1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.7 OF 2010 C/W CRIMINAL APPEAL NO.1289 OF 2010 C/W CRIMINAL APPEAL NO.810 OF 2011 CRL.RC.NO.7 OF 2010:
BETWEEN:
THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA, BENGALURU – 560 001. ... PETITIONER (BY SRI H.N.NILOGAL, SPL.PP) AND:
1. DODDAHANUMA S/O VENKATAPPA NOW AGED ABOUT 39 YEARS, DANDUPALYA, HOSAKOTE TALUK, BENGALURU.
2. VENKATESH @ CHANDRA S/O VENKATASWAMY, NOW AGED ABOUT 45 YEARS, DINNURU COLONY, KADUGODY, BENGALURU RURAL.
3. MUNIKRISHNA @ KRISHNA S/O VENKATASWAMY, NOW AGED ABOUT 34 YEARS, DINNUR COLONY, KADUGODY, BENGALURU RURAL.
4. NALLATHIMMA @ THIMMA S/O GURU BOVI, R/O CHENNEHALLI, MUTHUR POST, PIRIYAPATTANA TALUK, MYSURU DISTRICT, NOW AGED ABOUT 34 YEARS, DINNUR COLONY KADUGODY, BENGALURU RURAL.
5. LAKSHMAMMA @ LAKSHMI W/O DODDAHANUMA, NOW AGED ABOUT 39 YEARS, DANDUPALYA VILLAGE, HOSAKOTE TALUK, BENGALURU. ... RESPONDENTS (BY SRI VISHWANATH POOJARY K., ADVOCATE FOR R1, R4 AND R5 SRI HASHMATH PASHA, ADVOCATE FOR R2 AND R3) THIS CRL.RC IS FILED UNDER SECTION 366(1) OF CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED 1. DODDA HANUMA, UTP NO.10176, 2) VENKATESH @ CHANDRA, UTP NO.10175, 3) MUNIKRISHNA @ KRISHNA, UTP NO.10178, 4) NALLA THIMMA, UTP NO.10177, 5) LAKSHMAMMA, UTP NO.10179 BY JUDGMENT DATED 22.9.2010 / 30.09.2010 PASSED IN S.C.NO.744 OF 2001 ON THE FILE OF THE XXXIV ADDL.CITY CIVIL AND SESSIONS JUDGE (SPL.COURT), CENTRAL PRISON PREMISES, BENGALURU.
***** CRL.A.NO.1289 OF 2010:
BETWEEN:
1. DODDAHANUMA S/O VENKATAPPA NOW AGED ABOUT 39 YEARS, DANDUPALYA, HOSAKOTE TALUK, BENGALURU.
2. VENKATESHA ALIAS CHANDRA S/O VENKATASWAMY, NOW AGED ABOUT 45 YEARS, DELETED VIDE DINNURU COLONY, KADUGODY, ORDER DATED BENGALURU RURAL. 28.9.2016 3. MUNIKRISHNA ALIAS KRISHNA S/O VENKATASWAMY, NOW AGED ABOUT 34 YEARS, DINNUR COLONY, KADUGODY, BENGALURU RURAL.
4. NALLATHIMMA ALIAS THIMMA S/O GURU BOVI, R/O CHENNEHALLI, MUTHUR POST, PIRIYAPATTANA TALUK, MYSURU DISTRICT, NOW AGED ABOUT 34 YEARS, DINNUR COLONY KADUGODY, BENGALURU RURAL.
5. LAKSHMAMMA ALIAS LAKSHMI W/O DODDAHANUMA, NOW AGED ABOUT 39 YEARS, DANDUPALYA VILLAGE, HOSAKOTE TALUK, BENGALURU. ... APPELLANTS (BY SRI VISHWANATHA POOJARY K, ADVOCATE FOR A1, A4 AND A5 VIDE ORDER DATED 28.9.2016 A2 AND A3 ARE DELETED) AND:
THE STATE OF KARNATAKA KAMAKSHIPALYA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING. ... RESPONDENT (BY SRI H.N.NILOGAL, SPL.PP) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 22/30.9.2010 PASSED BY THE XXXIV ADDL.CITY CIVIL AND S.J. (SPL.COURT), CENTRAL PRISON, PARAPPANA AGRAHARA, BENGALURU IN S.C.NO.744 OF 2001- CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED TO DEATH. THEY SHALL BE HANGED BY NECK TILL THEY ARE DEAD AND PAY A FINE OF RS.5,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE APPELLANTS/ACCUSED PRAYS THAT THEY BE ACQUITTED.
***** CRL.A.NO.810 OF 2011:
BETWEEN:
1. VENKATESH @ CHANDRA S/O VENKATASWAMY, AGED ABOUT 36 YEARS, R/O DINNUR COLONY, KADUGODI, BENGALURU.
2. MUNIKRISHNA @ KRISHNA S/O VENKATASWAMY, AGED ABOUT 29 YEARS, R/O DINNUR COLONY, KADUGODI, BENGALURU. ... APPELLANTS (BY SRI HASHMATH PASHA, ADVOCATE) AND:
STATE OF KARNATAKA BY KAMAKSHIPALYA POLICE STATION, BENGALURU CITY REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ... RESPONDENT (BY SRI H.N.NILOGAL, SPL.PP) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 22.09.2010/30.9.2010 PASSED BY THE XXXIV ADDL.CITY CIVIL AND S.J. (SPL.COURT), CENTRAL PRISON, PARAPPANA AGRAHARA, BENGALURU IN S.C.NO.744 OF 2001-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED TO DEATH. THEY SHALL BE HANGED BY NECK TILL THEY ARE DEAD AND PAY A FINE OF RS.5,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE APPELLANTS/ACCUSED PRAYS THAT THEY BE ACQUITTED.
THIS CRL.RC C/W CRL.As COMING ON FOR FINAL HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that on 07.11.2000, in the afternoon, accused Nos.1 to 5, with a common intention to commit murder and dacoity, armed with deadly weapons, entered the first floor of the house No.30, 7th Cross, 6th Main of Agrahara Dasarahalli, Magadi Main road, belonging to PW-1. They committed murder of Smt.Geetha, who was alone in the house by stabbing her neck, back, stomach and other parts of the body. They robbed the golden mangalya chain, golden mati (earrings) and other golden ornaments from her, as well as a saree and shirt.
2. A complaint was lodged by PW-1 and a case was registered in Crime No.438 of 2000 for the offences punishable under Section–302 and 396 read with Section– 34 of IPC. Investigation was taken up. The charge-sheet was filed. The accused pleaded not guilty. The case was set-down for trial.
3. In order to prove its case, the prosecution examined in all 15 Witnesses and marked 24 Exhibits, along with 17 Material Objects. One Exhibit was marked on behalf of the defence. By the impugned judgment, the trial court convicted accused Nos.1 to 5 for the offence punishable under Section-396 of IPC and sentenced them to death, along with a fine of Rs.5,000/- each.
4. In terms of Section–366, a reference was made to this Court which is registered as Criminal RC.No.7 of 2010. Seeking acquittal, Accused Nos.1, 4 and 5 have filed Criminal Appeal No.1289 of 2010 and Accused Nos.2 and 3 have filed Criminal Appeal No.810 of 2011.
5. Shri.Hashmath Pasha, learned counsel appearing for the appellants, contends that the trial court committed an error in convicting the accused for the offence punishable under Section–396 of IPC. He contends that the order of the trial court is unsustainable in view of the fact that, all the points for consideration have not been answered. That two charges were leveled against the accused, whereas only the second charge has been answered. Hence, he pleads that the error committed by the trial court vitiates the trial.
6. On the other hand, Shri.H.N.Nilogal, learned Special Public Prosecutor, defends the same. He contends that no error is committed by the trial court that warrants interference. That this Court has ample power to overcome the error committed by the trial court. Hence, he pleads that the Appeals and the Reference be rejected.
7. Heard learned counsels and examined the records.
8. In view of the contentions advanced, we would have to consider whether the judgment of the trial court is an illegality or not and thereafter to consider the merits of the case, if necessary.
9. The two charges framed against the accused, reads as follows:
“Firstly, that you accused nos.1 to 5, on or about 07.11.2000 in the afternoon, with common intention to commit murder and dacoity armed with knives, gained illegal entry to house No.30, situated in the first floor of the building on 7th cross, 6th main of Agrahara Dasarahalli, Magadi Main Road, belonging to C.W.1 B.R. Jayaramaiah, and committed murder of Smt.Geeta wife of C.W.1 B.R.Jayaramaiah aged about 30 years, who was alone in the said house, by stabbing on her neck, back, stomach and other parts of her body and thereby committed an offence punishable under Section-302 read with Section-34 of I.P.C., and within the cognizance of this court.
Secondly, that you A1 to A5 on the above said date, time and place, after committing the murder of Smt.Geeta aged 30 years, robbed from her person golden Mangalya chain and from her house, one pair of golden mati, 2 pairs of golden hanging and one saree and one shirt and thereby committed the offence under section – 396 read with Section – 34 I.P.C. and within the cognizance of this court.”
10. The trial court on considering the evidence and the material on record, framed the following points for consideration in the judgment, which reads as follows:
1. “©.Dgï.dAiÀÄgÁªÀÄAiÀÄå EªÀgÀ ªÀÄ£ÀÉUÀÉ ªÀÉåQÛUÀ¼ÀÄ CPÀæªÀĪÁV ¥ÀæªÀÉñÀ ªÀiÁr ¸ÀÄ°UÀÉ ªÀiÁr ªÀÄ£ÀÉAiÀÄ°èzÀÝ CªÀgÀ ºÀÉAwAiÀiÁzÀ VÃvÁ EªÀgÀ ªÀÉÄÃ¯É ºÀ¯Éè ªÀiÁr CPÀÉAiÀÄÄ zsÀj+zÀÝ ªÀiÁAUÀ®å¸ÀgÀªÀ£ÀÄß ªÀÄvÀÄÛ ªÀÄ£ÀÉAiÀÄ°èzÀÝ 22,400 gÀÆ ¨É¯É¨Á¼ÀĪÀ MqÀªÀÉUÀ¼À£ÀÄß zÀÉÆÃazÁÝgÀÉ JA§ÄzÁV C©üAiÀÉÆÃd£ÀÉAiÀÄÄ gÀÄdĪÁvÀĪÀiÁrzÀÉAiÀÉÄÃ?
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3. £ÀgÀºÀvÀÉåAiÀiÁVzÀÝ°è CzÀÄ GzÀÉÝñÀ¥ÀǪÀðPÀªÁzÀ PÀÉÆ®ÉAiÀÉÄ?
4. CzÀÄ PÀÉƯÉAiÀiÁVzÀÝ°è CzÀ£ÀÄß DgÀÉÆæUÀ¼ÀÉà ªÀiÁrzÁÝgÀÉAiÀÉÄà JA§ªÀ CA±À GzÀ⫸ÀÄvÀÛzÀÉ.”
11. However, the trial court convicted accused Nos.1 to 5 for the offence punishable under Section-396 of I.P.C., which reads as follows:
BBBB PPPPÉÉÉÉëëëë BBBB PÀ®A 235(2) Qæ.¥Àæ.¸ÀA. ¥ÀæPÁgÀ 1£Éà DgÉÆæ zÉÆqÀغÀ£ÀĪÀÄ vÀAzÉ ªÉAPÀl¥Àà AiÀÄÄ.n.¦. ¸ÀASÉå 10176, 2£Éà DgÉÆæ ªÉAPÀmÉñï C°AiÀiÁ¸ï ZÀAzÀæ, AiÀÄÄ.n.¦.£ÀA.
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2. DgÉÆæUÀ½UÉ ªÀÄgÀtzÀAqÀ£É «¢ü+gÀĪÀ PÁgÀt CªÀgÀÄ «ZÁgÀuÁ CªÀ¢üAiÀÄ°è C£ÀĨsÀ«+gÀĪÀ eÉ樀 FPÉëAiÀÄ£ÀÄß PÀ®A 428 Qæ.¥Àæ.¸ÀA. ¥ÀæPÁgÀ ªÀeÁªÀmï PÉÆqÀĪÀ ¥ÀæªÉÄÃAiÀÄ GAmÁUÀĪÀÅ¢®è.
3. DgÉÆæUÀ½UÉ PÀ®A 374 Qæ.¥Àæ.¸ÀA. ¥ÀæPÁgÀ F wæð£À ªÀÄvÀÄÛ PÉëAiÀÄ «gÀÄzÀÞ CªÀ¢ü ¥Àj«Äw PÁAiÉÄÝ 1963gÀ DjÖPÀ¯ï 115-J ¥ÀæPÁgÀ 30 ¢ªÀ¸ÀUÀ¼ÉƼÀUÁV ªÀiÁ£Àå PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀÄPÉÌ ªÉÄîä£À« ¸À°è¸À§ºÀÄzÁVzÉ JA§ÄzÁV w½¸À¯ÁVzÉ.
4. PÀbÉÃjAiÀĪÀgÀÄ ¨ÉAUÀ¼ÀÆj£À PÉÃAzÀæ PÁgÁUÀȺÀzÀ ¸ÀÆ¥ÀjAmÉAqÉAmï EªÀjUÉ DgÉÆæUÀ½UÉ «¢ü¸ÀĪÀ FPÉëAiÀÄ §UÉÎ ªÁgÉAl£ÀÄß PÀ¼ÀÄ»¸ÀĪÀÅzÀÄ ªÀÄvÀÄÛ PÀÆqÀ¯Éà wÃ¥ÀÄð FPÉë ªÀÄvÀÄÛ F ¥ÀæPÀgÀtzÀ J¯Áè zÁR¯ÁwUÀ¼À£ÀÄß PÀqÀvÀUÀ¼À£ÀÄß PÀ®A 366(1) .Dgï.¦. . ¥ÀæPÁgÀ DgÉÆæUÀ¼À ªÀÄgÀtzÀAqÀ£É FPÉëAiÀÄ ¸ÀȶÖÃPÀj¸ÀĪÀ (PÀ£ï¥sÀgïªÉÄõÀ£ï) ¸À®ÄªÁV ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄPÉÌ PÀ¼ÀÄ»+PÉÆqÀvÀPÀÌzÀÄÝ JAzÀÄ ¤zÉðÃF+zÉ.
5. PÀbÉÃjAiÀĪÀgÀÄ Qæ«Ä£À¯ïì gÀƯïì D¥sï ¥ÁæQÖøï 1968gÀ ¤AiÀĪÀÄ 7(3)gÀ ¥ÀæPÁgÀ CzÀgÀ°è £ÀªÀÄÆ¢+zÀªÀgÉ®èjUÀÆ F ¥ÀæPÀgÀtzÀ wæð£À £ÀPÀ®£ÀÄß AiÀiÁªÀÅzÉà ±ÀĮ̫®èzÉ PÉÆqÀ®Ä DzÉÃF+zÉ.
6. DgÉÆæUÀ½UÉ ¸ÀºÀ F wæð£À ªÀÄvÀÄÛ FPÉëAiÀÄ £ÀPÀ®£ÀÄß GavÀªÁV PÉÆlÄÖ »A§gÀºÀ ¥ÀqÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ.
7. PÀ®A 357 Qæ.¥Àæ.¸ÀA. ¥ÀæPÁgÀ DgÉÆæAiÀÄÄ zÀAqÀªÀ£ÀÄß ¥ÁªÀw+zÀÝ°è 25 ¸Á«gÀ gÀÆ.UÀ¼À£ÀÄß ¥Áæ.¸Á.1 EªÀjUÉ ¥ÀjºÁgÀªÁV ¥ÁªÀw¸ÀĪÀAvÉ DzÉÃF+zÉ. ªÀÄÄ.ªÀiÁ.1 jAzÀ 5, ¥Áæ.¸Á.1 EªÀjUÉ »AwgÀÄV¸ÀĪÀÅzÀÄ ªÀÄÄ.ªÀiÁ.6 jAzÀ 17 ¨É¯É¨Á¼ÀĪÀ PÁgÀt ªÉÄîä£À« ¸ÀªÀÄAiÀÄ ªÀÄÄVzÀ £ÀAvÀgÀ CªÀÅUÀ¼À£ÀÄß £Á±À¥Àr¸À¨ÉÃPÉAzÀÄ DzÉÃF+zÉ.”
12. It is herein that we find an error in the judgment passed by the trial court. Section–354 of Cr.P.C., reads as follows:
“354. Language and contents of judgment.-
1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353.-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.”
The same would postulate that every judgment referred to in Section-353 of Cr.P.C., among other aspects, should contain the points for determination, the decision thereon and the reasons for the decision.
13. The points for consideration no doubt covers both the charges. However, the judgment of the trial court refers only to charge no.2 and its related points for consideration. The entire discussion of the trial court on the evidence and material on record, is only with reference to Section-396 of IPC. There is no discussion, reasoning, appreciation of evidence, etc., with regard to charge no.1 or on the point for consideration with reference to Section- 302 of IPC. Therefore, we have no hesitation to hold that the judgment of the trial court is not in compliance with the mandatory provisions of Section-354 of Cr.P.C.
14.(a) The contention of the learned Public Prosecutor is that the error can be overlooked by exercising the powers of the appellate court. That if there is no finding on a charge, this Court can record a finding on the same.
(b). We are unable to accept such a contention.
Primarily, we are of the view that there has been non-
compliance of the mandatory provisions of Section-354 of Cr.P.C. Therefore, it is not an error that can be overlooked. On answering the charge, the accused is liable to be acquitted, inasmuch as the prosecution is entitled to a conviction. Therefore, it affects the very root of the case which amounts to a failure of justice.
(c). The further contention is that, if the trial court has failed to record a finding on a charge, the appellate court has powers to record a finding on the same. Assuming the contention could be accepted, then in that event, the appellate court would be rendering a finding on a charge for the very first occasion namely, as if it were the trial court. The same is impermissible. It cannot be done by the appellate court. It is the trial court alone which would have to record its finding. The appellate court cannot render a judgment for the very first time on a charge that has not been answered.
15. The Hon'ble Supreme Court in a catena of judgments, have held that if there are no adequate reasons supporting the finding of the trial court, such a finding would vitiate the judgment. The present facts are even grave. There is not even a finding recorded by the trial court. In the absence of recording a finding on charge No.1, the judgment becomes unsustainable.
16. The contention of the accused is that if there is an absence of recording a finding the same should be construed as a deemed acquittal. We are unable to accept the contention. The first charge is under Section-302 of IPC. The second charge is under Section-396 of IPC. There is no answer to charge no.1. Charge no.2 has been held to be proved, which means, murder with dacoity. If it is to be considered as a deemed acquittal under Section-302 of IPC, then there cannot be a conviction under Section-396 of IPC, since it is coupled with murder and dacoity. Therefore, such a contention cannot be accepted. There cannot be a deemed acquittal in the facts and circumstances of this case.
17. The failure of the trial court to record a finding on charge no.1 as well as on the points for determination amounts to a violation of the mandatory provisions of Section-354 of the Cr.P.C. The judgment would be an illegality. It is not an error of judgment, but an error in judgment.
18. Even though the charges were framed and the consequential points for determination were also framed, the trial court has not answered all the points for determination. This would clearly indicate an absolute lack of application of mind by the trial court. Even after framing the points for consideration, the trial court has not taken care to ensure that all the points have been answered. In view of the non-application of mind by the trial court, the Judgment cannot be sustained.
19. For the aforesaid reasons we are of the view that the judgment of the trial court is opposed to the mandatory Provisions of Section 354 of Cr.P.C. The judgment of the trial court requires to be set-aside purely, on a question of law. Under these circumstances, it would not be necessary to go into the merits of the case.
20. However, while doing so, we are conscious of the long lapse of time. Having held that the judgment alone is erroneous, the question of reframing the charges or recording of fresh evidence etc. would not arise for consideration, since we do not find any error or fault in the same. Therefore, what requires to be done, is to order for a rehearing of the matter and thereafter the judgment to be rendered. This in our view, would satisfy the ends of law and justice.
21.(a) Consequently, Criminal Appeal No.1289 of 2010 and Criminal Appeal No.810 of 2011 are allowed. The judgment dated 22.9.2010 and the sentence dated 30.09.2010 passed in S.C.No.744 of 2001 passed by the XXXIV Addl.City Civil and Sessions Judge (Special Court), Central Prison Premises, Bengaluru is set-aside. Consequently, Criminal R.C.No.7 of 2010 would not arise for consideration and is accordingly disposed off.
b. The matter is remanded to the trial court for a fresh consideration as indicated herein.
c. In view of the long pendency, the matter is directed to be listed before the trial court on 07.08.2017. In view of the urgency involved, the presence of the accused on that date alone, is dispensed with. The trial court to secure their presence in accordance with law, from the next date onwards.
d. No further evidence is to be recorded.
e. The charges remain undisturbed.
f. The trial court shall not be influenced in any manner, by the present impugned judgment.
g. The trial court shall apply its mind afresh to the arguments and the material and thereafter render its judgment. The same shall be done by the end of October’2017. If necessary, the trial court is at liberty to take up the matter on a day to day basis.
Office is directed to transmit the records forthwith, and ensure that it reaches the trial court by 05.08.2017.
SD/- SD/-
JUDGE JUDGE JJ