Karnataka High Court
Somashekarappa vs State Of Karnataka on 29 June, 2018
Bench: B.V.Nagarathna, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.175/2014
BETWEEN:
Somashekarappa
S/o Chowdaiah
Aged about 62 years
R/o Huduguru Village
Gowribidanur Taluk
Chickaballpur District - 562 101. ...Appellant
(By Sri Venkatesh P.Dalwai, Advocate)
AND:
State of Karnataka
Though the Rural Police
Gowribidanur
Represented by
State Public Prosecutor
High Court Building
Bangalore - 560 001. ...Respondent
(By Sri Chethan Desai, HCGP)
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This Criminal Appeal is filed under Section 374(2)
Cr.P.C., praying to set aside the order dated 26.8.2013
passed by the Principal District and Sessions Judge,
Chickballapur in Spl.S.C.No.2/2010 - convicting the
appellant/accused for the offence punishable under Section
302 of Indian Penal Code and under Section 3(2)(v) of SC/ST
(Prevention of Atrocities) Act, 1989 and the
appellant/accused is sentenced to undergo R.I. for life and is
also directed to pay fine of Rs.5,000/- in default simple
imprisonment for 6 months for the offence punishable under
Section 302 of Indian Penal Code and the appellant/accused
is sentenced to undergo R.I. for life and pay fine of
Rs.5,000/- in default simple imprisonment for 6 months for
the offence punishable under Section 3(2)(v) of SC/ST
(Prevention of Atrocities) Act, 1989.
This Criminal Appeal having been heard and reserved
for judgment on 23.05.2018 and coming on for
pronouncement of judgment this day, BUDIHAL R.B. J.,
delivered the following:-
JUDGMENT
This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction dated 26.8.2013 passed by the Principal District and Sessions Judge, Chickballapur in Special Sessions Case No.2/2010. By the said judgment, the accused has been convicted for the offence punishable under Section 302 of IPC and also for the offence punishable under 3 Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 and accordingly, he was sentenced.
2. Brief facts of the prosecution case as per the averments made in the complaint (Ex.P.1) lodged by one H.G. Raghu (P.W.1) are that, about 15 years back, his sister Chandrakala, aged about 35 years, was given in marriage to one Narasimhamurthy of Melyapura Village, Hindupura Taluk, Andhra Pradesh State. For about 12 years, Chandrakala was happy in her matrimonial house at Melyapura. About three years back, the husband of the said Chandrakala expired and from that day, she was staying along with the complainant. On 10.5.2010 at about 12.30 noon, the said Chandrakala went out of the house to bring fire wood and she did not return till night. Then the complainant along with his friends went in her search towards Vaddara land and also towards tank, but she was not traced. Thereafter, in the morning at 6.30 a.m., again they went to search 4 her. They found the dead body of the said Chandrakala in the land of one Venkatarayappa nearby Shettykunte. Somebody assaulted on her head with a weapon and committed her murder. There were bleeding injuries on the head. From the date when his sister Chandrakala came to the house of the complainant after the death of her husband, she was having illicit connection with one Ashwathappa, son of Somashekarappa, of his village, belonging to Devanga community. Hence, the complainant was having suspicion as against the said Ashwathappa. Therefore, he requested the police to take legal action as against the said Ashwathappa.
On the basis of the said complaint, case came to be registered in crime No.94/2010 for the offence punishable under Section 302 of IPC read with Section 3(2)(v) of SC/ST (POA) Act.
3. After completion of investigation, the investigation officer filed charge-sheet against the 5 accused for the said offences. Then the learned Sessions Judge, after hearing both sides, framed charges against the accused for the said offences. The said charges were read over and explained to the accused, the accused pleaded not guilty and claimed to be tried. Accordingly, the matter was set down for recording the evidence of prosecution.
4. In support of its case, the prosecution in all examined 23 witnesses and produced the documents at Exs.P.1 to P.47 and also got marked M.Os.1 to 8. The accused has been examined under Section 313 of Code of Criminal Proceedure, 1973. On the side of the defence, no witnesses were examined nor any documents got marked.
5. After hearing the arguments of both sides and after considering the materials on record, both oral and documentary, the learned Sessions Judge found the 6 appellant-accused guilty of both the charges and convicted him for the aforesaid offences accordingly.
6. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment on the grounds as mentioned at ground Nos.1 to 11 of appeal memorandum, the appellant-accused is before this Court.
7. We have heard the arguments of learned counsel for the appellant-accused so also learned HCGP appearing for the respondent State.
8. Learned Counsel for the appellant-accused during the course of arguments submitted that though the complainant has raised suspicion as against Ashwathappa alleging that he was having illicit connection with the deceased, whereas after 7 investigation, the charge sheet came to be filed as against Somashekarappa, the father of the said Ashwathappa. Therefore, he made submission that this itself goes to show that the prosecution has falsely implicated the accused in the said case. There are no direct witnesses to the incident and the case of the prosecution rests entirely on the circumstantial evidence. The learned counsel submitted that one of the circumstances is regarding the last seen theory, which is not acceptable and worth believable. He also submitted that the prosecution materials, both oral and documentary, are not sufficient to come to the conclusion that the accused had committed the alleged offence. When it is the allegation as per the complaint that Ashwathappa was having the illicit connection with the deceased, then filing the case against Somashekarappa, the father of the said Ashwathappa, alleging that it is he, who was insisting the deceased Chandrakala to cut-off the illicit connection with his son 8 Ashwathappa, is most unnatural and improbable. The learned counsel further submitted that looking to the evidence of prosecution witnesses, the evidence is contradictory to each other and it is not worth believable. The circumstances relied upon were not established with clear and cogent evidence by the prosecution. Reasonable doubt arises as to the case of prosecution. Hence, the learned counsel submitted that these material aspects were not properly considered and appreciated by the learned Sessions Judge and it has come to the conclusion holding that the prosecution has proved its case beyond all reasonable doubt. Hence, he submitted that the judgment and order of conviction suffers from legal infirmities. The benefit of doubt may be given to the appellant-accused and he may be acquitted of the charges leveled against him, by setting aside the judgment and order of conviction passed by the learned Sessions Judge.
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9. Per contra, learned High Court Government Pleader appearing for the respondent-State submitted that though there are no direct witnesses to the incident, but the circumstances relied upon by the prosecution have been clearly established with the help of the cogent and satisfactory evidence. He submitted that there is material with regard to the last seen theory of the accused and the deceased, in the land of Venkatarayappa, the deceased had been to collect the firewood. Hence, he submitted that when the prosecution has established that there is evidence to show that, at some point of time, both accused and deceased were together seen at a particular place, then it is for the accused to explain as to what had happened to the deceased thereafter. He further submitted that the motive for the accused for committing the alleged offence is that his son Ashwathappa was having the illicit connection with the deceased Chandrakala and he 10 wanted to cut-off the said relationship. Therefore, he was thinking to eliminate the deceased.
10. Regarding the motive also, the prosecution has placed the satisfactory material to support the said contention. There are recoveries effected at the instance of the accused himself. Hence, all these aspects were properly considered and appreciated by the learned Sessions Judge and he has discussed these aspects extensively and rightly came to the conclusion holding that the prosecution was able to prove both the charges as against the appellant accused. He submitted that the judgment and order of conviction passed by the Court below is in accordance with the materials placed on record, both oral and documentary, and no illegality is committed as contended by the other side. Hence, he submitted that there is no merit in the appeal and the same is to be dismissed by confirming the judgment and order of conviction.
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11. We have perused the grounds urged in the memorandum of appeal, judgment and order of conviction passed by the learned Sessions Judge, oral evidence of the prosecution witnesses so also the documents produced by the prosecution during the course of trial. We have also considered the oral submissions made by the learned Counsel on both sides.
12. Perusing the material, as per the complaint averments, the case is not against the accused herein but against his son Ashwathappa and the allegation is that Ashwathappa was having illicit connection with the deceased Chandrakala. Another allegation is that the deceased was the member of the chit fund and received the chit money. Ashwathappa, the son of accused, asked the deceased to give money to him, but she refused and for that reason, Ashwathappa quarreled 12 with the deceased. So this is the motive alleged as per the complaint (Ex.P.1). After investigation, charge sheet came to be filed not against Ashwathappa, who is alleged to have the illicit connection with the deceased, but it was filed against the present accused Somashekarappa, father of the said Ashwathappa. The motive as per the charge sheet for the present accused to commit the murder of Chandrakala is that as his son Ashwathappa was having illicit connection with the deceased Chandrakala, he requested the deceased to stop the illicit relationship. For that, the deceased Chandrakala challenged the present accused that if he is capable, then he should have control over his son and because of that reason, he was having intention to eliminate the deceased Chandrakala.
13. P.W.1 is the complainant, who is the brother of the deceased. As we have already observed, in the complaint, all the allegations are made against 13 Ashwathappa, the son of the present accused and there is no allegation as against the present accused Somashekarappa. P.W.1 has deposed accordingly in his evidence.
P.W.2 has turned hostile and not supported the case of prosecution.
P.W.3 one Narayanappa speaks about the motive. He is not an eye witness to the incident. He has deposed in his evidence during the course of cross- examination that he has not seen the accused going towards the land holding axe in his hand. But, however he has spoken about the motive for the accused that he wanted to stop the illicit relationship between Chandrakala and Ashwathappa, his son and in that regard, there was quarrel between the present accused and the deceased Chandrakala.
P.W.4 (Narasimhareddy) has turned hostile and he has not supported the case of prosecution. When cross examined by the Public Prosecutor, nothing worth has 14 been elicited from his mouth so as to believe the story of prosecution. Therefore, the evidence of P.W.4 is not helpful to the case of prosecution.
P.W.5 (Gangadharappa) is another brother of the deceased. He is not an eye witness to the incident but he is hearsay and he came to know from others regarding the incident and he deposed the same before the Court.
P.W.6 (Hanumanthappa) is the relative of deceased Chandrakala and he is the pancha for the inquest mahazar. His evidence is very important, because in his evidence, he has spoken about the date of arrest of the accused and the seizure of axe. Looking to his evidence, P.W.6 has deposed that about 3½ years back, nearby the land of Narayanareddy at which place murder took place; he put his signature on inquest mahazar (Ex.P.6) and his signature is Ex.P6(a). At the said place, Chandrakala was lying dead. There were injuries on hind portion of the head, both sides of the 15 waist and there were blows from the axe. As Chandrakala was the daughter of his sister, he identified the dead body. He has also spoken about the presence of the other persons at the place of incident. He has spoken that the police brought the accused person, who has shown the axe. The said axe was with him. As the son of the accused person was having illicit connection with Chandrakala, and because of that reason, the accused person has committed the murder of the deceased and the accused himself told about these things when he was in the custody of the police. As the accused was nearby his house, he has seen Ashwathappa and the deceased together. In the cross- examination, P.W.6 has deposed that the said illicit connection between Ashwathappa and Chandrakala was since 8 to 10 years and during that period, about three times, they advised them. Even Chandrakala also did not heed to their advise. When it was suggested that as Chandrakala did not heed to his advice and the 16 advice of colony people, they became angry towards her, the witness answered that the accused told him that he will finish off the deceased. He has further deposed that by the side of the dead body, there was one small machchu and one old cloth. There were no blood stains on machchu. The said machchu was hidden beneath a tree and when police came, accused person brought and produced before them. On the next day of the murder of deceased Chandrakala, the police apprehended the accused. On the same day itself, the accused brought and produced the axe before the police. But this evidence of P.W.6 is quite contrary to the evidence of Investigation Officer (P.W.16).
14. As per the case of the prosecution and the evidence of P.W.16, the accused and his son Ashwathappa were produced before P.W.16 by the Circle Inspector on 14.05.2010. On the very same day, the accused gave voluntary statement as per Ex.P.18. 17 He lead the police and the panch witnesses to the place nearby the spot and in the bushes, he took out one axe and produced it before the police. The axe was seized under Ex.P3. If the evidence of P.W.16 is accepted as true that it was on 14.05.2010 itself, the accused was apprehended along with his son and produced before him, it goes against the evidence of P.W.6. The evidence of P.W.6 clearly shows that when he had been to attend the inquest mahazar proceedings, at that time itself, the police brought the accused and shown the axe. So this would indicate that the apprehension of the accused showing the axe was on the very next day of incident while conducting the inquest mahazar proceedings. Therefore, there is no consistency in the evidence of the prosecution witnesses. If the evidence of P.W.6 is considered to be true and correct, then the evidence of P.W.16 will be false. Apart from that, the evidence of P.W.16 also goes to show that in the cross-examination, he deposed that till 14.05.2010, no witnesses deposed 18 as against the accused person. The said suggestion was accepted by P.W.16 as true. Therefore, this evidence of P.W.16 shows that there is no evidence as against accused and no witnesses took the name of accused till 14.05.2010. However, looking to the materials of prosecution, even earlier to 14.05.2010, the name of the accused was mentioned in the documents such as complaint, inquest mahazar proceedings, spot mahazar proceedings, etc. The evidence of P.W.16 also shows that on 14.05.2010 when Ashwathappa, the son of the accused, gave voluntary statement, then only they came to know about the involvement of the accused Somashekarappa. When that is so, P.W.16 was questioned as to why they took even Ashwathappa to the spot and what was the reason, if he was not involved in committing the alleged offence. P.W.16 answered that there was no any special reason. 19
15. According to the prosecution, the weapon used for committing the offence is axe (M.O.3). So far as the said axe is concerned, looking to the evidence of the prosecution witnesses i.e., P.Ws.1 and 6, there is lot of confusion. P.Ws.1 and 6 have deposed that the axe was lying by the side of the deceased Chandrakala. P.W.1 deposed before the Court that the machchu and axe are one and the same. According to the Investigating Officer (P.W.16), the axe was not referred to FSL to ascertain as to whether it was used for committing the offence. It was admitted by P.W.16 that it was not sent to the FSL. When the case of prosecution rests on the circumstantial evidence and when there are no direct witnesses to the incident, it is the duty of the prosecution to prove each and every circumstance with cogent and satisfactory material. In case of circumstantial evidence, all the circumstances must extensively and inevitably suggest the guilt of the accused. There are no circumstances which are 20 consistent with the innocence of the accused. The investigation officer has not taken steps for referring the axe to the FSL. Therefore, it had to be ascertained that whether the blade of the said axe was having any blood stains and whether the blood was of human blood and what is the blood group. The prosecution has not placed materials about all these things.
16. So far as the last seen theory of the prosecution is concerned, the prosecution has examined one Prasad (P.W.7), wherein he has deposed that on 10.05.2010 at 12.00 noon, he was going towards land and at the same time, the deceased Chandrakala was going towards the tank to collect the fire wood. He has further deposed that the accused Somashekarappa, at that time, was going towards the tank and he was having the axe. Probably he was going for the purpose of collecting the fire wood. Looking to the evidence of P.W.7 also, it is not his case that he has seen the 21 deceased as well as the accused person together. They were going separately for the purpose of collecting the fire wood as deposed by P.W.7. So, only on the basis of this evidence, it cannot be presumed that the prosecution has established the fact of last seen together theory.
17. Looking to the entire material placed on record, we are of the opinion that the prosecution has failed to prove all the circumstances with cogent and acceptable material so as to form the complete chain that it was the accused and he was the only person who had committed the murder of the deceased Chandrakala and no one else. Reasonable doubt arises in the mind of the Court about the case of the prosecution. Therefore, benefit of doubt shall have to be given to the accused. Looking to the judgments and order of conviction passed by the learned Sessions Judge, all these factual and legal aspects were not properly 22 considered and appreciated by the learned Sessions Judge. Therefore, the judgment and order of conviction passed by the learned Sessions Judge is not sustainable in law. The appellant - accused has made out the case to allow the appeal.
18. Accordingly, the appeal is allowed. The judgment and order of conviction dated 26.8.2013 passed by the Principal District and Sessions Judge, Chickballapur in Spl.S.C.No.2/2010 is hereby set aside. The appellant - accused is acquitted from the charges leveled against him. The accused shall be released from the custody forthwith, if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE Cs/-