Karnataka High Court
State Of Karnataka vs Malurappa @ Malatesh on 28 March, 2017
Bench: B.Sreenivase Gowda, R.B Budihal
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH 2017
PRESENT
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.100071 OF 2014
BETWEEN
STATE OF KARNATAKA
THROUGH POLICE INSPECTOR
KALAGHATAGI POLICE STATION
REPRESENTED BY
ADDITIONAL STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BENCH UNIT
DHARWAD
... APPELLANT
(By Sri V.M. BANAKAR, ADDITIONAL STATE PUBLIC PROSECUTOR)
AND
1. MALURAPPA @ MALATESH
S/O. NAGAPPA @ NAGANNA KURUBA
AGE: 25 YEARS, R/O. KALYANADURGA
TQ: ANANTAPUR, ANDHRA PRADESH
2. SHIVABASAPPA @ SUBHASH
S/O. MALLIKARJUNA JANANI
:2:
AGE: 25 YEARS, R/O. DEVIKOPPA
TQ: KALAGHATAGI
... RESPONDENTS
(By Smt : SARWAMANGALA N KOUJAGERI, ADVOCATE FOR R1,)
SRI V.G. HOLEYANNAVAR, ADV. FOR R-2(ABSENT)
SRI. ANAND K. NAVALAGIMATH, ADVOCATE APPOINTED AS
AMICUS CURIAE FOR A-1 AND A-2 VIDE ORDER DATED
27.3.2017)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 3778(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE. SEEKING TO
GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 20.09.2013 PASSED BY THE
II-ADDL. DISTRICT & SESSIONS JUDGE, DHARWAD, IN
S.C.NO.19/2011 AND SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL AND CONVICT THE RESPONDENTS/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 READ
WITH SECTION 34 OF THE INDIAN PENAL CODE..
THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THIS DAY, BUDIHAL R.B. J., DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal preferred by the State challenging the legality and correctness of the judgment and order of acquittal dated 20th September 2013 passed by the II Additional District and Sessions Judge, Dharwad. Accused Nos.1 and 2 who are the respondents herein were charged with the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. In support of its case, the prosecution examined in all 22 :3: witnesses and got marked the documents Exs.P-1 to P-32 and got marked material objects M.O.1 to M.O.24. After considering the materials placed on record, oral as well as the documentary, the trial Court acquitted the accused holding that the prosecution failed to prove its case beyond all reasonable doubt. Being aggrieved by the same, the State is before this Court in this appeal.
2. Brief facts of the prosecution case are that the first accused Malurappa @ Maltesh, a native of Kalyanadurga, Taluk Anantapur, Andhara Pradesh, had come to Hunasakatti, taluk Hangal, for selling the blankets in the village. He stayed there, in the village, in a rented house and there was a friendship developed between said Malurappa and the deceased Sahadevappa. The deceased Sahadevappa advanced a sum of Rs.15,000/- to the first accused for his business purpose and accused No.1 promised to pay Rs.30,000/- to the deceased required it for performing the pooja. Such being the case, on 17.08.2010, Tuesday evening, at about 5.30 p.m., accused No.1 took the deceased Sahadevappa on :4: promise that he will make the payment of Rs.30,000/-. Both left the house of the deceased on the motor cycle bearing registration No.KA-27/S-5469 of the deceased himself. But the deceased did not return home throughout the night. The elder brother of the deceased one Ramanna and other members of the family tried to search for the deceased. They could not trace about his whereabouts. When he tried to contact the deceased and even the first accused over their respective mobiles, both the mobiles were found switched off. On the next day, they searched in different villages with their relatives but his whereabouts were not known. So they suspected that the 1st accused along with his persons might have done something to the deceased. On 19.08.2010 at about 2.30 pm., the complainant received a phone message from Kalaghatagi Police Station regarding the dead body of Sahadevappa lying on Kalaghatagi-Haliyal road near Hatakinal cross. Immediately, the family members went there and identified the body of the deceased Sahadevappa lying in the gutter by the side of the road. :5: They could notice the head injury among other injuries on the body of the deceased. The complainant suspecting involvement of the 1st accused and his men in committing the murder of the deceased Sahadevappa, assaulting him with stone, filed a complaint on 19.08.2010 with Kalaghatagi Police Station. On the basis of the said complaint, a case came to be registered as per the FIR.
3. After considering the material placed on record, it is held by the learned trial Judge that the prosecution was not able to prove its case.
4. Heard the arguments of the learned Additional State Public Prosecutor for the appellant-State and also the learned counsel Smt. Sarwamangala N. Koujageri for accused No.1 so also heard the amicus curiae for respondent-accused Nos.1 and 2.
5. The learned Additional State Public Prosecutor during the course of his arguments made the submission that though there are no eyewitness to the incident, the circumstances :6: about which the material collected during investigation clearly goes to show involvement of accused Nos.1 and 2. He made submission that there is consistent evidence that on 17.08.2010 in the evening, accused No.1 came to the house of the deceased and took him on his motor cycle. This is evidenced by the complainant as well as by the other family members of the family. He also made a submission that even during the course of trial also, the prosecution witnesses have deposed about the said fact and there is no serious cross-examination on this aspect of the defence. It is also further submitted by the learned Additional State Public Prosecutor that looking to the FSL report, it clearly goes to show involvement of both the accused because the blood stained clothes of the accused were seized on the voluntary statement given by accused Nos.1 and 2. He also submitted that even the two motor cycles marked as M.Os.7 and 24 were also seized as per the voluntary statement given by accused No.2. Hence, he submitted that if there is no involvement of accused persons, there was no reason in tallying the blood group on the :7: clothes of the accused as well as on the clothes of the deceased which were seized in this case. He submitted that accused No.1 took treatment as he sustained an injury to his middle finger and in this regard the learned Additional State Public Prosecutor made a submission that while issuing the OPD slip-Ex.-30, there is some mistake committed by the Doctor who treated accused No.1 for the said injury. He submitted that during the evidence of PW-16, the same is clarified before the Court that accused No.1 came to the hospital on 24.08.2010 and he has taken the treatment and as accused No.1 furnished the date of incident as 17.08.2010, she has mistaken the said date . Hence, he submits that there is proper explanation by the doctor PW-16 in the oral evidence. He also submits that accused No.1 during the course of the trial has not at all explained how and when he received such an injury to his middle finger. This is also one of the circumstances which will go to show the involvement of accused No.1 in committing the alleged offence. It is also his submission that the recovery panchanama for the seizure of clothes so also :8: the seizure of motor cycles on the voluntary statement of accused Nos.1 and 2 is also established with the help of the evidence of the panch witnesses and also the evidence of the police witnesses. He submitted that during the course of recovery of Rs.8,000/- and also the blood stained clothes were seized from the house of accused No.1 and the two motorcycles were seized from the house of accused No.2. Hence, he submits that even though the said important piece of evidence was produced by the prosecution, the learned trial Judge has not at all correctly and properly appreciated these materials and has wrongly read the evidence and came to the conclusion that the offence is not proved by the prosecution and has wrongly acquitted accused Nos.1 and 2. Hence, he submits that there is substantial material to establish the case as against accused No.1. He fairly concedes during the course of arguments so far as accused No.2 is concerned that there is no connecting link with the materials to show his involvement in the case and he prays to allow the appeal by setting aside the judgment and order of acquittal passed by the :9: trial Court and to convict the accused more particularly accused No.1.
6. The learned counsel appearing on behalf of accused No.1 during the course of arguments made the submission that there are no eyewitnesses to the incident and the case rests only on the circumstantial evidence and the evidence on record to the circumstances also there is no connecting link and hence it cannot be said that the prosecution has established its case beyond all reasonable doubt. The learned counsel, further, made the submission that so far as OPD slip Ex.P-30 is concerned it is the case of the prosecution that he came to the hospital and took treatment on 17.08.2010 and the learned counsel submits that there was no necessity for accused No.1 to go to the hospital and to take treatment on 17.08.2010 itself when it is not definite whether the alleged offence had taken place on 17.08.2010. She further submits that as per the evidence of the doctor, the doctor deposed that the alleged incident might have taken place 2 to 5 : 10 : days earlier to the examination. Hence, she submits that even the alleged date of incident may go to 15.08.2010. Hence she submits that even the document Ex.P-30 OPD slip as against accused No.1 will not come to the aid of the prosecution in establishing its case. She also made a submission that only on the basis of recovery and the FSL report, it cannot be said that they are sufficient material to come to the conclusion that accused No.1 has committed the alleged offence. When the case rests on the circumstantial evidence, all the circumstances must be established exclusively and inevitably suggesting the guilt of the accused. This is not done in this case. Hence, she submits that the learned trial Judge has taken all these aspects into consideration and has come to the right conclusion in acquitting accused No.1. It is also her contention that even there is a delay in lodging the complaint. The complaint was lodged by PW-5 after due deliberation because it is the police who went to the spot and they called the complainant and after due deliberation, a complaint was lodged. Hence, she submits that : 11 : there are no grounds to interfere with the judgment and order of acquittal passed by the trial Court.
7. The learned Counsel Sri. Anand K. Navalagimath, Amicus Curiae representing accused Nos.1 and 2 made the submission that even with regard to the last seen theory also there is no cogent and consistent material produced by the prosecution. He also submitted that looking to the evidence of the doctor, the body was completely decomposed and this would clearly goes to show that the said incident might not have taken place on the alleged date i.e. on 17.08.2010 as alleged by the prosecution. He also made submission that even with regard to the recovery of the blood stained clothes and Rs.8,000/- from the house of accused No.1 and the recovery of two motorcycles from the house of accused No.2, there is no acceptable and cogent evidence and the requirement of section 27 of the Indian Evidence Act 1872 are not at all complied by the police in effecting recoverypanchanama. Therefore, the same cannot be relied upon. He also submits that : 12 : looking to the entire material and even the evidence of the prosecution witnesses wherein they have clearly stated that on suspicion they are deposing that the accused might have committed the murder of the deceased. The learned counsel made submission that there is no illegality committed by the trial court and there is no need to interfere into the judgment passed by the trial Court. Hence, he also submitted to dismiss the appeal confirming the judgment and order passed by the trial Court.
8. We have perused the grounds urged in the appeal memorandum, the judgment and order of acquittal passed by the trial Court so also the documents produced in support of the prosecution case and the oral evidence of the parties placed before the trial Court.
9. Even according to the case of the prosecution, the case rests on the circumstantial evidence and there are no eyewitnesses to the incident. It is no doubt true that in the : 13 : complaint and also in the oral evidence of PW-5-the complainant, he has deposed that on 17.08.2010 on the evening at about 5.30 p.m., accused No.1 came to the house of the deceased and took him on the motorcycle of the deceased stating that he will arrange for Rs.30,000/- to be given to the deceased. It is the further case of the prosecution that when the deceased went along with accused No.1, he did not come back to the house and it is only on 19.08.2010, the complainant got a phone message through the police and accordingly, he rushed to the spot. So these materials goes to show that as per the intimation given by the police, the complainant had been to the said police. Two other person who went along with the complainant were also present there. There was a deliberation with the police and then a complaint was given by PW-5. But looking to the material placed on record, more particularly, the doctors evidence, it is no doubt true that her examination clearly goes to show that it is a homicidal death and rules out the possibility that it is a suicidal death. But to connect : 14 : accused Nos.1 and 2, let us examine the material placed on record by the prosecution.
10. So far as accused No.2 is concerned, it is not the case of the prosecution that he too came to the house of the deceased on 17.08.2010 along with accused No.1 and even there is no evidence on the side of the prosecution that at the subsequent stage he came in contact with accused No.1 in connecting that he had committed the alleged offence is concerned, nor it is the case of the prosecution that there is any material to show that accused No.1 gave his motorcycle into the custody or possession of accused at any time subsequent to 17.08.2010. It is true as per the voluntary statement-Ex.P-28, the case of the prosecution that accused No.2 gave voluntary statement admitting that the two motor cycles were in his custody and if he is taken to the said place, he will point out and produce those motorcycles and accordingly, the police along with the panch witnesses went along with accused No.2 and accused No.2 : 15 : produced two motorcycles as per M.Os.7 and 24. Even if it is admitted that such a recovery has been effected by following the due procedure, what is the intention of this accused with the alleged offence, there is no connecting link at all. Even if it is accepted that he produced the motor cycle belonging to the deceased also, only because of such evidence, the Court cannot come to the conclusion that it establishes the participation of accused No.2 in committing the murder of deceased Sahadevappa unless and until there are other connecting circumstances established by the prosecution. During the course of arguments, the learned Additional State Public Prosecutor also fairly submitted that so far as accused No.2 is concerned, there is no sufficient and connecting material during the course of trial and no doubt, he submits that he will leave the matter to the Court to come to the right conclusion in the mater. Therefore, looking to these aspects and the judgment and order of acquittal passed by the trial Court, so far as accused No.2 is concerned, we are of the : 16 : clear opinion that no illegality has been committed by the trial Court in coming to such a conclusion as against accused No.2.
11. In respect of accused No.1 is concerned, it is true that it is the case of the prosecution that the deceased went along with accused No.1 on 17.08.2010 and looking to the charge framed by the trial Court, the definite case of the prosecution is that the incident has taken place on 17.08.2010, for which charge, the accused did not plead guilty and claimed that he be tried.
12. We have perused the evidence of the Doctor-PW-3. The doctor in his evidence has given the probable time of death of the deceased that it may be between 2 to 5 days earlier to conducting postmortem examination. Condition of the body of the deceased was noticed by the doctor PW-3 that it was completely decomposed and even insects were found in the dead body of the deceased. Therefore, looking to the evidence of the doctor also, a reasonable doubt arises in the mind of the Court : 17 : that whether really the incident has taken place on 17.08.2010 at 22.00 hours as alleged by the prosecution because, there is no cogent and acceptable material placed by the prosecution to establish the date and time of the said incident. Apart from that, the interesting aspect in this case is, even according to some of the prosecution witnesses, they have deposed that the date of incident as 11.08.2010, namely, PW-7 during the course of his evidence at para 13 in cross-examination by the defence, he admitted that in the statement dated 20th August 2010, given before the police, he has stated that the incident took place on 11.08.2010 at 10.00 p.m. when it was suggested, witnesses admitted it as true. We have also perused the evidence of the police officer PW-21. PW- 21 during the course of cross-examination has deposed at page No.10 of his deposition that witnesses Laxman Goudappasaunshi, Gangappa Neelappa Saunshi and Channapa Kori Shettar Ganganagouda Patil stated before him that when the incident took place it was on 11.08.2010 during the night at 10.00 p.m, but the witness answered that the date may be because of the typing : 18 : mistake. He further deposed that till he gave the evidence before the court he had not moved an application seeking correction of the date that there is a typing mistake. Even he has admitted that he has not deposed before the Court that it is because of the typing mistake. This clearly goes to show that some of the prosecution witnesses have also stated in their statement before the investigating officer that the incident might have taken place on 11.08.2010 at 10.00p.m.. Therefore, if this piece of evidence is taken into consideration, again it is contrary and inconsistent to the case of the prosecution that the incident was on 17.08.2010. This aspect is also not satisfactorily clarified by the prosecution even during the evidence of PW-21-investigating Officer. These material clearly goes to show that even the prosecution was also not definite about the case that the incident exactly took place on 17.08.2010.
13. Looking to the recovery panchanama Ex.P-27 as against accused No.1 is concerned, it is true, the prosecution has : 19 : produced voluntary statement of accused N0.1 as per Ex.P-27 and it is its case that he made a statement that Rs.8,000/- belonging to the deceased was taken by him and he has kept the amount so also the blood stained clothes belonging to accused No.2 given to his custody were kept in his house. If he is taken to the said place, he will point out and produce the said materials before the police. But looking to the oral evidence of the police officer, who recorded the voluntary statement of accused No.1 again there is no corroboration or consistency in the oral evidence as well as the contents of Ex.P-27-voluntary statement of accused No.1. In the oral evidence of the concerned police officer, he has not at all stated that accused No.1 had also stated before him that he has hidden Rs.8,000/- and blood stained clothes in his house and if he is taken to his house, he will point and produce the said articles. In his oral evidence he simply deposed that he made a statement that if he is taken, he will produce Rs.8,000/- and blood stained clothes. Unless and until, the contents of Ex.P-27-voluntary statement of accused No.1 are deposed by the investigating : 20 : officer exactly, then in that case, it is difficult for this Court also to accept the contention of the prosecution and to rely upon the said voluntary statement Ex.P-27. It is also admitted that when such recovery panchamana was conducted in the house of accused No.1 in Andhra Pradesh, the investigating officer has admitted that he has not taken the local witnesses. The witnesses were taken along with him to the said place which is at a distance of 450 kms. Therefore, looking to these attending circumstances and the oral evidence of the police officer, it cannot be said that the prosecution has established the recovery panchanama with cogent and satisfactory material.
14. The another circumstance relied upon by the prosecution as against accused No.1 is concerned that accused No.1 sustained injury to his middle finger. He went to the hospital and he has taken the treatment. In that connection, OPD slip is produced as per Ex.P-30. On perusing the oral evidence of the doctor, it transpired that accused No.1 went to the hospital on : 21 : 17.08.2010 but subsequently the witness was recalled and the MLC register was also produced before the Court and the prosecution tried to clarify, he has taken treatment not on 17.08.2010 but it was on 24.08.2010 but looking to the cross- examination of PW-16-the doctor at page No.4 of the deposition, it is stated that whenever they want to issue an injury certificate, they will go through the entries in the MLC register and then only they will issue the injury certificate. This suggestion has been admitted by the Doctor during the course of his cross- examination. If really in the MLC register the date of accused No.1 taking the treatment is given as 24.08.2010 then what made the doctor to depose that he came to the hospital on 17.08.2010 and has taken the treatment. Perusing this material also, it cannot be said that even with regard to the alleged injury to accused No.1, there is no acceptable material. As we have already observed that there are no eyewitnesses to the incident and the case of the prosecution rests on the circumstantial evidence, in case of circumstantial evidence, the circumstances projected by : 22 : the prosecution inevitably and exclusively suggest the guilt of the accused and there is no circumstance which is consistent with the innocence of the accused. Therefore, there is no connecting link of the alleged circumstance as against accused No.1 also. All these aspects were extensively considered by the learned trial Judge in his judgment and the learned trial Judge has rightly come to the conclusion that the prosecution was not able to prove its case beyond all reasonable doubt.
We do not find any illegality in the judgment and order of acquittal passed by the learned trial Judge. There are no valid and justifiable grounds for this Court to interfere in this appeal either to modify or to set aside the judgment and order of acquittal passed by the trial Court.
Hence, the appeal is hereby dismissed.
We appreciate the valuable assistance rendered by the amicus curiae Sri. Anand Navalagimath,. We place it on record. : 23 :
Registry is hereby directed to pay Rs.6,000/- to the learned amicus curiae.
Sd/-
JUDGE Sd/-
JUDGE kmv