Karnataka High Court
Nanjappa vs The State Of Karnataka By on 4 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1540, 2019 (4) AKR 750
Bench: Ravi Malimath, H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 4TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.829 OF 2013
BETWEEN:
NANJAPPA
SON OF LATE HANUMANTHAYYA
AGED ABOUT 50 YEARS
OCCUPATION: AGRICULTURIST
RESIDENT OF GULAGANJANAHALLI VILLAGE
RAMOHALLI POST
BENGALURU NORTH TALUK
BENGALURU-560 060. ... APPELLANT
(BY SRI. UMESH P.B., ADVOCATE FOR
SRI. R.B. DESHPANDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY
KENGERI POLICE STATION
BENGALURU-560 060.
2. PAVAN KUMAR @ PAVAN
SON OF PRAKASH
AGED ABOUT 23 YEARS
RESIDING AT 3RD CROSS
HARSHA LAYOUT
2
KENGERI
BENGALURU-560 060.
3. KUMAR @ KATRE @ KUTRE
SON OF LATE MUNIYAPPA
AGED ABOUT 25 YEARS
RESIDING AT 355
ANNAMMA DEVI ROAD
ANGADI ROAD
KENGERI
BENGALURU-560 060.
4. GIRISH @ MINIBHOOTHA
SON OF LATE SIDDAIAH
AGED ABOUT 21 YEARS
RESIDING AT MEGALA ROAD
KENGERI
BENGALURU-560 060. ... RESPONDENTS
(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-II FOR R1
SRI. V.G. RAVINDRA, ADVOCATE FOR RESPONDENTS 2 TO 4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
372 OF CRIMINAL PROCEDURE CODE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
28.09.2012 PASSED BY THE PRESIDING OFFICER, FAST
TRACK COURT (SESSIONS)-VI, BENGALURU IN SESSIONS
CASE NO. 582 OF 2012 - ACQUITTING THE
RESPONDENTS/ ACCUSED NO.2 TO 4 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 324, 504,
302 READ WITH SECTION 149 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED
FOR JUDGMENT ON 23.08.2019, THIS DAY, H.P.SANDESH,
J., PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the father of the victim (C.W.15 before the trial Court) challenging the judgment and order of acquittal passed in Sessions Case No.582/2012 dated 28.9.2012 on the file of Fast Track Court, Bengaluru for the offences punishable under Sections 143, 147, 148, 324, 504, 302 r/w Section 149 of Indian Penal Code.
2. Brief facts of the prosecution case are:
On 24.11.2011, juvenile accused No.1 took the Scooty Pep belonging to C.W.4 Bharath in connection with balance amount of Rs.2,000/- to be paid towards purchase of mobile by C.W.2 Nagaraj and in this regard, there was exchange of words between C.W.2, C.W.3, deceased Shashikumar and juvenile accused No.1. In this background, on the same day, at about 7.30 p.m. when C.W.2 went near Guddesoppu lake boat stand within the limits of Kengeri police station, Accused Nos.1 to 4 and 4 juvenile accused Nos.1 to 4, with a common object, formed unlawful assembly to assault C.W.2 Nagaraj and also to commit murder of deceased Shashikumar and assaulted C.W.2 with club on his forehead and also assaulted him with hands and legs and caused grievous bleeding injuries and also abused him in filthy language. When the deceased Shashikumar interfered to save C.W.2 from accused, accused persons have assaulted him with their fists on face, eyes, cheek and abdomen and stamped him with legs. The deceased Shashikumar escaped from their clutches and jumped into the lake, at that time, as per the directions of accused No.1, juvenile accused No.2 and accused No.2 chased him in a boat and juvenile accused No.2 assaulted him on his face with hands and accused No.2 assaulted him with club on his head and committed the murder of deceased Shashikumar. The body was found in the lake and on the basis of the complaint lodged by Sri.N.S.Purushottam, Range Forest Officer, the Police Sub-Inspector of Kengeri police station registered the case in Crime No.360/2011. The 5 Investigating Officer has conducted investigation and filed the charge sheet for the offences punishable under Sections 143, 147, 148, 324, 504, 302 read with Section 149 of Indian Penal Code.
3. The accused persons were secured before the Court below and they did not plead guilty and claimed to be tried. The prosecution in order to prove the case against accused persons has examined P.Ws.1 to 14 and got marked Exs.P1 to 19 and M.Os.1 to 27. All the material witnesses have turned hostile to the case of the prosecution. The Court below has rejected the prayer of the prosecution to examine C.Ws.19, 21 and 28 on the ground that purpose of prosecution will not be served. The prosecution side was taken as closed. Statement of the accused was recorded under Section 313 of Cr.P.C. Accused did not choose to lead any evidence. The Court below having heard the arguments on the side of prosecution as well as on the side of defence, acquitted all the accused persons for the charges leveled against them. 6 Being aggrieved by the judgment of acquittal, the appellant who is the father of victim has preferred this appeal.
4. In the appeal it is contended that the order of acquittal is illegal, erroneous and contrary to law and evidence on record. The Court below without looking into the evidence of the Investigating Officer has blindly acquitted the accused persons and has failed to appreciate the fact that summons are not served to some of the witnesses, who are very much necessary for proper adjudication of the case. The very approach of the trial Court is erroneous and hence, it requires interference by this Court.
5. The learned counsel appearing for the appellant in his arguments would contend that P.W.1, injured eyewitness has turned hostile. In the cross-examination, his wound certificate was not confronted to him and the same is also not marked and weapons seized were also not 7 marked. The doctor's evidence is also not let in. The very approach of the trial Court is erroneous. The matter requires to be remanded for fresh consideration by setting aside the judgment of acquittal passed by the trial Court.
6. The learned counsel appearing for respondent No.1-State also would submit that the material witnesses are not examined. At the first instance UDR was registered and thereafter, based on the voluntary statements, weapons were recovered at the instance of the accused persons. The Court below has committed an error in acquitting the accused persons.
7. Per-contra, learned counsel for respondent Nos.2 to 4/accused Nos.1 to 3 would contend that the Court below has taken note of the fact that all the eyewitnesses who have been examined as P.Ws.1 to 7 have turned hostile. P.Ws.8 to 10 who are the recovery witnesses have also turned hostile. In the cross-examination of these witnesses also, nothing is elicited to substantiate the case 8 of the prosecution. What remains only is the evidence of P.W.13, Range Forest Officer, who gave the complaint based on the information he received regarding floating of the dead body in the lake and the evidence of P.W.14 who registered the case and investigated the matter. The case rests upon circumstantial evidence and there is no any direct evidence and hence, the evidence of P.W.14 also is not helpful to the prosecution. As such, there are no grounds to set aside the judgment of the Court below.
8. Having heard the arguments of the learned counsel appearing for the appellant and also the learned counsel appearing for the respondents/accused, the points that would arise for our consideration are:
(i) Whether the Court below has committed any error in acquitting the accused persons for the charges leveled against them and whether it requires interference by this Court?
(ii) What order?9
9. Point No.1:
The case of the prosecution is that in connection with payment of balance amount of Rs.2,000/- towards purchase of mobile phone by C.W.2, an altercation has taken place between accused persons and C.W.2. In this connection, C.W.2 i.e., P.W.1 went near Guddesoppu lake boat stand. At that time, the accused persons and juvenile accused persons have formed unlawful assembly in furtherance of common object and assaulted the P.W.1. When the same was noticed by the victim Shashikumar, he intervened to rescue P.W.1 and at that time, the victim was subjected to assault. While trying to escape from the clutches of accused persons, victim jumped into the lake, but he was chased in a boat and was assaulted on head and other part of the body, as a result, he succumbed to the injuries.
Now let us consider both oral and documentary evidence available on record.10
P.W.13, the Range Forest Officer, came to know about floating of a body in the lake from their official. He intimated the same and lodged the complaint with the jurisdictional police. Based on his complaint, the police have registered the case. He is not an eyewitness to the incident and only on the information received, he reported the matter to the police in terms of Ex.P14.
The other witnesses are P.Ws.1 to 7. Out of them, P.W.1 is the injured. It is the case of the prosecution that victim tried to rescue P.W.1 and at that time, he was subjected to assault. P.W.1, in his evidence, states that he knows deceased Shashikumar and C.Ws.6 and 7. He has not seen the accused persons. On the date of the incident, he had been to work. Around 6.00 p.m. somebody called him over phone and informed about assaulting of the victim Shashikumar near Kengeri lake. Thereafter, he went near Kengeri lake. When he went to spot it was around 6.45 to 7.00 p.m. and some people had gathered there. At that time, somebody assaulted on his head and 11 he become unconscious. When he regained consciousness nobody was present at the spot. Thereafter, he went to Kengeri by walk and he was not enquired by the police. But he did not see accused persons assaulting victim Shashikumar. He was treated as hostile.
In his cross-examination, nothing is elicited except making suggestions that he gave statement before the police in terms of Ex.P1 and he is falsely deposing before the Court and the said suggestions were denied. It is further suggested that even though accused persons have assaulted him and also committed the murder of victim Shashikumar, he compromised with the accused persons and is giving false evidence and the said suggestions were denied. It is rightly pointed out by the appellant's counsel that even the wound certificate of P.W.1 was not confronted to him. On perusal of his examination-in-chief he did not dispute the fact of subjecting him to assault on the head. But he states that he cannot tell which weapon was used to assault him. There is no dispute that he has sustained injury to his head. But, he has not pointed out 12 the act of any of the accused persons and there is no any incriminating material in his evidence. Mere non-marking of wound certificate will not help the case of the prosecution, when there is no dispute that he had sustained injury.
The other witnesses are P.Ws.2 to 7. They have totally denied the case of the prosecution. Though they admit that victim Shashikumar is no more, but they have categorically stated that they do not know how he passed away and that they are not aware of the assault made on the victim. Specific suggestion was made that the accused persons using the M.Os. have assaulted the victim and all the witnesses have denied the suggestions. All these witnesses were treated as hostile and were cross examined. Except marking of Exs.P2 to 7 nothing is elicited from them. Hence, the evidence of P.Ws.2 to 7 is also not helpful to the prosecution.
The remaining witnesses are P.Ws.8 to 10. P.W.8 is mahazar witness to Ex.P8. He states that in his presence 13 no material objects were seized. He was also treated hostile by the prosecution. In the cross-examination, it is suggested that accused Pavan led the police and panchas to spot and showed the place where they started assaulting the victim and P.W.1 and also produced the clubs. The said suggestions were denied.
P.W.9 is also mahazar witness to Ex.P8 and he has also turned hostile and states that no recovery was made in his presence. Even in his cross-examination, the same questions were put to him as were put to P.W.8 and the same were denied by him.
P.W.10 is the mahazar to inquest report Ex.P9. He only states that mahazar was drawn from 10.30 a.m. to 1.00 p.m. on 27.11.2011.
P.W.11 is the relative of P.W.1. He also not supported the case of the prosecution. He was also treated as hostile and nothing worth is elicited from him. 14
P.W.12 is the Engineer who prepared the sketch in terms of Ex.P12.
P.W.14 is the Investigating Officer. In his evidence he states that on the information of P.W.13 he went to the spot and removed the body from the lake. He has received the report as per Ex.P14 from P.W.13. The body was subjected to inquest and sent for post mortem examination and clothes of deceased was seized. He also states that he has deputed the police to apprehend the accused persons. The deputed official apprehended the accused persons and based on their voluntary statements, weapons were recovered.
In the cross-examination it is elicited that he did not receive any information from the public and the persons who are residing nearby the lake. It is suggested that P.W.13 has not given any report and the same was denied. 15
Having considered both oral and documentary evidence on record it is seen that though injured witness P.W.1 has admitted that he has sustained injury, but he has not supported the case of the prosecution and he has stated that when he went to the spot someone assaulted him and he did not notice as to who assaulted him and with which weapon he was assaulted and that accused persons have not assaulted him. It is unfortunate that the victim who tried to rescue P.W.1, has sustained injuries and succumbed to injuries. P.W.1 who also sustained injuries has not given any incriminating evidence against accused persons. Though prosecution has relied upon the evidence of PWs.2 to 7, who are said to be the eyewitnesses, their evidence is also not helpful to the prosecution. The only remaining evidence is the Investigating Officer P.W.14. Even the panch witnesses P.Ws.8 to 10 have also not supported the case of the prosecution regarding recovery of clubs at the instance of accused persons. In the case on hand, the eye witness did not support the case and there is no direct evidence and 16 also circumstantial evidence and recovery is also not proved. No doubt, the wound certificate has not been marked and confronted to P.w.1. We have already pointed out that P.W.1 has not disputed the fact that he has sustained injury and mere marking of the wound certificate will not help the case of the prosecution.
It is the case of the appellant that he is the father of the victim and cited as C.W.15 and his evidence is also not recorded. The trial Court ought to have recorded the evidence of the appellant. In the case on the hand, when the eyewitnesses have not supported the case of the prosecution and appellant is also not an eyewitness to the incident, his evidence also is not helpful to the case of the prosecution.
10. In the absence of direct evidence and also the evidence of recovery witnesses, there is no point in remanding the matter to the trial Court for fresh disposal, as contended by the appellant's counsel. Having 17 considered the material on record, we are of the opinion that the Court below has not committed any error in acquitting the accused persons since there is no incriminating evidence against them. There are no grounds to interfere with the order of acquittal passed by the trial Court.
11. In view of the discussions made above, we pass the following:
ORDER Appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE
bkp