Karnataka High Court
The State Of Karnataka vs Jenukurabara Bhoja on 1 February, 2022
Bench: K.Somashekar, P.N.Desai
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.520/2016
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE INSPECTOR,
GONIKOPPA CIRCLE
KODAGU DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-571 213.
... APPELLANT
(BY SMT. K.P YASHODHA, HCGP)
AND:
JENUKURABARA BHOJA,
S/O KARIYA,
AGED ABOUT 48 YEARS,
COOLIE WORK,
C/O JAMMADA UTHAIAH,
KAIKERI VILLAGE,
VIRAJPET TALUK-571 218.
... RESPONDENT
(BY SRI. VENKATESH. P. DALWAI, ADV.,)
(APPOINTED BY HIGH COURT LEGAL SERVICES
COMMITTEE FOR THE RESPONDENT VIDE COURT
ORDER DATED 13/03/2019)
-----------
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) CR.P.C BY THE S.P.P. PRAYING TO
a)GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 26.11.2015 PASSED IN
S.C.NO.75/2013 BY THE II ADDL. DISTRICT AND SESSIONS
JUDGE, KODAGU-MADIKERI (SITTING AT VIRAJPET), THEREBY
ACQUITTING THE ACCUSED RESPONDENT OF THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC. b) SET ASIDE THE
AFORESAID JUDGMENT AND ORDER OF ACQUITTAL DATED
26.11.2015 PASSED IN S.C.NO.75/2013 BY THE II ADDL. DIST.
AND SESSIONS JUDGE., KODAGU-MADIKERI, BY ALLOWING
THIS CRL.A.; AND c)CONVICT AND SENTENCE THE ACCUSED -
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION
302 OF IPC IN ACCORDANCE WITH LAW.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, P.N.DESAI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of acquittal dated 26th November 2015 passed by learned II Addl. District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet in S.C.No.75/2013, whereunder accused was acquitted for the offence punishable under section 302 of Indian Penal Code, 1860(hereinafter referred as 'IPC' for short).
2. Factual matrix of the prosecution case is that:-
The accused Jenukurubara Bhoja and PW-1-J.K. Gowri were residing in the line house of CW-3 at Kedamallur village within the limits of Gonikoppa police station. Deceased Mari is the brother of PW-1 Gowri. It is further case of the prosecution that on 07.04.2013, PW-1- Gowri had prepared 3 pork meat for dinner. Deceased Mari had came to the house of PW-1 J.K. Gowri for dinner. It is further case of the prosecution that on 11.00 p.m., a quarrel ensued between deceased Mari and accused in respect of eating of pork meat. In the scuffle, accused assaulted deceased Mari with kathi on his head and other parts. Immediately, PW-1 ran to the house of the owner PW-2 by name Jammada A. Uthaiah and informed him about the galata. Accordingly, both of them came there and found that said Jenu Kurubara Mari @ Masthi had sustained bleeding injuries. Immediately, PW-2 brought his car and took him to Gonikoppa Government Hospital, then on the next day, he came to know that deceased Mari succumbed to the injuries. In this regard, PW-1 lodged the complaint with Gonikoppa police as per Ex-P1. Accordingly, police registered the case in Cr.No.36/2013 and sent the FIR to the Ponnampet Court through head constable PW-9 P.G. Devaraju. Thereafterwards, PW-12 H.M. Shylendra took up further investigation, then he sent the body of deceased Mari to Gonikoppa Government Mortuary for post-mortem examination. Thereafter, he also conducted inquest panchanama as per Ex-P4 in the presence of panchas and also recorded statement of the witnesses. He visited the place 4 of offence place and drew panchanama as per Ex-P3. At that time, he also collected bottle, blood stained mud and unstained mud in the presence of the panchas as per M.O.1 to M.O.4. He also prepared rough sketch of place of offence as per Ex-P19 and took photographs as per Ex-P2.
3. It is further case of the prosecution that on the same day, PSI- Sadashiva and police staff produced the accused before PW-12. Accused gave voluntary statement wherein he stated that if he is taken, he would produce the weapon kathi used for commission of the offence in the line house. Accordingly, he took panchas and IO to the line house of Jammada Uthaiah-PW-2 and produced the weapon kathi. PW- 2 during the course of investigation produced the clothes worn by the accused at the time of commission of the crime, panchanama was drawn as per Ex-P5 and said sickle, shirt and pant were seized as per M.O.7 to M.O.9. Two Photographs were identified by PW-12 as per Ex-P22 and Ex- P23. Thereafterwards, he recorded the statement of other witnesses and handed over further investigation to another I.O. Thereafterwards, CW-19-CPI, Gonikoppa Circle, Gonikoppa after completing investigation filed the charge sheet against the accused for the offences stated above. 5
4. Learned JMFC committed the case to the court of Sessions for trial after complying with the provisions of sections 207 and 209 of The Code of Criminal Procedure, 1973 (for short hereinafter referred as 'Cr.P.C.').. Learned JMFC framed the charge against the accused for the offence punishable under section 302 IPC. Thereafterwards, the prosecution examined in all 14 witnesses as PW-1 to PW-14 and got marked 24 documents as Ex-P1 to Ex-P24 and got identified nine material objects as M.O.1 to M.O.9. The statement of the accused as required under section 313(1)
(b) Cr.P.C. was recorded. The accused denied the circumstances appearing against him in the evidence of the prosecution witnesses. The accused has not chosen to lead any defence evidence. After hearing the arguments, learned sessions judge acquitted the accused which is under challenge in this appeal by the state.
5. Heard learned HCGP Smt. K.P. Yashoda for appellant-State and Sri. Venkatesh P. Dalwai, who is appointed as counsel for respondent/accused by High Court Legal Services Committee to extend services to the respondent/accused and defend him.
6
6. Learned HCGP appearing for the appellant-State argued that the judgment of acquittal passed by the trial court is contrary to the evidence and material on record. Learned HCGP argued that the evidence of PW-1-complainant clearly discloses that the accused and deceased Mari started quarrelling and in the scuffle, the deceased Mari sustained injuries and the accused was holding sickle(kathi). Learned HCGP also argued that the trial court has committed an error in disbelieving the evidence of PW-1. Learned HCGP also argued that the evidence of PW-1 is corroborated by the evidence of other witnesses. It is further argued that the evidence of PW-8 further corroborates the evidence of PW-1. Learned HCGP further argued that though prosecution has adduced evidence, the trial court is not justified in holding that there is absence of proper evidence and acquitted the accused. With these main arguments, learned HCGP prayed to set-aside the judgment of acquittal and convict the respondent/accused as per law.
7. Against this, learned counsel Sri. Venkatesh P. Dalwai for respondent/accused supported the judgment of the trial court and submitted that the evidence of PW-1 is not believable. She has given three different versions, one in 7 examination-in-chief, other in cross-examination by Public Prosecutor and another version in cross-examination by the counsel for the defence. Further, there are no eyewitnesses to the incident. It is further argued that the neighbourers and panch witnesses have not supported the prosecution case and recovery is not proved in accordance with law. So, learned Sessions Judge after considering the evidence and appreciating the same in proper perspective has arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubt and hence has rightly acquitted the accused. The learned counsel argued that this Court being an appellate court has to be slow in interfering with the judgment of acquittal, unless the judgment passed by the trial court is capricious, illegal and not based on sound principles of law regarding appreciation of evidence. With these main arguments, learned counsel prayed to dismiss the appeal.
8. We have perused the appeal memo, judgment of the learned Sessions Judge and also evidence on record.
9. The learned sessions judge has raised two points for consideration, and in first point, learned sessions judge has 8 referred to the evidence of the Doctor PW-6 and referred to the injuries mentioned in the post-mortem report and inquest report as per Ex-P4 wherein the Doctor has opined that the death of deceased Mari Mari is due to the injury to the vital organ like brain (head injury) and internal haemorrhage and opined that death of deceased Mari was not natural and the death is homicidal. Accordingly, he has answered point No.1 in affirmative which needs no interference by this Court.
10. Regarding 2nd point i.e., the allegation and charges levelled against the accused, learned sessions judge has referred to the evidence of PW-1- Gowri who is the sister of deceased Mari and he has observed that deceased Mari was invited for dinner to the house of PW-1. It has also come in the evidence that she was residing along with accused. The learned sessions judge found that PW-1 infact had left the house when galata started to bring the owner of the estate and learned sessions judge found that PW-1 has actually not seen the incident. But she is made an eyewitness to the incident. She has given three different versions. Her evidence discloses that by the time she arrived, already deceased Mari had sustained injuries. So learned sessions judge held that the evidence of PW-1 is not believable one. Accordingly, 9 learned sessions judge disbelieved the evidence of PW-1. Further, learned sessions judge, considered the evidence of PW-2- Uthaiah who is none other than owner of a Coffee Estate and it is also evident that he came only after the incident was over. PW-3 J.M. Muthappa-Planter has not supported the seizure panchanama Ex-P6. Similarly, PW-4 has also not supported the panchanama. Learned sessions judge has considered the evidence of PW-8 and referred to his evidence. It is found he has turned hostile and nothing is elicited in his cross-examination. Other witnesses are police witnesses and after re-appreciating the evidence on record, learned sessions judge held that the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 is not helpful to the prosecution. Accordingly, learned sessions judge held that the evidence placed by the prosecution creates doubt in the mind of the court and after giving benefit of doubt has acquitted the accused.
11. We have re-considered the evidence on record meticulously and re-appreciated the same.
12. PW-1 is none other than the person who set the criminal law in motion by lodging the complaint as per Ex-P1. 10 It is evident from the evidence of PW-1 that she was working along with the accused and deceased Mari who is her brother had come to her house on Ugadi festival and after having dinner, deceased Mari and accused were under influence of alcohol. She has stated in her examination-in-chief itself that they were quarrelling with each other. Then she went to the owner's house, by the time, she returned, deceased Mari was murdered and accused was also present there holding Kathi in his hand. Then, deceased Mari was taken to Gonikoppa Government Hospital. In her examination-in-chief, further she has stated about police visiting scene of offence place and conducting the mahazar. The prosecution has treated this PW-1 as partially hostile witness. In her cross examination, she has stated that in respect of eating pork meat, there was quarrel between the deceased Mari and accused and for each and every suggestion, she went on stating 'yes' and 'yes'. But again in the cross-examination by the accused, she has given totally inconsistent and contradictory statement to that of her examination-in-chief and cross-examination by the prosecution. She has stated that accused is her husband. That itself is doubtful in view of other evidence. In this case, she has stated that on the day of festival, they were in the 11 house. The accused and deceased Mari consumed arrack and she is also having the habit of consuming alcohol but on the date of the incident, she had not taken arrack. She has stated that as her brother Mari had come to their house, there was quarrel. But she has clearly stated that she does not know how the incident happened and who has caused the assault. So her evidence will not help the prosecution to prove the guilt of the accused beyond all reasonable doubt. She has clearly stated she does not know how the incident took place. She has stated further that M.O.6- shirt of deceased and M.O.7- kathi have nothing to do with the accused. So PW-1 has given go-bye to the version of the prosecution case which makes the prosecution case doubtful at the first step itself.
13. PW-2 Huthaiah is none other than owner of a Coffee Estate where the accused and PW-1- Gowri were working. His evidence discloses that only when PW-1 came to his house and informed him about the galata, he went to the place of offence. He has stated in his evidence that the accused himself told before him that there was galata between himself and deceased Mari and he assaulted him with kathi. He has stated about the mahazar conducted by the police as per Ex-P3-place of offence mahazar and Ex-P4 12 inquest panchanama and seizure of clothes worn by accused as per Ex-P5. His cross-examination reveals that by the time he went to the place of offence, incident was over. According to him, it is the accused who made extra-judicial confession before him that he has committed the offence and he has also informed the police in this regard. So his evidence will not help the prosecution. The extra-judicial confession as per section 24 of the Indian Evidence Act, 1872 is a weak type of evidence. It is difficult to rely upon the extra-judicial confession as the exact words or even the words as nearly as possible have not been reproduced. Such statement cannot be said to be voluntary, so the extra-judicial confession has to be excluded from the purview of consideration to bring home the charge. It is settled principles of law that extra- judicial confession only if it is voluntary truthful and reliable and beyond re-approach, then only it can be believed, otherwise, it cannot be sole basis for recording the confession of the accused. If the other surrounding circumstances and the materials available on record do not suggest complicity of the accused, then so-called extra judicial confession cannot be believed at all. It is rather by very nature a weak type of evidence and requires appreciation with a great deal of care 13 and caution. When it is surrounded by suspicious circumstances, its credibility becomes doubtful and loses its importance. Therefore, the Court generally look for independent reliable corroboration before placing such extra- judicial confession. In the light of these settled principles, we have considered the other evidence placed on record by the prosecution.
14. PW-3 Muthappa is again relative of PW-2 and he has not supported the mahazar Ex-P6. He has stated he do not remember as to in what respect mahazar was conducted and simply because police asked him to put signature, he has signed it.
15. PW-4- Karyappa J.A. is the witness for inquest mahazar-Ex-P4. Of-course, he has not supported the prosecution and he has turned hostile to the case of the prosecution and nothing helpful is elicited from him.
16. PW-5 Dr. H. B. Suresh has stated that on 08.04.2013, when he was in the Gonikoppa Hospital, deceased Mari was brought to the hospital with a history of assault and he found there was bleeding injuries on him and alcohol smell was emanating from the mouth of said injured. 14 PW-5 has stated that he had given details in MLC register. He has admitted that he has not mentioned the age of the injury.
17. PW-6 Dr. Bojamma stated that she has conducted the post-mortem of deceased Mari on 08.04.2013 from 2.45 p.m. to 3.45 p.m. and gave a report as per Ex-P10. She has opined that the cause of death of deceased Mari is due to injury to the vital organ like brain (head injury and internal haemorrhage and opined that death of deceased Mari was not natural and the death is homicidal. In the cross-examination, she has admitted that if a person falls on a sharp edge, such injuries could be caused.
18. PW-7 M.S. Boppaiah is a head constable who has received the MLC memo as per Ex-P7 in the police station from Gonikoppa Health Centre.
19. PW-8 Nagaraju has stated in same line as to where the accused and deceased Mari were residing. He has stated in his evidence that at 8.30 p.m. to 9.30 p.m, he heard some noise from the house of accused. Deceased Mari was shouting not to assault him. He has stated that at that time, accused, Gowri and deceased Mari were in the house and deceased was shouting not to assault him. Thereafter, they went to the 15 house of the owner alongwith his wife and informed about the galata in the house of the accused. Accordingly, all of them came to the house of accused. At that time, Mari was lying on the ground and accused was standing near Mari holding a sickle in his hand. But he has stated that he has not seen who assaulted and caused injury to Mari. Thereafter, accused and his wife Gowri took injured Mari to the hospital. Then the accused returned and slept in the house. He has stated that he do not know whether Mari died or not. On the next day, police came to the spot and accused gave them said kathi. The prosecution has treated him as hostile witness and cross- examined at length, but nothing is elicited in his cross- examination which could help the prosecution. He has clearly stated that he has not given statements before the Investigating Officer as per Ex-P13, Ex-P14 and Ex-P15. In the cross-examination by the accused, he has stated he does not know to whom Mari was stating not to assault. He has not seen the incident. He has also stated that for cutting coffee, accused might have been holding kathi in his hand and persons cutting coffee use such type of said kathi and he cannot identify whether M.O.7 is the same weapon which was produced by the accused. So his evidence further makes the 16 prosecution case doubtful and his evidence discloses as to when exactly incident took place. According to him, between 8.30 p.m. to 9.30 p.m., he heard galata and noise, immediately, he went to the owner's house. PW-2 owner never stated about the presence of PW-8 or accompanying him or his presence in the house of the accused when he visited the said house. On the other hand, this witness states that accused and his wife took the deceased Mari to the hospital and deceased was admitted by the accused himself, which situation supports the defence of the accused and creates further doubt about the allegation against the accused. Because in such situation, if a person commits crime, he will not dare to come before the public authorities or in the public. On the other hand, the prosecution case and papers discloses that it is the accused who took the deceased Mari to the hospital. Therefore, the evidence of PW-8 goes against the prosecution case.
20. PW-9 P.G. Devaraju, Head constable, Gonikoppa Police Station stated about forwarding FIR Ex-P16 to the Magistrate, Ponnapet.
17
21. PW-10 Radha. S, Scientific Officer, Forensic Science Laboratory, Mysore has stated about examination of the materials signed by the IO and in her evidence, she has stated that she has examined the materials sent by IO i.e., material objects which are M.Os.1 to 7 and she has given report as per Ex-P17 and she has stated that blood was detected in item No.1, 3, 4, 5, 6 and 7, but same was not detected in item No.2 i.e., item No.2 is nothing but sample mud. She has stated that article Nos.3, 4, 5, 6 and 7 were stained with 'A' group human blood. She has stated that she cannot state the blood group of stains found in item No.1 and the results were inconclusive. But here in this case, the prosecution has not produced any material to show what was the blood group of accused and deceased Mari. So simply producing Ex-P17 will not help the prosecution.
22. PW-11 B.T. Manjunath is police constable who has produced clothes on the deadbody of deceased Mari after seizure mahazar Ex-P6.
23. PW-12 H.M. Shylendra as stated above conducted inquest panchanama and collected material objects from the place of offence. The evidence that the accused was 18 produced at 3.00 p.m. on 08.04.2013 by PSI Sadashiva before Investigation Officer-PW-12 creates doubt in view of evidence of the other witnesses. The evidence on record discloses that accused was very much present alongwith the deceased Mari. Accused himself brought injured Mari to the hospital and as per the evidence of PW-8 Nagaraju, accused was in the hospital even after the alleged incident. Therefore, it appears that only after arrest of the accused, the investigating officer has cooked up the story of arrest and he is shown as accused absconding. There is no merit in such contention. Therefore, as the panch witnesses have also not supported the prosecution case and as the alleged recovery of weapon at the instance of accused itself is doubtful, the investigation conducted by the Investigating officer PW-12 creates doubt about the allegation made by the prosecution. The weapon used for the commission of offence, whether it is a sickle, kathi or sword is not forthcoming. The evidence of the witnesses goes on version of kathi, which is nothing but sword. But here, in the photo, it looks like 'macchu'. Therefore, it appears only for the sake of case, this recovery was conducted. Therefore, said recovery is not proved in 19 accordance with law. Therefore, the evidence of Investigating Officer will not help the prosecution.
24. PW-13 Girija is again relative of the deceased Mari. But in her evidence, she has stated that she does not know about the incident and she does not know what is the reason for the death of Mari. The prosecution has treated her as hostile witness and cross-examined her. But she has stated that she has not given statement as per Ex-P24.
25. PW-14 A.K. Sadananda, PSI, Gonikoppa has stated about registering FIR and arresting the accused at the bus stand. As already stated, arrest of the accused at the bus stand is only a created story and there is no merit in it. The other Investigating Officer who conducted part of the investigation and filed the charge sheet is not produced before the court. Learned sessions judge in his judgment has mentioned that inspite of issuance of summons and warrant, said witness was not produced before the court. Therefore, non-examination of the Investigating Officer is also one of the circumstance which goes against the prosecution.
26. So on perusal of evidence of the prosecution witnesses, it is evident that the death of Mari is not in 20 dispute. But there is no legally admissible evidence to show that it is the accused who inflicted injuries and caused death of deceased Mari. None of the witnesses have stated that they have seen the accused inflicting deceased with the alleged kathi. Even the circumstantial evidence also does not support the case of the prosecution. The alleged extra- judicial confession before PW-2 cannot be believed in the light of the other evidence placed before the court. So it appears from the evidence of the prosecution that it is not safe to believe uncorroborated and inconsistent evidence of the prosecution witnesses. There is no corroboration in their evidence to the material particulars and also charge levelled against the accused.
27. There is lot of difference between 'may be true' and 'must be true'. It is settled principle of law that the prosecution has to prove its case beyond all reasonable doubt as alleged. If from the evidence of the prosecution witnesses, two views are possible, then the view favourable to the accused will have to be accepted. Learned sessions judge found from the evidence placed by the prosecution that their evidence is not cogent, convincing and has come to the 21 conclusion that it creates doubt about the manner of prosecution done.
28. It is settled principles of law that this Court being First appellate court normally has to be slow in interfering with the judgment of acquittal passed by the trial court, unless said judgment is perverse, illegal and not based on settled principles of law regarding appreciation of evidence in criminal cases. In this regard, the Hon'ble Supreme Court has laid down the general principles regarding interference, the power of appellate Court in an appeal against judgment of acquittal by trial Court.
29. The Hon'ble Supreme Court in a decision in the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739] at para-8 has held thus:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & 22 Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the 23 presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
30. So in view of the principles stated above and also evidence placed on record and discussion made above, we are of the opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly, the learned Sessions Judge has rightly acquitted the accused.
We find no ground to interfere with the finding of the acquittal recorded by the learned Sessions Judge. Therefore, appeal being devoid of merit is liable to be dismissed.
In the result, we pass the following:
ORDER
1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. stands dismissed. 24
2. Consequently, the judgment of acquittal dated 26.11.2015 passed by learned II Addl. District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet in S.C.No.75/2013 against the respondent/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
5. We place on record the services and assistance rendered by Sri. Venkatesh P. Dalwai, learned counsel appointed through High Court Legal Services Committee to appear on behalf of the respondent/accused.
Sd/-
JUDGE Sd/-
JUDGE *mn/-