Karnataka High Court
The State Of Karnataka vs Krishnappa S/O Bhimaraya Butanal on 16 October, 2012
Bench: K.Bhakthavatsala, C.R.Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 16TH DAY OF OCTOBER 2012
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR. JUSTICE C R KUMARASWAMY
CRIMINAL APPEAL NO.3583/2009
BETWEEN
The State of Karnataka
Through B'gudi P.S.
Gulbarga.
...Appellant
(By Smt Anuradha M. Desai, SPP)
AND
1. Krishnappa
S/o Bhimaraya Butanal,
Age: 30 years,
Occ: Agriculture
R/o Hallisagar.
2. Bhimanna
S/o Ambalappa Gogi,
Age: 35 years,
Occ: Agriculture
R/o Banathihal
2
3. Mudakappa @ Ambalappa
S/o Krishnappa Tanakedar,
Age: 40 years,
Occ: Agriculture,
R/o Hallisagar, Tq. Shahapur.
...Respondents
(By Sri. Sanjaya A Patil, Advocate)
This Criminal Appeal is filed under Section 378(1)(3) of
Cr.P.C. for the State praying that this Hon'ble Court may be
pleased to grant leave to file an appeal against the judgement
dated 21.11.2008 passed by the Presiding Officer, Fast Track
Court-I, Yadgir in Sessions Case No. 138/2008(old), Sessions Case
No. 44/2008(New) in so far it relates to acquitting the
respondents/accused for the offence punishable under section 302
r/w section 34 of Indian Penal Code.
This Appeal coming on for final hearing this day, Dr.
Bhakthavatsala, J., delivered the following:
JUDGMENT
This is an appeal filed by State under Section 378(1)(3) of Cr.P.C. challenging the judgement dated 21.11.2008 made in S.C.No. 44/2008 (old S.C.No.138/2008).
2. For the purpose of convenience and better understanding, the respondent Nos. 1, 2 and 3 herein are referred to as Accused No. 1, 2 and 3 respectively.
3
3. Brief facts of the case leading to filing of this appeal may be stated as under;
PW 1 Nagaraj son of deceased Bhimsenrao lodged a complaint with Bhimarayangudi Police Station on 24.01.2008 at 12.00 noon against 05 persons namely (i) Bhimanna (Accused No.2), (ii) Mudakappa (Accused No.3), (iii) Krishnappa (Accused No.1), (iv) Sharanappa and (v) Doulappa, for the offences punishable under Sections 147, 302 and 201 r/w section 149 of Indian Penal Code. It is alleged that on 22.01.2008 at about 09.00 p.m. Accused No.1 came to the house of PW 1 and requested his father Bhimsenrao Kulkarni to accompany him to give medicine to a person who is suffering from paralytic stroke and Bhimsenrao accompanied Accused No.1 on a motorcycle from Bhimarayangudi circle to Naganatagi village and Accused Nos. 2 and 3 who were standing in Bhimarayangudi circle, followed Accused No.1 and all the 03 accused on Bhimarayangudi and Gogi main road strangulated Bhimsenrao Kulkarni with the help of lungi worn by him and thrown the dead body in a ditch and ran away. Police registered a case and took up investigation. During the course of investigation Accused Nos. 1, 2 and 3 were arrested. After 4 investigation was over charge-sheet was laid against the Accused - Respondents for the offence punishable under section 302 r/w section 34 of Indian Penal Code. Accused Nos. 4 and 5 as mentioned in the FIR were given up. Accused pleaded not guilty and claimed to be tried. The prosecution went to trial by examining as many as 12 witnesses and got marked Ex.P-1 to P- 13 and 06 material objects. After the evidence on the side of prosecution was closed, statement of Accused under section 313 of Cr.P.C. was recorded. Accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. When the Accused were called upon to lead defence evidence if any, they had none. The trial court after hearing the arguments and perusing the evidence on record, came to a conclusion that the prosecution failed to bring home the guilt to the Accused for the charge levelled against the accused and recorded an order of acquittal. This is impugned in this appeal.
4. Learned Addl. State Prosecutor submits that the trial court has not properly appreciated the evidence of PWs 1, 3, 5, 6, 7, 10 and 12 and erred in rejecting the evidence of PWs 2, 3 and 4 on minor omissions and contradictions. It is also submitted that 5 prosecution has proved the motive for the commission of offence and the impugned judgement may be set aside and the Accused may be convicted for the offence under section 302 r/w section 34 of Indian Penal Code.
5. Learned counsel for the respondents/accused submits that the court below on proper appreciation of evidence on record came to a conclusion that prosecution failed to bring home the guilt to the Accused and acquitted the accused and same does not call for interference.
6. In view of the arguments addressed by the learned counsel for parties, the only point that arises for our consideration is;
Whether the trial court is justified in recording an order of acquittal in favour of the accused for the offence punishable u/s 302 r/w 34 of Indian Penal Code?
7. Our answer to the above point is in the affirmative, for the following:
6
REASONS
8. Admittedly there was civil dispute between Accused No. 2 on one side and PW 7 Hanmanth S/o Mareppa on the other. In the civil dispute, deceased Bhimsenrao Kulkarni was supporting PW 7 and therefore it is alleged that Accused No.2 had rancor against the deceased. It is the case of the prosecution that on 22.01.2008 at 09.00 p.m. Accused No.1 took the deceased on his motorcycle for giving treatment to a person suffering from paralysis stroke, and Accused Nos. 2 and 3 who were waiting at Bhimarayangudi circle followed Accused No.1 and after reaching the scene of crime, they strangulated Bhimsenrao by using lungi worn by him and thrown the dead body in a ditch but on 24.01.2008 the dead body was found. Thereafter PW 1 (son of the deceased) lodged a complaint with police against 05 persons. Merely seizure of motorcycle of Accused No.1 is not sufficient to connect the Accused with the alleged offence. There is no direct evidence to connect the Accused with the alleged crime. However, conviction can be based if chain of circumstances are proved. One of the circumstances highlighted by the prosecution is that PW 2 to 4 have seen when Accused No.1 took the deceased Bhimsenrao 7 Kulkarni on his motorcycle. PWs 5 to 7 have deposed that, there was a civil dispute between PW 7 and Accused No.2 and the deceased was supporting PW 7. PWs 3 and 4 have deposed that they have seen the accused No.1 taking the deceased on his motorcycle, but PW 2 has not supported the case of prosecution fully. PW 9 (father of Accused No.1) has deposed that in his presence motorcycle was not seized. The trial court has rejected the evidence of PWs 2 to 4 on the ground that they did not mention about the same when they attended the funeral of the deceased Bhimsenrao Kulkarni. The complainant-PW 1 has deposed that his father was taken by Accused No.1 on 21.02.2008 at 09.00 p.m. and his father did not return on that night or on the following day but he did not lodge complaint till the dead body was traced. Under such circumstances, the case of the prosecution that PWs 1, 2 to 4 deposing that they have seen the Accused No.1 taking the deceased on his motorcycle does not inspire the confidence of this Court. There is no other reliable evidence placed on record to connect the accused for the alleged offence. There is no ring of truth in the case of the prosecution and the impugned judgement does not call for interference by this Court. 8
9. In the result, Appeal fails and the same is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE *MK