, learned Additional SPP while justifying the impugned judgment and order of conviction contended that the prosecution has proved beyond reasonable doubt that accused No.1 has involved in homicidal death of the deceased within three months from the date of their marriage. He would further contend that the entire case revolves upon dying declaration Ex.P11 which clearly depicts that dying declaration was made before the Tahsildar, when she was in fit state of mind and the same was certified by Dr.Shivakumar in the declaration on 14.04.2013 and the evidence of official witness corroborates with the evidence of PW20. Therefore, he sought to dismiss the appeal.
11. In view of the aforesaid rival contentions urged by the learned counsel for the parties the only point that airse for our consideration is:-
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"whether the impugned judgment and order of conviction, convicting accused No.1 for the offence punishable under Section 302 of IPC is justified in the facts and circumstances of the case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties. Perused the entire material including original records carefully.
13. It is specific case of the prosecution that accused No.1 married to one deceased Sharmila which is intercaste marriage between them. After three months of their marriage, accused No.1 used to say to the deceased that he is not interested with the deceased and he told the deceased that he would be punished for criminal case for a period of 16 years and told her to marry any other person and that he would give Rs.1.00 lakh. On 10.04.2013, when the deceased was following accused No.1 despite his warning not to follow him, accused No.1 committed the homicidal death by pouring 12 kerosene on the deceased and set the fire. The learned Sessions Judge considering both oral and documentary evidence on record, recorded a finding that evidence of PW-14 and PW-20 clearly depicts about the dying declaration as per Ex.P9 and Ex. P11. No suspicious circumstances have been brought on record by accused No.1 so as to disbelieve the documentary evidence Ex.P9 and Ex.P11 dying declaration recorded by PW14 and PW20. If Ex.P9 and Ex.P11 have been taken into consideration, they are corroborative with each other and it clearly depicts pouring kerosene oil by accused No.1 on deceased Sharmila and setting the fire. Absolutely there are no suspicious circumstances stated in the aforesaid to disbelieve the documentary evidence of Ex.P9 and Ex.P11.
14. He further recorded a finding that Ex.P1 is the spot panchanama drawn up by the investigating officer. PW-18- H.Umashankar has deposed evidence as per Ex.P1 and seized MO1 and MO2 from the spot. He also deposed evidence that he has drawn hand sketch map as per Ex.P13. Accused No.1 13 has denied the evidence of PW-18 by making suggestions, but PW-18 has denied the same and further recorded a finding that considering the entire material on record, nowhere the prosecution has deposed against accused No.2 and there is no reference of accused No.2 in Ex.P2 and Ex.P11, except proof of drawing up of spot panchanama and seizure of Auto Rrickshaw at the instance of accused No.1 and 2. Even dying declaration Exs.P9 and P11 do not speak about the common intention of accused No.1 and 2 and involvement of accused No.2 in the said case. Therefore, the prosecution failed to prove the alleged offence against accused No.2 and the prosecution proved the alleged offence against accused No.1 based on the document Ex.P9 and Ex.P11 beyond all reasonable doubt.
15. On meticulous reading of the evidence of the prosecution witnesses and material documents produced, it clearly depicts that the incident was occurred on 10.04.2013 at 7.30 a.m, the case was registered on 15.04.2013 at 10.30 a.m and admittedly, the deceased succumbed to the injuries 14 in the hospital on 16.04.2013. Four days for non registration of FIR is not explained by the investigating officer, when the deceased was admitted to Victoria Hospital on 10.04.2013 as stated by the party. The hospital authorities should have send the Register or Medico Legal Case (MLC) intimation to the jurisdictional police forthwith. Admittedly neither MLC nor Register maintained by the Hospital, where she was capable of giving statement on 14.04.2013 at 3.00 p.m is forthcoming. Ex.P9 recorded by PW14 on 14.04.2013 at 3.00 P.M in the presence of Casualty Medical Officer, wherein, it is stated that the injured was admitted in Victoria Hospital, she could not be able to speak, but today she can speak little. Though, the Casualty Medical Officer has stated that the statement was recorded before him, at that time, the Casualty Medical Officer has not endorsed that whether the deceased was in fit state of mind to make such statement. On the very same day, the Sub Inspector, Jigani Police PW-14 requested the Tahsildar- PW-20 to record the dying declaration of the injured stating that from 11.04.2013 to 13.04.2013, the 15 injured was not in a position to give any statement as certified by the Doctor. Today i.e. on 14.04.2013 she is in position to give statement therefore, he made requisition to Tahsildar to record her dying declaration. Very interestingly, Ex.P11 recorded by the Tahsildar at about 3.15 p.m. to 4.00 p.m has stated that he recorded the statement of the deceased and the same was certified by Dr.Shivakumar-PW-17 stating that she was in fit state of mind while recording her statement. Evidence of PW-14 is contrary to Ex.P18- requisition. The statement made in Ex.P9 and Ex.P11 and after death of the deceased on 16.04.2013 both two dying declaration, admittedly first statement Ex.P9 was recorded by the police PW-14 who stated according to him the injured can speak little bit on that day, when requisition was made to PW-20 through PW-14 stated that the Doctor certified that she was not in position to speak from 11.04.2013 to 13.04.2013 and today i.e. on 14.04.2013 she is capable of giving statement. Admittedly, no medical records were produced whether she was taking treatment at Victoria Hospital and she was in fit 16 state of mind from 11.04.2013 to 13.04.2013 and on 14.04.2013 she was in position to give statement without there being any certification by the Victoria Hospital. When she was in the hospital, it should have certified by the Doctor whether she was in a position to give second declaration. There is lot of inconsistency between two statements-dying declaration Ex.P9 and Ex.P11 with each other and there is doubt about the consciousness of the deceased in the absence of any record produced by the prosecution for four days in the hospital. In the absence of any medical documents or case sheet pertaining to the deceased for taking treatment for four days i.e. one of the circumstances, there is a doubt in the case of the prosecution, the same has not been considered by the learned Sessions Judge while convicting accused No.1. The statement of deceased Ex.P9 is not supported by the Doctor as to whether he has certified that she is in fit state of mind or not.
16. The alleged incident occurred on 10.04.2013 at 7.30 p.m which came to be registered only on 15.04.2013. 17 Even though, the investigating officer was aware of the fact that she was admitted in the hospital on 10.04.2013 absolutely there is no explanation offered. The said aspect of the matter has not been considered by the learned Sessions Judge. The learned Judge passed the impugned judgment believing that Ex.P9 and Ex.P11-dying declaration without any other corroborative evidence on record. Though, a common charge was made against accused persons on 18.07.2014, admittedly based on the aforesaid charge and documentary evidence of Ex.P9 and Ex.P11, the learned Sessions Judge proceeded to acquit accused No.2 and convict accused No.1. Admittedly, the prosecution has not filed any appeal against acquittal of accused No.2. The Investigation Authorities has not taken any steps to trace accused No.3 and what happened is not forthcoming except in the final report it is stated he is absconding. PW1 witness to the spot mahazar Ex.P1 turned hostile. PW2 witness to Ex.P2 and Ex.P3 Spot panchanama and seizure panchama have also turned hostile. PW3-Ramesh, witness to spot mahazar Ex.P2 18 and Ex.P3 has turned hostile. PW4-Nagaraj who alleged to be eye witness to the incident on 10.04.2013 stated in Ex.P9 first statement before the police on 14.04.2013 at 3.00 p.m who is also witness to spot mahazar in question and Ex.P1 and inquest panchanama and spot mahazar also turned hostile. PW-5-Owner of autorickshaw, PW-6 mother of the deceased, PW-8 father of the deceased also turned hostile. PW-10 witness to inquest panchanama, PW-11 Suraman Ali witness to Panchanama, PW-12 Pradeep were all witness to inquest panchanam also turned hostile.
17. The entire prosecution case is only based on the evidence of PW-7, PW-13-Dr.Dilip Kumar who conducted postmortem of the deceased and issued Ex.P10 postmortem report stating that death is due to Septiciemia as a result of burn injuries sustained. The death due to burnt injuries is not in dispute. PW-14 who recorded Ex.P9 the alleged first statement dying declaration, the Tahsildar PW-16 who conducted inquest panchanama on the dead body, PW-17 who issued certificate of fitness, Ex.P11 dying declaration, 19 PW-20 Tahsildar who recorded dying declaration Ex.P11 before Doctor PW-17, all these material documents clearly depicts that except Ex.P9 and Ex.P11, no other materials are placed before the Court by the prosecution to prove that accused persons are involved in committing homicidal death as already stated supra. Ex.P9 and Ex.P11 are not consistent with each other. There are two views are possible in the present case.
18. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. Our view is also 20 fortified by the Hon'ble Supreme Court in the case of Laxman V/s State of Karnataka reported in AIR 2002 SC 2973 and the same is reconsidered by the latest judgment by the Hon'ble Supreme Court in the case of Purushottam Chopra and another V/s State (Govt. of NCT, Delhi) reported in AIR 2020 SC 476.
19. In view of the evidence of prosecution witness and documents relied upon and considering the entire record meticulously there are two views possible based on Ex.P9 and Ex.P11 and Ex.P18 the requisition made by the Sub Inspector to the Tahsildar that she was not in a position to state anything from 11.04.2013 to 13.04.2013 and how she can able to speak on 14.04.2013 in the absence of certification by the treating Doctor Victoria Hospital. It is impossible to believe the case of the prosecution in respect of alleged statement made by deceased Ex.P9 and Ex.P11. Therefore, the accused is entitled for benefit of doubt. 21
20. For the reasons stated above, the point raised in the present appeal is answered in the negative holding that the learned Sessions Judge is not justified in convicting the accused No.1 for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- the same is liable to be set aside. Hence, we proceed to pass the following:
ORDER
(i) Appeal filed by appellant-accused No.1 is allowed.
(ii) The impugned judgment of conviction and order of sentence dated 10.03.2015 made in S.C No.5002/2014 on the file of III Additional District and Sessions Judge, Bengaluru Rural District, Sitting at Anekal, is hereby set aside.
(iii) Appellant-accused No.1 is acquitted for the offence punishable under Section 302 of IPC.
(iv) The appellant-accused No.1 is set at liberty forthwith, if he is not required in any other case, 22 after following Standard Operating Procedure and in accordance with law.
(v) Registry is directed to communicate the operative portion of this judgment to the concerned jail authorities, forthwith.
Sd/-
JUDGE Sd/-
JUDGE UN