Karnataka High Court
Shri Omkumar Uruf Appi vs The State Of Karnataka on 17 September, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE H.BILLAPPA
CRL.A.No.1109/2008
* C/W. CRL.A.No.1155/2011
*CRL.A.No.1109/2008:-
BETWEEN:
Shri.Omkumar Uruf Appi,
S/o.Late Chikkarevaiah,
Age 28 years,
Near Jaastoll,
R/at.Chokkenahalli,
Urdigere Hobli, Tumkur Taluk,
Native Hodavanahalli,
Ambruthoor Hobli. ...Appellant
(By Sri.Naseer Ali, Adv.,)
*CRL.A.No.1155/2011:-
BETWEEN:
Gangamma,
W/o. Lakshmayya,
Now aged about 38 years,
Agrigold Sub Agent,
Chokkenahalli, Udigere Hobli,
Tumkur,
Present R/o. Near Garment Factory,
Lohit Nagar, Market Road,
Nelamangala,Bangalore Rural District. ...Appellant
(By Sri.Naseer Ali, Adv.,)
AND:
The State of Karnataka,
By Kyathsandra of Police,
Tumkur District.
...*Common Respondent
(By Sri.N.S.Sampangiramaiah, Adv.,)
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CRL.A.No.1109/2008 is filed U/s.374 (2) Cr.P.C. by the
advocate for the appellant praying that this Hon'ble Court may be
pleased to set aside the judgment of conviction and sentence
dated 9.7.2008 passed in S.C.No.138/2007 by the Addl. District
and S.J., FTC - I Tumkur convicting the appellant -accused No.2
for the offence P/U/S/302, 201 R/W 34 of IPC etc.,
CRL.A.No.1155/2011 is filed U/s.374(2) Cr.P.C. by the
advocate for the appellant praying that this Hon'ble Court may be
pleased to set aside the judgment and order dated 9.7.2008
passed by the Prl. District and Sessions Judge, Fast Track Court-
I, Tumkur in S.C.No.138/2007 convicting the appellant/accused
No.1 for the offence P/U/S 302, 201 R/W 34 of IPC and the
appellant/accused No.1 is sentenced to undergo life and also pay
a fine of `.5,000/- and in default of fine amount, she shall
undergo 1 month S.I., for the offence P/U/S 302 R/W 34 of IPC
and the appellant/accused No.1 is sentenced to undergo
imprisonment for a period of 3 years and also pay a fine of
`.5,000/- in default to pay fine amount, she shall undergo S.I. for
a period of one month, for the offence P/U/S 201 R/W Sec.34 of
IPC.
These appeals are coming on for hearing this day,
K.SREEDHAR RAO. J., delivered the following:
JUDGMENT
The material facts of the prosecution case disclose that one Muniraju is the deceased. One Rajaiah, father of the deceased, is the complainant. The dead body of Muniraju was found on 27.6.2007 near a hillock of Gowdayyanapalya village. On 26.6.2007, the deceased left the house for hawking the eatables at toll gate near Kyathasandra. He did not returned home on that Page Nos.2 to 6 are retyped and replaced vide court order dated 17.09.2013 3 day. On the next day, around 10.00 p.m., the complainant was informed about the dead body of his son found near the hillock by one Puttaraju. The complainant, after noticing the dead body, has given complaint on the next day to the Police to the effect that a week prior to the incident, there was a quarrel between the deceased and one Gangamma who is accused No.1. The said Gangamma was also used to hawk eatables near the toll gate near Kyathasandra toll gate. It was her allegation that the deceased caught hold of her to outrage her modesty. The Gangamma had abused the deceased in a foul and filthy language. In that regard, the complainant had gone to the house of Gangamma, objected her for talking in such a language about his son and stated that his son is innocent and that she has unnecessarily abused her son.
2. The complainant in view of the said background states in the complaint that Gangamma might have caused the murder of his son and therefore, seeks for an enquiry and taking action against Gangamma. The Police have registered the case. In the course of investigation, it was found that accused No.1 along with accused No.2 who is the appellant herein assaulted the deceased 4 with arecanut reaper severely and caused his death. The accused 1 and 2 have been arrested and on their voluntary statement, areca nut reaper has been seized under panchanama. The dead body was subjected to postmortem. The postmortem report discloses that the death was on account of head injury and the death is homicidal. The prosecution, on the basis of the above circumstances, indicted the accused persons for committing offence.
3. In the evidence, the complainant and other material witnesses with regard to the motive have turned hostile. It is only on the basis of the recovery of areca nut reaper, the complicity of the accused with the crime is sought to be established. The postmortem report of course discloses that the death is homicidal. The Trial Court has convicted the accused 1 and 2 for offences punishable U/s.302 read with Sec.34 of IPC and imposed the sentence of life imprisonment and fine of `5,000/- each, in default one month's imprisonment and for the offences punishable U/s.201 read with Sec.34 of IPC, the Trial Court has imposed three years imprisonment and fine of `5,000/- each, in default 5 one month's imprisonment. The accused No.1 has not preferred any appeal against the conviction and sentence. The accused No.2 is in appeal.
4. Upon thorough consideration of the facts and evidence, it discloses that the PW.8 primarily testifies to the motive and deposes that the accused might have committed the murder. However, PW.8 has turned hostile and does not support the case of the prosecution. The other material witnesses with regard to the motive have turned hostile. With regard to the recovery of areca nut reaper marked as M.O.7 also, the panch witnesses have turned hostile. Areca nut reaper does not have any bloodstains or distinct marks to be identified as one used for commission of the offence. The unstained areca nut reaper cannot be considered as the one used for the commission of the offence because it is commonly found. The recovery evidence is very flimsy. It may be that the prosecution has established that the death is due to homicide, but the prosecution has failed to prove the motive and recovery evidence in order to clinchingly establish the guilt of the accused.
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5. In that view of the matter, the order of conviction recorded by Trial Court is bad in law and the same is set-aside. The appellant is acquitted. It is on the basis of untenable and flimsy evidence, accused No.1 is also convicted. Therefore, the conviction of accused No.1 is also liable to be set-aside. Accordingly, though accused No.1 has not preferred any appeal, accused No.1 is also acquitted.
The jail authorities are directed to set at liberty the appellant and the accused No.1-Gangamma forthwith, if not required to be detained in any other case.
Sri.Naseer Ali, learned counsel, is appointed as amicus curiae and amicus curiae fee is fixed as `.7,000/-. The State shall pay the fee to the Amicus Curiae.
Sd/-
JUDGE Sd/-
JUDGE Bss.