Karnataka High Court
Shri. Adam S/O Husensab Bepari vs The State Of Karnataka on 25 May, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100056 of 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100056 OF 2021 (C)
BETWEEN:
1. SHRI. ADAM S/O HUSENSAB BEPARI
AGE 36 YEARS, OCC COOLIE,
R/O HONNYAL, TQ AND DIST BAGALKOTE,
NOW R/AT SAUNDATTI, TQ SAUNDATTI,
DIST BELAGAVI.
...APPELLANT
(BY SRI. HEMANTHKUMAR L. HAVARAGI, ADV.)
AND:
1. THE STATE OF KARNATAKA
BY SAUNDATTI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. SEEKING TO CALL FOR RECORDS PERUSE THE
SAME AND SET ASIDE THE JUDGMENT AND SENTENCE DATED
05.01.2016, PASSED BY THE II ADDL. DIST AND SESSION JUDGE,
BELAGAVI IN S.C. NO.447/2012 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
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CRL.A No. 100056 of 2021
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C." for short) filed by the appellant/accused challenging the judgment and order dated 05.01.2016 passed in Sessions Case No.447/2012 on the file of II Additional Sessions Judge, Belagavi (hereinafter referred to as "Trial Court" for short) in and by which the Trial Court convicted the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short) sentencing him to undergo imprisonment for life and further directed the appellant/accused to pay fine of Rs.500/- and in default to undergo simple imprisonment for a period of six months.
2. The case of the prosecution is that on 09.09.2012 at 10:00 a.m. while the appellant/accused was sleeping on a gunny bag in an old dilapidated building situated at cattle bazaar, Saundatti, Belagavi district, deceased-Shanur Meersab Gaibunavar entered the said building and insisted the accused to return the gunny bag claiming it to be belonging to him, which ensued in a quarrel between the accused -3- CRL.A No. 100056 of 2021 and the deceased, eventually leading to accused stabbing the deceased with a knife on his throat resulting in the death of the deceased. One Sri.Uday Machchagar Okkund C.W.12 (P.W.2) who was present at the place and time of the incident, intimated the same to one Sri.Shabbir M. Gaibunavar C.W.1 (P.W.1) and Smt.Rameza Shanur Gaibunavar (P.W.4), the brother and the wife respectively of the deceased, who rushed to the scene of incident and found the dead body of the deceased on the spot. Thereafter, C.W.1 set the law into motion by filing a complaint-Ex.P1 before the Saundatti Police Station, which was registered in Crime No.328/2012. After the investigation, a charge sheet was filed against the accused for the offence punishable under Section 302 of IPC.
3. Prosecution to prove the guilt of the accused has examined 17 witnesses as P.W.1 to P.W.17 and exhibited 24 documents as Exhibits P1 to P24, apart from producing material objects marked as M.O.1 to M.O.13. The appellant/accused though has denied the case of the prosecution in its entirety, has not chosen to lead any evidence in his defence. The Trial Court on appreciation of the evidence, by the impugned judgment and order dated 05.01.2016 held the accused guilty of offence punishable under Section 302 of -4- CRL.A No. 100056 of 2021 IPC and sentenced him to undergo imprisonment for life. Being aggrieved by the same, the appellant/accused is before this Court.
4. Sri. Hemanthkumar L. Havaragi, learned counsel for the appellant/accused reiterating the grounds urged in the memorandum of appeal submitted that;
a) though the statement of 24 witnesses have been recorded during investigation, the prosecution has examined only 17 witnesses. The prosecution has not produced any cogent evidence in support of its case.
b) The Trial Court failed to appreciate that P.W.2 the alleged eyewitness, is a created witness and his deposition was not trustworthy. Further, the Trial Court erred in handing over the punishment to the accused solely based on the deposition of PW2, by observing that "testimony of any witness should not be rejected because he is a beggar or relative of the deceased"
without testing the veracity or otherwise of the said witness.
c) That though the RFSL report is marked as Ex.P24, its author has not been examined as required under Section 293 of Cr.P.C.-5-
CRL.A No. 100056 of 2021
d) The Trial Court though has taken note of the fact that P.Ws.1, 4, 9 and 15 are the interested witnesses being relatives of the deceased has however erred in concluding that their defence cannot be discarded merely because of the relationship without appreciating the facts and circumstances of the matter, in its proper perspective.
e) That the Trial Court erred in holding that the statements of the witnesses coupled with medical evidence produced by the prosecution had proved the guilt of the accused beyond reasonable doubts without giving acceptable reasons to support its conclusion.
Hence, sought for setting aside the impugned judgment and order and to allow the appeal.
5. On the other hand, Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the impugned judgment and order submitted that;
a) The prosecution has produced sufficient and cogent material evidence in establishing the guilt of the accused beyond reasonable doubt. That the testimony of P.W.2 who was present -6- CRL.A No. 100056 of 2021 at the scene and time of the incident has remained unchallenged which alone is sufficient to bring home the guilt of the accused.
b) Besides, P.W.3 being a circumstantial witness, has testified having seen the accused running away from the scene of the incident.
c) That the evidence of the Doctor P.W.10 and the RFSL report - Ex.P24 and the material objects seized would further establish the guilt of the accused.
d) That all the panch witnesses have supported the case of the prosecution.
Hence he submits the appeal is bereft of any merits and seeks for dismissal of the same.
6. Heard learned counsel for the parties, perused the records. The point that arises for our consideration is "whether the impugned judgment and order of the Trial Court is sustainable on the facts and in the circumstance of the case?"
7. P.W.1 is the brother of the deceased who is also the complainant in the matter. While reiterating the contents of complaint -7- CRL.A No. 100056 of 2021 dated 09.09.2012 (Ex.P1) he has also spoken about drawing up of panchanama, seizure of knife (M.O.1), pair of chappal (M.O.2), dress worn by the deceased (M.Os.3 to 6).
8. P.W.2 a purported eyewitness has deposed to the effect that he was present at the scene and time of the offence and also deposed having sustained injury on his pointing finger while attempting to separate the knife from the hands of the accused.
9. P.W.3 has deposed with regard to he going near the building where the incident occurred at about 10:00 a.m. and has also having seen P.W.2 rushing out of the building and informing them about the incident and also with regard to he having seen the accused running away from the scene of the incident.
10. P.W.4, the wife of the deceased has spoken about she having received the information regarding the death of the deceased from her brother-in-law - P.W.1 at about 10:00 a.m. and thereafter visiting the scene of incident and identifying dead body of the deceased and M.Os.1 to 6.
11. P.W.5 is the Assistant Engineer, P.W.D., Saundatti, who has prepared the sketch of the scene as per Ex.P2. P.W.6 is -8- CRL.A No. 100056 of 2021 photographer has spoken about having taken nine photographs from the scene of the incident, including that of the dead body and the knife used for committing the offence marked as Exs.P4 to P12. P.W.7 is the scribe of the compliant - Ex.P1, who has spoken about he having visited the scene of the incident and writing the complaint as per the instructions of P.W.1. P.W.8 is a witness to the panchanama - Ex.P13 has spoken about drawing up of panchanama of the scene of the incident, taking photographs, seizing of material objects. P.W.9 is the elder brother of deceased and of P.W.1 has spoken about visiting the spot of the incident and identifying the knife-M.O.1. P.W.10 is the Doctor, who has spoken about conducting of postmortem between 05:30 p.m. to 07:00 p.m. and has reiterated the contents of postmortem report and his opinion regarding cause of the death of the deceased being assault with the knife.
12. P.W.11 is the Head Constable, who has carried 11 sealed items to the Office of FSL, Belagavi and having received a report thereof as per Ex.P19. P.W.12 is the ASI, who has spoken about carrying the FIR Ex.P21 to the Court.
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13. P.W.13 is the witness who has spoken about drawing up of inquest panchanama-Ex.P13 and panchanama of the scene of offence-Ex.P14, cloth seizure panchanama Exs.P15 and P16.
14. P.W.14 is the CPI who carried the dead body of the deceased to the government hospital for postmortem.
15. P.W.15 is the elder brother of the deceased.
16. P.W.16 is the Investigating Officer, who has spoken about conducting the investigation after receiving the file from P.W.17, visiting the place of incident, preparing the panchanamas, inquest report, seizure mahazars, arresting the accused. P.W.17, the PSI, being in-charge of police station between 01.04.2010 to 14.09.2012 spoken about receiving the complaint and registering the case in Crime No.328/2012.
17. There is no dispute with regard to the fact that death of the deceased-Shanur Meersab Gaibunavar is "homicidal". This is evident from the perusal of evidence of P.W.10 - Dr.Sri.Rajashekhar B. Yarajaravi, Government Hospital, Saundatti, who has deposed with reference to post mortem report at Ex.P17 with regard to the nature of injuries found on the body of the deceased and also the conclusion
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CRL.A No. 100056 of 2021 arrived at thereon to the effect that death of deceased-Shanur Meersab Gaibunavar was due to shock and hemorrhage as a result of injuries to trachea and large vessels, external and internal jugular vein and carotid vessels on the left side. Further, RFSL report-Ex.24, material objects at M.Os.1 to 13 would further establish that the death of deceased was a homicidal.
18. However, when it comes to the question as to whether the prosecution has proved beyond reasonable doubt the guilt of the appellant/accused in committing the offence of murder of the deceased, the same remains to be re-examined. The prosecution has heavily relied upon the statement and deposition of PW2, the purported eyewitness of the incident and also the evidence of PW3- a chance witness. Though the official witnesses have supported the case of the prosecution, the entire case revolves around the testimony of PW2. In the absence of the said evidence of PW2, there is no sufficient and adequate material evidence or the circumstantial evidence adduced by the prosecution. Therefore, the veracity or otherwise of the deposition of PW2 requires a close scrutiny as he is the only eyewitness according to the prosecution. The prosecution therefore has to establish probable and acceptable facts and
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CRL.A No. 100056 of 2021 circumstances regarding the presence of PW2 at the time and scene of the offence and his conduct in informing the incident to PW1, the brother of the deceased, who in turn had apparently put the law into motion
19. PW2 in his evidence has deposed regarding his presence at the time and place of the incident, witnessing the quarrel between the deceased and the accused and he attempting to take away the knife from the hands of the accused and in the process, he suffering injury to his pointing finger. He has further deposed regarding he rushing out of the building and informing about the incident to PW1- the complainant. In the cross-examination, he has deposed that he is a beggar having no identity of himself and having no proof either with regard to his name or with regard to the names of his parents or his address or place of residence and also he not being aware of the place and address of the accused. He has categorically stated that there was a crowd with 200 cattle at the cattle bazaar at the time of the incident and that there are residential houses in the area surrounding the place of incident. He has claimed that he ran to the complainant- PW1 by screaming about the incident, which was heard by the people in the crowd around the place of incident.
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CRL.A No. 100056 of 2021
20. The aforesaid deposition of PW2 who according to the prosecution is the only eyewitness creates a reasonable doubt regarding his probable presence at the time and place of incident and also with regard to his conduct particularly of he informing about the incident to PW1, who is the brother of the deceased as reasoned hereunder.
21. The Prosecution has examined PW3-a chance witness, who claims to be carrying on the business of vegetable vending, having his shop at about 2 furlong away from the place of incident. The said witness has stated that when he along with CW11 went near the place of incident to attend natures call at about 10.00 a.m., PW2 who came running out of the building, informed them about the incident. He also claims to have seen the accused running away from the building. In the cross-examination, the said witness has stated that he do not have complete information about PW2. He has further stated that he has neither seen the accused nor he had any opportunity to have any contact with the accused prior to the incident and that it is only after the incident he learnt about the name of the accused that he saw the accused running out from the building through the gate of the compound which is about 250 feet away from the building. He has also
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CRL.A No. 100056 of 2021 deposed that he had not given any description with regard to the dress or the physical features of the accused before the police.
22. From a close scrutiny of the deposition of PW2, it is not clear as to whether PW2 was an acquaintance of the deceased and his family members more particularly of PW1. This is particularly in view of the fact that according to the prosecution, PW2 on witnessing the incident straight away ran towards PW1 and informed him about the incident. Neither PW2 nor PW1 nor any of the other witnesses have spoken about their acquaintance with PW2 prior to the incident evincing credibility with regard to this aspect of the matter. Interestingly, in the statement/depositions of PW1 and PW2, there is no mentioning of the presence of PW3 and CW11. There is also no mentioning of PW2 informing PW3 and CW11 while running towards PW1, as claimed by PW3. Further, even according to the deposition of PW2, there was sufficient crowd present in the cattle bazaar in which the said building, being the scene of incident is situated. That being so, the presence of PW3 along with CW11, who are carrying on the business of vegetable vending and garage respectively far away from the place of incident, to be present, though by a chance and allegedly witnessing the accused running away from the building becomes
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CRL.A No. 100056 of 2021 doubtful. PW3 in his cross-examination has admitted that in the morning hours, he would be busy and occupied in the selling of vegetables. That being so, his presence at 10.00 a.m. near the place of incident, that too 2 furlong away from his shop with CW11 does not evince any credibility.
23. The reasoning of the Trial Court at paragraph 58 of the judgment with regard to the proposition that the testimony of witness should not be rejected merely because he is a beggar or a relative of deceased, itself, would not render the evidence of PW2 reliable inasmuch as each case has to be tested and the truth has to be sifted independently depending upon the facts and circumstance of each case. There is no other corroborating or circumstantial evidence produced by the prosecution to prove the guilt of the accused beyond reasonable doubt.
24. As noted above, the accused has been a stranger to all the witnesses and they learnt about the accused only after the incident. In the aforesaid circumstance, there is no justifiable and sufficient material evidence produced by the prosecution to establish the guilt of the accused beyond reasonable doubt. The Trial Court has not looked into this aspect of the matter. We are conscious of the legal
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CRL.A No. 100056 of 2021 proposition that "benefit of doubt to which the accused is entitled is reasonable doubt- the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy- though unwittingly it may be-or is afraid of the logical consequences, if that benefit was not given". We are also conscious of the law that "no particular number of witnesses shall in any case be required for the proof of any fact". However, in the instant case, lack of material evidence and circumstances with regard to the prior acquaintance of PW2 with the family members of the deceased, in the light of he straight away running to the place of PW1 to inform about the incident and claim of PW3 of PW2 informing him about the incident, raises serious doubt about the story of the prosecution.
25. Further, as noted above, according to PW2, there was a crowd with 200 cattle in the cattle bazaar, in which the incident alleged to have taken place. PW2 claims to have ran out of the building, screaming about the killing of deceased which was apparently heard by the people in the crowd around. This being the case, there is nothing on record to show as to what prevented the prosecution from examining any of the members of the crowd. Further, the prosecution
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CRL.A No. 100056 of 2021 has not made any attempt to examine any of the witnesses, being the persons responsible either of the building or of the cattle bazaar as well as the residents of the surrounding area. Non-examination of any of the persons present in the cattle bazaar and solely relying upon the evidence of PW2 and a chance witness-PW3, as noted above, who happened to be there to attend the natures call away from the place of his business, rises a serious doubt about the veracity of the case of the prosecution. Except these two witnesses, there are no other material witnesses or circumstantial evidence led in by the prosecution. Accused was a stranger to PW.2 who claims to have seen the accused while he was on the run. No test identification parade regarding the identification of the accused is conducted during the investigation. In view of the depositions of PW2 and PW3, who have pleaded ignorance with regard to the identity of the accused, the prosecution has also not established sufficient identity of the accused, who is alleged to have been seen by them.
26. The Trial Court has not adverted to these aspects of the matter which are essential in establishing the case of the prosecution beyond reasonable doubt, the point raised above is answered accordingly.
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CRL.A No. 100056 of 2021
27. In the circumstances, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt by cogent and consistent evidence that it was the accused who assaulted the deceased on his throat with the knife-M.O.1 causing injury, resulting in his death and thereby committed the offence of 302 IPC. As such the accused is entitled for the relief as acquittal. In the circumstance, following:
ORDER The appeal is allowed.
The impugned order of conviction and sentence for the offence punishable under Section 302 IPC is hereby set aside. The appellant is acquitted of the charge for the offence punishable under Section 302 IPC. He shall be set at liberty forthwith, if his detention is not required in any other case.
The fine amount deposited if any shall be refunded to the appellant.
The order with regard to disposal of the property is maintained.
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CRL.A No. 100056 of 2021 Registry shall communicate this order forthwith to the trial Court and the concerned Jail Authorities.
SD/-
JUDGE SD/-
JUDGE Rsh/KGK