IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 17th day of October, 2017 PRESENT:
THE HON’BLE MR JUSTICE P.S.DINESH KUMAR AND THE HON’BLE MR JUSTICE B.A.PATIL Criminal Appeal No.935/2012 BETWEEN:
JAYARAM @ RAJANNA S/O.KODIGOWDA AGED ABOUT 53 YEARS R/A.HEGDEDEVANAPURA DASANAPURA HOBLI BANGALORE NORTH TALUK ...APPELLANT (BY SHRI.D.NAGARAJA REDDY, ADVOCATE) AND:
STATE OF KARNATAKA BY MADANAYAKANAHALLI POLICE BANGALORE … RESPONDENT (BY SHRI.VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICITONS DATED 7.1.2012 PASSED IN S.C.NO.33/2011 BY THE FTC-II, BANGALORE RURAL DISTRICT, BANGALORE, CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE P/U/S.302 OF IPC.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 14.10.2017, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR, J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T This appeal is presented challenging the judgment and sentence dated January 7, 2012, in S.C.No.33/2011, on the file of the Sessions Judge, Fast Track Court-II, Bengaluru (R) District, Bengaluru, sentencing the sole accused to undergo imprisonment for life and to pay a fine of ` 5,000/-, and in default of payment of fine, to undergo rigorous imprisonment for a period of three months, for the offence punishable under Section 302 IPC.
2. The case of the prosecution is, the accused had borrowed some money from the deceased. There was a quarrel between the deceased and the accused with regard to repayment of loan. Accused, thus being inimically disposed towards the deceased, also had an intention to rob the jewellary belonging to the deceased. In furtherance thereof, the accused entered the house of the deceased on January 29, 2010 at about 9.00 P.M. and committed the offence by strangulating her. He also robbed the jewellary belonging to the deceased.
3. The son of the deceased, Sampangi Ramaiah, lodged a complaint as per Ex.P1 in Crime No.82/2010 stating inter alia that, he had got his mother treated by a Doctor on the previous night; and had sent his son Abhilash to check his mother’s health condition at about 7.30 A.M. on January 30, 2010. His son had found the victim dead. When he visited the spot, he had noticed that the ornaments and cash in the cupboard belonging to his mother were missing.
4. The complaint was registered against unknown person/s for the offence punishable under Section 302 IPC.
5. After investigation, police have filed a charge sheet against the accused.
6. On behalf of prosecution, 21 witnesses were examined, 29 exhibits were marked and 9 material objects were placed before the Court.
7. On behalf of the accused, none was examined nor any document marked.
8. The Trial Court on appreciation of evidence on record, accepted the case of the prosecution and held, that the prosecution has proved all the incriminating circumstances including the motive and convicted the accused; and sentenced him to undergo life imprisonment.
9. We have heard Shri D.Nagaraja Reddy, learned counsel for the appellant-accused and Shri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent-State.
10. Learned Counsel for the appellant, arguing in support of this appeal, at the outset, contended that, prosecution’s case is entirely based on circumstantial evidence and there is no clinching evidence to suggest the involvement of the accused in the case.
11. Amplifying his submissions, he contended that the evidence tendered by P.W.1 to P.W.4 cannot be believed as they are based on assumptions and hearsay. He further contended that, the prosecution’s ‘last seen theory’ is also extremely weak as it hinges around the evidence of P.W.5, P.W.6 and P.W.7, which are not trustworthy. Adverting to their evidence, he submitted that, P.W.5 has admitted in the cross - examination that, he has not given any statement before the Police; P.W.6 has admitted that, he had seen the deceased and the accused in the company of a third person on the previous night as claimed by the police; and the P.W.7 has admitted that, she has not given any statement to the Police. With regard to the evidence of P.Ws.8 and 9, learned counsel for the accused submitted that their evidence also cannot be believed, as they have turned hostile.
12. Learned Counsel further argued that, admittedly, there is no investigation with regard to the ‘other person’ who was allegedly seen in the company of the accused and referred to by the witnesses. Further, the evidence tendered by P.W.7 discloses that, villagers were visiting the house of the deceased to watch the television in her house. Therefore, in the absence of specific and unimpeachable evidence, the Trial Court erred in accepting the theory of ‘last seen’ propounded by the prosecution. With regard to the recovery of jewelry, and alleged financial transaction, he submitted that there is not an iota of evidence in support of prosecution theory. With these submissions, learned counsel for the appellant prayed for allowing the appeal.
13. Learned Additional State Public Prosecutor arguing in support of the judgment of the Trial Court prayed for dismissal of this appeal.
14. We have carefully considered the submissions of the learned Counsel for the appellant and the Additional State Public Prosecutor and perused the records.
15. The case of the prosecution is based on three circumstances, namely the ‘last seen theory’, monetary transaction between the accused and the deceased, and recovery of jewellary allegedly belonging to the deceased.
16. The prosecution has examined 21 witnesses.
P.W.1 is the complainant and the son of the deceased. P.W.2 is a witness for the inquest panchanama. P.W.3 is the grandson of the deceased. P.W.4 is a relative of deceased. None of these witnesses had any clue with regard to the accused as the complaint is admittedly registered against an unknown accused.
17. Three witnesses namely, P.W.5, P.W.6, and P.W.7 have claimed to have seen the accused going towards the house of the deceased prior to the incident. But, P.W.5, in his cross - examination, has admitted that, he has not given any statement to the Police nor has he stated that the accused went near the house of the deceased. P.W.6, has admitted in the cross - examination that, he has not stated in his statement before the Police that, the accused and another person were knocking the door of the deceased. He has also admitted that villagers watch television in the house of the deceased and that he had no knowledge with regard to monetary transaction of accused with the deceased. P.W.7, who is a neighbour of the deceased, has also admitted in her cross - examination that, she did not know to read and write and that, it was the Police, who have revealed the acts of the accused. P.Ws.8 and 9 are witnesses to Panchanama, Ex.P3, seizure mahazar and they have turned hostile. P.W.10 is the witness to mahazar, Ex.P5, drawn at the pawn broker shop. He has also not sustained the cross-examination firmly.
P.W.11 is an engineer who has drawn the sketch. P.W.12 is the owner of the jewellary shop. He has admitted in his cross -examination that, he was not present when Ex.P4, receipt, allegedly issued when the jewellary was pawned. He has also admitted that he had not seen the accused nor could he identify him. He has further admitted that he has not given any statement before the Police. P.W.13 is another witness to the mahazar, Ex. P5. P.W.14 is a villager. He has also turned hostile.
18. The investigating officer is examined as P.W.15. It is crucial to note that, he has admitted in his cross -
examination that, P.W.4 did not make certain statements as claimed by the prosecution. His cross examination precisely reads thus:
“It is true suggest that P.W.4 as (sic has) not stated before me “I found that light was burning, I did not find grandmother in the kitchen, therefore I came out side and found that my grandmother was not present. Again I went inside house and found my grandmother was lying on a cot, I made an attempt to wake her up. She did not wakeup there by I became shocked. I came out and called the Vasanth. He came and told after examining that my grandmother is dead.
“On examination Almera kept open the clothes kept in the Almera was spilled out. Cash and ornaments usually kept in the almera was missing. One gold pearls, chain, ear studs, one nose stud, worn by my grandmother were was missing. I telephone to my father and informed about the incident. I also informed to the neighbours of house of grandmother.”
“On enquiry one Shobhamma neighbour of grandmother told that accused and another person were knocking doors of my grandmother. Other neighbour are also told about the accused person and another knocking the doors of grandmother on the previous night.”
It is true to suggest that P.W.4 as (sic has) not stated before me as “The doors of almera was broke opened and clothes were kept in the almera were spilled over. There were no valuable in the almera. My self and abhilash went out of the house being scared and told that grandmother is murdered. One Shobhamma, Murthy, and other villagers came to the house of Huchamma. My house is opposite to the house of Huchammaa. House of Shobhamma is adjacent to the house of Huchamma. On enquiry neighbour told the one Jayarama came and calling the old lady.”
(emphasis supplied) 19. The investigating officer has been cross examined with regard to the ‘other person’, Ramesh, who was allegedly in the company of the accused as claimed by P.W.6 and P.W.7. He has denied a suggestion that, intentionally no charge sheet was filed against the accomplice. However, no explanation is forthcoming about the investigation, if any, conducted with regard to the complicity of the said accomplice.
20. The witnesses P.Ws.16, 17, 19 and 20 are police officials, who have assisted in investigation. P.W.18 is a Scientific Officer with the Forensic Science Laboratory.
P.W.21, is the Doctor who has conducted the postmortem. He has stated that death is due to asphyxia due to strangulation.
21. The first and the principal theory propounded by the prosecution, is the ‘last seen theory’. It hinges upon the ocular testimonies of P.Ws.5, 6 and 7. A critical analysis of their deposition before the Trial Court would reveal that their statements do not firmly impute the involvement of accused beyond reasonable doubt. Evidence of P.W.5 has been completely demolished in the cross - examination, wherein he has admitted as follows:-
“Cross examination by Sri.M.I. advocate for accused:
I do not (sic know)reading and writing Kannada language. I have not given any statement to the police, I have not stated before the police that the accused went near the house of deceased but only stated that he went inside the village. I have not stated before the police that accused was wearing pant and shirt. I do not know anything about the incident.”
22. We may reiterate that P.W.6 has admitted in his cross - examination, that, he has not stated in his statement before the Police that, the accused and another person were knocking the door of the deceased. Similarly, P.W.7 who is a neighbour has also admitted in her cross - examination that, she has not given any statement before the Police and it was the Police, who revealed the acts of the accused.
23. The prosecution’s next theory with regard to the financial transaction inter se between the accused and the deceased is sought to be established by the deposition of P.W.6. However, he has not sustained the cross - examination.
24. The third circumstance, is recovery of jewellary.
The pawn broker, P.W.12, has fully buckled in the cross - examination. He has admitted that, he was not present at the time when the accused is alleged to have visited the shop.
25. It is well settled that, in a case based on circumstantial evidence, the chain of circumstances must be consistent with the guilt of the accused. We may record that there is no unimpeachable evidence on record, which supports the case of the prosecution. Further, no investigation is conducted with regard to complicity of the alleged accomplice of the accused.
26. Thus, in our considered view, the prosecution has failed to establish the guilt of accused beyond reasonable doubt and the Trial Court committed a serious error in accepting the case of prosecution.
27. Resultantly, this appeal merits consideration and deserved to be allowed. Hence, the following:-
ORDER i) Appeal is allowed;
ii) The judgment and sentence dated January 7, 2012, in S.C.No.33/2011, on the file of the Sessions Judge, Fast Track Court-II, Bengaluru (R) District, Bengaluru, is set aside;
iii) Accused is acquitted of the charge of Section 302 IPC; and iv) Accused is directed to be set at liberty forthwith, if not required in any other case.
The Registry is directed to communicate the operative portion of this order to the Jail Authorities, forthwith.
Sd/- JUDGE Sd/- JUDGE Yn/cp*