Karnataka High Court
The Registrar General vs Venkatesha @ Chandra Bin Venkataswamy on 1 August, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 01ST DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRL.RC.NO.16 OF 2010
C/W
CRL.A.No.738 OF 2011
CRL.RC.NO.16 OF 2010
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU-560 001. ... PETITIONER
(By Sri: H N NILOGAL, SPL.PP)
AND:
1. VENKATESHA @ CHANDRA BIN VENKATASWAMY
DINNURU COLONY, KADUGODI
BENGALURU RURAL.
2. MUNIKRISHNA @ KRISHNA BIN VENKATASWAMY
DINNURU COLONY, KADUGODI
BENGALURU RURAL
2
3. NALLATHIMMA @ THIMMA BIN GURUBHOVI
MYSURU DISTRICT. ... RESPONDENTS
(By Sri: HASHMATH PASHA, ADVOCATE)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) CR.P.C. FOR CONFIRMATION
OF DEATH SENTENCE AWARDED TO ACCUSED 1) VENKATESHA
@ CHANDRA, UTP NO.10175, 2) MUNIKRISHNA @ KRISHNA,
UTP NO.10178, 3) NALLATHIMMA, UTP NO.10177, BY
JUDGEMENT DATED 31.7.2010/30.9.2010 PASSED IN
S.C.NO.187 OF 2005 ON THE FILE OF THE XXXIV-ADDL. CITY
CIVIL & SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON
PREMISES, BENGALURU.
***
CRL.A.NO.738 OF 2011
BETWEEN:
1. VENKATESH @ CHANDRA,
S/O VENKATASWAMY,
AGED 36 YEARS,
R/O DINNUR COLONY, KADUGODI,
BENGALURU RURAL
2. MUNIKRISHNA @ KRISHNA,
S/O VENKATASWAMY,
AGED 29 YEARS,
R/O DINNUR COLONY, KADUGODI,
BENGALURU RURAL. ... APPELLANTS
(NOW BOTH ARE IN CENTRAL PRISON, BELGAUM)
3
(By Sri: HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY METAGALLI POLICE STATION,
MYSURU DISTRICT.
REP. BY LEARNED STATE PUBLIC PROSECUTOR
... RESPONDENT
(By Sri: H N NILOGAL, SPL.PP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE ORDER DATED
31.7.2010/30.09.2010 PASSED BY THE 34TH ADDL. CITY CIVIL
AND SESSIONS JUDGE, (SPECIAL COURT), CENTRAL PRISON,
PARAPPANA AGRAHARA, BENGALURU IN S.C.NO.187 OF 2005 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 396 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO DEATH. THE
APPELLANTS/ACCUSED SHALL BE HANGED BY NECK TILL THEY
ARE DEAD AND PAY A FINE OF RS.5000/- EACH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE
APPELLANT/ACCUSED PRAYS THAT THEY BE ACQUITTED.
*****
THIS CRL.RC.No.16 OF 2010 C/W CRL.A.NO.738 OF 2011
COMING ON FOR FINAL HEARING THIS DAY, RAVI MALIMATH J.,
DELIVERED THE FOLLOWING:
4
JUDGMENT
The case of the prosecution is that on 13.03.1996 between 9.45 a.m. and 12.30 p.m., the accused went to the house of the complainant at No.967, 11th Cross, II Stage, Hebbal, within the limits of Metagalli Police Station, Mysuru, under the pretext that they need drinking water. When the deceased Savitha - the wife of the complainant, opened the door, the accused entered the house, physically caught hold of her and slit her throat with a knife. She was stabbed a number of times. They snatched gold and silver ornaments from her body. They broke open the cupboard kept in the house and took away gold and silver articles.
2. On the basis of the complaint lodged by PW.1, a case was registered for the offences punishable under section 396 read with section 34 of Indian Penal Code against unknown persons. Investigation was taken up. Charge-sheet was filed. A split-up charge-sheet was filed against accused Nos.4, 6 and 7. 5 The remaining accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined twelve witnesses and marked sixteen exhibits along with nine material objects. The defence marked two exhibits. The Trial Court convicted accused Nos.1 to 3 for the offences punishable under section 396 read with section 34 of Indian Penal Code and sentenced them to death, along with a fine of Rs.5,000/- each. Accused Nos.5, 8 and 9 were acquitted.
3. The Trial Court made a reference under section 366(1) of Cr.P.C. which is registered as Crl.R.C.No.16 of 2010. The convicted accused Nos.1, 2 and 3 have filed Crl.A.No.738 of 2011.
4. The appellants' counsel contends that the reasons for convicting the accused are unsustainable. That no conviction could be made based on the voluntary statement made to the police. That the recoveries do not match the items that have 6 been stolen from the deceased. Therefore, the recoveries by themselves cannot constitute a ground for conviction.
5. On the other hand, the learned Special P.P., contends that there is no error that calls for interference. That the trial court has considered the entire evidence in the right perspective and has rightly convicted the accused. That the appreciation of the evidence by the trial court cannot be found fault with. That the witnesses have stood by their statements and cannot be doubted. That the reasons assigned by the trial court are based on the evidence on record. Hence, no interference is called for.
6. Heard Sri.Hashmath Pasha, learned counsel appearing for the accused and Sri.H.N.Nilogal, learned Spl. Public Prosecutor and examined the records.
7(a). PW.1 is the complainant and the husband of the deceased. He has stated that on 13.3.1996 at 3.00 p.m., PW.5 met him at Kirloskar Factory and said that there was something 7 wrong in his house and asked him to come. When PW.1 came and entered his house, he found the dead body of his wife. The gold mangalya chain and one left ear stud were missing. In terms of Ex.P2 - the spot mahazar, M.Os.1 to 5 were recovered. M.O.6 - the broken right ear ring was found lying at the scene of offence. M.Os.7 to 9 are golden rings and ear studs. After lodging the F.I.R., the complainant - PW.1 has given a further statement giving details about various other jewellery that were found missing from the house.
(b). PW.2 is the panch for the spot mahazar -Ex.P2 as well as inquest report - Ex.P4.
(c). PW.3 is a nearby resident who was informed by PW.4 about the incident. He has stated that PW.5 brought the husband of the deceased to the scene of offence.
(d). PW.4 was residing on the upstairs of the house of the complainant and the deceased. He has stated that while he was going to his house, he heard the child crying. The crying 8 continued for quite a sometime. Since the same did not stop, he went and met PW.3 and informed him about the same.
(e). PW.5 has stated that as on the date of the incident, PWs.3 and 4 came to his house to make a telephone call to the husband of the deceased. Since contact could not be made, he went to the Kirloskar Factory where PW.1 was working and informed him about the incident. The police were also informed. M.O.6 -a single ear stud was found lying at the scene of offence.
(f). PW.6 is the panch for the recovery of the jewels. He has stated that on 4.2.2001, at the instance of accused No.1, M.O.9 - a pair of white stone ear studs were recovered under the mahazar Ex.P5 from the shop called Bhagyalakshmi Jewellers at Dharwad. At the behest of accused No.2, he was taken to the shop of Ganapathi Jewellers of PW.9 and a gold ring M.O.7 which was written with the letter "S" was also seized at the instance of accused No.2 under the mahazar Ex.P6. 9
(g). P.W.7 is the Doctor who conducted the post-mortem on the dead body of the deceased in terms of Ex.P7. He has noticed 16 injuries. He has opined that the death was due to hemorrhagic shock coupled with asphyxia consequent to multiple injuries sustained and inhalation of blood caused by a double- edged, sharp pointed tip weapon, like that of a dagger.
(h). PW.8 is the owner of the jewellery shop Bhagyalakshmi Jewellers, Dharwad. He has received the articles M.O.8 - a gold ring at the instance of accused No.3 under the mahazar Ex.P8 on 5.2.2001. He has also produced article M.O.9
- a pair of gold white stone ear stud at the instance of accused No.1 under mahazar Ex.P9 on 4.2.2001.
(i). PW.9 is the owner of Ganapathi Jewellers, Dharwad. He has stated that he has received the golden articles in terms of M.O.7 namely gold ring at the instance of accused No.2 on 4.2.2001 in terms of mahazar Ex.P10. Since he turned hostile to 10 the case of the prosecution, he was cross-examined by the learned Special Public Prosecutor.
(j). PW.10, is the Investigating Officer at the initial stage. He received the complaint at Ex.P1. He conducted the spot mahazar at Ex.P2, seized M.Os.1, 2 and 6 and conducted the inquest mahazar at Ex.P4. He sent the F.I.R. to the court and seized the blood-stained clothes M.Os.4, 5 and 6 and received the post mortem report.
(k). PW.11, took up investigation from PW.10 and received M.Os.7, 8 and 9 and got them identified by PW.1. He received the serology report Ex.P13 and thereafter filed the charge-sheet.
(l). PW.16 is the Police Inspector of Vijayanagar Police station from 10-7-2000 to 5-8-2001 and from 11-3-2002 to 8-5-2003. He also served as a Police Inspector of Banaswadi police station from 15-9-1998 to 9-7-2000. At that time, he had investigated the case bearing Crime No.353 of 1999 of 11 Banaswadi Police Station. In that case, he arrested accused No.1, and the co-accused. While investigating the case, he came to know that the above accused in that case were involved in 36 dacoity and murders, 8 dacoity cases, 12 HBT cases. The modus operandi adopted by the above accused in all the cases were similar, including the present case. On 17-9-2000, he received information from CB-CID Chittor, Andhra Pradesh, stating that the accused Dodda Hanuma and Venkatarama along with other accused had escaped from Chittor prison. On 31-1-2001, he received credible information that the accused were hiding in Echanur village in Tiptur Taluk, Tumakuru District. Along with other police officers, he apprehended accused Nos. 1, 2 and 3. He questioned them. Their voluntary statements were recorded. On 03.02.2001, at about 6.00 p.m. he called the witnesses to accompany him to Dharwad. On 04.02.2001, the accused No.1 led him and others to the shop by name Bhagyalakshmi Jewelers and called the owner Shri.Manjunatha, PW-9. The accused identified the owner as the one to whom he had sold the 12 jewellery. The owner of the shop produced all the article before them. The transaction was admitted by the owner. Ten items of jewellery were recovered. They were seized under the mahazar, Exhibit-P6. One line gold cut chain was marked as MO-6.
8(a). Based on these evidences, the Trial Court was of the view that the accused Nos.1, 2 and 3 are guilty of the offences charged against them. Recoveries have been made at the behest of accused Nos.1, 2 and 3. The Receivers have also supported the case of the prosecution, except partly, so far as PW.9 is concerned.
(b). The further reliance placed by the Trial Court, was on the voluntary statements made by accused Nos.1, 2 and 3 in terms of Exhibits P14, P15 and P16. Placing reliance on these material, the Trial Court convicted accused Nos.1, 2 and 3. It was of the view that the prosecution has not established its case so far as the accused Nos.5, 8 and 9 are concerned and acquitted them.
13
9. On considering the evidence and material on record, we are of the view that appropriate interference is called for. Based on the case of the prosecution, there are serious doubts which have not been answered by the Trial Court. Firstly is the fact, that the incident is stated to have taken place on 13.3.1996. The accused were arrested on 31.1.2001. Based on their voluntary statements, they were taken from Bengaluru to Dharwad to the shops of PW.8 and PW.9 and recoveries were made. The recoveries were made about five years after the alleged date of incident. There is no acceptable, proper explanation with regard to such a huge delay in causing the recoveries. The only reason assigned by the prosecution, is that the accused were arrested on 31.1.2001 and immediately thereafter, the recoveries have been made. The prosecution should have explained as to what efforts they made between 13.3.1996 and 31.1.2001. There is no explanation forthcoming for the same.
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10. Secondly even while comparing the list of articles furnished by the complainant in terms of his complaint and even considering the subsequent statement made by him, the recoveries do not match the list of articles. The only item that matches the statement made by PW.1 and the recovery, is one golden ring with mark "S" on it. Except this, no other articles are matching. The prosecution has failed to establish the link between the items said to have been missing and the articles said to have been seized. Even otherwise, the learned counsel for the accused contends that the subsequent list as furnished by the complainant is not admissible in evidence. Even if his submission is not accepted, the prosecution has failed to prove any link between the articles that were found to be missing and articles that have been seized except so far as the ring is concerned. Hence the recoveries become doubtful.
11. Thirdly is the fact that the recoveries have been made almost five years after the alleged date of incident. The evidence of PW.8 and PW.9 would indicate that the accused sold 15 those items to them about 1½ years prior to the date of seizure. The seizure was in the year 2001. Therefore, the sale would have taken place about 3½ years after the date of the incident. It is very difficult to accept the case of the prosecution, as to how the accused could have kept quite for almost 3½ years to effect the sale of the items that they had stolen, especially when the entire case of the prosecution is that it is murder for gain.
12. Fourthly, the reasoning of the Trial Court is that, based on the voluntary statement of accused Nos.1, 2 and 3 they are to be found guilty. It is needless to state that the same stands opposed to very first principles of criminal law. The voluntary statements made before the police is not admissible. However, the Trial Court thought it fit to accept such statements. We do not find any reason as to how such a finding of the trial court can be accepted. If it is not admissible in evidence, certainly no conviction can lie, based on such voluntary statement.
16
13. Fifthly, it is to be seen that the charge against the accused is under Section 396 r/w. section 34 of IPC. There is no evidence placed by the prosecution to indicate that nine persons were involved in the commission of the offence. Even according to the prosecution and the reasoning of the trial court, the recovery has been made at the behest of accused Nos.1 to 3 and the conviction is based on the voluntary statement of accused Nos.1 to 3. Therefore, even if the case of the prosecution is to be accepted, there cannot be a conviction under Section 396 of the IPC since the prosecution has failed to prove its case against five or more persons.
14. Sixthly, even so far as murder of the deceased is concerned, there is absolutely no material to indicate that the accused were responsible for the same. The entire evidence of the prosecution is based on the recoveries. There is no material to indicate that the accused were involved in the death of the deceased. Material would have to be shown by the prosecution to bring home their guilt of murder of the deceased. 17
15(a). The Hon'ble Supreme Court in the case of RAJ KUMAR ALIAS RAJU vs. STATE (NCT OF DELHI) reported in AIR 2017 SC 614 were considering similar facts therein. There too, the question of recovery and the dispute regarding the same were considered. In considering the same, the Hon'ble Supreme Court held at para 12 as follows:
"12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming."18
(b). The Hon'ble Supreme Court in the aforesaid judgment held that there has to be ample proof to show that the murder and dacoity were committed by the same persons in one single incident. In the absence of any material to indicate the same, no case of murder could be held against the accused. In the facts of this case also, there is no material to indicate that the murder was committed by the accused. There is no material to indicate that the murder and dacoity were committed by the same accused at the same point of time. Therefore we find that the trial court has committed an error in holding the appellants guilty of the offence punishable under Section - 396 of I.P.C.
(c). Following the said judgment and even on drawing a presumption under Section 114 of the Evidence Act, it is difficult to accept the case of the prosecution that the offence has been committed by the accused. Hence, we do not find any ground to accept the case of the prosecution. None of the investigation as made out by the prosecution even remotely suggests the 19 involvement of the accused in the offence for which they are charged.
16. Seventhly, so far as the murder is concerned, there is no evidence to indicate that the weapons have been recovered. All that has been recovered are the sample blood, various jewels, underwear, etc. Therefore, obviously the Doctor who conducted the post-mortem, did not have the benefit of seeing any weapons. When the weapon itself is not produced, the question of holding a charge of committing murder of the deceased, would not arise for consideration.
17. Even according to the prosecution, the entire recoveries are made at the behest of accused Nos.1, 2 and 3. There is no reason forthcoming from the prosecution for charge sheeting nine accused. This itself shows the haphazard manner in which, not only the investigation was conducted, but even the manner in which the prosecution has proceeded to prove its case in trial by charging persons who even according to them, are not 20 even remotely concerned with the offence for which they are charged. Under these circumstances, the appellants cannot be held to be guilty of the offence punishable under Section - 396 of Cr.P.C. When the evidence does not indicate the involvement of the accused, the question of awarding a death sentence on them would therefore not arise. The trial court therefore exceeded itself, firstly in convicting the accused and secondly by imposing a death sentence.
18. Therefore, we are of the view that the judgment of the trial court is erroneous and interference is called for. The trial court has failed to consider the evidence and material in the right perspective. It has misread the evidence. It has wrongly come to the conclusion that the accused are guilty of the offences charged against them. None of the evidence as relied upon by the prosecution, prove the guilt of the accused. The trial court was at a tangent in coming to the conclusion that the prosecution has established its case. The evidence of the witnesses have been recorded almost nine years after the 21 incident. After a gap of nine years, it is but natural that the witnesses cannot render a photographic expression. There are bound to be minor discrepancies. However, even on ignoring the discrepancies, we are of the view that, the evidence led in by the prosecution is hopelessly insufficient to prove their case. By re-appreciating the entire evidence and considering material on record, we have no hesitation to hold that the prosecution has miserably failed to establish its case beyond reasonable doubt. Therefore, the impugned judgment of conviction and sentence becomes unsustainable.
19. Even otherwise, we have re-considered the case of the prosecution, as to whether it is sufficient to attract a lesser offence. Based on the evidence placed by the prosecution, even that is not possible. In the given facts and circumstances of the case, a lesser offence too, would not get attracted based on the evidence led-in by the prosecution.
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20. For the aforesaid reasons, Crl.A.No.738 of 2011 is allowed. The impugned judgment of conviction dated 31-07- 2010 and order of sentence dated 30-09-2010 passed by the XXXIV Additional City Civil & Sessions Judge (Special Judge), Central Prison Premises, Parappana Agrahara, Bengaluru in S.C.No.187 of 2005 in Criminal Appeal No.738 of 2011 is set- aside. In terms of provision of section 368 of Cr.P.C., even though the appeal is not filed by accused No.3, since reference has been made and the entire evidence has been reconsidered, the benefit of the judgment would also stand extended to the accused who has not filed the appeal, namely accused No.3. Therefore the appellants/accused Nos.1, 2 and 3 are acquitted of the offences punishable under section 396 read with section 34 of Indian Penal Code.
21. In view of the appellants/accused Nos.1, 2 and 3 being acquitted, Crl.RC.No.16 of 2010 would not survive for consideration and it is accordingly disposed off. The 23 appellants/accused Nos.1, 2 and 3 are ordered to be set forth at liberty forthwith in these cases, if not required in any other case.
The Registry is directed to communicate the operative portion of the order to the Jail Authorities, Hindalga Jail, Belgaum where the accused are lodged.
SD/- SD/-
JUDGE JUDGE
Bss.