IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.1 OF 2016 C/W CRIMINAL APPEAL NO.897 OF 2016 CRIMINAL REFFERED CASE NO.1 OF 2016 BETWEEN:
THE ADDL. DISTRICT AND SESSIONS JUDGE UDUPI (SITTING AT KUNDAPURA) KUNDAPURA. … PETITIONER (BY SRI.VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) AND:
SATHISH POOJARY S/O LATE MANJU BILLAVA AGED ABOUT 34 YEARS R/AT PADMASHREE NILAYA DODDAMANE NEAR SRI LAKSHMINARAYANA TEMPLE HEMMADI VILLAGE KUNDAPURA TALUK … RESPONDENT (BY SRI.C.V.NAGESH, SENIOR ADVOCATE ALONG WITH SRI.K.RAGHAVENDRA, ADVOCATE) THIS CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED UNDER SECTION 366(I) OF THE CODE OF CRIMINAL PROCEDURE, 1973, FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED SATHISH POOJARY S/O LATE MANJU BILLAVA, AGED ABOUT 34 YEARS, RESIDING AT PADMASHREE NILAYA, DODDAMANE, NEAR SRI.LAKSHMI NARAYANA TEMPLE, HEMMADI VILLAGE, KUNDAPURA TALUK, BY JUDGMENT DATED 28.4.2016 PASSED IN SESSIONS CASE NO.19 OF 2013 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860.
* * * * * CRIMINAL APPEAL NO.897 OF 2016 BETWEEN:
SRI.SATISH POOJARY AGED ABOUT 37 YEARS S/O LATE MANJU BILLAVVA R/OF “PADMASHRI NILAYA” DODDAMANE NEAR LAKSHMI NARAYANA TEMPLE HEMMADI VILLAGE KUNDAPURA TALUK – 576 201 … APPELLANT (BY SRI.C.V.NAGESH, SENIOR ADVOCATE ALONG WITH SRI.RAGHAVENDRA, ADVOCATE) AND:
STATE OF KARNATAKA BY THE STATION HOUSE OFFICER GANGOLI POLICE STATION KUNDAPURA UDUPI DISTRICT – 576 101 REP. BY SPP HIGH COURT BANGALORE – 560 001 … RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.4.2016 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA IN SESSIONS CASE NO.19 OF 2013 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860.
* * * * * THIS CRIMINAL REFERRED CASE AND CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, RAVI MALIMATH, J., DELIVERED THE FOLLOWING:-
JUDGMENT 1.(a) The case of the prosecution is that the deceased Akkayya the daughter of CW-8-Manju Poojary and CW-9-Sadhu Poojarthy and sister of CW-2-Smt.Seetha, CW-3-Sathish Poojary and CW-4-Santhosh Poojary, were permanently residing at Noojadi village and working in Venkataramana English Medium School as incharge conductor of school van. The deceased was in close intimacy with Sathish Poojary – the accused. She was aware that the accused was already married. However, she developed an illicit relation with him which continued for sometime. The relationship was well known to the parents of the deceased and her sister and brothers. They were in constant touch with one another. Thereafter, the accused came to know that the deceased had shared relations with his wife’s brother Sathish and the marriage of the said Sathish was fixed with another woman. With regard to the same, the deceased was making enquiries with the accused and was threatening him that she would disclose the said secret to others.
(b). On 3.7.2010, the accused called the deceased over telephone at about 1.45 p.m. and asked her to come to KEB office at Tallur. He hired an Omni car bearing No.KA-20/B-6941 from its owner CW-17-Dinesh Ganiga and proceeded to Tallur KEB office. Therein, the deceased boarded the Omni car. He took her to Sunlight Maravanthe beach of Trasi village and about 2.45 p.m., committed her murder in the car by using the dupatta to squeeze her neck. As a result, she died. Thereafter, the accused took the dead body in the same car and with an intention to destroy evidence, threw the dead body in the drain by the side of the road, at Kollur locality of Kundabarandadi village. Thereafter, the accused returned the Omni car to CW-17.
(c). On the next day, that is on 4.7.2010, CW-1- Ananda Shetty, heard the news that a dead body of a middle aged woman was lying in the road side drainage at Kundabarandagi village. He reached the place at 9.00 a.m. near Durgaparameshwari temple and identified the dead body of the deceased. He observed certain ligature marks on the neck and suspected that it was a case of culpable homicide. He informed the police about the same.
(d). CW-29-Gopal Nayak, the then police sub- inspector of Gangolli police station having received the information from CW-1, proceeded to the place of incident and recorded the statement of CW-1 at the place of incidence. He came to the police station at 10.00 a.m. and registered the case in Crime No.65 of 2010 for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (in short “IPC”) against unknown persons. Investigation was thereafter handed over to CW-30-Madan A Gaonkar.
(e). Investigation was taken up. During the course of investigation, statements of various persons were recorded. The accused was arrested. A charge sheet was filed against the accused for offences punishable under Sections 302 and 201 of IPC. The accused pleaded not guilty and claimed to be tried.
2. In order to prove its case, the prosecution examined 28 witnesses, marked 27 Exhibits, alongwith 21 Material Objects.
3. By the impugned judgment, the accused was held guilty and convicted for the offence punishable under Section 302 of IPC. He was acquitted of the offence punishable under Section 201 of IPC. He was sentenced to death.
4. Consequently, a reference was made by the Trial Court under Section 366(1) of the Code of Criminal Procedure, 1973, which is registered as Criminal Referred Case No.1 of 2016. The accused has filed Criminal Appeal No.897 of 2016.
5. Sri.C.V.Nagesh, the learned Senior Advocate appearing for the counsel for the appellant, contends that the impugned order of the trial court is unsustainable and liable to be set aside. The trial court has failed to consider the evidence and material on record. The entire case of the prosecution is based on circumstantial evidence. The circumstances have not been proved by the prosecution. They have not proved the last seen theory. The recovery has also not been established. The voluntary statement of the accused recorded by the police, cannot be accepted. Even the so called telephone calls said to have been made between the deceased and the accused are not proved to emanate from the phone of the appellant. Hence, he pleads that the appeal be allowed, by acquitting the accused.
6. On the other hand, the learned State Public Prosecutor disputes the same. He contends that there is sufficient material against the accused and therefore the trial court has rightly convicted him; that the last seen theory has been proved; that the recovery of material objects, namely, the jewellery belonging to the deceased have been recovered in the manner known to law and that the voluntary statement of the accused, have led to the said recoveries. Therefore, the prosecution has proved its case beyond all reasonable doubt. Hence, he pleads that the appeal be dismissed by confirming the conviction and sentence imposed on the appellant.
7. Heard learned counsels and examined the records.
8. The entire case of the prosecution is based on circumstantial evidence. In order to prove its case on the theory of the accused being last seen with the deceased, the prosecution relied on the evidence of PWs-6, 7 and 15. PWs-6 and 15 having turned hostile did not support the case of the prosecution. Therefore, the only evidence is that of PW-7 with regard to the last seen theory.
9.(a) We have considered the evidence of PW-7 at length. He has stated that he saw a woman near the KEB office at Tallur Hattiyangadi road, at about 1.30 p.m on 3.7.2010. He did not know who that lady was. The photographs at Exs.P-7 and P-7(a) were shown to him. He identified the same. Therefore, the prosecution’s case, that the witness having identified the accused, has proved its case so far as the last seen theory of the accused is concerned.
(b). Exs.P-7 and P-7(a) are the photographs of the Omni car. Ex.P-7 is the photograph taken from the front and Ex.P-7(a) is the photograph taken from the back. The witness even though has identified the said photographs as that of the car, that he saw on 3.7.2010, does not lead the prosecution anywhere. It proves the fact, that he saw the vehicle on that day. His evidence is that he saw a woman whom he did not know. There is no photograph of the woman/deceased that has been shown to him. Therefore, this witness who has last seen the deceased, has not identified her in his evidence. Therefore, the evidence of PW-7 with regard to the last seen theory of the prosecution, cannot be accepted. The last seen theory of the prosecution has failed.
10. So far as recovery is concerned, the case of the prosecution is that M.Os.-1 to 3, namely, earrings, ear stud and rolled gold chain, have been recovered based on the voluntary statement of the accused. The voluntary statement of the accused was recorded at 10.30 a.m. on 10.7.2010. The inquest in terms of Ex.P-2 is on 4.7.2010. PW-4 is the witness to the inquest. Therein, he has identified M.O-2 as the item that was on the body of the deceased. If M.O-2 was recovered from the body of the deceased, in terms of the inquest at Ex.P-2, the question of recovery of material objects on 10.7.2010, based on the voluntary statement of the accused, therefore, cannot be accepted. The material objects were already on the body of the deceased when the inquest was drawn. Therefore, so far as the recovery is concerned, the prosecution has miserably failed to prove its case.
11. The voluntary statement of the accused has been recorded in terms of Ex.P-26. Therein, it is indicated that the same has been recorded between 10.30 and 11.30 a.m on 10.7.2010. The witnesses to the same are PWs-12 and 13. PW-12 has turned hostile. The evidence of PW-13 would indicate that he went to the police station only at 1.00 p.m. Therefore, there is a material contradiction so far as the voluntary statement is concerned. If the voluntary statement is recorded between 10.30 a.m and 11.30 a.m., the question of PW-13 witnessing the same beyond 1.00 p.m., therefore, cannot be accepted.
12. Even so far as the evidence of the doctor PW-24 is concerned, the same does not support the case of the prosecution. The doctor has stated that he conducted the post mortem from 5.00 to 7.00 p.m. on 4.7.2010. He opines that the death was due to asphyxia and as a result of strangulation; that the death could have occurred beyond 6 to 8 hours from the time of conducting the post mortem examination. Therefore, according to his evidence, the death would have taken place between 9.00 and 11.00 a.m. on 4.7.2010. The specific case of the prosecution is that the deceased was murdered by the accused at about 2.45 p.m. on 3.7.2010. Therefore, the same runs contrary to the medical evidence.
13. The further case of the prosecution is that the accused had borrowed the car of PW-8. In the evidence, PW-8 has stated that the accused returned the car to him at 7.00 p.m. on 3.7.2010. If that were to be so, the same runs contrary to the medical evidence. In terms of the opinion of the doctor PW-24, the death would have taken place between 9.00 a.m. and 11.00 a.m. on 4.7.2010. Therefore, the evidence of PWs.-8 and 24 are contrary.
14. So far as the call details are concerned, the appellant’s counsel contends that neither the mobile nor the Sim card belongs to the accused; that the evidence on record would indicate that the phone belonged to Nagaraj who has been examined as PW-27. He has categorically stated that the mobile does not belong to the accused. Further more, PW-26 is the owner of the shop, who reiterates that he had sold the mobile to Nagaraj and not to the accused. Therefore, so far as the call details are concerned, the prosecution has failed to nail the accused. The prosecution has failed to show that the calls were made from the phone under the ownership or possession of the accused.
15.(a) The learned State Public Prosecutor contends that the vanity bag of the deceased was recovered from the scene of offence, based on the voluntary statement of the accused. As held hereinabove, the voluntary statement is in doubt. Secondly, the body was recovered on 4.7.2010. The vanity bag was recovered near the place where the body was found. Therefore, we fail to understand as to how the investigating officer could not have recovered the vanity bag, which was near about the dead body.
(b). PW-13 who was the pancha to Ex.P-11 has stated that the accused led them to the place and the vanity bag was recovered. Therefore, the contention of the prosecution that the vanity bag was beyond 150 metres from where the body was found, has not been stated in the evidence of PW-13. Even assuming that the case of the prosecution on the recovery of the vanity bag is to be accepted, the same by itself is not sufficient to implicate the accused for the offence punishable under Section 302 of IPC.
16. Under these circumstances, for all the aforesaid reasons, we have no hesitation to hold that the trial court totally misread the evidence and material on record. The prosecution has miserably failed to prove the last seen theory and also recovery of material objects. Even if the evidence of PW-7 is to be accepted, the last seen theory has not been proved. There are material contradictions in the evidence led in by the prosecution with regard to the recovery. The recording of the voluntary statement is filled with doubt. Even so far as the call details are concerned, the prosecution has failed to prove that the phone belonged to the accused. The medical evidence does not support the case of the prosecution.
17. None of these contradictions have been satisfactorily explained by the prosecution. In view of the various loopholes, the case of the prosecution cannot be accepted.
18. Under these circumstances, we are of the considered view that the conviction of the accused for the offence punishable under Section 302 of IPC is unsustainable. There is absolutely no material placed by the prosecution to sustain the conviction.
19. Consequently, Criminal Appeal No.897 of 2016 is allowed.
The judgment of conviction and sentence passed by the Additional District and Sessions Judge, Udupi (Sitting at Kundapura), Kundapura, dated April 28, 2016 in Sessions Case No.19 of 2013, is set aside.
The appellant – Sathish Poojary is acquitted of the charge of Section 302 of Indian Penal Code. He shall be set at liberty forthwith, if he is not required in any other case.
Consequently, Criminal Referred Case No.1 of 2016 is rejected.
The Registry to communicate the operative portion of this order to the jail authorities at Hindalga jail, Belagavi, for necessary action.
Sd/- Sd/-
JUDGE JUDGE AHB