Karnataka High Court
Shrimant Maruti @ Maruteppa Pujeri vs The State Of Karnataka on 14 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2697 OF 2013
Between:
Shri Shrimant Maruti @ Maruteppa Pujeri,
Aged about 38 years, Occupation : Agriculture,
R/o Tigadi, Taluk: Gokak,
Dist. Belgaum. ... Appellant
(By Shri. Ashok R Kalyana Shetty, Advocate)
And:
The State of Karnataka,
By its State Public Prosecutor,
Advocate General Office,
High Court Circuit Bench Premises,
Dharwad-560 001. ... Respondent
(By Shri. V.M.Banakar, Addl. SPP)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C seeking to set aside the judgment of conviction and
order of sentence dated 22.4.2013 passed by the III Addl.
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Sessions Judge, Belgaum, in S.C. No. 158/2012 and acquit him
of all the charges.
This Criminal Appeal coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned State Public Prosecutor.
2. The appellant was the accused who was accused of offences punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity), and Sections 30 and 25 of the Indian Arms Act, 1959 and has been convicted and sentenced to imprisonment for life and to pay a fine of Rs.10,000/- for the offence under Section 302 IPC and also for rigorous imprisonment for six months and to pay a fine of Rs.1,000/- for the offence punishable under Section 30 of the Arms Act. It is that which is under challenge in the present appeal.
The case of the prosecution was that one Anand Maruti @ Maruteppa Pujeri was the brother of the appellant. They were residents of Tigadi Village, Gokak Taluk. They were the :3: two brothers of several others in the family. It transpires that about 10 years prior to the complaint, Anand Maruti - deceased, the appellant and other brothers were all jointly residing under the same roof.
It is alleged that the accused is said to have developed an ill-will against the deceased on the ground that the deceased was having an illicit relationship with his wife Ningavva and therefore the accused along with his wife, started residing separately and the deceased along with his wife Mayawwa was also residing separately, in spite of which there continued some minor disputes between them on and off. It is further stated that the deceased had started a Flour Mill at Tigadi village and was doing well in running the flour mill, which had made the accused jealous and it fuelled his ill-will even further and there used to be frequent quarrels on account of such ill-will. It is claimed that on 1.1.2012 at about 10.00 p.m. when the deceased after having had his dinner came out of the house in front of his flour mill, at which time his wife Mayawwa was engaged in running the flour mill, the accused is said to have come there :4: armed with a revolver and had suddenly shot at the deceased at close range as a result of which the deceased had sustained injuries and had fallen to the ground. Hearing the sound of firing, Mayawwa and others who were present in the flour mill had come out to witness the deceased having fallen to the ground and the accused standing by and it is Mayawwa and others who had immediately rushed the injured Anand Maruti to Gokak for medical treatment and he was taken to the Ganga Surgical and Fracture Clinic for treatment. One Dr. Maheshkumar Gurumurteppa Umarani, an Orthopaedic Surgeon had admitted the deceased to hospital at about 12.47 a.m. on 2.1.2012. He had then issued a Medico Legal case letter dated 2.1.2012 addressed to the Kulgod Police Station in respect of the admission of the deceased for injuries in his hospital. The Police Sub-Inspector is said to have received the same at about 1.00 a.m., namely within 13 minutes from the time of issuance and it transpires that the deceased was subjected to a CT scan and he was said to be conscious at the time of such examination. But however, his condition was said :5: to be critical. The police Sub-Inspector who had received intimation about the incident and the admission of the deceased to the hospital as aforesaid, had called upon Dr. Umarani to give an opinion regarding the state of mind of the deceased to make a statement as to the manner in which the injuries had been caused to him. Dr. Umarani is said to have certified that the patient was fit to give statement. Thereafter, the Police Sub-Inspector is said to have approached the Tahsildar and Taluk Executive Magistrate by making a request at about 1.30 a.m. calling upon him to go over to the hospital and record the dying declaration of Anand Maruti, who was in a critical condition. The Tahsildar and Taluk Executive Magistrate, Gokak, on reciept of such a request, had rushed to the hospital and had again met Dr. Umarani and had requested him over again to certify the fit condition of the injured to give a statement. The doctor is said to have made an endorsement as per Exhibit P-55(a), that Anand Maruti is in a fit condition to make a statement. It is then that the Taluk Executive Magistrate is said to have recorded the dying declaration of :6: Anand Maruti in the question - answer format as per Exhibit P-
56. This was also in the presence of Dr. Umarani. Incidentally, the Police Sub-Inspector had also recorded the statement of Anand Maruti as per Exhibit P-43 upon Dr. Umarani having endorsed that he was in a fit condition to make a statement. It is thereafter that the PSI had returned to the Police Station at about 4.00 a.m. on 2.1.2012 and registered a case in Crime No.3/2012 for an offence punishable under Section 307 IPC as also under Section 25 of the Arms Act, as per Exhibit P-42 and thereafter had proceeded to carry out further investigation of the place where the incident is said to have occurred, and recorded statements of witnesses. Anand Maruti in the meanwhile, is said to have undergone surgery conducted by Dr. Umarani with the assistance of Dr. Vrushab Patil. However, Anand Maruti is said to have succumbed to the injuries at about 10 p.m. on 2.1.2012. Consequently, the case which had been registered for an offence punishable under section 307 IPC was altered to include Section 302 IPC and further investigation was thereafter carried on. It is in this manner that on the basis of the :7: dying declaration and statements of other witnesses, the accused was brought to book and the case having proceeded further, he had stood trial and had pleaded not guilty and claimed to be tried. The prosecution thereafter had examined 34 witnesses and had got marked Exhibits P1 to P79 and material objects No.1 to 10. After completion of the trial and recording of the statements of the accused under Section 313 Cr.P.C., 1973, the Sessions court had framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubts that on 1.1.2012 at about 10.00 p.m., at and in front of flour-mill house of deceased-Anand Maruti @ Maruteppa Pujeri, situated at Tigadi Village, the accused-
Srimant Maruti @ Maruteppa Pujeri in order to commit murder of Anand Maruti Pujeri, fired six rounds through his revolver and caused bullet injuries on the left and right side of the stomach, chest and also left palm of the said Anand Maruti Pujeri and the said deceased died on 2.1.2012 in consequence of the above bullet :8: injuries and thereby the accused committed offence punishable under Section 302 of the Indian Penal Code, as alleged?
2. Whether the prosecution further proves beyond all reasonable doubts that, the accused used the Material Object No.5-licensed revolver No.105101342, RFI-IN-2010 with licence number DC-III/935/GKK illegally in order to commit the murder of deceased-Anand Maruti @ Maruteppa Pujeri on 1.1.2012 at 10.00 p.m., at the flour-mill of the deceased of Tigadi Village and thereby violated the conditions of the license and thus, committed offence punishable under Section 30 of the Indian Arms Act, as alleged?
3. Whether the prosecution further proves beyond all reasonable doubts that this accused held possession of country pistol marked as Material Object No.8 and Material Object No.9-four live cartridges (KF 765) without holding any documents illegally at his house situated at Tigadi Village and thereby the accused committed offence punishable under Section 25 of the Indian Arms Act, as alleged?
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4. What is the final order in respect of disposal of the Material Object Nos. 1 and 10?
The Trial court held Point No.1 and 2 in the affirmative, Point No.3 in the negative and has convicted and sentenced the accused as aforesaid. It is that which is under challenge in the present appeal.
The learned counsel for the appellant would point out that on a plain perusal of the record, it is evident that the prosecution has failed to establish the case against the accused and the infirmities which are present has been completely overlooked by the Trial Court. As for instance, it was the case of the prosecution that the injured victim was admitted to a private hospital by Yallappa Pujari and others. However, the wound certificate of Dr. Umarani - PW-20, has named the appellant as the assailant and the cause for the fire arm injury sustained by the deceased was on account of the appellant, and his name does not figure. The say of PW-33, the Police Sub- Inspector that he had received a phone call and he had been informed that the assailant was the present appellant, is not : 10 : trustworthy, especially when the name of such informant is not forthcoming and when such information has not been treated as the first information in spite of the said information constituting a cognizable offence having been committed. Such information would provide sufficient ground for treating the information as the commission of a cognizable offence. Further, it is pointed out that Mayawwa - PW-9, the wife of the deceased was examined as an eye-witness to the incident. But, she has not supported the case of the prosecution and significantly, has not named the appellant as the assailant. In the cross-examination, nothing is elicited though she was treated as a hostile witness to establish that the appellant was the assailant. On the other hand, it is seen from the very cross-examination conducted by the prosecution insofar as PW-9 is concerned, it is elicited that she was not even present at the scene and that she was informed of the incident when she was at her home. This would indicate that the prosecution had not sought to establish its case through any genuine evidence. This is also evident from the testimony of PWs 10 and 12 who were examined as independent : 11 : witnesses who have also failed to support the case of the prosecution and they have even denied the place of incident or of having seen the alleged firing of the fire arm by the appellant. Therefore, the very presence of PWs 9 to 12 who were the key eye-witnesses as alleged by the prosecution, have failed to prove the case of the prosecution. Therefore, it can safely be concluded that there were no eye-witnesses to the incident.
Insofar as PWs 13 to 15 are concerned, they were not said to be eye-witnesses to the incident and they have also denied that they had learnt about the appellant having committed the murder of the deceased. It would be illogical to contend that they had received information through the eye- witnesses, when it is established that there were no eye- witnesses to the incident or the so-called eye-witnesses had resiled from their statements as to having been eye-witnesses. Further, insofar as the alleged incriminating material is concerned, a blood-stained shirt belonging to the appellant was said to have been seized and it was further claimed that he had : 12 : made an extra-judicial confession before PW-16 and PW-17 who were said to be from a different village and which did not stand proved, as those witnesses had denied that the appellant was wearing a blood-stained shirt and there was no foundation laid as to why the appellant could even make such a confession before the said witnesses.
Therefore, in the light of those witnesses having denied any such instance of an extra-judicial confession, the prosecution has failed in that regard as well.
It was further alleged that the appellant had removed his blood-stained shirt and the weapon he had used and had kept it in the shed of PW-17. PW-17 has specifically denied this allegation. Therefore, the entire case of the prosecution has been dismantled by virtue of none of the witnesses supporting the case of the prosecution as to the sequence of events or of the involvement of the appellant. It is also difficult to believe that an expensive licenced revolver would be kept in someone else's shed when the idea would be to conceal the same and steps : 13 : taken to ensure that none has an idea of the weapon having been used by the appellant.
It is further contended that the motive alleged was that, earlier the deceased was having an affair with the wife of the appellant and therefore, the appellant and he had constantly quarreled and had ultimately separated and set up their independent houses and later when the deceased again established a Flour mill which flourished, the appellant was jealous of the same and this had fuelled his hatred and illwill against the deceased and therefore had murdered him. This circumstance of an affair in the first instance has been denied by none other than the very wife of the deceased and further, the question of the appellant murdering the deceased since he was flourishing with his flour mill business, would also be illogical, as the appellant would stand to gain nothing by committing the murder of the deceased. Therefore, the motive alleged was clearly an afterthought and for want of a better reason, the same has been flouted merely to frame the accused. : 14 :
Insofar as the enmity or ill-will is concerned, none of the witnesses have spoken about the same. Therefore, the motive alleged was even more diluted in the absence of any evidence in that circumstance. To compound the weakness of the prosecution case, the panch witnesses have not supported the case of the prosecution. Therefore, it cannot be said that even the panchanama was held proved in the absence of the supporting evidence in that regard.
Insofar as the medical evidence of the cause of death or the weapon that was used is concerned, there is no clarity in the evidence that is forthcoming for the reason that no bullets are recovered from the body of the deceased. There were no exit wounds if the deceased had been shot with a revolver of a 0.22 caliber at close range and if the bullets had not exited from the body, it would have been deposited and it was further claimed that the revolver which was used had eight spent bullets which means all of them would have either lodged in the body of the deceased or would have been found in the area if it had missed the target. But, no such evidence was forthcoming, except that : 15 : the Medical certificates at Exhibit P-78 would indicate that what was discerned from a scan of the abdomen of the deceased was that tiny foreign particles were seen in the body, which would indicate that what was observed was not bullets, but possibly pellets and there is confusion as to the kind of weapon that may have been used, for if a revolver was used in the commission of the offence, it is bullets that would have been found and not pellets. It is only a double barrel gun or other gun using cartridges with pellets that would cause injury of depositing minute particles or pellets in the body. Therefore, the cause of the death as to whether it was caused with a revolver or some other weapon, is unclear. Though it is stated that the revolver seized from the possession of the appellant had eight spent bullets in it and that the injury caused would have been possibly caused by the said weapon, the nature of the injuries and the absence of bullets in the body of the deceased, would cause serious doubt as to what kind of weapon was used. Further, it is found that the appellant has been admitted to a private hospital where he underwent treatment overnight after : 16 : having been admitted past midnight on the night of 1.1.2012 and 2.1.2012 and having undergone treatment, it is unusual that the condition in which he was admitted to hospital is not forthcoming from the record.
The learned counsel also brings to the attention of the court that in the course of the evidence of the Medical Practitioner, Dr. Umarani who had provided first aid and treatment along with another Doctor in his private nursing home, had been stopped in the midcourse of his examination- in-chief and the court had specifically directed that the entire medical records pertaining to the deceased should be produced and the matter was adjourned. But, there was no effort made to produce the case-sheet which would have provided complete details of the treatment that was given to the deceased from the time of his admission till the time of his death, which was very crucial insofar as considering the state of mind of the appellant. For the second reason that there are two dying declarations said to have been recorded and in accepting the genuineness or otherwise of the said dying declarations, it would be very : 17 : crucial for the prosecution to have established the state of mind not only by the certification that is forthcoming from the record as issued by the concerned Medical Practitioner, but also the records independently indicating the state of health and condition of the deceased from the time of his admission till the time of his death.
This evidence is sadly not placed before the court below and the Trial Court has completely over-looked this aspect in proceeding to accept that the medical record produced was sufficient proof of the deceased being in a state of mind to make the dying declaration as available on record at Exhibits P-43 and P-56. The learned counsel would point out from Exhibit P- 43 that the tenor of the said dying declaration as recorded by a Head Constable who had prior to recording the same is said to have obtained a certificate from the Medical Practitioner without indicating the time at which it was obtained that the deceased was in a fit state of mind. The response from the said Head Constable in not immediately intimating the Taluk Magistrate who would have been competent to record the dying : 18 : declaration, has proceeded to record a so-called dying declaration. It is pointed out that from the tenor of the said dying declaration, it is evident that it is in the nature of a complaint made in clear terms and unlikely to the made by a person who was seriously injured and was in a critical condition and who had been admitted to hospital after a clear 2 ½ hours after being seriously shot with a fire arm and was profusely bleeding. And the learned counsel would point out that the tenor of the said dying declaration itself would indicate that it is stilted and contrived and clearly a got-up document to frame the accused and could hardly be accepted to be the statement of a dying man or a seriously injured man.
Further, even the Exhibit P-37 is a curious document, namely, it is said to be an intimation of a Medico Legal case sent to the concerned police by the Medical Practitioner, namely Dr. Umarani informing him of the admission of the deceased to the hospital with serious injuries. The same is said to have been received by the police authorities at 1.00 a.m. on 2.1.2012, whereas at the top of the letter, it is evident that it was : 19 : generated only at 2.48 a.m and it is evidently a document that is concocted. It is further established from a seal that is found at the top right hand corner, the date indicating that the document was stamped with a seal indicating the time as 10.00 p.m. on 1.1.2012, which is again an indication that the entire document was concocted for the purpose of creating a record and not a genuine document that discloses the actual sequence of events.
Thereafter, the PSI having intimated the Taluk Executive Magistrate at 1.30 a.m. on 2.1.2012 and the Taluk Executive Magistrate having been galvanized into rushing to the hospital at 1.30 a.m and by 1.45 a.m. he had completed recording the dying declaration, which is in a question-answer format. This the learned counsel would point out, is again a concocted document and the speed with which the intimation has been conveyed to the Taluk Executive Magistrate, his prompt arrival at the hospital and the immediate recording of the dying declaration after obtaining a certification from the Medical Practitioner that the deceased was in a fit state of mind, is difficult to accept as being natural sequence of events. This : 20 : coupled with the manner in which the documents have been created, would completely dislodge the case of the prosecution as to the actual sequence of events.
Further, in the absence of the case sheet, it is difficult to understand as to what is the treatment that the deceased underwent before he succumbed to the injuries. The curious aspect that no bullets were recovered from the body of the deceased even at the post-mortem, is a further lacuna to establish the case of the prosecution beyond all reasonable doubt.
Further, the blood-stained clothes of the deceased with the holes indicating that bullets had pierced through the shirt before embedding themselves through the body of the deceased, was said to have been sent for forensic examination. The report of the Forensic Science Laboratory (FSL) is to the effect that the group of the blood-stain that was found was A Positive, whereas the blood group of the deceased was AB positive, as evident from Exhibit P-77. This again is an infirmity which cannot be reconciled by the prosecution.
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The FSL report also indicates of the puncture holes on the shirt were caused by bullets or a metal projectile and therefore, further emphasizes that it were bullets that had hit the deceased. Since no bullets were said to have been retrieved, the case is one of curiosity and cannot be said that the prosecution had established its case beyond all reasonable doubt. The falsity and suspicion as to the dying declaration said to have been recorded by the PSI being a got up document, is also evident from the evidence of the Medical Practitioner who has candidly stated that the dying declaration recorded by the PSI might have been done elsewhere and not at the hospital. Therefore, from the above circumstances, the learned counsel for the appellant would contend that the prosecution has miserably failed to establish the case against the accused in any respect, not only the motive but the presence of the accused at the spot, the manner in which the deceased had been killed and the manner in which the dying declarations have been recorded or that the death was caused on account of the weapon which was said to have been used by the appellant. The prosecution : 22 : having thus failed in all respects, it is inexplicable that the court below has held that the prosecution had established its case beyond all reasonable doubt and hence seeks that the appeal be allowed and the appellant be acquitted.
Though the learned State Public Prosecutor makes a serious effort to justify the judgment of the Trial court and particularly places reliance on the dying declaration which alone could be sufficient to bring home the charges against the accused and that it should be given its due credence having regard to the fact that it has been recorded in the manner known to law by a Taluk Executive Magistrate who would have no intention to frame the accused and the same having been duly certified by a Medical Practitioner that the deceased was in a fit state of mind to make a statement, would clinch the case of the prosecution. Notwithstanding that the witnesses for the prosecution had turned hostile or in the absence of other material evidence or even the infirmities that are sought to be highlighted and emphasised by the counsel for the appellant, the dying declaration as recorded by the Taluk Executive : 23 : Magistrate cannot be said to be dislodged and that ought to be given its credence in the light of the indisputable fact that the deceased had died an unnatural death and as a result of a fire arm injury.
In the light of the candid statements made by the deceased in his dying declaration, the court below having found that the prosecution had established its case, cannot be faulted. However, on a close examination of the record with reference to the arguments canvassed by the learned counsel for the appellant, it is indeed to be seen that the sequence of events as sought to be alleged by the prosecution are not made out. The so-called eye witnesses have not supported the case of the prosecution. The other witnesses who claim to have received information about the incident from the eye-witnesses would not therefore be in a position to support the case of the prosecution.
Insofar as the motive is concerned, it is again doubtful as the very wife of the deceased has not supported the case to the effect that there was illicit affair between the deceased and the : 24 : wife of the appellant, as a most affected person would be the widow of the deceased and if there was substance in the allegation that there was an illicit affair which might have led to the incident, she would have been the first person to disclose it and this not being the case, it cannot be said that the motive was established.
The second motive that was assigned, namely that the appellant was jealous of the deceased having established a flour mill and flourishing in the said business, cannot also be readily accepted, as by killing the accused, the appellant did not stand to gain and hence, could not be established.
Insofar as the admission of the deceased to hospital and the treatment therein before he succumbed to the injuries, is not clearly established, as the medical records are sketchy and are not complete. The Trial Court had taken exception to the entire records not being produced and had even stopped the trial and adjourned the case in the course of evidence of the Medical Practitioner, compelling him to produce the necessary documents. But, it was not done and the court has overlooked : 25 : this serious lapse in ultimately holding that the prosecution had established its case beyond all reasonable doubt.
Insofar as the dying declarations are concerned, as rightly pointed out by the learned counsel for the appellant, there is serious doubt as to the genuineness of the sequence of events in the Medical Practitioner having issued a communication to the police about the admission of the deceased to hospital on account of fire arm injuries, as both the documents which are relied upon in support thereof are clearly concocted documents, as the dates and time appearing at various points in the said document cannot be reconciled. Therefore, the said document cannot be accepted.
Even assuming that the police had arrived at the scene, there is no indication of the police having responded to the information received in the first instance as stated by PW-33 who has candidly stated in his evidence that he was intimated over telephone as to the appellant having committed the murder of the deceased with a fire arm, which itself ought to have been the first information report on the basis of which a case ought to : 26 : have been instituted. That is not the case. It is on intimation from the hospital that the PSI had arrived at the scene and has recorded the so-called dying declaration. The gist of the dying declaration recorded, demonstrates that it cannot be made by a dying person or a person who had suffered serious fire arm injuries and who had been bleeding profusely for more than two hours before he could be admitted to hospital. There is no information that the Doctors had provided first aid to stem the profuse bleeding and what further treatment had been provided in order to revive the injured victim and how he was in a fit state of mind thereafter, is not disclosed from independent medical records that ought to have been maintained in the usual course and therefore, it cannot be said that the deceased was in a fit state of mind as indicated in the record, as recorded by the Medical Practitioner. Further, the alacrity with which the Taluk Magistrate has been galvanized to rush to the hospital given the time frame within which he was intimated and how he had rushed to the hospital, again cannot be readily accepted. Further, the manner in which the Medical Practitioner has : 27 : routinely certified that the person was in a fit state of mind to record the same, cannot be readily accepted, in the absence of other medical records to demonstrate that he has been sufficiently revived in spite of having suffered serious injuries and having profusely bled till such time the dying declaration was recorded. This causes serious doubt as to whether the dying declaration was recorded at all, as stated by the deceased or it was merely created in order to frame the appellant.
Further, the FSL report also not being consistent and categorical, would throw clear doubts as to the manner in which the incident had taken place or the kind of injuries that the deceased had suffered and the weapon used in the commission of the murder. In the face of such serious infirmities, it cannot be said that the dying declaration as projected, by itself would be sufficient to bring home the charges against the accused. His very presence at the scene is not established. Therefore, to proceed on the dying declaration as if the deceased was in a fit state of mind to have made a dying declaration, would be a dangerous proposition and would be to the serious prejudice of : 28 : the appellant. And especially, since he would be visited with the stringent punishment of life imprisonment as has been imposed by the Trial court.
Therefore, in our opinion, in the face of the above circumstances, the appeal is allowed. The judgment of the Trial Court is set aside. The accused appellant is acquitted and he shall be set at liberty.
In view of the above, MO-5 which is a licenced revolver said to belong to the accused, shall be returned to him.
The operative portion of the judgment shall be communicated to the jail authorities for immediate compliance.
Sd/-
JUDGE Sd/-
JUDGE KS