Karnataka High Court
Kumar vs The State Of Karnataka on 20 February, 2013
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF FEBRUARY, 2013
PRESENT
THE HON'BLE MR.JUSTICE K L MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.955/2009 (C)
C/W
CRIMINAL APPEAL NO.1126/2010 (C)
IN CRIMINAL APPEAL NO.955/2009 (C)
BETWEEN:
KUMAR S/O KENCHAPPA,
AGE 27 YEARS,
OCC: AGRICULTURIST,
R/O SANEHALLI VILLAGE,
HOSADURGA,
CHITRADURGA DISTRICT. ... APPELLANT
(BY SRI: R.B.DESHPANDE, ADV.)
AND:
THE STATE OF KARNATAKA
... RESPONDENT
(BY SRI: P.M.NAWAZ, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE CONVICTION AND SENTENCE DATED
18.11.2009 PASSED BY THE DISTRICT AND SESSIONS
JUDGE, FAST TRACK COURT, CHITRADURGA IN SESSIONS
CASE.59/2008- CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302,382 R/W SEC. 34 OF
IPC.AND SENTENCED TO UNDERGO S.I.FOR 3 YEARS AND
2
TO PAY A FINE OF RS.5,000/- AND IN DEFAULT TO PAY A
FINE AMOUNT HE SHALL UNDERGO S.I.FOR A PERIOD OF
6 MONTHS FOR THE OFFENCE P/U/S 382 OF IPC. AND
FURTHER HE SHALL UNDERGO LIFE IMPRISONMENT AND
TO PAY A FINE OF RS. 10,000 AND IN DEFAULT TO PAY A
FINE AMOUNT, HE SHALL UNDERGO S.I.FOR A PERIOD OF
6 MONTHS, FOR THE OFFENCE P/U/S 302 OF IPC.
IN CRIMINAL APPEAL NO.1126/2010 (C)
BETWEEN:
BASAVARAJ,
S/O CHANDRAPPA,
AGED ABOUT 29 YEARS,
OCC: ASSISTANT IN GAMAMPANCHAYATH
OFFICE, R/O SANEHALLI VILLAGE,
HOSADURGA,
CHITRADURGA DISTRICT. ... APPELLANT
(BY SRI: B.S.PRASAD, ADV.)
AND:
THE STATE OF KARNATAKA,
... RESPONDENT
(BY SRI: P.M.NAWAZ, ADDL.SPP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE CONVICTION AND SENTENCE DATED
18.11.2009 PASSED BY THE ADDL. DIST. AND S.J., F.T.C.,
CHITRADURGA IN SC.59/2008- CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 382,
302 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO S.I.FOR 3 YEARS AND TO PAY A FINE OF
RS.5,000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT
HE SHALL UNDERGO S.I. FOR A PERIOD OF 6 MONTHS
FOR THE OFFENCE P/U/S 382 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE
IMPRISONMENT AND TO PAY A FINE OF RS.10,000, IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO S.I.
3
FOR A PERIOD OF 6 MONTHS, FOR THE OFFENCE P/U/S
302 OF IPC.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, K.L.MANJUNATH. J, DELIVERED THE FOLLOWING:
JUDGEMENT
These two appeals are preferred by the appellants/A2 and A1 respectively challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Fast Track Judge, Chitradurga, in S.C.No.59/2008 dated 18.11.2009.
2. The appellants were tried for the offences punishable under Sections 302 and 382 r/w.34 of IPC based on the charge sheet filed by Hosadurga police and they were convicted for the aforesaid offences sentencing the appellants to undergo imprisonment for three years each and to pay fine of Rs.5,000/- each I.D. to undergo S.I. for six months for the offence punishable under Section 382 of IPC. They have been further convicted for the offence punishable under Section 302 and sentenced to undergo imprisonment for 4 life and also to pay a fine of Rs.10,000/- each I.D. to undergo S.I. for six months.
2.1. It is the case of the prosecution that PW1- Mallaiah lodged a complaint as per Ex.P1 before the Hosadurga police on 13.2.2008 at about 11.00 p.m. in the night before PW24-Balachandra Naik who registered a case in Crime NO.35/2008 for the offence punishable under Section 302 of IPC.
2.2. According to the prosecution, PW1-Mallaiah a resident of Sanehalli village in Hosadurga Taluk was at home and at about 8.00 p.m. his brother Malukaiah came and informed him that his sister-in-law- Smt.Mallamma w/o. Basappa (another elder brother) who had been to her garden land has not returned home and that her grandson, PW2-Chandrashekar @ Chetan was weeping and requested PW1 to join him (Malukaiah) to search for the deceased. Accordingly, PW1, Malukaiah and PW12-Parameshwaraiah went to the garden land of his brother and when they entered the garden land they saw through the torch light the deceased lying in a pit and that a portion of her saree 5 was gagged inside her mouth and further her neck was encircled by an iron wire. They also noticed some scratches on her breast and other parts of the body and her jewels i.e. the ear stud, gold chain and silver casket were missing. Based on Ex.P1 a case was registered. Police came to the spot and as it was late night no mahazar was conducted on that day. On 14.2.2008, spot mahazar as per Ex.P2 was conducted in the presence of panchas the complainant-PW1 and PW10- Sridhar. The body was sent for autopsy. Autopsy was conducted by PW23 Dr.Ningaraju who issued post mortem report as per Ex.P16. On 17.2.2008 A1 was arrested and on 4.3.2008, A2 was arrested. At the instance of A1 jewels of the deceased were recovered under Exs.P4 and P5. After completion of investigation, charge sheet was filed for the aforesaid offence.
2.3. The appellants pleaded not guilty. They claimed to be tried. In order to bring home the guilt of the accused, the prosecution relied upon the evidence of PWs 1 to 25 exhibits P1 to P16 and MOs 1 to 8. On behalf of the defendants exhibits D1 to D9 were marked 6 while cross examining the witnesses of the prosecution. Both the accused denied the incriminating circumstances found against them in the evidence of the prosecution while answering 313 statement. No oral evidence was let in. However, accused No.1 gave a written statement stating that he has been falsely implicated since he had not agreed to sell his land to the husband of the deceased as his land is adjoining to the land of the deceased.
The learned Sessions Judge formulated the following points for his consideration.
1) ¢£ÁAPÀ 13.02.2008gÀ ¸ÁAiÀÄAPÁ® 6.30 UÀAmÉUÉ ºÉƸÀzÀÄUÀð vÁ®ÆèPÀÄ, ¸ÁuɺÀ½î UÁææªÀÄzÀ ¸ÀgÀºÀ¢Ý£À°gè ÀĪÀ §¸ÀAiÀÄå EªÀgÀ CrPÉ ºÁUÀÆ vÉAV£À vÉÆÃlzÀ°è §¸ÀAiÀÄågÀªÀgÀ ºÉAqÀwAiÀiÁzÀ ªÀÄ®èªÀÄä¼À C¸Áé¨sÁ«PÀ ªÀÄgÀt ¸ÀA¨sÀ«¹zÉ CAvÀ C©üAiÉÆÃd£ÀzÀªÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?
2) ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ªÉÃ¼É ºÁUÀÆ ¸ÀÞ¼ÀzÀ°è DgÉÆævÀj§âgÀÆ vÀªÀÄä ¸ÀªÀiÁ£À GzÉÝñÀ FqÉÃj¹PÉƼÀÄîªÀÅzÀPÉÆÌøÀÌgÀ ªÀÄ®èªÀÄä¼À ªÉÄʪÉÄðzÀÝ MqÀªÉUÀ¼À D¸ÉUÁV CªÀ¼ÉƧâ¼Éà vÉÆÃlzÀ°gè ÀĪÀÅzÀÄ PÀAqÀÄ CªÀ¼À PÀÄwÛUÉUÉ vÀAw¬ÄAzÀ ©VzÀÄ ¸Á¬Ä¹ PÉÆ¯É ªÀiÁrzÀÝjAzÀ CªÀgÀÄ PÀ®A 302 ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ CrAiÀÄ°è 7 C¥ÀgÁzsÀªÉ¸ÀVgÀÄvÁÛgÉAzÀÄ C©üAiÉÆÃd£ÀzÀªÀgÀÄ ¸Á©ÃvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?
3) ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ªÉÃ¼É ºÁUÀÆ CzÉà ¸ÀܼÀzÀ°è D¥Á¢vÀj§âgÀÄ vÀªÀÄä ¸ÀªÀiÁ£À GzÉÝñÀ FqÉÃj¹PÉƼÀÄîªÀÅzÀPÉÆÌøÀÌgÀ ªÀÄ®èªÀÄä¼À ªÉÄʪÉÄðzÀÝ D¨sÀgÀtUÀ¼À£ÀÄß C¥ÀºÀj¹zÀÄÝ, D MqÀªÉUÀ¼ÀÄ MAzÀ£Éà DgÉÆæ¬ÄAzÀ zÉÆjwzÀÝjAzÀ DgÉÆævÀj§âgÀÆ PÀ®A 382 ¸ÀAUÀqÀ 34 ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ CrAiÀÄ°è C¥ÀgÁzsÀªÉ¸VgÀÄvÁÛgÉAvÁ C©üAiÉÆÃd£ÀzÀªÀgÀÄ ¸Á©ÃvÀÄ ªÀiÁrzÁÝgÉAiÉÄÃ?
4) CAwªÀÄ DzÉñÀªÉãÀÄ?
2.4. After considering the entire evidence let in by the prosecution, the Sessions court came to the conclusion that the prosecution has proved the guilt of the accused for the offences punishable under Section 382 and 302 of IPC and accordingly, they were convicted and sentenced as aforesaid.
This judgment is called in question by the appellants.
3. We have heard learned counsels appearing for the appellants and Mr.Nawaj, learned Addl. SPP for the State, in both the appeals.
8
4. The main contention of the counsel appearing for appellant/accused No.1 are as under :-
According to him the prosecution has failed to bring home the guilt of the accused. It is also his case that the case of the prosecution rests upon circumstantial evidence. According to him the prosecution has not placed any material to show that the accused persons were found with the deceased in the land of the deceased either prior to the commission of offence or at the time or after the commission of offence. It is also his case that the prosecution had failed to prove the recovery of jewels at the instance of A1. According to him, the evidence of PW9- Siddappa could not have been believed by the Sessions Court since the mahazar as per Ex.P5, earstud-MO3 does not bear the signature of Siddappa to prove that it was recovered from him at the instance of A1. He further submits that the recovery of other jewels also is not proved in accordance with law. He further contends though PWs 1, 2, 4, 5 and 6 have categorically deposed 9 before the Court that the deceased was wearing a mangalya chain of two rows, the mangalya chain relied upon by the prosecution MO4 is only of single row. Therefore, what is stated in Ex.P1 as well as the oral evidence relied upon by the prosecution would falsify the case of the prosecution in this regard. Therefore, he contends that the chain of circumstances to establish all circumstantial evidence is completely missing and the prosecution has miserably failed to prove the guilt of A1. In the circumstances he requests this Court to allow the appeal.
5. Learned counsel for accused No.2 submits that no case is made out against A2 because no ornaments of the accused have been recovered at the instance of A2 and there is no iota of evidence against A2 and the learned Sessions Judge without examining the evidence let in by the prosecution has wrongly convicted A2. In the circumstances, he requests the court to allow the appeal.
10
6. Per contra, the learned Public Prosecutor submits that the prosecution has proved the guilt of the accused beyond reasonable doubt because the land of A1 and the land of the deceased are situated side by side. Accused persons at about 4.00 p.m. on the date of incident had requested PW7-Basaiah to lend them Rs.10,000/-. Since PW7 had no money with him he refused to lend money. PW7- Basaiah has seen the appellant going on the road leading towards the land of the deceased at 4.00 p.m. Later he learnt about the death of deceased/Mallamma. Therefore, he contends that the last seen theory is proved and established by the prosecution. In addition to that the ornaments of the deceased has been recovered at the instance of the first accused by examining PW9-Siddappa from whom A1 had taken Rs.2,000/- by pledging MO3- ear studs of the deceased and it was recovered from the custody of PW9-Siddappa and similarly other ornaments MOs 4 and 5 have been recovered at the instance of A1 under Exs.P4 and Ex.P4 is proved by the prosecution by examining PW11-Byrappa, panch witness. Therefore, 11 he contends in view of the recovery of the ornaments of the deceased at the instance of the accused, it is for the accused to explain how they came in possession of the ornaments of the deceased. In the circumstances, he requests the court to dismiss the appeals.
7. Having heard the learned counsel for the parties what is required to be considered by us in these two appeals are :-
i) Whether the deceased-Mallamma died an homicidal death?
ii) If so, whether the prosecution has established that the accused are responsible for the homicidal death of the deceased and further they have removed the ornaments of the deceased found on the body of the deceased?
iii) Whether the impugned judgment and order calls for any interference?
8. Ex.P16 is the post mortem report which is issued by PW23-Dr.T.Ningaraju by conducting autopsy over the body of the deceased on 14.2.2008. According 12 to him the cause of death is due to asphyxia as a result of strangulation. PW1-Mallaiah, the complainant, brother-in-law of the deceased, has lodged a complaint- Ex.P1 before the Hosadurga police on 13.2.2008 at about 11.00 p.m. in the night. As per Ex.P1, on 13.2.2008 when PW1 was at home, at about 8.00 p.m. his elder brother-Malukaiah came and informed him that the deceased-Mallamma who had been to her garden land had not returned home and therefore, her grandson-PW2-Chandrashekar @ Chethan was weeping at home. In order to search for the deceased, PW1 went along with PW4 and one Parameshwaraiah (PW12) to the garden land of his brother-Basaiah. They saw the dead body of Mallamma and a portion of her saree was gagged into her mouth and an iron wire as per MO1 was found encircled to the neck of the deceased. The evidence of PWs 1, 4 and 12 in this regard is not seriously disputed by the appellants. In view of the evidence of these witnesses coupled with the evidence of PW23-Dr.Ningaraju and post mortem report as per Ex.P16, we are of the view that the homicidal death of 13 deceased-Mallamma is proved by the prosecution. Accordingly, we answer the same.
9. Having held so, the question to be considered by us is, whether the appellants can be connected to the homicidal death of deceased Mallamma?
10. As contended by the learned counsel for the appellants and as admitted by the learned Addl. SPP Mr.Nawaj, that the case of the prosecution rests on the circumstantial evidence, to show that the appellants/accused 1 and 2 were together with the deceased prior to or at the time or after the incident, the prosecution has not proved the same except examining Basaiah-PW7 who has only stated that at about 4 p.m. the accused persons had requested him to lend a sum of Rs.10,000/- and since he had no money he did not lend the same and thereafter they went towards the land of the deceased.
11. Even if the evidence of PW7- Basaiah is accepted for the sake of arguments, we have the 14 evidence of PW2-Chandrashekar @ Chethan, the grandson of the deceased, who was with the deceased in the land of the deceased till 5.30 p.m. He has not deposed regarding he having seen the accused persons coming to the land of A1 or to the land of his grandfather. According to him after 5.30 p.m. on the instructions of his grandmother-deceased Mallamma he returned to the house to tether the cow in the house and while returning also he has not seen the accused persons going either to the land of the deceased or to the land of A1. In addition to that PW2 has admitted that his school commences from 9.00 a.m. and he would return from school at 4.00 p.m. and that on the day of incident also he was in the school till 4.00 p.m. and thereafter he went to the land of his grand mother along with her. Therefore, it is clear that the deceased was not in her land prior to 4.00 p.m and it would falsify the evidence of PW7-Basaiah to show that the appellants were going on the road leading to the land of the deceased at 4.00 p.m. even if the appellants went towards the land of the deceased, no one can presume 15 that they went on the road which leads to the land with any specific purpose because the deceased or PW2 were not in the said land and in addition to that A1 is having his land next to the land of the deceased.
12. PW2 has further deposed before the court stating that he has given a statement before the police stating that when he went to the garden land along with his grand mother, several people were working in the lands. If it is so, it was incumbent upon the prosecution to examine the persons who were said to be working in the field to show the presence of A1 & A2 at the relevant point of time and for the reasons best known to the prosecution they have not been examined which throws suspicion on the case of the prosecution.
13. In addition to that we have the evidence of PWs 13 and 14 whose evidence has been relied upon by the prosecution to establish the last seen theory. But, both the witnesses have turned hostile and have not supported the case of the prosecution. Therefore, their evidence is of no consequence.
16
14. Then the only evidence available to the prosecution is recovery of the ornaments at the instance of A1. In order to prove that A1 had pledged the ear studs of the deceased with PW9 by receiving Rs.2,000/- is concerned, the police have not taken the signature of PW9-Siddappa for the recovery Mahazar-Ex.P5. There is nothing to show that the ear studs-MO3 were recovered at the instance of A1 from PW9.
15. So far as MOs 4 and 5 are concerned, categorically PWs 1, 2, 4, 5, 6 & 12 have deposed before the Court that the deceased was wearing a chain of two rows. But, what is produced before the Court is only one row of gold chain MO4. To prove the recovery at the instance of A1, the prosecution has relied upon the evidence of PW11-Byrappa the panch witness. Even if this evidence is accepted for the sake of arguments, since MO4 is all together different from the ornament spoken to by PW1 and also in complaint Ex.P1 and other witnesses, the same cannot be treated as the one belonging to the deceased. MO5 is recovered from a 17 bush of a land of a third person in a different village and the owner of the land has not been examined. Merely because PW1 has identified MO5 as that of the deceased, it cannot be a ground to hold that the same is recovered at the instance of A1 since A1 has denied the recovery at his instance.
16. Therefore, we are of the view that the prosecution has failed to establish the circumstantial evidence relied upon by it and the learned Sessions Judge without appreciating the evidence let in by the prosecution has wrongly convicted the accused persons. As rightly pointed out by the learned counsel for A2, there is not even an iota of evidence against him either in respect of the last seen evidence or in respect of the recoveries of ornaments at his instance. Viewed from any angle the appreciation of the evidence is perverse and liable to be reversed.
17. In the result for the foregoing reasons we proceed to pass the following order :-
i) Both the appeals are allowed;18
ii) The impugned judgment of conviction and order of sentence dt.18.11.2009 passed in S.C.NO.59/2008 by the Dist. and Sessions Judge, Fast Tack Court, Chitradurga, on the appellants are set aside. The appellants/accused are acquitted of the charges levelled against them.
They are in custody. They are ordered to be set at liberty forthwith if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE rs