IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS. JUSTICE K.S. MUDAGAL AND THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No.1611/2015 BETWEEN:
1. PREMA @ PREMA KUMAR S/O KEMPARAJU AGED ABOUT 26 YEARS R/AT 39, RAMABAI NAGAR GORUR NEW EXTENSION MYSORE – 570 008 2. DILEEP URS S/O MADAN RAJE URS AGED ABOUT 24 YEARS R/AT 39, RAMABAI NAGAR GORUR NEW EXTENSION MYSORE – 570 008 … APPELLANTS (BY SRI S.J.KRISHNAJI RAO, ADVOCATE) AND:
THE STATE OF KARNATAKA BY VIDYARANYAPURAM POLICE STATION MYSORE – 570 008 ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.04.2013 PASSED BY I ADDITIONAL SESSIONS JUDGE, MYSORE IN S.C.NO.56/2012 CONVICTING THE APPELLANT/ACCUSED NOS.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 R/W SECTION 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of accused Nos.1 and 2 arises out of the judgment and order of conviction and sentence dated 06.04.2013 in S.C.No.56/2012 passed by the First Additional Sessions Judge, Mysore.
2. By the impugned judgment and order, the trial Court has convicted the appellants for the offence punishable under Section 302 r/w 34 IPC and sentenced them to imprisonment for life and fine of Rs.5,000/- each and simple imprisonment of six months in default to pay fine.
3. The appellants were tried in S.C.No.56/2012 on the basis of the charge sheet filed by Vidyaranyapuram Police, Mysore, in Crime No.120/2011 of their Police Station. The said case was registered by the respondent Police on the basis of complaint of PW.1 Anil Kumar as per Ex.P1.
4. The case of the prosecution in brief was as follows:
(i) PW.1 Anil Kumar, deceased Sunil, one Ramesh and accused were working as building construction workers. PW.7 Vinod.B was constructing a house in Ramabai Nagar and they were working in that project. On 12.9.2011, PW.10 Yoga Srinivas had sent deceased Sunil to the house of PW.11 Nataraj to collect money due from him. PW.1 had accompanied deceased Sunil.
(ii) On collecting Rs.3,500/- from PW.11 when Sunil and PW.1 were returning on the motor bike No.KA-09-EH-5309, at 7.45 p.m. near Ring Road connecting J.P.Nagar and Dadadahalli, sighting the accused, Sunil stopped his motor cycle and entered into an altercation with accused Nos.1 and 2 pressing them for repayment of the loan due to him. Stating that he will pay back the money, accused No.1 went behind the motor cycle of Sunil and assaulted him with iron pipe MO.9 on his head. Accused No.2 tried to grapple PW.1. Sensing assault on him, PW.1 escaped and ran to the construction site of PW.7. Then PW.1 and PW.7 came back to the scene of offence. By that time Sunil was found lying unconscious with profuse bleeding injuries. The motor cycle was also lying by the side.
(iii) PW.1 and PW.7 shifted injured Sunil in the auto rickshaw of PW.9 to B.G.S. Apollo Hospital, Mysore. PW.7 informed PW.10 and 11 about the incident. PW.10 also came to the hospital. By that time, PW.15, the PSI of Vidyaranyapura Police Station who was on patrol duty near the scene of offence, learnt about the incident and shifting of the victim to the hospital. PW.15 proceeded to BGS Apollo hospital and recorded Ex.P1 the statement of PW.1 in the hospital.
(iv) On the basis of Ex.P1, PW.15 registered the FIR Ex.P11 against the accused and took up the investigation. He conducted the spot mahazar as per Ex.P2 and seizure mahazar Ex.P3 in the presence of panch witnesses PW.2 Ramesh and CW.2 Jayashankar. Under Ex.P2 he seized MO.1 to MO.5 i.e., the motor cycle of the deceased, break lever of the vehicle, bloodstained and unstained tar and pair of chappals as shown by PW.1. Under Ex.P3, PW.15 seized MO.6 to MO.8. The blood stained shirt of PW.1 and blood stained clothes of Sunil. PW.16 Dr.Ramesh Ranganathan treated victim Sunil in BGS Apollo Hospital.
(v) Sunil succumbed to the injuries in the hospital on 13.9.2011 at 2.45 a.m. Therefore, PW.15 Investigating Officer sent requisition to the court to include Section 302 IPC in the case and handed over the further investigation to PW.20 Police Inspector. Thereafter the inquest mahazar on the dead body was conducted.
(vi) On apprehending the accused, on the basis of their voluntary statements, PW.20 seized MO.9 the iron pipe/ weapon of offence under the mahazar Ex.P14 in the presence of pancha witnesses PW.17 Narayana Swamy and CW.34 R.Somashekar. PW.20 collected the Postmortem report, sent the seized articles for experts opinion, recorded the statements of the witnesses and on completing investigation, filed the charge sheet.
5. To prove the charge, the prosecution examined PW.1 to PW.20 and got marked Ex.P1 to Ex.P21 and M.O.1 to M.O.9. By way of contradiction, the accused got marked Ex.D1 to Ex.D.5 during the course of cross examination of prosecution witnesses.
6. The trial Court on hearing the parties convicted and sentenced the accused as aforesaid holding that the case of the prosecution is proved by the evidence of eyewitness PW.1. The trial Court further held that the delay in filing and delivering the FIR and the contradictions in the evidence of witnesses pointed out by the defence Counsel are not fatal.
7. Sri Krishnaji Rao, learned Counsel for the appellant seeks to assail the impugned judgment and order on the following grounds:
(i) The evidence on record shows that PW.1 himself was in the custody of police after the incident. Therefore the theory of PW.15 recording the complaint in the hospital is highly doubtful.
(ii) There is unexplained delay in registering the complaint and delivering the FIR to the Court. PW.20’s evidence that till 9.30 a.m. of next morning police were not aware of the culprits makes the prosecution case against the accused doubtful. The trial Court overlooked such material admission.
(iii) If PW.1 was the eyewitness, in medical records history of the injuries should have been mentioned as per his version of the incident. But the name of the second accused does not figure as the assailant.
(iv) There is no explanation for suppression of medico legal case intimation sent from the hospital.
(v) The evidence on record shows that deceased was highly intoxicated and there was no light at the scene of offence.
(vi) Theory regarding recovery is unacceptable and not cogent.
8. Per contra, Sri Vijayakumar Majage, learned SPP seeks to support the impugned judgment and order of conviction and sentence on the following grounds:
(i) Since the victim was in serious condition, first priority of PW.1 and PW.7 was to get him necessary medical aid. Therefore, rightly the trial Court accepted that as reason for delay.
(ii) Minor contradictions in the evidence cannot be blown out of the proportion.
(iii) Evidence of PW.7, PW.10 and PW.11 makes it clear that PW.1 was present with the victim. Therefore, the trial Court has rightly held that PW.1 was eyewitness.
(iv) Evidence of PW.7, PW.10 and PW.11 has proved the motive circumstance.
9. Having regard to the rival contentions, the point that arises for consideration is “whether the charge that on 12.09.2011 at 7.45 p.m. near ring road, Mysore, accused assaulted deceased Sunil with iron pipe and committed his murder is proved beyond reasonable doubt”?
10. Case of prosecution depends upon:
a) The evidence of alleged eyewitness PW.1;
b) Circumstance of motive;
c) Circumstance of alleged recovery of weapon.MO.9 at the instance of the accused; & d) Medical Evidence and evidence of police witnesses.
Reg: Nature of death:
11. Accused also do not seriously dispute that Sunil died due to homicidal injuries. Their contention is that they were totally unconcerned to the death of the victim and they were not at all present at the scene of offence. The postmortem report and the evidence of the doctors show that the death was homicidal one. Therefore, it can be concluded that the death was homicidal one.
Reg: the evidence of PW.1 eyewitness 12. According to the prosecution, PW.1 is the eyewitness to the incident. It is no doubt true that if the case is based on the evidence of eyewitness, his evidence may not require any corroboration. But for that the evidence of such eyewitness must be clear, cogent and consistent without giving any scope for suspicion. In the light of such principle, the evidence of PW.1 has to be evaluated.
13. To rely on the evidence of PW.1, prosecution has to prove the presence of PW.1 and the victim at the time of alleged incident at the scene of offence and PW.1 witnessing the accused assaulting the victim.
14. As per PW.1 himself, incident took place at 7.45 p.m. at outer ring road which is not a residential locality. As per history recorded in Ex.P.13 case sheet, incident took place at about 8.30 p.m. Ex.P10 sketch of scene of offence is produced to prove that there was an electrical pole near the scene of offence. Even as per the said sketch the said electrical pole situated at the distance of 32.0 meters.
15. Ex.P10 doesn’t indicate that there was electrical light in that pole. No evidence was adduced to show that at the time of the incident there was electric supply in the area. Contrary to Ex.P10, PW.1 in his cross-examination at para-10 states that at the place of incident, there was no light.
16. The prosecution also does not dispute that at the time of incident, deceased was intoxicated. Ex.P6-FSL report shows that ethyl alcohol of 57.324 mg/100 ml of blood was traced in the body of victim. It is suggested to PW.1 that he was also drunk. He admits that soon after the incident he was detained in the police station and police had seized his mobile phone. PW.7 and PW.10 also admit that police had detained PW.1 in the police station during the same night as a suspect in the crime.
17. PW.7 a relative of the victim who was allegedly informed by PW.1 about the incident and who along with PW.1 said to have admitted the victim to the hospital states that, police had detained PW.1 in the police station for many days. The police have not subjected PW.1 to medical examination immediately which would have revealed whether he was also drunk. Having regard to such intoxication of the victim and suspected intoxication of PW.1 and lack of light at the scene of offence, PW.1 identifying the assailants creates doubt and therefore, that requires further corroboration.
18. As per the prosecution, the accused were the persons known to PW.1 prior to the incident and he revealed their involvement in the case to PW.7, PW.10 and PW.11. If that be so, soon after the incident, while recording the history in the medical records, the names of the accused should have been reflected as assailants.
19. As per PW.16, the Doctor who treated the victim in Apollo Hospital, history was given by PW.10 brother of the victim and the same was recorded in Medico-Legal Register and Ex.P13 the case sheet. In Ex.P13, the names of the assailants are mentioned as Prem (first accused) and another unknown person. Since both the accused were known to PW.1 and had he informed PW.10 about the assailants, there was no reason to mention in Ex.P13 as another unknown person. The accused contend that the name of accused No.1 is interpolated in Ex.P13 at the behest of Police.
20. Now the Court has to see, whether the evidence of PW.13 that PW.10 gave the history is acceptable. In Ex.P13, PW.10 is described as the brother of the victim. But it is not even elicited in the evidence of PW.10 by the prosecution that deceased was his relative. As against that, PW.10 states that deceased was the relative of his friend one Bheemanna and through him, he got acquainted with the deceased. He further states that deceased was employed in his construction establishment as Supervisor and he used to look after the accounts. In his cross-examination, he states that he has not given the history of the injuries to the doctor.
21. In chief examination itself, he states that PW.7 phoned him at 8.00 p.m. and informed that somebody have assaulted PW.1 and he did not mind for that thinking that to be a common quarrel. He further states that on PW.7 phoning him for the second time, he went to the hospital and PW.1 was brought to the hospital and he admitted him to the hospital. He doesn’t even speak about he admitting deceased to the hospital and giving history. Therefore the evidence of PW.16 that history was given by PW.10 becomes unacceptable.
22. Further, the entries in Ex.P13 regarding assailants are not cogent and consistent. When page-4 of the document named as ‘Trauma Evaluation Sheet’ states ‘H/O alleged assaulted by two persons Mr.Prem and other person (not known) with an unknown object around 8.30 p.m. 12/9/2011. . . . .’. in page-6 of the said document, titled as ‘MLC Doctor’s Handover sheet’ history is mentioned as ‘alleged assaulted by two persons with unknown object’. Page-7 of the said document states that ‘case of alleged assaulted c lever’.
23. Page-22 of Ex.P13 purports to be MLC sheet/admission assessment relating to the victim which records the history as ‘alleged assaulted by two persons’. The aforesaid inconsistencies in Ex.P13 about the particulars of the assailants and the weapon of offence makes the evidence of PW.16 that PW.10 gave the history of assault implicating accused No.1 doubtful.
24. The history as recorded at the first instance will be the dependable one as at that stage there will be less scope for concoction. As already pointed out, MLC sheet in Ex.P13 (page No.22) did not bear the name of any of the assailants. PW.16 states that they have sent Medico-legal intimation to Ashokapuram Police within whose jurisdiction their Hospital situates. But the I.O. does not produce the said MLC intimation and there is no explanation for such non-production. Page-4 of Ex.P13 which is relied by the prosecution to contend that name of the first accused was revealed contains interpolations and corrections. Thus the evidence of PW.16 and Ex.P13 are unworthy of acceptance for corroboration to the evidence of PW.1.
25. Under the aforesaid circumstances, the credibility of genesis of the complaint should have been examined by the trial court. The trial court rejected the contention of the accused regarding delay in filing the complaint, registering the FIR and delivering the same to the court on the ground that at that stage, the concern of PWs.1 and 7 was first to get treatment for the victim. But the trial court should have seen whether the evidence of PW.1 and PW.15 regarding recording of statement of PW.1 as per Ex.P1 against the accused was trustworthy.
26. PW.15 says that on 12.9.2011 at 8.10 p.m. when he was on patrol duty at Kanakagiri, he received information about occurrence of the incident at J.P.Nagar Ring Road, he visited the spot there he learnt that the victim is admitted to the hospital. He further states that he visited the hospital and recorded the statement of PW.1 as per Ex.P1, returned to the Police Station and on the basis of Ex.P1 registered FIR Ex.P11 and forwarded that to the jurisdictional court.
27. The endorsement in Ex.P1 states that statement was recorded at 10.15 p.m. The said endorsement and Ex.P11 the FIR state that PW.15 returned to the Police Station and registered the FIR at 10.45 pm. But the evidence of PW.1, 7 and 10 shows that the Police themselves had detained PW.1 in the Police Station as a suspect in the crime. To crown this, the Investigating Officer PW.20 in his cross-examination gives a clean admission that till 9.30 am of 13.9.2011, Police had no clue as to who were the assailants and they came to know about that next morning at 9.30 a.m.
28. To control such damage caused by PW.20 in his evidence, the prosecution recalled PW.20 after five months, further examined him in chief to withdraw such admission. But in his further cross-examination the accused denied such withdrawal. Therefore, the statement made by PW.20 in his further chief examination, to withdraw his earlier admission, in no way obscures the admission which he had already given.
29. The carrier of the FIR is not examined to explain the delay in delivering the FIR. The aforesaid evidence and circumstances show that there is force in the defence of the accused that the FIR was ante-timed and antedated. The trial court failed to appreciate such material and inbuilt inconsistencies in the prosecution evidence which make credibility of the evidence of PW.1 doubtful.
Reg. Motive:
30. According to the prosecution, accused owed some money to deceased Sunil and when he abused the accused for repayment of money, accused assaulted him. At one stretch, prosecution contends that deceased himself had lent the money and at another stretch prosecution contends that deceased was working as recovery agent for PW.10 and he insisted accused to repay the said money.
31. There is no evidence to prove that how much money was due from the accused to deceased and when they had borrowed. PW.10 states that deceased was working under him as supervisor. PW.10 and PW.11 state that PW.10 had asked PW.11 to send money due to him and sent the deceased on his motor bike to collect the money from PW.11 and deliver that to him.
32. According to the evidence of PW.10 and PW.11, PW.11 paid Rs.3,000/- to the deceased and while returning to PW.10 with that cash, accused assaulted him. Prosecution claims that doctor in the hospital handed over clothes of deceased to PW.1 and he produced them before police and they were seized.
33. If really deceased was carrying Rs.3,000/- that cash should have been seized along with the clothes of the deceased. But the said cash was not seized and produced. Prosecution has no explanation for that. As already pointed out, evidence of PW.1’s evidence is not trust worthy. Therefore, motive circumstance was also not proved beyond reasonable doubt.
Reg. Recovery of weapon:
34. PW.20 states that on 16.09.2011 at 2.45 p.m. when he was on patrol duty with his staff, they apprehended accused Nos.1 and 2 at Kollegal bus stand, brought them to the police station and subjected them to interrogation. He further states that accused Nos.1 and 2 gave statements as per Ex.P20 and Ex.P21 volunteering to produce the iron rod used in the commission of offence, led him and panchas PW.17 Narayanaswamy and CW.34 R.Somashekar to a deserted house in Srinagar and produced MO.9. He further states that he seized the same under mahazar Ex.P14.
35. PW.17 the alleged mahazar witness states that on 19.09.2011 when himself and PW.34 were standing on road side in Ramabainagar, police came in jeep with the accused and took them for recovery mahazar. He further states that police took them and accused to a deserted house in Srinagar and then accused led them into the house and produced MO.9.
36. Contrary to such evidence of PW.17 and PW.20, the complainant-PW.1 in his evidence states that on the night of the incident itself police took him to the spot and chappal, a lever of the vehicle, hair, the pipe with which the deceased was assaulted and the vehicles were lying there and police seized the same.
37. Further in Ex.P13-the medical records while recording the history, there are inconsistent statements regarding the weapon of offence. In page 4 and 6 it is mentioned as that the victim was assaulted with an unknown object, in page 7, it is recorded as victim was assaulted with lever, in page 22, it is only recorded that alleged assault by two persons.
38. Further as per PW.1, himself and the victim met the accused by chance on the road. According to him, the assault took place in a sudden quarrel. It is not his case that the act was premeditated one. He doesn’t state that accused were walking with MO.9 in their hands. Having regard to these facts and circumstances, the evidence regarding MO.9 being the weapon of offence and the recovery of the same becomes doubtful.
39. The above evaluation of the evidence shows that the evidence of PW.1 the alleged eyewitness, the circumstance of motive and recovery are not free from blemish. The evidence led by the prosecution shows that there are attempts of suppression and manipulation on the part of the investigating agency and the evidence is shrouded with doubts. The benefit of such doubts shall go to the accused.
40. However, the trial Court ignoring all the above doubtful facts and circumstances solely relying on doubtful evidence of PW.1 convicted and sentenced the accused. The said order of conviction and sentence is unsustainable. Therefore, the appeal is allowed.
The impugned judgment and order of conviction and sentence dated 06.04.2013 passed by I Additional District & Sessions Judge, Mysore in SC No.56/2012 is hereby set aside.
Appellants/accused Nos.1 and 2 are hereby acquitted of the charge of offence punishable under Section 302 r/w Section 34 of IPC. Appellants shall be set at liberty forthwith if their detention is not required in any other case.
The order of the trial Court regarding disposal of the properties is made absolute.
The fine amount, deposited if any, shall be refunded to the accused.
Registry shall communicate this order to the trial Court and concerned jail authorities forthwith.
Sd/- JUDGE Sd/- JUDGE KSR/KNM/-