IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.607 OF 2012 BETWEEN:
KITTA @ KRISHNAPPA S/O DASAPPA, AGED ABOUT 28 YEARS, R/O UPPAR KERI, HOLEHONNURU VILLAGE, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT – 577 301. ... APPELLANT (BY SRI PRUTHVI WODEYAR, ADVOCATE) AND:
STATE BY HOLEHONNURU POLICE, BHADRAVATHI TALUK, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR , HIGH COURT BUILDING, BENGALURU. ... RESPONDENT (BY SMT.B.G.NAMITHA MAHESH, HCGP) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 21.3.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, BHADRAVATHI IN S.C.NO.78 OF 2011 CONVICTING THE APPELLANT/ ACCUSED-2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC. APPELLANT/ACCUSED-2 IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND PAY A FINE OF RS.1,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE APPELLANT PRAYS THAT HE MAY BE ACQUITTED.
***** THIS CRL.A. COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that the victim, Smt.Shanthamma, aged about 45 years, was a resident of Kanasikatte Village in Bhadravathi taluk. She owns lands and used to attend to agricultural work therein. She would also work as a Coolie along with a group of villagers. She was the leader of about 10 working women. She would do the work of sowing, harvesting, etc.
2. On 08.08.2010, a complaint was lodged by Smt.Dakshayanamma, PW-8 who is the elder sister of the deceased, stating that she is a resident of Mattigatta village. That on the date of the incident at about 2.15 p.m., she received a phone call from one Siddappa of Kanasikatte Village, with a message that her elder sister, the deceased, is not keeping well and she has to come immediately. The complainant went to Kanasikatte Village and on entering the house, she found the deceased lying dead in a room. The earrings of the deceased and her karimani necklace with gold thali, in all worth about 10,000/- were missing. The right ear of the victim was torn and bleeding. Upon enquiry, she came to know that on 07.08.2010, between 8.30 p.m. to 2.15 p.m., of 08.08.2010 some persons had committed the murder of the deceased, by smothering her with a pillow, resulting in asphyxia. They had also robbed the gold articles.
3. Based on these averments, a complaint was filed and a case was registered in Crime No.190 of 2010, of the Holehonnur Police Station. The Investigating Officer conducted the spot mahazar in the presence of panchas.
The statement of witnesses were recorded. On 16.08.2010, accused No.2 was arrested and he gave his voluntary statement. On 13.09.2010, accused No.1 was arrested and his voluntary statement was also recorded.
4. Based on the material collected, the prosecution laid a charge-sheet against both the accused for the offences punishable under Sections – 376, 302, 394, 201, read with Section-34 of IPC. In order to prove its case, the prosecution examined 25 witnesses and marked 32 documents along with 20 Material Objects. The accused pleaded not guilty and claimed to be tried.
5. By the impugned judgment, accused Nos.1 and 2 were convicted for the offences punishable under Section-302, read with Section-34 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- each. The accused were acquitted of the offences punishable under Section - 376 and 201 of IPC. Aggrieved by the same accused No.2, has filed the present appeal.
6. The appellant having been acquitted for the offence punishable under Sections-376 and 201 of IPC, there is no State appeal challenging the same.
7. Sri. Pruthvi Wodeyar, learned counsel for the appellant, contends that the impugned judgment of the trial court is erroneous. That even if the entire case of the prosecution is to be accepted, there is nothing to implicate the appellant - accused No.2 herein. That there is no material to indicate that the accused was last seen along with the deceased, at any point of time. Even though PW-10, the receiver of the gold articles has supported the case of the prosecution, there is no conviction of the appellant on the said charge. Hence, he pleads that the trial court having misread the entire evidence, the appellant is entitled to be acquitted of the offences.
8. On the other hand, Smt.Namitha Mahesh, learned High Court Government Pleader disputes the same. She contends that substantial evidence has been led-in by the prosecution to prove the guilt of the accused. That the accused committed a brutal act on the deceased. She had sustained various injuries. Thereafter they have murdered her. That the prosecution has proved its case beyond all reasonable doubt. Hence, no interference is called for.
9. Heard learned counsels and examined the records.
10.(a) PW-1 and PW-2 are co-workers with the deceased. They have narrated in their evidence that at times they would all work together in the neighborhood fields and would collect wages. That the deceased was the head of about 10 women. That on 07.08.2010, after completing their work, the deceased had to pay them wages. She told them to wait near the house of one Gangamma and that she will go to her house and bring money. However, she did not return for quite sometime. Therefore, they all dispersed from the place. It is only on the next day evening, that they came to know that the deceased was murdered.
(b). PW-3, Kumari.Hemavathi, is the daughter of the deceased. She was a resident of Mysuru and came to know of the death of her mother, when she was intimated over phone. She has identified the gold articles of the deceased at MOs.-1 to 5, as well as the mobile phone of the deceased at MO-7.
(c). PW-4, Nagaraj and PW-5, Shekarappa are panchas to the spot mahazar at Exhibit-P2.
(d). PW-6, Devamma, is the mother of the deceased. She is a hearsay witness.
(e). PW-7, Thimmappa, is the one who has purchased the mobile phone of the deceased from Accused No.1.
(f). PW-8, Smt.Dakshayanamma, is the complainant as well as the elder sister of the deceased.
(g). PW-9, Sri.Bhairappa, is a villager, who is also a hearsay witness.
(h). PW-10, Sri.Ravi, is a Goldsmith and the Receiver of the gold articles, who has stated in his evidence that both accused Nos.1 and 2 came to his shop to pledge the gold articles and the articles were pledged by accused No.1.
(i). PW-11 and PW-12 are the panchas to the mahazar at Exhibit-P3, for recovery of the clothes of accused No.2, MOs-11 to 15, cutting-plier, MO-8 and a cycle, MO-16.
(j). PW-13 is also a panch to the mahazar at Exhibit-P12, for recovery of clothes of Accused No.1.
(k). PW-14 is the brother of the deceased. He is the panch for the recovery of the jewels of the deceased from PW-10 – Pawn-broker.
(j). PW-15 is a witness to the inquest mahazar at Exihibit-13.
(l). PW-16 is a witness for recovery of MOs-2 and MO-8.
(m). PW-17 is the Head Constable who received the information of the offence and who lodged the FIR.
(n). PW-18 is the Head Constable who shifted the body to the hospital for postmortem.
(o). PW-19 is the Constable who carried the FSL report.
(p). PW-20 is another villager who is a hearsay witness.
(q). PW-21 is the Investigating Officer. He has narrated the manner in which he arrested the accused, conducted the spot mahazar as well as the inquest. That he arrested accused No.1 on 13.09.2009 and accused No.2 on 16.08.2010.
(r). PW-22 is the PSI who arrested accused No.2.
(s). PW-23 is the PSI, C.I.D., who took up further investigation.
(t). PW-24 is the Doctor who conducted the post- mortem examination.
(u). PW-25 is the Doctor who examined accused No.2 and noted the injuries as sustained by him.
11. It is on these aforesaid evidences, the trial court was of the view that the prosecution having established its case beyond all reasonable doubt, convicted both the accused under Section-302 of IPC. In view of lack of evidence, both the accused were acquitted for the offence punishable under Section -376 and 201 of IPC.
12. On hearing learned counsels, we are of the view that there is absolute perversity in the appreciation of the evidence by the trial court. Even if the entire case of the prosecution as narrated by the witnesses is to be accepted on its face value, there is nothing to indicate that the appellant was involved in the commission of the murder of the deceased.
13. The prosecution has not proved the last seen theory. The co-workers had worked along with the deceased as on that day. After finishing their work, the deceased asked them to wait near the house of one Gangamma and went to the house to bring money. Thereafter, she did not return. On the next day they were informed that she had died. The said witnesses have only seen the deceased just before she died. They have not seen the accused at all nor have they seen the accused along with the deceased. Therefore, there is no last seen theory which the prosecution has proved.
14. There is also no evidence to show that the appellant committed the offence. That there must be linking evidence either oral or testimonial to show the involvement of the accused. In the absence of eye witnesses, every link of the prosecution case has to be established. We do not find any material to indicate that it was the appellant who committed the offence. Therefore, there is no link established by the prosecution between the injuries and the appellants. The Doctor has not stated whether these injuries were caused by the appellant himself. Hence, we find that the prosecution has miserably failed to bring home the guilt of the accused for the offence charged against him.
15. Even though the prosecution proved the recovery of the material objects from the scene of offence, recovery of the gold articles from the PW-10, having proved that the death of the deceased was due to asphyxia, having proved the recovery of the clothes of the deceased as well as the accused, we do not find any evidence that would indicate that it was the appellant – accused, alone who committed the murder of the deceased. None of these evidence lead to such a conclusion. There are missing links which the prosecution has failed to connect, to indicate that both the accused were involved in the commission of the offence. There is absolute lack of material to link both of accused.
16. The recoveries of the gold articles, cutting-plier and other items would not lead to the conclusion that the accused has committed the murder. Even the recovery of the mobile phone, said to belong to the deceased which was recovered from PW-7 would not implicate the appellant herein. Even if that evidence is to be accepted for what the prosecution wants to portray, it would only implicate accused No.1, who is not an appellant herein. Therefore, we are of the view that the trial court committed a perversity in holding that the prosecution has proved its the case so far as the appellant herein is concerned. It has miserably misread the evidence on record. There is not even an iota of evidence that would link the accused to the offence alleged against him.
17. However, we notice that so far as the recoveries of the gold articles in terms of MOs-1 to 5 are concerned, the same is proved by the evidence of PW-10, who is the Receiver. The articles have also been identified by the daughter of the deceased. PW-14, the brother of the deceased has stated that he accompanied PW-3, daughter of the deceased, when the gold articles was seized from PW-10 and PW-3 has identified the gold articles. Therefore, the prosecution in our considered view has proved through these evidences, that the accused is guilty of having received the stolen property and therefore is liable to be convicted for the offence punishable under Section – 411 of IPC. Therefore, we deem it just and necessary to sentence the accused to undergo imprisonment for a period of three years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) and in default of payment of fine to undergo a further imprisonment of six months. It is submitted that the appellant - accused has been in custody from the date of arrest namely, from 16.08.2010. Therefore, the appellant / accused has already undergone the period of sentence including the default sentence. Hence, we pass the following :
i. Criminal Appeal No.607 of 2012 filed by the appellant - accused No.2 is allowed.
ii. The impugned judgment of conviction and sentence dated 21.03.2012, passed by the Fast Track Court at Bhadravathi, in S.C.No.78 of 2011 is set-aside, insofar as the appellant – accused No.2 is concerned.
iii. The appellant - accused No.2 - Sri.Kitta @ Krishnappa is convicted for the offence punishable under Section-411 of IPC. He is sentenced to undergo imprisonment for three years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only), in default of payment of fine, he shall undergo a further imprisonment for a period of six months. Since the appellant is in custody, since 16.08.2010, he has already undergone the period of sentence including the default sentence.
Therefore, the appellant - accused No.2 shall be set at liberty forthwith, if not required in any other case/s.
iv. Registry is directed to intimate the operative portion of this order to the concerned Jail Authorities.
Pending I.A. No.1 of 2012 stands dismissed.
SD/- SD/-
JUDGE JUDGE JJ / rsk