Karnataka High Court
Prl.Session Judge Raichur vs Sri. Siddanna S/O Basappa Illiger on 5 December, 2017
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF DECEMBER 2017
PRESENT
THE HON'BLE MRS. JUSTICE RATHNAKALA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRL.R.C.NO.200001/2017
C/W
CRIMINAL APPEAL No.3623/2012
CRL.R.C.No.200001/2017:
BETWEEN:
The Additional Registrar General,
High Court of Karnataka,
Kalaburagi.
... Appellant
(By Sri Prakash Yeli, Addl. S.P.P.)
AND:
Siddanna S/o Basappa Iliger
Age 36 years, Occ. Agriculture,
2
R/o Rudgi Village, Tq. Muddebihal,
Dist. Bijapur.
... Respondent
(By Sri Avinash A.Uplaonkar, Advocate)
This Criminal Referred Case is filed under
Section 366(1) of Code of Criminal Procedure for
confirmation of death sentence awarded to accused No.1 -
Siddanna S/o Basappa Iliger by the judgment of conviction
dated 30.06.2012 and order of conviction dated
02.07.2012 passed in Sessions Case No.36/2009 by the
Principal District and Sessions Judge, Raichur, for the
offence punishable under Section 302 of Indian Penal
Code.
CRL.A.No.3623/2012 :
BETWEEN:
Siddanna S/o Basappa Iliger
Age 36 years, Occ. Agriculture,
R/o Rudgi Village, Tq. Muddebihal,
Dist. Bijapur.
... Appellant
(By Sri Avinash A.Uplaonkar, Advocate)
AND:
The State of Karnataka
Mudgal Police Station,
District Raichur.
... Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
3
This Criminal Appeal is filed under Section 374(2) of
Code of Criminal Procedure praying to set aside the
judgment passed by the learned Principal Sessions Judge
at Raichur in Sessions Case No.36/2009, convicting the
accused/appellant punishable under Section 302 of Indian
Penal Code.
This Criminal Referred Case as well as the Criminal
Appeal having been heard, reserved for judgment on
22.11.2017 and coming on for pronouncement of
judgment this day, Rathnakala J., delivered the
following:-
JUDGMENT
This criminal appeal and reference case arise from the judgment of conviction and sentence passed by the Principal Sessions Judge, Raichur in convicting the respondent / accused for the offence punishable under Section 302 of Indian Penal Code (hereinafter referred to 'I.P.C' for short) and sentencing him to death; while Crl.A.No.3623/2012 is by the accused challenging the judgment of conviction and sentence Crl.R.C.No.200001/2017 is under Section 413 of Criminal Procedure Code (hereinafter referred to 'Cr.P.C' for short) seeking confirmation of sentence of death. 4
2. The appellant in Crl.A.No.3623/2012 (hereinafter referred to accused) along with three others, was charge sheeted by the Mudgal Police for the offences punishable under Section 302, 392, 201 read with Section 34 of I.P.C. Since, accused No.3 was absconding his case was split-up. Accused Nos.1, 2 and 4 were brought to trial. After committal of the case, the Sessions Judge framed charges for the above said offences and accused pleaded not guilty.
3. The prosecution entered into trial examined twenty three witnesses as P.Ws.1 to 23 and marked documents Exs.P.1 to P.26. Ten material objections were also marked. The statement of the accused under Section 313 of Cr.P.C was recorded and they denied the incriminating circumstances appearing in the evidence of prosecution witnesses; they did not adduce rebuttal evidence.
4. After giving its audience to both sides, the Sessions Court acquitted accused Nos.1 and 4 from the 5 charges and convicted accused No.1 for the offence punishable under Section 302 of I.P.C. However, acquitted him in respect of the offence punishable under Section 392 and 201 of I.P.C.
5. The case of the prosecution is that on 18.02.2008 at about 9.30 p.m. Shivakumar Hiremath was waiting for some conveyance at Tavaragera bus stand to go over to Lingasugur. At that time, Tata Sumo vehicle bearing Reg.No.KA-29-M-728, of which accused were the inmates arrived there and picked up the victim on the pretext of dropping him at Lingasugur. After travelling for sometime accused Nos.1 and 2 strangulated the victim with a rope, at that time accused No.3 was arresting his legs and accused No.4 was driving the vehicle. After committing his murder, they extracted his Nokia Mobile phone and cash of Rs.3,000/- and threw away the dead body under a bridge near the land of Rudrappa Kanasavi at Piklihal Village. The dead body was noticed on the next day morning by the villagers and a complaint was registered by 6 the Mudgal Police Station. Since nobody identified the dead body, it was buried and two days after, the wife of the deceased went to the police station identified the belongings and the photographs of the dead person as that of her husband.
6. Sri Avinash A.Uploankar, learned counsel appearing for the accused submits that evidence adduced by the prosecution witnesses were not appreciated from a proper perspective. The evidence was fraught with omissions and contradictions. In fact case was registered against un-known culprits and on the basis of the mobile call details only, the accused were arrested. There is no direct evidence to the incident. As per the call details, the accused herein used the mobile from 20.02.2008 to 29.02.2008 and there is no record in respect of in between two days. The appellant in fact is not the authorized subscriber identity module (SIM) holder. None of the independent witnesses have identified him. Hence, his conviction is illegal and same may be set-aside. 7
7. The learned Additional State Public Prosecutor seeks to maintain the judgment of conviction and to accord permission to execute the sentence.
8. We have gone through the impugned judgment viz-a-viz the evidence placed before the learned Sessions Judge. Though 23 witnesses were examined for the prosecution out of them the incrementing evidence emerges from the recovery mahazar Ex.P.22 in respect of recovery of the mobile M.O.No.8 from P.W.11, on the voluntary statement of the accused as per Ex.P.22. The prosecution has made effort to establish nexus between the said mobile to the accused through the evidence of P.W.23 the Nodal Officer of Airtel Service Provider Company, who produced the call details/ Ex.P.20 pertaining to incoming and out going calls from the seized mobile set- M.O.No.8 with IMEI Set No.354350005140100.
9. During trial as per the compromise culture which is spreading its root in our society the panch witnesses including the complainant/P.W.1 turned hostile 8 to the prosecution case, the complainant went to the extent of denying, lodging any complaint to the police. However, during his cross-examination by the public prosecutor, on treating him as hostile witness, he admitted his signature on the complaint.
10. P.W.10 was the wife of the deceased who testified to the effect that at that point of time, the deceased was working at Bevoor Village, Koppal District and the family was residing at Lingasugur; he had met her 2-3 days prior to his death. There was no cross- examination to the above evidence.
11. P.W.11 testified that the accused had sold the Nokia mobile phone for Rs.2,000/- to him and he used by using his own SIM card. 2-3 months after the purchase the Maski Police brought the accused to him and he handed over the mobile phone.
12. P.W.23 testified that on the request of the Investigating Officer, he has given the call details Ex.P.19 9 pertaining to in coming and out coming calls of IMEI set No.354350005140100, by use of SIM Nos.9731083853 and 9901172808. The SIM No.9731083853 was under use between 20.02.2008 to 29.02.2008 and the SIM holder is Siddanna Iliger, SIM No.9901172808 is that of Shivakumar and the said SIM was used between 18.02.2008 to 19.02.2008. During cross examination he admits the SIM number in the name of Siddanna Iliger was activated from 25.02.2008.
13. The Investigating Officer had produced evidence that the deceased had applied for leave for two days i.e., on 18th and 19th of February 2008 and 17.02.2008 was a holiday. Though the wife herself did not explain about the movements of her husband prior to 20.02.2008 [she had testified that 2-3 days prior to his death he had met her], the learned Sessions Judge went on to translate his imagination into finding that the deceased on 20.02.2008 was going to Lingasugur since they were residing at Lingasugur and on his return journey 10 to his work place he was murdered near Piklihal Village on the night of 18.02.2008. Actually there was no evidence as to, from where to where he was heading and at what point of time he fell prey to the culprits. On the basis of the seizure mahazar learned Judge further develops the story that the mobile phone of the deceased was picked up by the complainant. Though the police had charged the accused for extortion of Rs.3,000/- from the deceased, Investigating Officer had not traced said amount. The learned Sessions Judge gave-up that portion of the prosecution story assuming that amount might have been spent by the accused. The accused No.2 was alleged to have produced a rope used for strangulating the accused, which was recovered under mahazar Ex.P.11. The place from where the deceased was picked into the Tata Sumo vehicle and place where dead body was disposed as disclosed by the accused were brought to evidence under mahazar Exs.P.11 and P.13. The learned Judge however held that there was no incriminating material against the 11 other accused and proceeded to fasten the entire liability of the incident against the accused herein.
14. The Apex Court in the matter of Anvar P.V. vs. P.K.Basheer and others reported in (2014) 10 Supreme Court Cases 473, held that 'an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied.'
15. Section 65B of the Indian Evidence Act, 1872, reads thus :
"Admissibility of electronic records -
(1) .........any information contained in an electronic record which printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document."12
16. Further the procedure to produce the evidence pertaining to a electronic record is controlled by sub- Section 4, which reads thus :-
"(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of the sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."
17. The call list which impress the trial court to connect the accused to the murder of Shivakumar Hiremath since is a computer generated document, 13 without certification from the authorized officer contemplated sub-Section 4(c) of Section 65-B, it is an admissible in evidence. The eventualities, there is not even a fabric of incriminating evidence against the accused and his conviction for the offence under Section 302 of I.P.C was illegal and unsustainable.
18. From a reading of the order of imposing capital punishment, it is obvious that the Sessions Judge was preoccupied with the notion that the accused was implicated in ten murder cases. We do not understand how such personal information can be translated into black and white without any such evidence being placed before the learned Judge. However, learned counsel for the accused has submitted before us that except the present case no other case is pending against him and he was acquitted of the criminal charges in the previous cases. The impugned Judgment founded on no evidence is most illegal and the accused is liable to be acquitted of the charge under Section 302 of I.P.C for which he is found guilty. 14
Accordingly, appeal is allowed. The judgment of conviction dated 30.06.2012 and sentence dated 02.07.2012 passed by Sessions Judge, Raichur on its file S.C.No.36/2009, is set aside.
Accused No.1 - Siddanna S/o Basappa Iliger is acquitted of the charge under Section 302 of I.P.C. Consequently, reference under Section 366(1) of Cr.P.C seeking confirmation of the death sentence ordered against accused No.1 by the Sessions Judge, Raichur is infructuous and has rejected.
Accused shall be released forthwith from custody if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE sn