Karnataka High Court
Sri Kumar @ Nagesh Kumar vs The State Of Karnataka on 22 November, 2018
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 624 OF 2014
BETWEEN
1. Sri. Kumar @ Nagesh Kumar,
aged 30 years,
2. Sri. Venkatesh,
Aged 48 years,
Both are children of
Venkataiah,
Both are R/At I.V.Y Paradise,
Behind Channakeshava
Samudaya Bhavana,
Haragadde, Jigani Hobli,
Anekal Taluk,
P.R/At. Maniyambalu,
Guthalu Hunise Post,
Maralvadi Hobli,
Kanakapura Taluk,
Ramanagara District - 571 511.
... Appellants
(By Sri. B.C. Rai, Advocate)
AND
The State of Karnataka, through
Hebbagodi Police Station,
Rep. by State Public Prosecutor,
2
High Court Building,
Bangalore - 560 001. ... Respondent
(By Sri. K.P. Yoganna, HCGP)
This Criminal Appeal is filed under Section 374(2) of
CR.P.C. praying to set aside the order dated 24.06.2014
passed by the III Addl. District and Sessions Judge,
Bangalore Rural District sit at Anekal, in S.C.No.338/2011 -
convicting the appellants/accused No.1 and 2 for the
offences punishable under Section 302, 394 r/w 34 of IPC.
And the appellant/accused No.1 and 2 are sentenced to
imprisonment for life and to pay a fine of Rs. 1,00,000/-
each, in default to undergo imprisonment for 3 years for the
offences punishable under Section 302 R/w 34 of IPC.
Further, the appellant/accused No.1 and 2 are sentenced to
rigorous imprisonment for 8 years and to pay a fine of Rs.
50,000/- each and in default to undergo imprisonment for 2
years, for the offences punishable under Section 394 R/w 34
of IPC.
This Criminal Appeal coming on for hearing, this day,
K. SOMASHEKAR, J., delivered the following:
JUDGMENT
This appeal is directed against the judgment and order of conviction and sentence dated 24.06.2014 passed by the III Addl. District and Sessions Judge, Bangalore Rural District, sit at Anekal convicting the accused for the offences punishable under Sections 302, 394 read with Section 34 of IPC.
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2. Accused No.1 and 2 were sentenced to undergo Imprisonment for life and to pay a fine of Rs.1,00,000/- each and in default to undergo imprisonment for 3 years for the offence punishable under Section 302 r/w 34 of IPC. Further, Accused No.1 and 2 were sentenced to undergo Rigorous Imprisonment for a period of 8 years and to pay a fine of Rs.50,000/- each and in default to undergo imprisonment for 2 years for the offence punishable under Section 394 r/w 34 of IPC. The sentences shall run concurrently. Further, under Section 357(1) of Cr.P.C. out of fine amount imposed to accused no.1 and 2, Rs.1,50,000/- was awarded as compensation to the complainant and his family members. The same has been challenged under this appeal by urging various grounds.
3. The factual matrix of the prosecution case are as under:
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3.1 There was Shanimahatma temple at Rajapura Village in Government land bearing Sy.No.26 and CW.1 was the archaka/priest of the said temple. CW.1 and his father deceased Puttappa used to sleep in the said temple during night hours. On 18.07.2011 at about 10.00 p.m. as in the usual course, the complainant had slept inside the temple and his father deceased Puttappa had slept in the temple. It is further averred that on the same day at about 10.30 p.m., Accused nos.1 and 2 had come to the temple with a common intention to cause robbery and saw sleeping of deceased Puttappa in the temple. Accused No.1 and 2 said to have assaulted with iron rod on the head of deceased Puttappa. At that time, on hearing the screaming sound of deceased, complainant had seen through the window and attempted to come outside the temple. It is further stated that accused no.1 and 2 on seeing the complainant, they have attempted to assault the complainant. By that time, complainant escaped from 5 them and ran towards the village and informed about the incident to CW.5, CW.6 and CW.8. Subsequently, the complainant - Veerabadraiah along with the said CW.5, CW.6 and CW.8 had come near the temple and found that deceased Puttappa was lying unconscious by sustaining injuries. Immediately, they took deceased Puttappa to Sparsha Hospital and the said Puttappa died at about 1.15 a.m. in the night hours. It is further averred that, when the complainant had come to temple, he noticed that the accused had robbed his mobile phone and so also silver articles such as silver mustache and silver eyes of idol Shaneshwara. In pursuance of the said act of the culprits, a complaint came to be filed by the complainant before CW.27 -
T.S.Ravindra, ASI of Hebbagodi police. After receiving the complaint, CW.27 registered a case in Cr.No.374/2011 for the offences punishable under Sections 307 r/w 34 of IPC and by recording the FIR the same was forwarded to the committal Court. 6
3.2 Further on receipt of intimation letter of death of Puttappa from Sparsha Hospital at about 3.30 a.m. the Police submitted a report to the committal Magistrate to include Section 302 r/w 34 of IPC in the FIR and handed over the investigation to CW.28 - A.Yelagaiah CPI. CW.28 during investigation, visited the spot and has drew a spot-panchanama and seized MO.1 to MO.4 in the presence of panch witnesses. He had drawn up a map of the said spot and though he secured dog squad and hand writing experts, but did not find any clue. Further, the properties seized during the course of investigation were submitted to the concerned committal court under PF No.242/2011. Further the IO had visited Sparsha Hospital and made inquest panchanama and he had also recorded the statements of CW.8 to CW.12 and supplementary statements of CW.4 on the same day, and also recorded the statements of CW.4 to CW.6, CW.18 and CW.19. The IO also secured mobile call sheet and on the basis of the 7 said call sheet, he had instructed CW.25 and other staff members to search the culprits (accused no.1 and 2). On 27.7.2011, CW.25 and other staff members apprehended accused no.1 and 2 and produced them before PW.16 (IO). Whereas, PW.16 arrested the accused no.1 and 2 and recorded their voluntary statements as per Ex.P13 and P14 regarding they to leading to discovery of fact. PW.16 had seized dual SIM mobile from the possession of accused no.1 under panchanama and he had submitted the same under PF No.249/2011. Accused no.1 and 2 were produced before the Court and took them to the police custody for further investigation relating to the committing murder of the deceased. It is further averred that PW.16 during investigation had seized one chopper, silver mustache and two silver eyes of idol Shaneshwara at the instance of accused no.1 and 2. He had further seized other properties pertaining to different crime numbers. The IO had shown the seized properties to the witnesses and recorded 8 supplementary statements of the said witnesses. He had submitted the seized properties under PF No.252/2011 to the committal court and produced accused no.1 and 2 before the Court. Further, IO has also seized the clothes from the dead body and submitted the same under PF No.296/2011 before the Court. Further, the IO had sent the seized properties to FSL Bangalore and also secured call details and other documents from relevant authorities. After completion of the entire investigation, the IO laid charge sheet against the accused Nos. 1 & 2 before the committal court for the offence punishable under Section 396 r/w 34 of IPC and the case was committed to the court of Sessions for trial. After framing of charges under Section 396 r/w 34 of IPC, the same was read over to accused no.1 and 2 and they pleaded not guilty and claimed to be tried.
3.3 The prosecution in order to establish the guilt of the accused, in all examined PW.1 to PW.17 and got 9 marked several documents as per Ex.P1 to P16 and also the material objects as per M.O.1 to MO.11. After completion of the prosecution evidence, the statement of accused Nos. 1 & 2 were recorded under Section 313 of Cr.P.C., whereas the accused Nos. 1 & 2 denied all the allegations made against them. The accused did not come forward to adduce the defense evidence as contemplated under Section 233 of Cr.P.C.
3.4 When the case was posted for arguments, an application was filed under Section 216 of Cr.P.C. for alteration of charge and the court below after going through the entire investigation papers, allowed the said application by order dated 19.04.2014 and ordered to frame altered charge for the offences punishable under Section 302, 394 r/w 34 of IPC. The altered charge was read over to accused no.1 and 2 and they pleaded not guilty and claimed to be tried. After framing of altered charges, the public prosecutor and the counsel for 10 accused submitted a joint memo stating that they were adopting the same evidence adduced by prosecution and cross-examination and submitted that they have no further evidence and further cross examination.
3.5 After hearing the arguments advanced by the learned counsel for the prosecution as well as accused persons, the Trial court has passed the judgment of conviction against the accused Nos. 1 & 2 for the offences punishable under Sections 302, 394 r/w Section 34 of IPC and sentenced them for the said offences as noted above. The said judgment of conviction and order of sentence has been challenged under this appeal by urging various grounds.
4. Heard learned counsel for the appellants and learned SPP for the Respondent-State. Perused the impugned judgment of conviction and order of sentence passed by the Court below.
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5. Learned counsel for the appellants during the course of his arguments has taken us through the evidence of the complainant-Veerabhadraiah (PW.1), who is the son of the deceased Puttappa. He contends that the Trial Court has committed error in convicting the appellants relying upon the prosecution evidence, which is highly interested, contradictory, unreliable and artificial. He contends that as alleged by the prosecution that accused with a common intention to cause robbery, assaulted with an iron rod on the head of deceased Puttappa and PW.1 is the only eye witnesses to the incident, who had lodged the complaint as per Ex.P1 and has alleged that two unknown persons came to the temple and assaulted his father who was sleeping inside the premises of the temple with a chopper and when he rushed to rescue of his injured father, they also attempted to assault him and he states that at that relevant point of time, himself and his deceased father were sleeping in the temple. He states that he did not 12 know the motive of the assailants for attacking his father. Only based on the averments made in the complaint, the police have registered the case initially under Section 307 of IPC and later invoked the offence of 302 of IPC. Without there being proved legal evidence and on the basis of suspicion and assumption, the prosecution has alleged the charge of common intention to cause robbery and assault on the deceased by iron rod, but whereas PW.1 had stated that he do not know the purpose of accused entering the temple and assaulting his father.
5.1 It is further contended that, the iron rod recovered at the scene of crime was not shown to the Doctor-PW.12 who conducted the post-mortem as per Ex.P.7 over the dead body of the deceased Puttappa and he has not reported as to how the injuries occurred and which weapon was used in the crime. He has only opined that the injuries reported in Ex.P7 were anti- mortem and death was on account of aforesaid injuries. 13 Further, it is contended that even PW.16 - IO had also admitted that he did not take the opinion of the PW.12 - Doctor by producing the iron rod M.O.1 to prove that the injuries were caused by assaulting with the said iron rod (M.O.1). These lapses on the part of the prosecution have not been appreciated by the Trial Court in a proper perspective manner.
5.2. It is the further contention of learned counsel for the appellants that PW.1 who is the author of Ex.P1
- Complaint had not given the detailed description of the personality of the unknown persons or in his further statements before the PW.16 - IO. PW.1 even did not report the availability of electricity supply in and around the scene of crime and also has not stated that he had seen the unknown persons in the light. These lapses on the part of the prosecution were not properly appreciated by the Trial Court. Further, it is contended that the IO did not conducted test identification parade 14 to identify the accused, whereas the incident had occurred at the night hours and that accused were not known to the complainant. The Trial Court has ignored the settled principles of law that without being the test identification parade, the identification of the accused at police station cannot be an identification, when the accused is unknown to the witness. Hence, non-proving of the identification of the accused is fatal to the case of the prosecution.
5.3 Further, it is contended that the prosecution has not established the guilt of the accused with cogent and corroborative evidence and it did not prove beyond reasonable doubt that M.Os.5 - two silver eyes, M.O.6 - silver mustache of the god Shaneswara and M.O.7 - mobile belonging to PW.1 were taken away by the accused. The trial Court has not properly appreciated the above evidence adduced by the prosecution that the theft of MOs.5, 6 and 7 and ownership of those items 15 were proved beyond reasonable doubt by the prosecution.
5.4 Further, it is contended that PW.5 is the elder son of the deceased and he is only a circumstantial witness and similarly, PW.4, PW.6 and PW.7 are also the close relatives of PW.1 and they have deposed the presence of PW.1 and his father in the temple. The Trial Court has not properly appreciated the inconsistencies, omissions and improvements in the depositions of the aforesaid witnesses and had come to a wrong conclusion by convicting the accused persons. The prosecution has mainly relied on the evidence of PW.15 to prove the presence of the accused near the temple. He has stated that he could not see the face of the accused while he was driving the vehicle at the speed of 30 to 40 kms per hour and he has admitted that he did not talk to those persons. Hence, there is inconsistency 16 and deviation in his earlier police statement which fact is not appreciated by the Court below.
5.5 It is further contended that, there is no intention to cause murder of the deceased by the accused and there was no necessity to attack a sleeping person if their motive was only for the purpose of robbery. The prosecution has falsely alleged the robbery of ornaments of the god which is valued less than Rs.100/- without there being legally acceptable evidence. If the motive of the accused was only for robbery, they could have robbed the valuables of the temple without notice to the deceased while he was sleeping outside the temple near the compound wall. Even PW.1 - complainant who is none other than the son of the deceased has admitted that no articles were taken away in his presence. The allegation of theft was only a suspicion without legal proof. The trial Court has not appreciated these major contradictions elicited from 17 the mouth of PW.1. The allegation of robbery was not disclosed at the earliest point of time in the FIR and the allegation of theft against the accused was only suspicion and assumption by the prosecution.
5.6 It is further contended that, blood stains of 'O' group found on M.O.1 (Iron Rod) could not be conclusively proved that 'O' group blood belong to the deceased. Because of complainant having not deposed the use of M.O.1 for assaulting the deceased, the prosecution has failed to prove the case of assault by the M.O.1 beyond reasonable doubt and the Court below has failed to appreciate these aspects in a proper perspective manner.
5.7 On all these grounds urged, the learned Counsel for the appellants prays to re-evaluate the impugned judgment of conviction and order of sentence by re-appreciating the entire evidence in a proper perspective, since the Trial Judge has committed an error in arriving at the conclusion that the prosecution 18 has proved the guilt of the accused beyond all reasonable doubt. Hence, he prays that the impugned judgment of conviction and sentence held by the Trial Court in S.C.No.338/2011 be set aside by allowing this appeal.
6. Countering the arguments advanced by the learned counsel for the appellants, learned HCGP for the State has taken us through the impugned judgment of conviction and sentence passed by the Trial Court, particularly to the evidence of PW-1 to prove the guilt of the accused no.1 and 2. He contends that the Trial Court has rightly considered the evidence adduced by PW.1 and PW.3 to PW.7 which clearly shows about the homicidal death of deceased Puttappa. Apart from the evidence of PW.1, the prosecution has relied on circumstances like accused no.1 and 2 moving near by the temple prior to commission of offences and thereafter, going from the temple immediately after 19 commission of offence, theft of MO.5 to MO.7 and the identification of the same by the complainant and others which clearly establishes the guilt of accused beyond reasonable doubt.
6.1 Further, learned HCGP contends that the prosecution has proved the alleged act of accused no.1 and 2 through the evidence of PW.1 and PW.1 has identified accused No.1 and 2 in the police station. The prosecution has also established the circumstances of seeing the accused no.1 and 2 at the time of coming out of Shanimahatma temple by PW.15 and seeing accused No.1 and 2 prior to commission of offences around Shanimahatma temple by PW.17. It is further contended that the prosecution has also established the circumstances of theft of MO.5 to MO.7 from the temple. The seizure of theft property from Shanimahatma temple at the instance of accused no.1 and 2 and identification of the same by witnesses stating that MO.5 and MO.6 used to decorate to Idol Shanimahatma 20 and MO.7 belongs to the complainant. The Trial Court after taking into consideration all these circumstances had given the inference of conclusive proof of committing the alleged offences by accused No.1 and 2.
6.2 Further learned HCGP contends that the Court below after taking into consideration Ex.P16, FSL report which supports the use of iron rod for commission of offence and also considering the opinion given by the experts has rightly convicted the accused persons for the offences punishable under Section 302, 394 r/w Section 34 of IPC. Hence, seeks for dismissal of the appeal preferred by the appellants / accused as being devoid of merits and the judgment of the Trial Court needs no interference.
7. Having regard to these strenuous contentions taken by the learned counsel for the appellants as well as learned HCGP, it is relevant to take note of the evidence of PW.1 - Veerabhadraiah who is none other than son of deceased Puttappa. He has deposed in his 21 evidence that his father was carrying out livelihood as a priest in Shanimahatma Temple at Rajapura Village and he was also carrying out the same profession. On 28.07.2011 at around 10.30 p.m. in the night hours his father after having meals had slept near the temple and he was sleeping inside the Temple. At around 11.00 p.m he heard screaming sound of his father. He went outside and saw two unknown persons assaulting his father with deadly weapons and also tried to assault him. By that time he escaped and ran towards the village. After that he brought his elder brother CW.8 - Chowdappa @ Pappi near the Temple, by that time the culprits had escaped from that place. Along with him CW.4 - Ravi Kumar and CW.5 - Mahadeva had come near the temple. His father had been assaulted with a chopper and he was unconscious. After that they shifted his father deceased Puttappa in a vehicle to Sparsha Hospital and got admitted. On the same day at 11 p.m. he went to Hebbagodi Police Station and lodged 22 a complaint which was marked as Ex.P1 and his signature is marked at Ex.P1(a). On the same day at midnight hours he came to know from the doctors of the hospital that his father has died. On 29.07.2011 at 7.30 a.m. P.W.16, CPI - Yalagaiah of Hebbagodi Police and concerned police staff came there and drew the spot mahazar as per Ex.P2. The blood stains on the floor and the blood stained mud was seized. There was an iron rod nearby the scene of crime which was also seized by the police and they were identified by this witness as MO.1 to MO.4. He has further deposed that after he escaping from the Temple, the silver articles belonging to God Shanimahatma i.e., two silver eyes and two silver mustache and also FORME mobile belonging to him were robbed by accused. After 8 to 9 days of murder of his father, the police had called him to the station and had shown the accused. He had identified them as the persons who had murdered his father. This 23 witness had also identified the silver articles and the mobile.
8. It is relevant to state that, P.W.1 was incisively cross examined by the defense counsel. In the cross-examination he has deposed that he had studied upto B.A. He had stopped going to college from 2007, thereafter, he began to perform pooja at Shaneshwara temple along with his father. The temple was not having gate to the compound wall. He has deposed about performing pooja in the temple and getting income for himself and his father. Further, he has deposed about applying blood to the clothes of persons who have shifted to deceased Puttappa. He has admitted that he has not stated the identification marks of two such persons in Ex.P1. He was cross-examined about the description of the temple and a suggestion was made that himself and his father deceased Puttappa have not gone to the temple but he had denied 24 the same. The court below after taking into consideration the entire cross examination of PW.1 had come to the conclusion that accused No.1 and 2 have not disputed the evidence given by PW.1 to the effect that he had identified the culprits and the involvement of accused in the said incident. But the court below failed to consider that part of the evidence of PW.1 who is a crucial witness to the case of prosecution that he had not mentioned about the identification descriptions of accused no.1 and 2 in Ex.P1 but he only identified the accused in the police station.
9. Further in the cross examination he had admitted that his father had habit of consuming alcohol. He denied the suggestion that on the fateful day, his father deceased Puttappa had consumed alcohol due to which he fell in temple and sustained injuries to his head, When his father did not come to home, he went in search of his father and saw that his 25 father was lying unconscious and that time no one was there with him.
10. Learned counsel for the appellants has meticulously taken a counter to the contention that relating to identification of Accused no.1 and 2 said to be entering into the scene of crime on 18.07.2011 with an intention to rob the silver articles such as silver mustache and silver eyes of god Shanimahatma, therefore, it is implied that it was a murder for gain. But, there is a dispute with regard to identification of culprits/accused entering the sanctorum of Shanimahatma temple where the deceased Puttappa was priest.
11. PW.3-Mahadev, PW.4-Babu, PW.5- Chowdappa @ Pappi, PW.6 - M.Ravi and PW.7 - Suresh have deposed in their evidence that they heard about the assault made to deceased Puttappa and they had gone to Sparsha hospital and found injuries on the head 26 of deceased Puttappa. They have also deposed that on account of the said injuries, Puttappa died. But, they are not eyewitnesses to the incident and they are hearsay witness. The Trial Court by taking into consideration the oral evidence of PW.1 and PW.3 to PW.7 has come to a conclusion that the evidence of these witnesses clearly shows about the homicidal death of deceased Puttappa, but the Trial Court failed to consider the cross-examination of these witnesses about not witnessing the alleged incident, but only relying on the evidence of PW.1, came to the conclusion that it was homicidal death by the accused persons.
12. PW.15 - Ravikumar is the material witness to the case of the prosecution and the prosecution has relied on his evidence for last seen of the presence of the accused near the temple while they were proceeding by carrying a bag. He has deposed that he was returning after the duty at 11 p.m. on his motor cycle and at that 27 time he saw two unknown persons walking on the road by carrying a gunny bag on their shoulder near the temple. He was called by the IO on 30.07.2011 to identify the culprits/accused and he had identified them at the police station. But in the cross-examination he has admitted that he did not talk with those accused persons. He has deposed that during the relevant point of time he was working as feeding helper in Srishakti Factory in the second shift. He was driving his motor cycle at the speed of 30 to 40 kms per hour. He has stated that he did not talk to those two persons and they were carrying a gunny bag. He denied the suggestion that there was no electricity. A suggestion was put to him that there was no possibility of identifying the accused at late night. He did not state the presence of PW.1, 4 to 7 at the temple at the relevant time. He could not see the face of the accused persons while he was driving the vehicle at the speed of 30 to 40 kms per hour. He did not say about the 28 moving of the deceased Puttappa to the hospital. It appears that there are clouds of doubts in the theory as projected by the prosecution. The Trial Court while considering the entire evidence of this crucial witness - PW.15, erred in noticing the discrepancies and also the inconsistency and deviation from his earlier police statement and this contention does not hold any substance to call for interference.
13. It is relevant to note here that prosecution has relied on the deposition of PW.17 - Yellappa. He has stated about causing theft of agricultural materials kept in the pump house of his land and 2 ½ years back on the day of the incident, he had seen accused No.1 and 2 at about 8.30 p.m. moving on the side of the road near Shanimahatma temple, prior to the day of incident, he had seen accused no.1 and 2 working along with linemen to remove the falling of tree. He has identified that MO.1 (iron rod) belongs to him and the same was 29 robbed. He has further stated that he is not able to say the colour of the clothes worn by accused no.1 and 2. In the cross-examination he had admitted that he did not lodge the complaint about the theft of agricultural implements in his pump house. He could not say the description of the accused persons. The Trial Court had not appreciated the major discrepancies in his evidence in proper perspective. The court below has failed to notice that this witness has completely deviated and contradicted from his police statement. These contradictions and improvements have not been appreciated by the trial Court in a proper perspective manner. However, accused have used M.O.1 - iron rod and assaulted on the vital parts of the deceased Puttappa and caused injuries as indicated in PM report as per Ex.P.7. Therefore, the evidence of prosecution cannot be brushed aside.
14. PW.12 - Dr.K.T.Venkatesh has stated that he is working as a Medical Officer in Anekal 30 Government Hospital. On 19.07.2011, Hebbagodi police had sent the dead body of Puttappa for autopsy. Accordingly, on the afternoon of 19.07.2011 he had conducted autopsy over the dead body. He has noticed injuries over right ear upper part helix of far cut by an incised wound measuring 2" length ½" depth. Eloltic cartilage of upper part of helix is cut and the wound was horizontally placed. Incised wound in right cheek bone measuring 2 x 3 entering the maxillary root of maxilla. The injury was bony depth. He has given opinion in the PM report at Ex.P-7 that cause of death is due to shock and haemorrhage as a result of injury to head and associated facial and ear injuries sustained. Injuries No.1, 2 and 3 are of grievous in nature and anti-mortem in nature. In his evidence he has deposed that the IO has not produced any weapons for having subjected to examination relating to the corresponding injuries. In the cross-examination he has denied that the injuries mentioned in Ex.P7 might be caused if any person falls 31 on hard and blunt object. This witness was incisively cross-examined by the defense counsel but nothing worthwhile was elicited in his evidence to disbelieve in so far as injuries inflicted on the person of deceased Puttappa.
15. M.O.5 - two silver eyes, M.O.6 - silver mustache and M.O.7 - FORME mobile are the important materials said to be seized by the IO during the course of the investigation which were stolen by the culprits/accused on 18.07.2011 at around 10.30. p.m. where the accused had committed murder for gain. PW.11 - Nagesh during the course of cross examination has deposed that M.O.5 to 7 were shown by the police to him but he do not know as to who drew the Ex.P6 - seizure panchanama and he cannot say anything about that. He has stated that he could not disclose the identity of the accused and identity of the mobile shown by the police and he could not say other details of the 32 mobile. He has stated that the mahazar was drawn in the morning 6.30 AM to 7.30 AM contradicting the contents in Ex.P6. Hence, it is required to be appreciated in a proper perspective manner with regard to evidence of PW.11 and so also the fulcrum of Ex.P2 - spot panchanama said to be drawn in the presence of panch witnesses. The Trial Court inspite of such discrepancies has relied on the evidence of PW.11 and has observed that the prosecution had proved the case beyond reasonable doubt.
16. P.W.16 is the IO who has investigated the case by visiting to the spot. He had drawn spot panchanama as per Ex.P.2 and seized M.O.1 to M.O.4 under the said panchanama. He had also drawn the hand sketch map of the said spot. Further he had secured dog squad and handwriting experts and submitted the seized properties under PF No.242/2011 to the Court. He had also visited to the Sparsha 33 Hospital and drawn up the inquest panchanama. He has recorded the statements of CW.8 and CW.12 and supplementary statements of complainant on the same day and has recorded statements of CW.4 to CW.6, CW.18 and CW.19. He also secured mobile call sheet and on the basis of the said call sheet, he had instructed CW.25 and other staff members to search accused no.1 and 2 and on 27.07.2011, CW.25 and other members apprehended accused no.1 and 2 and produced before PW.16.
17. PW-16, the IO has stated that after production of accused No.1 and 2 on 27.07.2011 he has recorded confession statements of accused no.1 and 2 as per Ex.P13 and Ex.P14. He has stated that M.O.1 was not disclosed in Ex.P1 and PW.1 has not produced any document to prove that theft of articles belonging to him. The call details were obtained from his superior but not from the service provider. He has further stated 34 that he had called panch witnesses to the police station and seized the mobile from the possession of accused No.1 under Ex.P6. PW.11 - Y.Nagesh has stated that on 17.07.2011 police had called him to the police station and found one mobile set i.e., MO.7 with accused no.1 and police had taken the same. But he has shown ignorance about sim number and colour of clothes worn by accused and who had written Ex.P6. But the court below failed in appreciating this evidence by opining that if the said ignorance is taken into consideration, they do not come in the way to disbelieve the evidence of PW.11 though he has stated that accused No.1 has produced silver mustache of God Shanimahatma that was not seized under Ex.P6.
18. PW.16 has stated that he has produced the accused before the Court and taken to custody till 03.08.2011. Further he has stated that on 29.07.2011 accused no.1 and 2 took him and panch witnesses to 35 their house situated at Chennakeshava Swamy layout and produced one chopper, silver mustache and silver eyes of God Shanimahathma and has seized under panchanama, but the seizure of M.O.5, M.O.6 and M.O.11 under panchanama at Ex.P5 have been denied. PW.8 - N.Narasimhaiah has stated that on 29.07.2011 accused No.1 and 2 brought the CPI to their house and gave two silver eyes, one silver mustache and one chopper and a mobile and the CPI had seized the same. PW.16 has stated that he had not seized the bed, pillow and blanket which were used by the deceased lying at scene of crime which is contrary to the evidence of PW.1, that the stained bed, pillow and blanket were to taken to the hospital along with the deceased but were not produced before the police. He has stated that those items were not stained. The incident occurred away from the bed and he did not record the statement of the doctor first attended to the deceased at Sparsh Hospital. The Trial Court has not considered all these 36 admissions made by the IO in his cross examination and erred in convicting the accused persons.
19. The court below failed to notice that all the witnesses are related and interested witnesses and as such their evidence could not have been relied to prove the offences alleged against accused No.1 and 2. The court below has failed to appreciate that where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and that full chain of circumstances is to be proved by the prosecution beyond reasonable doubt.
20. Ex.P16 is the FSL report. PW.16 has stated that M.O.1 - iron rod, M.O.2 - blood clot tile piece, M.O.3-Blood stained mud and M.O.4 - sample mud were sent to FSL. The opinion given was that blood group was "O" blood group. It is contended that the 37 blood stains of "O" group found in the M.O.1 could not be conclusively proved that "O" group belong to the deceased. Because of complainant - PW.1 has not deposed the use of M.O.1 for assaulting the deceased, the prosecution has failed to prove the case of assault by M.O.1 - Iron rod beyond reasonable doubt.
21. Further the court below has failed to notice that there is delay in filing the complaint and on going through FIR, it shows that the incident occurred on 18.07.2011 at around 10.30 p.m. but Ex.P1-complaint is filed on 19.07.2011 at about 00.50 hours. Further, the court below has failed to notice that there was no intention to cause murder of deceased Puttappa by accused No.1 and 2 and it is the case of prosecution that causing of murder of deceased is for the purpose of robbery of ornaments of the God Shanimahatma. Even there was no motive, but it was a murder for gain. The contention of the accused is that theory as projected by 38 the prosecution is unbelievable one. Though there was hundi box, accused No.1 and 2 have not robbed the said hundi box and the value of M.O.5 - Two silver eyes and M.O.6- silver mustache is not more than Rs.300/-. If the motive of the accused was only robbery, they could have robbed the valuables of the temple without notice to the deceased who was sleeping outside the temple near the compound wall. Even PW.1- complainant has admitted that no articles were taken away in his presence.
22. M.O.7 is the mobile phone said to be seized by the IO during the course of investigation. It was robbed by the accused from the possession of PW.1. But the prosecution has not put forth any evidence as to how that M.O.7 - Mobile belonging to the complainant came into the possession of accused no.1 and 2. The Trial Court has not observed the ingredients of Section 27 of the Evidence Act relating to discovery as 39 well as recovery. Discovery as well as recovery in respect of M.O.5 to M.O.7 are important. The complainant had reported missing of his mobile to the IO. He had not explained the discrepancy of two mobiles since IO did not ask for it and the I.O. had also admitted that he did not insist for such document. Therefore, the prosecution had not proved beyond reasonable doubt that M.Os.5 to 7 belong to PW.1 and those articles were robbed by the accused. The trial Court has not properly appreciated this evidence adduced by the prosecution that theft of M.O.5 to 7 and ownership of those items were proved beyond reasonable doubt by the prosecution.
23. At a cursory glance of the cross-examination of all these witnesses, it is relevant to state that prosecution relied on evidence of PW.1, 4, 6, 7 and 15 to establish the guilt of accused. On 18.07.2011 at about 10.30 p.m. the culprits/accused said to have entered 40 the premises of Shanimahatma temple with an intention to rob M.O.5 and M.O.6. Whereas learned counsel for the appellants who has strenuously taken a contention that there was no intention to commit murder of deceased - Puttappa by accused no.1 and 2 as in the theory projected by the prosecution relating to heinous offence under Section 302 IPC. It is important to note at this stage that the culprits said to have assaulted the deceased on his vital parts with means of iron rod with an intention to rob the silver articles of god Shanimahatma i.e. M.O.5 and 6. Whereas in totality of evidence of PW.1 and PW.15 said to be the last seen theory as accused entering into the sanctorum of God Shanimahatma temple was very much required to be appreciated. This elementary factor has not been considered by placing cogent, consistent and corroborative evidence to probabalise that the accused have committed murder for gain. The court below has 41 failed to notice the material contradictions in the evidence of prosecution witnesses.
24. It is seen from the records that, after closure of the evidence on prosecution side, statement of the accused Nos. 1 & 2 under Section 313 of Cr.P.C. was recorded and when the case was posted for arguments, the learned public prosecutor has filed an application under Section216 of Cr.P.C. for alteration of charge and accordingly, the trial Court ordered to frame altered charge for the offences punishable under Sections 302, 394 r/w 34 of IPC. After framing altered charge, the public prosecutor and the counsel for the accused have submitted joint memo stating that they are adopting the same evidence adduced by the prosecution and cross- examination made by the counsel for Accused Nos. 1 & 2 and thereafter, submitted that they have no further evidence and further cross examination, as already statement of accused - 1 & 2 have been recorded. 42
25. After hearing the learned counsel for the appellant and the learned Addl. SPP and also on going through the materials available on record, we have noticed some contradictions and discrepancies in the evidence of the prosecution witnesses. In that regard, what we have noticed that, PW.1-Veerabhadraiah, who is the son of the deceased was the only eyewitness to the incident and who lodged the FIR and he is the main witness. He states that, he do not know the purpose of the accused entering the temple and also the reason for assaulting his father and he states that the culprits are unknown to him and they have assaulted the deceased with an iron rod. It is noticed from the records that, the iron rod was not produced before the Doctor (PW.12) who conducted the Post-Mortem examination to secure his opinion about the injuries sustained by the deceased on his head. Further, PW.1 states that he does not know the intention of the accused in 43 assaulting the deceased and in his evidence he did not give detailed description of the personality of the unknown persons in Ex.P1 and he also does not know about the availability of sufficient electricity supply in and around the place of incident so that he could identify the culprits, as the incident has occurred in the dark at night hours. These are all the lapses on the part of the prosecution in proving the guilt of the accused. Further, it is noticed that the Investigating Officer did not conduct Test Identification Parade to identify the accused as the alleged incident was occurred in the night hours and the accused were not known to the complainant and even though there was little chance to see the face of the culprits, as he was panic, he ran away from the temple to escape from the accused and there was no independent pancha while identifying the accused at the Police station and the complainant has not seen the accused ever before the incident in question. Therefore, non-proving of 44 identification of the accused is fatal to the prosecution case. Further, the Investigating Officer has not stated the particulars of the articles in the spot mahazar and even after thorough search of the spot of incident with the help of the dog squad and finger print experts, he could not get any incriminating material; Further, though PW.1 states that his mobile, one Mustache and two eyes of idol Shanimahathma were stolen, he did not produce any relevant material to prove that those items belong to him and moreover he states that he did not see the accused carrying away those items with them. Hence, it cannot be said that those articles were stolen away by the accused; Further, PW.1 states that his mobile was stolen but he gives his another contact No. as 9901019188. but, he did not explain the discrepancy of two mobile phones being possessed by him. The Investigating Officer also does not insist for production of any such document. Moreover, PW.1 only suspects that the items missing might have been taken away by 45 the accused and the trial Court has also not appreciated properly the evidence adduced by prosecution regarding theft of MOs. 5, 6 & 7 and ownership of those items were not proved beyond reasonable doubt.
26. Further, PW.5 is the elder son of the deceased and brother of PW.1. PW.5 is not an eyewitness and he is only a circumstantial witness as he was informed about the incident by PW.1 and PWs. 4, 6 & 7 are relatives of PW.1 and they deposed about the presence of PW.1 and his deceased father in the temple on the basis of the statement of PW.1. In the deposition of the above said witnesses, there are several inconsistencies, omissions and improvements, which were not appreciated by the trial court in a proper perspective manner.
27. Further, PW.15 is the witness for last seen of the presence of the accused near the temple. He states that when he was returning after duty at 11.00 46 p.m. on his motor cycle and at that time he saw two unknown persons walking on the road by carrying a gunny bag on their shoulder near the temple and he was called by the Police to identify the culprits. During his cross examination, he states that he did not talk to those unknown persons and when he was suggested regarding identifying those unknown persons at that late night, he stated that there was no electricity supply in the village at that time and he could not see the face of the accused while he was driving the vehicle, as it was in the speed of 30 to 40 Kms. Even he did not say about shifting of deceased puttappa to the hospital. Therefore, prima facie one can find much inconsistency in his deposition.
28. Further, PW.17, who is stated to be the witness for the last seen of the accused near the incidental place and though in his examination in chief he states that he had seen the accused working along 47 with line man in removing the falling tree and he identified MO.1 as belong to him and it was missing from his pump house, but in the cross-examination, he admits that he did not lodge any police complaint regarding theft of agricultural implements at his pump house and he also admits that there was darkness in and around the area on the date of incident because of falling of big tree on the electric pole and he could not identify MO.1 and admits that such MO.1 will be available in plenty in the open market. Therefore, there are also some discrepancies in the evidence of this witness.
29. Further, PW.13 is a Police Constable and a suggestion was made to him that he secured the details of the accused from the records of petty cases pending against the accused persons and brought them to the Police Station and falsely implicated them in the aforesaid case. It shows that, when there is no proper 48 incriminating materials pertaining to this particular case, arrest of the accused for the alleged offences is beyond reasonable doubt. Further, PW.16 is said to have taken confessional statements from the accused as per Exs. 13 & 14 leading to discovery of facts. He deposed that the accused have confessed about the incident and that they would show the place of incident and theft articles. He states that, panchas to Ex.P6 were not examined by the prosecution, which is a major discrepancy. Futher, PW.8 deposed that, he was not called to the Police station and he was called directly to the house of the accused and the accused have produced not only MOs. 5, 6 but also MO.11 and Mo.7, which is contrary to disclosure of facts as per Ex.P5. Though PW.8 states that the said articles have been sealed in his presence, but the IO deposes that they have not sealed MOs. and they were shown to the other witness for identification at the Police station. It was stated that MOs. 5 & 6 were weighted on the spot, but 49 PW.8 deposes that they were not weighed in his presence. The trial court merely observed that the prosecution has proved recovery as per Ex.P5 and P6 and the accused have not explained the possession of the articles and also it was not known how the blood stains were found on the incidental site when the Investigating Officer had not shown the incident place where the deceased was allegedly assaulted by the accused. These are also the major discrepancies found in the prosecution evidence. Despite of this, the accused have stated in their 313 statement that on 27.07.2011 they were resting in their house and they were forcibly taken to the Police station and thereafter they were arrested for the alleged crime and ever since they are in jail.
30. After hearing the learned counsel for the appellant and also the learned Addl. SPP, and also meticulously going through the oral and documentary 50 evidence available on record, we are of the opinion that, the prosecution has failed to establish its case. Because, though the prosecution has relied upon the evidence of PW.1, who is stated to be the eye witness to the incident and PW.3 to 7 and PW.15 and also CW.4 and CW.5 and Material Objects, as argued by the learned counsel for the appellant, there are some contradictions and discrepancies in respect of proving the case against the accused and the main witness, who is stated to be the son of the deceased and who is stated to be an eyewitness to the incident, has not seen the accused assaulting the deceased and only after he hears screaming noise he rushes to the spot which was about 55 mts. from the place of his stay and the culprits have already escaped in the darkness. There is no corroboration in the evidence of the main prosecution witnesses and the case of the prosecution. Therefore, we are of the opinion that the prosecution has not made out its case beyond reasonable doubt. The trial Court 51 also not properly appreciated the oral and documentary evidence adduced and produced on both sides. Therefore, the impugned judgment of conviction calls for interference by this court. In the facts and circumstances of the case, we hold that the accused is entitled for acquittal on the ground of benefit of doubt. Accordingly, we proceed to pass the following order:-
ORDER The appeal is allowed. Consequently, the judgment of Conviction dated 24.06.2014 and Order of Sentence dated 25.06.2014 passed by the III Additional District and Sessions Judge, Bengaluru Rural District, in S.C. No.338/2011, are hereby set aside. The appellant No.1- Kumar @ Nagesh (A1) and Appellant No.2 : Venkatesh (A2) are hereby acquitted of the offences punishable under Sections 302 and 394 r/w. 34 of IPC As the said Appellants/accused Nos. 1 & 2 are stated to have been in judicial custody since the date of their arrest, they are ordered 52 to be set at liberty, forthwith, if they are not required in any other case.
Fine amount, if any is deposited by the Appellants/accused-1 & 2, the same shall be refunded to them, on proper acknowledgement.
The office is hereby directed to intimate this order to the concerned Jail Authority, forthwith, for compliance.
Sd/-
JUDGE Sd/-
JUDGE DKB/KGR