Karnataka High Court
Sri. Thimmaiah @ Thimma vs State By Kodihalli Police on 11 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 1737 of 2017
C/W CRL.A No. 1805 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1737 OF 2017
C/W
CRIMINAL APPEAL NO. 1805 OF 2017
IN CRL.A.NO.1737 OF 2017
BETWEEN:
SRI. THIMMAIAH @ THIMMA,
SON OF GURUVAIAH,
AGED ABOUT 30 YEARS,
RESIDING AT MALLAPURA VILLAGE,
KODIHALLI HOBLI,
Digitally signed KANAKAPURA TALUK,
by VINUTHA M RAMANAGARAM DISTRICT-562 117.
Location: HIGH ...APPELLANT
COURT OF (BY SMT. VINUTHA .P.KALE, ADVOCATE)
KARNATAKA
AND:
STATE BY KODIHALLI POLICE,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT-562 117.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED CONVICTION AND SENTENCE
DATED 26.09.2017 PASSED BY THE II ADDITIONAL DISTRICT
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CRL.A No. 1737 of 2017
C/W CRL.A No. 1805 of 2017
AND SESSIONS JUDGE, RAMANAGARA, TO SIT AT
KANAKAPURA IN S.C.NO.44/2013 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 302 AND
114 OF IPC AND SEC. 3 AND 25 OF INDIAN ARMS ACT.
IN CRL.A.NO.1805 OF 2017
BETWEEN:
SRI. MAHADEVA,
S/O EERAMADABOVI,
AGED ABOUT 30 YEARS,
R/O ALALULI VILLAGE,
KODIHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGAR DISTRICT- 562 119.
...APPELLANT
(BY SRI. SUDHINDRA.S.A & SRI. BHASKAR HEGGADE, ADVs.)
AND:
STATE OF KARNATAKA
BY KODIHALLI POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU- 560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 26.09.2017 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, RAMANAGARA, TO SIT AT
KANAKAPURA IN S.C.NO.44/2013-CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 302 AND
114 OF IPC AND SEC. 3 AND 25 OF INDIAN ARMS ACT.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
K.SOMASHEKAR, J., DELIVERED THE FOLLOWING:
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CRL.A No. 1737 of 2017
C/W CRL.A No. 1805 of 2017
JUDGMENT
These appeals are filed by the appellants/accused Nos.1 and 2 challenging the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.44/2013 dated 26.09.2017, whereby accused Nos.1 and 2 sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of IPC, 1860 and to pay a fine of Rs.25,000/- each and in default of payment of fine amount, they shall undergo further simple imprisonment for a period of one year. Further, accused Nos.1 and 2 are sentenced to suffer rigorous imprisonment for life for the offence punishable under Section 114 of IPC and sentenced to pay a fine of Rs.25,000/- each and in default of payment fine amount, they shall undergo simple imprisonment for a period of one year. Accused Nos.1 and 2 shall further suffer to undergo simple imprisonment for a period of three years for the offences punishable under Sections 3 and 25 of the Indian Arms Act and sentenced to pay a fine of Rs.2,000/- each and in default of payment of fine amount, they shall further undergo simple imprisonment for a period of two months. All the offences awarded against them shall run concurrently.
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2. Heard Smt. Vinutha P. Kale, learned counsel for the appellant/accused No.2 in Crl.A.No.1737/2017, Sri S.A.Sudhindra, learned counsel for the appellant/accused No.1 in Crl.A.No.1805/2017 and Sri Vijaykumar Majage, learned SPP-II for the respondent-State and perused the impugned judgment of conviction and order of sentence rendered by the trial Court in S.C.No.44/2013.
3. The factual matrix of these appeals are as under:
It is transpired in the case of the prosecution that, on 20.12.2012 at around 7.30 a.m., in the land bearing Sy.No.8 situated in the limits of Channasandra, the deceased Puttamma was present by protecting the ragi crops and jowar (maize) crops and at that time, accused No.1, being the person at the instigation of accused No.2 with an intention of eliminate deceased Puttamma and according to their conspiracy, shot her with means of SBML gun on her forehead. Resultantly, caused some bleeding injuries. As a result of that, she lost her breath at the scene of crime. Accused No.1 was in possession of gun without having any valid license issued by the licensing Authority. In pursuance of the act of the accused, on the filing of the complaint by the complainant, the criminal law was set -5- NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 into motion by recording the FIR as per Ex.P10 for the offences which reflected therein. Subsequent to initiation of the crime against the accused, the Investigation Officer taken up the case for investigation and during the investigation, he drew the inquest panchnamma over the dead body of Puttamma as per Ex.P3 in the presence of panch witnesses, similarly drew the seizure mahazars as per Exs.P4 to P7 and Ex.P13. But all these mahazars drawn by the Investigation Officer was based on the disclosure statement given by accused No.1 namely Mahadeva S/o. Eeramahabovi. Subsequent to completion of the entire investigation, the Investigation Officer laid the charge sheet against accused Nos.1 and 2 before the committal Court.
Subsequently, the committal Court passed an order as contemplated under Section 209 of Cr.P.C. and committed the case to the Court of Sessions for trial for the offences punishable under Sections 302 and 114 of IPC besides Sections 3 and 25 of the Arms Act.
4. Subsequently heard on charge by the learned Public Prosecutor and defence counsel and on perusal of the charge sheet material, it reveals that there are prima-facie materials for the offences constituted against the accused and -6- NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 accordingly, the charges were framed against the accused persons. The accused did not plead guilty, but claims to be tried. Accordingly, plea of the accused was recorded separately.
5. In order to prove the guilt against the accused, the prosecution in all examined PW.1 to PW.25 and got marked several documents at Exs.P1 to P18 and so also got marked materials which secured by the Investigation Officer as Mos.1 to 13. Subsequent to closure of the evidence of the prosecution witnesses, accused Nos.1 and 2 were subjected to examination as required under Section 313 of Cr.P.C. for enabling them to answer to the incriminating materials. The accused have declined the evidence of the prosecution adduced so far. Accordingly, it was recorded separately.
6. Subsequent to recording the incriminating statements against the accused persons, they were called upon to enter into the defence evidence as contemplated under Section 233 of Cr.P.C., but the accused did not chosen to lead any defence evidence on their behalf. Subsequent to closure of the entire evidence let in by the prosecution and so also on the parts of the defence as contemplated under the relevant -7- NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 provisions of law, the trial Court has gone through the evidence of PW.1 namely Pradeep, who is an author of the complaint and also being the son of the deceased Puttamma. In his evidence, it revealed that on 20.12.2012 for plying auto, he had been to Kodihalli. In his evidence, he disclosed relating to the incident which was narrated at Ex.P1 and so also reporting the death of the deceased. But his evidence finds place with the evidence of PW.2 namely Smt.Shanthamma. She stated in her evidence that when she was grazing the cows, the deceased was present in the field for cutting ragi crops and maize crops and after half an hour, she had been to the said land, where she heard the gun shot sound and she ran away, but noticed that the deceased was breathing and she had sustained some bullet injuries on her forehead and so also on the part of the shoulder and she saw someone had poured chilli powder on her. Thereafter, she went to the village and informed about the position of Puttamma to her son namely Pradeep and wherein, he had lodged the complaint and based upon his complaint at Ex.P9, the criminal law was set into motion by recording FIR. During Investigation, the Investigation Officer drew the seizure mahazars as per Exs.P4 to P7, P12 and Ex.P13. PW.2- -8- NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 Smt.Shantamma identified Mo.1-golden beads and golden coin which worn by the deceased and Mo.2-country made gun and her evidence finds corroborated with the contents made in Ex.P1-the statement of PW.3 and so also the contents made at Ex.P2-the statement of PW.4. Whereas, the trial Court had bank upon the evidence of PW.11, who is secured as panch witness relating to the spot mahazar at Ex.P4 drawn by the Investigation Officer in his presence and he scribed his signature. During the course of seizure mahazar, saree and clothes of the deceased were seized in the presence of panch witnesses and also seized some quantity of chilli powder in the box which finds place in the scene of crime.
7. PW.22, being an Investigation Officer in part, received the complaint at Ex.P9 and based upon the complaint, the criminal law was set into motion by recording the FIR as per Ex.P10 and subsequently, handed over the case to the Investigating Agency. Accordingly, PW.23 taken up the case for investigation in further and entire investigation has been carried by him and laid the charge sheet against the accused.
8. PW.19, being the doctor, conducted the autopsy over the dead body of Puttamma and issued post mortem -9- NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 report as per Ex.P8 and he opined in the post mortem report that the death was due to head injuries sustained.
9. PW.16 deposed in his evidence that besides the land of PW.15 some one had shot at Puttamma and to the said place, the police came and conducted mahazar as per Ex.P4 and whereby, he scribed his signature. Whereas, the trial Court has given more credentiality to the evidence of PWs.2, 6, 10, 11, 15, 16, 19, 22, 23 and 25. These witnesses have been subjected to examination and also stood for cross-examination on the parts of the defence side.
10. PW.23, being an Investigation Officer, carried out the investigation in entirety and laid the charge sheet against the accused and drew several mahazar in the presence of panch witnesses as per Exs.P4 to P7, P12 and P13 and also recorded the voluntary statements of accused Nos.1 and 2 as per Exs.P14 and P11 respectively. During the investigation, Investigation Officer collected the material objects which got marked as Mo.1-golden beads and also gold pieces containing row which worn by the deceased Puttamma and Mo.2-country made gun which was also seized by the Investigation Officer as
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 per the disclosure statement of accused No.1 as per Ex.P14. The clothes belong to the deceased, also bullets and cartoon box etc., have been seized and got marked as Mos.1 to 13 respectively.
11. Further, the trial Court had given more credentiality to the ingredients of Section 302 of IPC and even the public prosecutor has canvassed his arguments that it is the case of robbery and murder. Hence, there was a motive. Even though, the investigating Agency has not disclosed the offence punishable under Section 392 of IPC in the charge sheet, the offences under Sections 302 and 114 of IPC were lugged against the accused. This canvas made by the learned Public Prosecutor to give more credentiality to the evidence of the prosecution witnesses and so also role of each accused. Even though Section 8 of the Indian Evidence Act comes to rescue the prosecution theory as per the judgment of the Hon'ble Supreme Court of India in the case of Sandeep vs. State of UP (Crl.A.No.1651/2009), which squarely applicable to the present case on hand, accused Nos.1 and 2 conspired to eliminate the deceased Puttamma, since the father of accused No.2 had some illicit relationship with the deceased Puttamma,
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 by Mo.10-country made gun and the same has been reflected in the evidence of the prosecution adduced so far.
12. PW.23, being the Investigation Officer in part, apprehended accused No.1-Mahadeva during the course of investigation and his voluntary statement has been recorded and recovered gold ornaments which were alleged to be kept beneath the stone slab even though the accused has not shown the scene of crime where the alleged recovery was done. In this case, the majority of witnesses were turned hostile in respect of the role made by accused No.1, who shot at Puttamma and resultant of that, she sustained bullet injuries on her forehead and she had lost her breath at the spot itself.
13. Subsequently, the trial Court had given concentration on the evidence of those witnesses and even analyzes the evidence let in by the prosecution relating to the role of each one of the accused and so also causing bullet injuries on the forehead of the deceased Puttamma. But on appreciation of the entire evidence placed on record by the prosecution, there shall be some trustworthy testimony to examination of those witnesses. But at the cost of the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 repetition, the evidence of the PW.6, PW.10, PW.11, PW.15, PW.16, PW.19, PW.22, PW.23 and PW.25 coupled with the documentary evidence as per Ex.P5 i.e. seizer of gold ornaments which owned by the deceased Puttamma, the testimony cannot be discarded in view of the facts and circumstances of this case. As such, there is a chain link and considerable evidence put forth by the prosecution to prove the guilt against the accused. But on close scrutiny of the aforesaid testimony on the parts of the prosecution, the Court can base the same as against the accused person. The evidence of PW.11 and PW.15 are sufficient on the parts of the prosecution to prove the guilt against the accused and also inspired confidence of the Court. These are all the evidence addressed by the trial Court to come to the conclusion that the prosecution has proved the guilt against the accused with beyond all reasonable doubt relating to the offences under Sections 302 and 114 of IPC inclusive of the offences under the Indian Arms Act. But the burden of proving casts upon the prosecution even at the crucial point of time. In the instant case, it was conceded that there are no eye witnesses to the incident as narrated even in the complaint and so also in the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 theory of the prosecution. But the case is purely based upon the circumstantial evidence which is an admitted fact. But there is no dispute about the death of the deceased-Puttamma, who sustained bullet injuries on the vital part of her forehead.
14. PW.22, being an Investigation Officer, conducted panchannama as per Ex.P5 in the presence of the panch witnesses. The evidence of PW.1 to PW.5 and PW.7 to PW.9 inclusive of PW.12 to PW.14 and other witnesses and seizure of material objections i.e., Mo.3 to Mo.8 and Mo.10 to Mo.13 are acceptable. The death occurred in the forest area is not in dispute. Mere because the defence counsel has not implanted the evidence of prosecution witnesses, it cannot be said that the prosecution has failed to prove the guilt against the accused. These are all the observation made by the trial Court to arrive at the conclusion that the prosecution has proved the guilt against the accused and to render the conviction for the offences punishable under Sections 302 and 114 of IPC besides Sections 3 and 25 of the Indian Arms Act. It is this judgment has been challenged under this appeal by urging the various grounds.
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15. Smt.Vinutha P. Kale, learned counsel for the appellant/accused No.2 in Crl.A.No.1737/2017 taken us through the evidence of the prosecution witnesses and submitted that accused No.2 alleged to made some provocation to accused No.1-Mahadeva with an intention to eliminate Puttamma on the premise that she having some illicit relationship with his father namely Guruvaiah. The trial Court rendered the conviction judgment against this accused even though the prosecution was failed to establish the guilt against the accused by facilitating the worthwhile evidence. Even at the cursory glance on the parts of the prosecution witnesses, the entire evidence suffers from infirmities. But the trial Court misdirected and also misinterpreted the entire evidence of PW.1 to PW.25 though their evidence is not corroborative and also not in consistence with the evidence relating to the statements recorded by the Investigation Officer during the course of investigation. However, the faulty investigation has been carried by the Investigation Officer and also the prosecution did not facilitated the worthwhile evidence. Therefore, in this appeal, it requires intervention, if not, certainly the accused, who is arranged as the appellant in the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 this appeal, would be the sufferer and also the miscarriage of Justice would arise.
16. PW.1-Pradeep, who is the author of the complaint and the son of the deceased Puttamma, stated in his evidence that on 20.12.2012, for plying an auto rickshaw, he had been to Kodihalli. But this witness had been subjected to examination and his evidence has not been corroborated with any other evidence which has let in by the prosecution. PW.2- Smt. Shanthamma stated in her evidence that when she was grazing the cows, the deceased was present in the field for cutting ragi crops and maize crops and after half an hour, she had been to the said land, where she heard the gun shot sound and she ran away, but noticed that the deceased was breathing and she had sustained some sought of bullet injuries on her forehead. Mo.1-gold beads and also gold coins were found on the row of the deceased and the same were identified. Mere because identified those articles, it cannot be said that accused No.2 provoked accused No.1 to eliminate the deceased. For this, there shall be some acceptable evidence and also more credentiality on the parts of the prosecution. But PW.8- Chikkathimmegowda, who is the hearsay witness, has not
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 adduced any evidence on the parts of the prosecution to arrival of the proper conclusion in conformity with the evidence of PW.9-Dundamadaiah, PW.10 and PW.11, who are the panch witnesses relating to the spot mahazar inclusive of the inquest mahazar. PW.12 and PW.13 said to have been secured as mahazar witnesses at Ex.P6 and PW.12, but he did not withstood the version of the contents in the mahazar and more credentiality has been given to their evidence for rendering a conviction judgment by holding that accused No.2 had provoked accused No.1-Mahadeva to eliminate the deceased Puttamma on the premise that she having some illicit relationship with one Guruvaiah, who is none other than the father of accused No.2. But the trial Court is not justified in recording the conviction judgment that too for the heinous offences under Sections 302 and 114 of IPC.
17. Section 114 of the IPC relates to abetment and the concept of abetment and the ingredients to that offence constituted has not been established by the prosecution by facilitating the worthwhile evidence. It is the domain vested with the prosecution to establish the guilt against the accused by facilitating worthwhile evidence such as consistent, cogent
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 and also acceptable evidence that accused No.2 provoked accused No.1 to eliminate the deceased Puttamma. But the doctrine of preponderance of probabilities even on the prosecution, it is the domain vested with the prosecution to prove the guilt against the accused. But in the instant case, the prosecution has failed to prove the guilt against the accused by facilitating the consistent evidence, cogent evidence and so also corroborative in nature to secure the conviction. On all these premises, learned Counsel for accused No.2 emphatically submits that the judgment of conviction and order of sentence passed by the trial Court requires intervention by this Court, if not, the accused, who is the gravamen of the accusation, would be the sufferer and also miscarriage of Justice would occur.
18. In continuation of the argument advance on behalf of accused No.2, Sri Sudhindra S.A., learned counsel for accused No.1 addressed his arguments relating to the role of accused No.1-Mahadeva. This accused was facing the trial along with co-accused No.2 for the serious offence under Sections 302 and 114 of IPC 1860 and so also under Sections 3 and 25 of the Indian Arms Act. That the prosecution even though let in evidence by subjecting several witnesses for
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 examination, close scrutiny of the evidence of PW.1 to PW.11 and several documents, which are got marked, it is the domain vested with the trial Court to appreciate the oral and documentary evidence in a proper perspective. But the trial Court erroneously come to the conclusion and rendered the conviction judgment against the accused without appreciating the evidence in a proper perspective manner. But in instant case, the prosecution subjected PW.4, PW.5, PW.6, PW.7, PW.8 and PW.9 for examination and these witnesses have turned around to the statements made by them, on the parts of the prosecution, during the course of investigation. But these witnesses, who secured as panch witnesses, did not support the case of the prosecution to any extent even the contents at Ex.P3. But PW.10 has not explained the contents of Ex.P3 in an acceptable position, but his signature was obtained by the police and he specifically stated that at the instance of the police, he subscribed his signature on Ex.P3. Therefore, on close scrutiny of the aforesaid witness, there is a clouds of doubt and does not repose confident to arrive at the conclusion properly for rendering a conviction judgment for the offences
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 under Section 302 of IPC inclusive of the offence under the Indian Arms Act.
19. The trial Court had given more credentiality to the evidence of PW.6, PW.10, PW.11, 15, 16, 19, 22, 23 and 25. Even on close scrutiny of those evidence, there are some contradictions and omissions which have been noted in their evidence and more importantly, improvements which has been noticed in the course of the cross examination. The trial Court held that the prosecution has proved the guilt against the accused. However, the contradictions which finds place in their evidence are not sufficient to discard their testimony as observed.
20. PW.6 is the husband of the deceased. Even though he stood for cross-examination, nothing worthwhile has been elicited to believe the versions of the prosecution case and he was treated as hostile. However, the prosecution has failed to establish the guilt against the accused by facilitating the worthwhile evidence. The seizure of the gun i.e. Mo.2 used by accused No.1-Mahadeva as indicated in the theory of the prosecution and Mo.9-bullets has not been proved by the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 prosecution by subjecting the experts i.e., chemical examination for examination and the evidence of the experts was not available before the trial Court. Despite of the which, the trial Court has erroneously come to the conclusion and rendered the conviction judgment against both accused No.1 and 2.
21. The last limb of the argument advanced relating to the offences under Sections 3 and 25 of the Indian Arms Act. Admittedly, the Deputy Commissioner, who is the District Magistrate, was not subjected to examination on the parts of the prosecution for providing sanction for use of the said gun which marked as Mo.2 under Sections 3 and 25 of the Indian Arms Act. That itself indicates that the prosecution has failed to prove the guilt against the accused in so far as Mo.2-country made gun used by accused No.1-Mahadeva to eliminate the deceased Puttamma. Even though the prosecution has subjected certain witnesses for examination and the Investigating Officer has drawn several seizure mahazars, the prosecution was not able to put forth the worthwhile evidence. On close scrutiny of the evidence of PW.11 and PW.15, it is clear that they did not whisper relating to the seizure and the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 last seen theory and the same has not been established by the prosecution to connect the accused in this case. However, the prosecution miserably failed to prove the guilt against the accused. Despite of which, the trial Court rendered the conviction judgment even against accused No.1-Mahadeva alleging that he had shot at the deceased Puttamma by inflicting bullet injuries on her forehead and as a result of which, she lost her breath at the scene of crime. Therefore, in this appeal, it requires intervention, if not, certainly the accused would be the sufferer and the miscarriage of justice would occur. On all these premises, both the counsel for accused Nos.1 and 2 in this matter submit to consider the grounds urged in these appeals and to allow the appeals by setting aside the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.44/2013 dated 26.09.2017 and acquit the accused for the charges leveled against them.
22. It is in this background of the contention made by the learned counsel for the appellants/accused respectively and so also the counter arguments advanced by the learned SPP-II are concerned, it is relevant to refer whether the prosecution
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 has proved the guilt against the accused with beyond all reasonable doubt even though entire case rests upon the circumstantial evidence.
23. On close scrutiny of the contents made in Ex.P18 i.e., the letter written by the Deputy Commissioner, who is the sanctioning Authority and given permission for submitting the charge sheet against the accused for the offences under Sections 3 and 25 of the Indian Arms Act, it is clear that there is violation of certain guidelines and also conditions enumerated in the order passed by the District Magistrate. But in the instant case, there was no evidence as such relating to contents of Ex.P18. The offence under Section 302 of IPC 1860 relating to mensu rea and actus reus. These two concepts are requires to be established by the prosecution by facilitating the worthwhile evidence and each ingredients of the said offences should be established by the prosecution and it is the domain vested with the prosecution alone. But on close scrutiny of the evidence of PW.3 to PW5, PW.7 to PW.9, PW.12 to PW.14, PW.17, PW18, PW.20, PW.21 and PW.24, they are the witnesses subjected for examination, but they turned around to their statements recorded by the Investigating Officer during the course of the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 investigation. Even though they have been turned around to their own statements, it requires laying of the charge sheet against the accused. But their evidence requires to be appreciated in detail, cautiously and vigilantly. Otherwise, the accused, who is the gravamen of the accusation, would be the sufferer.
24. But the evidence of PW.1, who is none other than the son of the deceased Puttamma, is not in conformity with any other evidence even the case rests upon the circumstantial evidence. So far as the role of accused No.1-Mahadeva and accused No.2-Thimmaiah @ Thimma is concerned, the evidence adduced on the parts of the prosecution has to be independently appreciated. The offences under Sections 3 and 25 of the Indian Arms Act have been lugged against accused Nos.1 and 2. But it is the domain vested with the prosecution to establish the guilt against the accused relating to the offences under Section 3 and 25 of the Indian Arms Act. Section 39 of the Indian Arms Act, 1959 relates to obtaining sanction from the Deputy Commissioner/District Magistrate to file charge sheet. But it is the domain vested with the Investigating Officer to comply with Section 39 of the Indian
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 Arms Act within a stipulated period. Relating to Section 39 of the Indian Arms Act, learned counsel for accused No.1 has placed some reliances and the trial Court noted reliance of 1974 Crl.L.J.385 with regard to Section 39 of Indian Arms Act and observed that the aforesaid reliance no way helpful to the accused. But Sections 3 and 25 of the Indian Arms Act was lugged against the accused, as accused No.1 shot at deceased Puttamma on the fateful day and as a resultant of gun shot injury, she was lost her breath.
25. In the instant case, it is relevant to refer the concept of mens rea, Mens rea is a guilty mind. The term used to describe the mental element required to constitute a crime. Generally it requires that the accused meant or intended to do wrong or at least knew he was doing wrong things. However, precise mental element various from crime to crime. In so for the mens rea concept relating to that criminal cases for involvement that the intent. This is the explicit and also the conscious desire to commit a dangerous or illegal act. For example, if a person targets and assault someone with the goal of inflicting harm on the victim, he is displaying some criminal intent.
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26. The doctrine of last seen theory: the foundation of this theory lies on the principles of probability, cause and connection as no fact takes place in isolation. Basically, it means that if an event takes place then other events also take place which are the probable consequences of a major event or is related to it either retrospectively or prospectively. These inferences or presumptions are drawn logically according to how a reasonably prudent man will connect the dots in the particular scenario. In so far as the last seen theory, it is to be termed as a doctrine of a last scene theory. It is one in which two people are seen together and one is found alive after an interval of time and another is dead. The last seen theory by itself be a poor kind of evidence establishing conviction on the same. The last seen together principle is one of the latest principle which is taken into consideration in establishing the guilt of the accused. The doctrine of last scene theory, if proved, shifts the burned of prove onto the accused, placing on him that onus to explain how the incident has occurred and what happened to the victim who was last scene with him. If there is a failure on the part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 false explanation would give rise to a strong presumption against him, and in favour of the guilt, and would provide an additional link in the chain of circumstances. However, it is the domain vested with the prosecution to prove the guilt against the accused.
27. The benefits relating to the evidence which has let in by the prosecution when the doubt creates in the mind of the Court and naturally, it accrued upon the prosecution. Section 300 of IPC 1860 relates to the murder. But there is no specific definition of murder in the aforesaid Section. But section merely takes the four more serious types of culpable homicide based on the mens rea and designates them murder.
28. Motive: It is not essential for the prosecution to establish motive factor against the accused in all cases, but at some time it cannot be given to gainsaid that without adequate motive speaking normally, none is expected to take life of another human being. But the motive behind the crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assigning the evidence. But the circumstances proving the guilt of the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 accused are however not weakened at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to certain course of action.
29. In the instant case, Section 114 of the IPC has been lugged against the accused. But the distinction between the abetment has defined in Section 107 of the IPC. But the essential of abetment has constituted under the aforesaid provision of IPC that there are three essentials to complete abetment as crime. Firstly, there must be an abettor, he must abet and the abetment must be an offence. This section analysis the meaning of word 'abet' as used in this connection. But the abettor must be shown to have intentionally aided the commission of crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with requirement of Section 107 of IPC.
30. In instant case, it is alleged that accused No.2 had provoked accused No.1 intentionally to eliminate the deceased Puttamma on the premise that Puttamma having some illicit
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 relationship with his father. Therefore, there was some conspiracy held in between accused Nos.1 and 2 and due to that conspiracy, accused No.1 shot at deceased Puttamma with means of Mo.2-gun on the vital part i.e., forehead and as a resultant of that, she sustaining injuries which is reflected in the postmortem report said to have been issued by the doctor. The entire case even though it rests upon the circumstantial in nature, it is the domain vested with the prosecution to prove the guilt against the accused by facilitating the worthwhile evidence, but the chain of circumstances has to be established on the basis of reliable evidence.
31. In the instant case, it is relevant to refer the judgment rendered by the Hon'ble Supreme Court of India in a case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116. In this judgment, the Hon'ble Supreme Court had address the scope and issues in respect of circumstantial evidence and so also benefit of doubt. The circumstantial evidence - cardinal principles for conviction on the basis of, restated - Falsity of defence plea if a circumstance against the accused - Held on facts, circumstances not sufficient to conclusively establish the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 guilt against the accused - Circumstance of last scene together and other circumstances examined in the light of the facts of the case - Circumstances not put to the accused under Section 313 of Cr.P.C. cannot been held against him. Circumstantial evidence - False plea or false defence taken by the accused when can constitute an additional link in the chain of circumstances against the accused - infirmities in the prosecution case cannot be cured by use of such additional link. The concept of benefit of doubt: When any fact asserted by the prosecution turns doubtful the benefit should go to the accused, not the prosecution. It was address in para Nos.121 and 142 of this judgment rendered by the Hon'ble Supreme Court of India.
32. In the instant case, it is relevant to refer the judgment rendered by the Hon'ble Supreme Court of India in the case of Ram Niwas vs. State of Haryana reported in 2022 SCC OnLine SC 1007. The prosecution case rests on the circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra. It is well to
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In the instant case, a close analysis of the entire evidence let in and wherein the trial Court has misdirected the evidence and also misinterpreted the evidence which are let in by the prosecution to prove the guilt against accused that too for the heinous offences of Section 302 of IPC inclusive of the offences under Sections 3 and 25 of Indian Arms Act. The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra reported in 1973 SCC (Cri) 1033.
33. In the aforesaid judgment the Hon'ble Supreme Court had been address the issues relating to the last seen theory and also the case rest on the circumstantial evidence (1) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 accused and must show that in all human probability the act must have been done by the accused.
34. In the aforesaid judgment in para No.154 observed that these five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused 'must be' and not merely 'may be' guilty before a Court can convict. In the present case, we find that the prosecution has failed to establish the guilt against the accused and even the chain of events which can be said to exclusively lead to the one and only conclusion, i.e., the guilt of the accused.
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017
35. In that view of the matter, we find that the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.44/2013 is not sustainable. However, even at a cursory glance of the entire evidence let in by the prosecution even in a totality of the circumstances of the case and more so appreciation of the evidence are concern, it is relevant to refer Section 3 of the Indian Evidence Act, 1872 relating to the concept of proved and also disproved. But it is the domain vested with the prosecution and equally vested with the trial Court to appreciate the evidence in a proper perspective and if not appreciated the evidence keeping in view of the aforesaid provision, certainly the accused, who is a gravaman of the accusation, would be the sufferer for the aforesaid offences and also there shall be some miscarriage of justice would occur.
36. But in the instant case, the prosecution was not able to establish the guilt against the accused by facilitating the worthwhile evidence such as consistent, cogent, corroborative and acceptable evidence to prove that accused No.1 has committed the murder of the deceased Puttamma and done to her death by causing some bullet injuries with means of Mo.2-
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 gun alleged to have used by accused No.1-Mahadeva and it is based upon the provocation made by the co-accused No.2. However, at a cursory glance of the entire evidence, we are of the opinion that the prosecution has failed to establish the guilt against the accused with beyond all reasonable doubt. When the doubt has arise in the mind of the Court in criminal justice delivery system, that doubt should be extended only to the accused and also it is accrued on the accused alone and not on the prosecution. Therefore, the accused deserves for acquittal of the offences.
37. Therefore, in view of the aforesaid reasons and findings, we proceed to pass the following:
ORDER i. The appeals preferred by the appellants/accused Nos.1 and 2 respectively, under Section 374(2) of Cr.P.C. are hereby allowed.
ii. Consequent upon allowing these appeals, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.44/2013 dated 26.01.2017 is hereby set aside.
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NC: 2023:KHC:24050-DB CRL.A No. 1737 of 2017 C/W CRL.A No. 1805 of 2017 iii. Consequent upon setting aside the judgment of conviction stated supra, the appellants/accused Nos.1 and 2 are hereby acquitted for the offences punishable under Sections 302 and 114 of IPC, 1860 and Sections 3 and 25 of the Indian Arms Act, 1959 for which, they held charged.
iv. The appellants/accused Nos.1 and 2 are in incarceration. Therefore, the Jail Authorities are directed to set them at liberty, if they are not required in any other case.
v. Registry is directed to forward the operative portion of this order to the concerned Jail Authorities where the appellants/accused Nos.1 and 2 are housing, to set them at liberty forthwith.
Accordingly ordered.
Sd/-
JUDGE Sd/-
JUDGE VM List No.: 1 Sl No.: 9