Karnataka High Court
Naikara Hanumanthappa @ Ramanna vs The State By Circle Inspector Of Police on 6 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100218/2017
BETWEEN:
NAIKARA HANUMANTHAPPA @ RAMANNA
S/O BHEEMANNA, AGE: 66 YEARS,
OCC: LABOURER, R/O: RUDHARVA DUTTA MATT,
NAGENAHALLI VILLAGE, HOSAPETE TALUK,
BALLARI DISTRICT, (PRESENTLY IN JC)
... APPELLANT
(BY SRI. T. HANUMAREDDY, ADV.)
AND
THE STATE BY CIRCLE INSPECTOR OF POLICE
GUDEKOTE POLICE STATION, KUDLUGI CIRCLE,
DIST: BALLARI, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA, DHARWAD.
... RESPONDENT
(BY SRI. 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 SENTENCE IN S.C.NO.
5043 OF 2015 DATED 05.04.2017 ON THE FILE OF III
ADDL. DISTRICT AND SESSION JUDGE, BALLARI SITTING
AT HOSAPETE FOR OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC & ETC.
:2:
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B.A.PATIL J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Criminal Appeal is directed against the judgment of conviction and order of sentence passed by the learned III Additional District and Sessions Judge, Ballari, sitting at Hosapete, (herein after referred to as the 'trial Court'), in Sessions Case No.5043/2015 dated 5.04.2017, wherein the appellant-accused has been convicted for the offence punishable under Section 302 of IPC.
2. We have heard the learned counsel Sri. T.Hanumareddy, for the appellant and the learned Additional S.P.P. Sri V.M. Banakar for the respondent-State.
3. The genesis of the case of the prosecution in brief is that the complainant Dodda Mallaiah is the son of the deceased Chittamma. Chittamma was doing meditation :3: and satsanga in her Ashram situated in her land. Accused Hanumantappa @ Ramanna had come from Rudarva Dutha Mutt, Naganahalli village and started to stay in the Ashrama of the deceased in between 27/5/2013 to 30/5/2013. Many witnesses have seen the accused in the said Ashrama. It is alleged that on 30/5/2013, the accused was sleeping infront of the Ashrama and during the night hours, when the deceased Chittamma was sleeping alone in the Ashrama, the accused entered the Ashrama and assaulted her with stick and twisted her left hand, snatched cash of Rs.4,500/-, golden talakaddi of the ear and a pair of golden ear studs which were worn by her and thereafter, he has committed her murder.
4. The case has been registered against the unknown persons in Crime No.91/2014. Thereafter, on 19/5/2014, accused was apprehended in some other case and on the :4: basis of the voluntary statement, further investigation has been conducted and thereafter, the charge sheet came to be filed.
5. The learned Magistrate after following the procedure, committed the case to the Sessions Court. Sessions Court took cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed.
6. The prosecution in order to prove the guilt of the accused, got examined 29 witnesses, got marked 38 documents and 11 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said incriminating materials, but he has not led any evidence, nor got marked any documents. After hearing both the sides, the :5: trial Court passed the impugned Judgement of conviction and order of sentence. Challenging the same, the appellant-accused is before this Court.
7. The main grounds urged by the learned counsel for the appellant-accused are that the impugned judgment of conviction and order of sentence passed by the Trial Court is not sustainable in law and same is liable to be set aside. It is his further submission that the entire case rests on circumstantial evidence and there are no eyewitnesses to the alleged incident. Though the recovery of stick and the gold articles have not been established by the prosecution, the trial Court only on the basis of the last seen theory has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that even the last seen theory itself is not acceptable so as to bring home the guilt of the accused since the :6: alleged incident had taken place on 13/5/2013 and the accused was apprehended in some other case on 19/5/2014. Thereafter, the witnesses have identified the accused on 18/6/2014 that too after a long gap of more than a year. Under such circumstances, the evidence which has been produced is not cogent and acceptable so as to bring home the guilt of the accused beyond all reasonable doubt. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and acquit the accused.
8. Per contra, the learned Additional SPP vehemently argued and submitted that the entire case rests on circumstantial evidence. The evidence produced by the prosecution clearly goes to show that it is PWs.-1, 8, 12, 16 and 19 who have seen the accused lastly residing in the Ashrama and on the same day night, the deceased has been murdered and in that light, it :7: pointed out towards the guilt of the accused and the trial Court after considering the evidence has come to a right conclusion and has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal.
9. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Trial Court records.
10. It is not in dispute that the entire case rests on the circumstantial evidence and there are no eye witnesses to the alleged incident. The prosecution has relied upon the following circumstances:
The deceased died homicidal death and last seen theory and recovery of the stick, which has been used for the purpose of commission of the offence and the recovery of gold articles which :8: have been stolen by the accused at the time of commission of the offence.
11. In order to prove the fact that the deceased died a homicidal death, the prosecution has relied upon the evidence of PW- 6, the inquest Mahazar pancha and Ex.P10 -the inquest Mahazar and PW-13-the Doctor who has conducted the autopsy over the body of the deceased. PW-6 in his evidence has deposed that he noticed over the body of the deceased the injury on the ear and blood was oozing from the nose and there was also a scratch injury on her hand and the police have drawn the Mahazar as per Ex.P10. Nothing has been elicited so as to discard the evidence of this witness.
12. PW-13 is the Doctor who has conducted autopsy over the body of the deceased. In his evidence, he has deposed that he noticed abrasions over the right fore arms, swelling over left fore arms, Bruse mark over the :9: neck and he has also further deposed that he noticed that there is a fracture of larynx and hyoid bone larusn squeeze bruse mark on largegin membrane, bruise mark on dermis, deep facial sheach of mussels, thoriod gurd, stermonastoid mussel torned, bruise over and there is a hemorrhage and fracture of cricoid cartilage that there is compress of hyoid bone with facture. He has opined that the death is due to asphyxia by throttling and issued postmortem report as per Ex.P11. On perusal of the evidence of this witness and Ex.P11, it clearly indicates that the deceased died a homicidal death.
13. The next circumstance on which the prosecution is intending to rely upon is that of recovery of MO.8-stick at the instance of the accused. The Investigating Officer has recorded the voluntary statement of the accused as per Ex.P18. He has further deposed that at the : 10 : instance of the accused he has recovered the stick-MO.8. But on perusal of the evidence of PW-3, in his evidence, he has deposed that he has seen the accused when the police brought him. Police called him and co-pancha to the Ashrama and accused was also there and when the police have enquired, accused shown the stick which was there and the same was seized by the police by drawing Mahazar as per Ex.P7. But on perusal of the cross-examination of PW2, the spot Mahazar pancha, he has deposed that by the side of the dead body a stick, stone, mat and bangle pieces were there. Then under such circumstances, it is not considered to be recovery as contemplated under Section 27 of the Evidence Act (herein after referred to as the 'Act').
14. One more circumstance which the prosecution has relied upon is that of the recovery of the gold articles at the instance of : 11 : the accused, on the basis of the voluntary statement as per Ex.P18 and in that light, the prosecution has relied upon the evidence of PW5. In his evidence he has deposed that the police brought them to Rudramuni temple and accused produced two ear studs and one talakaddi kept near the round stone and told that they are the articles of the deceased and police seized the same by drawing the Mahazar as per Ex.8. This also not in compliance with the provision of Section 27 of the Act. In that line, prosecution must establish that the material used for commission of the offence was exclusively within the knowledge of the accused, he must state the same, if he is taken, he will produce, he must lead seizure party, thereafter the same should be seized. In that light, there is no evidence. Further, the articles seized must be identified as that of the deceased. The discovery must disclose the fact that it must be : 12 : within the exclusive knowledge of the accused alone. If it is already within the knowledge of some other person, then under such circumstances, it is not a recovery. As deposed by PW-2, a stick was lying by the side of the deceased and the same has been already noticed. Then under such circumstances, it will not be considered to be a discovery as contemplated under law.
15. Be that as it may, even the evidence of PW-5 is also not reposing any confidence of this Court to rely upon his evidence. The alleged incident has taken place on 13/5/2013 and the accused was apprehended in some other case on 19/5/2014 and the voluntary statement has been recorded on 18/6/2014 and he produced the ear studs and talakaddi which has been kept by the side of round stone, it is also not properly explained by the said witnesses stating that they have been kept hidden. Then how long : 13 : the said articles have been there itself is also not been properly explained. Moreover no other witness identified those gold ornaments as that of the deceased. The basic link in this behalf is lacking.
16. Be that as it may. When the accused has murdered the deceased, it is surprising to believe the recovery which is said to be made after one year that too in a open space. Taking into consideration the above said circumstances, the recovery evidence on which the prosecution is intending to rely upon is not cogent and acceptable so as to bring home the guilt of the accused beyond all reasonable doubt. We are conscious of the fact that if the recovery evidence is strong and acceptable and points out the guilt on that count, Court can convict the accused.
17. The next circumstance on which the prosecution is intending to rely upon is that of : 14 : last seen theory. In order to substantiate the said fact the prosecution has relied upon the evidence of PWs.1, 8 to 12, 16 and 19, who have deposed that when they went away from Ashrama after the meals, the accused was sleeping outside the Ashram and the deceased was sleeping inside and next day morning it is noticed that the deceased died a homicidal death. In that light, the prosecution is pointing out the guilt towards the accused. But, in order to substantiate the said fact the prosecution has to clearly establish that the said place where the deceased was sleeping on that night, it is the deceased and accused alone were there at the said place, is not accessible to any other persons and it is accessible only to the accused. But, when admittedly the said place is an Ashrama, it is accessible to many other persons and even the other witnesses have also deposed that many persons used to visit the Ashrama. : 15 : Under such circumstances merely because the accused was sleeping that too outside the Ashrama and thereafter murder has taken place, only on that basis no inference can be drawn that it is the accused who has committed the alleged murder. Mere abscondance of the accused will not create any doubt in the case of the prosecution and on that count the accused cannot be convicted.
18. Be that as it may, it is trite of the law that, the person who was lastly seen with the deceased has to be established and thereafter death has taken place, the said place is not accessible to any other person, then the burden shifts upon the accused to prove that when he departed with the company of the deceased. We are conscious of the fact that the last seen theory is an important piece of the chain of circumstances that would point out the guilt of the accused with some certainty. However, the : 16 : said evidence alone cannot discharge the burden of establishing the guilt of the accused beyond all reasonable doubt and it requires corroboration. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Navaneethakrishnaan Vs. The State by Inspector of Police reported in 2018 AIAR (Criminal) 562. At paragraph No. 18 of the judgment it is observed as under:
"18. PW-11 was able to identify all the three accused in the Court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW-11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position : 17 : that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.
20. In this view, the information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Evidence Act, 1872. Further, in Selvi (supra), this Court held as under:-
"264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the : 18 : subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872."
- - -
19. When the Hon'ble Supreme Court has laid down the ratio that mere last seen theory is not going to bring home the guilt of the accused and it requires corroboration but in the case on hand the recovery has also not been proved and the other circumstances are also not going to establish any corroboration with the last seen theory. Under such circumstances the benefit of doubt has to be given to the accused and the accused alone.
20. No doubt the prosecution has got examined the other witnesses, PW14 is the Taluka Health Officer, who has examined the accused and has issued certificate as per : 19 : Ex.P.12; PW15 is the PWD Engineer who has drawn sketch of the scene of the offence as per Ex.P.13. PW20 is the Village Accountant who has issued the property extract as per Ex.P.14; PW17 is the scribe of the complaint; PW22 is the Police Constable who handed over the body and has produced clothes of the deceased as per Ex.P.6. PW23 is the Doctor who has given opinion as per Ex.P.16; PW24 is the PSI who registered the case and issued FIR as per Ex.P.15; PW25 is the Scientific Officer who has examined the seized articles and has issued FSL report as per Ex.P.17. PW26 is the Police Constable. He is the scribe of the panchanama marked at Exs.P.2, 6 and 8. PW27 is the ASI who has shown the place of the incident to the Engineer-PW15 to draw the spot sketch as per Ex.P.13. PW28 is the CPI who partly investigated the case and PW29 is the IO who has further investigated the case and filed the : 20 : charge sheet against the accused. The evidence of these witnesses is not going to further progress the case of the prosecution in any manner when the main pillors of the case, if it has fallen to the ground. Under such circumstances their evidence will not support the case of the prosecution in any manner.
21. It is trite of the law that when case rests on circumstantial evidence, all the chain of events are to be established without break and the important circumstance on which the prosecution is relying on, must point out to the guilt of the accused and accused alone.
22. Taking into consideration the above said facts and circumstances, we are of the considered opinion that there is no material to connect the accused to the alleged offence and the evidence produced by the prosecution is scanty and was not reliable. Even then the trial Court has come to a wrong conclusion and has : 21 : wrongly convicted the accused. In that light, the judgment of the trial Court requires interference at the hands of this Court. Hence, we proceed to pass the following order.
ORDER The appeal filed by the appellant-accused is allowed. The judgment of conviction and order of sentence passed by the learned III Addl. District & Sessions Judge, Ballari (sitting at Hosapete) dated 05.04.2017 and 07.04.2017 in Sessions Case No. 5043/2015 is set aside. Consequently, the appellant-accused is acquitted of all the charges levelled against him. He is ordered to be released, forthwith, if he is not required in any other case.
Registry is directed to intimate the concerned jail authorities and the learned Principal District & Sessions Judge, Ballari, through e-mail to release the appellant-accused by name Naikara Hanumanthappa @ Ramanna @ : 22 : Hanumantha son of Bheemanna, forthwith, if he is not required in any other case.
Registry is directed to transmit original records to the trial Court forthwith.
SD JUDGE SD JUDGE Vmb/bvv