IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 31ST 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.13 OF 2010 C/W CRIMINAL APPEAL NO.521 OF 2011 C/W CRIMINAL APPEAL NO.795 OF 2011 CRL.RC.NO.13 OF 2010:
BETWEEN:
THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA, BENGALURU – 560 001. ... PETITIONER (BY SRI H.N.NILOGAL, SPL.PP) AND:
1. VENKATESHA @ CHANDRA S/O VENKATASWAMY AGED ABOUT 36 YEARS, DINNUR COLONY, KADUGODI, BENGALURU RURAL.
2. MUNIKRISHNA @ KRISHNA S/O VENKATASWAMY, AGED ABOUT 29 YEARS, DINNUR COLONY, KADUGODI, BENGALURU RURAL.
3. NALLA THIMMA @ THIMMA BIN GORABOVI MYSURU DISTRICT. ... RESPONDENTS (BY SRI HASHMATH PASHA, ADVOCATE) THIS CRL.RC IS FILED UNDER SECTION 366(1) OF CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED 1) VENKATESH @ CHANDRA, UTP NO.10175 2) MUNIKRISHNA @ KRISHNA, UTP NO.10178 3) NALLA THIMMA, UTP NO.10177 BY JUDGMENT DATED 17.8.2010/30.09.2010 PASSED IN S.C.NO.445 OF 2004 ON THE FILE OF THE XXXIV ADDL.CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON PREMISES, BENGALURU.
***** CRL.A.NO.521 OF 2011: BETWEEN:
1. VENKATESHA @ CHANDRA S/O VENKATASWAMY, AGED ABOUT 40 YEARS, DELETED DINNUR COLONY, KADUGODI, VIDE ORDER BENGALURU RURAL. DATED 31-7-2017 2. MUNIKRISHNA @ KRISHNA S/O VENKATASWAMY, AGED ABOUT 33 YEARS, DINNUR COLONY, KADUGODI, BENGALURU RURAL.
3. NALLA THIMMA @ THIMMA S/O GORABHOVI, AGED ABOUT 35 YEARS, PERIYAPATNA, MYSURU DISTRICT. ... APPELLANTS (BY SRI G.M.ANANDA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY VANIVILAS POLICE, MYSURU.
... 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 ORDER DATED 17.8.2010/30.09.2010 PASSED BY THE XXXIV ADDL.C.C. AND S.J., (SPECIAL JUDGE), CENTRAL PRISON COMPOUND, PARAPPANA AGRAHARA, BENGALURU IN S.C.NO.445 OF 2004 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 396 R/W 34 OF IPC. THE APPELLANT/ACCUSED ARE SENTENCED TO DEATH. HE SHALL BE HANGED BY NECT TILL HE IS DEAD AND PAY A FINE OF RS.5,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 R/W 34 OF IPC. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
***** CRL.A.NO.795 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, DINNUR COLONY, KADUGODI, BENGALURU. ... APPELLANTS (BY SRI HASHMATH PASHA A/W SRI TEJAS N., ADVOCATES) AND:
STATE OF KARNATAKA BY VANIVILAS POLICE STATION, MYSURU. ... RESPONDENT (BY SRI H.N.NILOGAL, SPL.PP) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 17.08.2010/30.09.2010 PASSED BY THE XXXIV ADDL.C.C. AND S.J., (SPECIAL JUDGE), CENTRAL PRISON COMPOUND, PARAPPANA AGRAHARA, BENGALURU IN S.C.NO.445 OF 2004 AND S.C.NO.43 OF 2006 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 396 R/W 34 OF IPC. THE APPELLANT/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 R/W 34 OF IPC. THE APPELLANT/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 9-8-1996 between 11.45 a.m. and 2.00 p.m., the accused with an intention to commit dacoity and murder, illegally entered into the house of the complainant situated at No.2772, 4th Main Road, Vanivilas Mohalla, Mysuru, within the limits of V.V.Puram police station. They committed the murder of Smt.Sharmista, the wife of Jawaharlal, who was alone in the said house by slitting her throat with a knife and caused injuries with deadly weapons. They also committed dacoity, by taking the gold Mangalya chain from her, valued at Rs.30,000/-. Based on the complaint by the husband of the deceased, a case in Crime No.111 of 1996 was registered in the V.V.Puram police station, Mysuru, under Section 396 read with 34 of IPC against unknown persons. The deceased succumbed to her injuries on 14- 8-1996. Therefore, the report was sent to the Court to convert the case into one under Section 302 read with Section 34 of Indian Penal Code. The accused were thereafter arrested. After investigation the charge sheet was filed on 11-1-2002 for the offences punishable under Section 302 read with Section 149 of Indian Penal Code. The charge sheet was split up against accused Nos. 4, 5, 8 and 11 and a separate case in C.C.No.384 of 2004 was filed. The charges were framed against accused Nos. 1 to 3, 6, 7, 9 and 10. The accused pleaded not guilty and claimed to be tried. The matter was set down for trial. In order to prove its case, the prosecution examined 16 witnesses and marked 16 Exhibits and 7 Material Objects. By the impugned Judgment, accused Nos. 1 to 3 were convicted for the offence punishable under Section 396 read with Section 34 of IPC and sentenced to death, along with payment of fine of Rs.5,000/-. The accused Nos.6, 7, 9 and 10 were acquitted of the charges levelled against them.
2. On a reference being made to this Court under Section-366 of Cr.P.C., Criminal RC No.13 of 2010 was registered with reference to accused Nos. 1, 2 and 3. By the order dated 9-12-2011 the appeal filed by accused Nos. 1 & 2 in Criminal Appeal No.521 of 2011 was dismissed. Hence, the appeal is with reference to accused No.3. Criminal Appeal No.795 of 2011 is filed by accused Nos. 1 & 2.
3. Sri Hashmath Pasha, learned counsel appears for accused Nos. 1 & 2 in Criminal Appeal No.795 of 2011. Sri G.M.Anand, learned counsel appears for accused No.3 in Criminal Appeal No.521 of 2011 and Sri H.Nilogal, learned State Public Prosecutor for the State.
4. The plea of the appellants/accused is that the trial court committed an error in recording a conviction against the accused. That there is no material in order to convict them. That even if the case of the prosecution is to be accepted, a conviction cannot lie based on the voluntary statement of the accused. The recoveries that have been made are with reference to only accused No.1 and that too which has been made almost 5 years after the alleged date of the incident. Therefore, such evidence cannot be relied upon in order to record a conviction against the accused.
5. On the other hand, Sri Nilogal, learned State Public Prosecutor defends the same. He contends that since the voluntary statement has been recorded, the recoveries have been made on the said basis. The receivers have also supported the case of the prosecution. Valuable gold has been recovered at the instance of the accused. Therefore, it is sufficient to sustain the order of conviction against the accused.
6. Heard learned counsels and examined the records.
7(a). P.W.1 is the complainant and the husband of the deceased. He has stated that on 9-8-1996 at about 10.00 a.m. he went to his shop, namely, the kerosene depot, which is situated at Baninagar area. His wife was alone in the house. At about 11.00 to 11.30 a.m on 9-8-1996 he returned home to make a Trunk call to his daughter. At 11.45 a.m. he again left his house to the Kerosene depot. At that time, his wife asked him to remain in the house itself. Since it was about 11.45 a.m. he told her that he had some work, and so he has to go and accordingly he went to his kerosene shop. At about 1.00 p.m. his wife telephoned him and told him that she developed diarrhea and so she requires him to return to the house. At that time, he told her to take some curd rice and he would return home soon. He left the shop at about 1.45 p.m. and reached his house within 10 minutes. He rang the calling bell but nobody responded. One Sridhar who was residing in the out-house area, told him that his wife had fallen down and took him inside his house through the back door. That Sridhar might have seen his wife falling from the back windows. Later-on, he and Sridhar went to the house through the back door. He saw his wife lying in a pool of blood. He called for help from the person who was residing opposite to the house. Since he had a car, they all took her to B.M.Hospital, Mysuru. The Doctor started treating her and he returned home by 4.30 p.m. By that time, the police had already arrived at his house. They recorded his statement. The same is at Ex.P-1. Thereafter, many people gathered in front of his house along with the police. A mahazar was drawn between 4.30 p.m. and 5.00 p.m. Seizures were effected by the police. A gold Mangalya chain of his wife was missing. The police seized chappals, two teeth, one comb, small quantity of hair from the place of occurrence. His wife continued to be treated in the hospital. On 14-8-1996 in the morning hours, she died.
On 30-4-2001 the police requested him to come to the police station, to identify the seizures of the property. Accordingly, he went and saw a cut portion of the Mangalya chain, as MO.6 which he identified as belonging to his deceased wife. He also identified the seized properties MOs 1 to 5 and identified them as having been seized from his house. Nothing worthwhile has been elicited in the cross-examination to disbelieve the evidence.
(b). P.W.2 is the panch witness for the inquest Ex.P-3.
(c). P.W.3-Sridhar is the friend of the son of the deceased. He is a panch witness to Ex.P-2 namely, the spot mahazar as well as seizure of MOs 1 to 5.
(d). P.W.4 is the relative of the tenant in the out- house. He states that he saw one person pressing the calling bell and running away from the back door. He has identified Accused No.1 as the person pressing the calling bell and running away from the backside.
(e). P.W.5 is the wife of P.W.7. She has stated that one person was going away from the house of the deceased. She cannot identify the face.
(f). P.W.6 is a resident of the out-house of P.W.1.
The incident was informed to him through P.W.5.
(g). P.W.7 is a tenant of the out-house. He has stated that on 9-8-1996 he came home for lunch. His wife told him that two persons carrying clothes, ran away from the house of the deceased. That P.W.4 has also told him with regard to the same. That he along with P.W.1 saw the deceased lying in a pool of blood. She was thereafter taken to hospital and she died on 14-8-1996.
(h). P.W.8 is the son-in-law of the deceased. He was a resident of Mangaluru. After being informed of the incident, he came to see the deceased and saw her in the hospital.
(i). P.W.9 is the owner of Bhagyalakshmi Jewellers. He has identified accused No.1 who was the person who sold MO.6 to him. That it was sold to him about 3 to 4 months earlier. Nine gold items were returned to the police on that day. After producing one gold bangle he had melted it and converted it to ingot. The said ingot was also returned to the police.
(j). P.W.10 is the Police Officer who did part of the investigation. He has collected various material against the accused. He took the accused to the shop of P.W.9 and in the presence of Panch witness, MO.6 was recovered. There were 9 articles that were recovered at the behest of accused No.1. One of the articles was marked as MO.6 identified as an article sold by accused No.1 to P.W.9.
(k). P.W.11 is the police Inspector who filed the charge sheet.
(l). P.W.12 is the police Inspector who received the telephone message with regard to one woman being admitted to B.M.Hospital for treatment. He is the one who received the complaint in terms of Ex.P-1 and registered the case in Crime No.111 of 1996. He drew Ex.P-2 the spot mahazar and held the inquest in terms of Ex.P-3. He filed the ‘C’ report on 20-1-1998 as the accused could not be traced.
(m). P.W.13 is the ASI of V.V.Puram Police station who took P.Ws 4 and 7 to the police station. They identified Accused Nos.3, 7 and 8 and recorded statements in terms of Exs.P-4 & Ex.P-5. On 19-4-2001, he brought MO.6 and produced it before the police Inspector.
(n). P.W.14 is the Doctor who conducted the post mortem report. He has stated in his evidence that he has noticed 13 injuries. In terms of the Post mortem report Ex.P-13, he has stated that the deceased succumbed to the injuries due to diabetic coma as a result of the injuries caused by a sharp edged weapon.
(o). P.W.15 is the witness to the seizure of MO.6 and Mahazar Ex.P-6.
(p). PW.16 is the Police Inspector of Vijayanagar Police station from 10-7-2000 to 5-8-2001 and from 11-3-2002 to 8-5-2003. He also served as Police Inspector of Banaswadi police station and from 15-9-1998 to 9-7-2000. At that time, he had investigated the case bearing Crime No.353 of 1999 of Banaswadi Police Station. In that case, he arrested accused No.1 Venkatesh and other accused. While investigating the case, he came to know that the above accused in that case were involved in 36 dacoity and murders, 8 dacoity cases, 12 HBT cases.
The modus operandi adopted by the above accused in all the cases were similar including the present case. On 17-9-2000, he received information from CB-CID Chittor, Andhra Pradesh, stating that the accused Dodda Hanuma and Venkatarama along with other accused had escaped from Chittor prison. On 31-1-2001, he received credible information that the accused were hiding in Echanur village in Tiptur Taluk, Tumakuru District. Along with other police officers, he apprehended accused Nos. 1, 2 and 3. He questioned them. Their voluntary statements were recorded. On 03.02.2001, at about 6.00 p.m., he called the witnesses to accompany him to Dharwad. On 04.02.2001, the accused No.1 led him and others to the shop by name Bhagyalakshmi Jewelers and called the owner Shri.Manjunatha, PW-9. The accused identified the owner as the one to whom he had sold the jewels. The owner of the shop produced all the articles before the witnesses. The transaction was admitted by the owner. Ten items of jewelleries were recovered. They were seized under the mahazar, Ex.-P6. One line gold cut chain was marked as MO.6. The portion of the voluntary statement leading to the discovery of the Material Objects in the voluntary statement of accused No.1 is marked as Ex.P- 16.
8. Based on these evidences, the trial court was of the view that in view of the voluntary statement recorded at the behest of Accused-1 and based on the recovery of MO.6, the prosecution has established its case so far as accused Nos.1, 2 & 3 are concerned. The trial court was of the view that the voluntary statement as well as the seizure do not indicate that the other accused were guilty of the offence charged against them. Hence, it was only accused Nos. 1 to 3 who were convicted of the offence under Section 396 read with Section 34 of IPC.
9. On considering the evidence and material on record, we find various errors in the investigation, which affects the very root of the prosecution case. The incident is stated to have taken place on 9-8-1996. Based on the recovery effected on 4-2-2001, in terms of MO.6, investigation continued. The trial court accepted the recovery as substantial evidence, in order to prove the guilt of the accused. However, on considering the evidence, we are unable to accept such a reasoning adopted by the trial court.
10. It is a fact that there was substantial delay.
Substantial time had lapsed between the date of the incident and the date of recovery, namely, almost 5 years. The recovery was made from the jeweller, PW.9. He has stated that he has identified Accused No.1 who is the person who had sold MO.6 along with other 8 items. That the sale had taken place about 3 to 4 months earlier which means the sale of the items were about 5 years after the date of the incident. Such a prosecution case cannot be believed especially when, the entire prosecution case is that the offence is committed for gain.
11. What was recovered was only M.O.6. It is only a piece of the Mangalya Chain. Even if the entire evidence is considered, the same cannot be accepted to be true. If the intention of the accused were to commit the crime for gain, they would not have retained a piece of gold for almost 5 years and thereafter sell it. In the natural course, the sale should have taken place at the earliest. The sale having been made almost 5 years after the incident has occurred, has not been properly explained by the prosecution. Therefore, to hold that merely because the recovery is made at the behest of Accused No.1, a conviction would lie against all the accused, is a reasoning which cannot be accepted.
12. The further reasoning of the trial court is that based on the voluntary statement of Accused No.1 they are guilty. It is needless to state that the same stands opposed to very first principles of criminal law. The voluntary statement made before the police is not admissible. However, the trial court thought it fit to accept such a statement. We do not find any reason as to how such a finding of the trial court can be accepted. No voluntary statement made before the police officer is admissible in evidence. Since it is not admissible in evidence, certainly no conviction could lie based on such a voluntary statement.
13. Even on re-examining the evidence, the case of the prosecution cannot be accepted. What has been recovered is, a one line gold cut chain. The whole chain has not been recovered. The prosecution has failed to explain this anomaly. Merely by recovering one piece of gold chain, it cannot be inferred that the same pertains to the case on hand.
14. The charge against the accused is under Section 396 of IPC. There is no evidence placed by the prosecution to indicate that 5 or more persons were involved in the commission of the offence. Even according to the prosecution and the reasoning of the trial court, the recovery has been made at the behest of Accused No.1 and the conviction is based on the voluntary statement of Accused No.1. Therefore, there cannot be a conviction under Section 396 of the IPC since the prosecution has failed to prove its case against 5 or more persons.
15. The evidence of the Doctor P.W.14 indicates that the death was due to diabetic coma, as a result of the injury caused by a sharp edged weapon. The incident is said to have occurred on 9-8-1996 and the deceased succumbed to the injuries on 14-8-1996. The weapon used for the commission of the offence has not been shown to the Doctor. There is no nexus between the injuries said to have been inflicted by the accused and the postmortem report in terms of Ex.P-13. Therefore, the medical evidence does not corroborate the case of the prosecution. Hence, this too, runs fatal to the case of the prosecution.
16. The evidence of the witnesses have been recorded almost 9 years after the incident. After a gap of 9 years, it cannot be expected that the witnesses are in a capacity to render a photographic account of the incident that has taken place. There are bound to be minor discrepancies. Even if the minor discrepancies are ignored, the rest of the evidence is unacceptable.
17. Even after a detailed consideration of the evidence and the material on record, we are unable to find any material that would convict any one of the accused of the charges levelled against them. There are no witnesses to the incident. The entire case is based on circumstantial evidence. The accused have been implicated 5 years after the incident based on the recovery made. No conviction could lie based on a voluntary statement or on a recovery. The medical report does not support the case of the prosecution. Based on the evidence on record, we are unable to sustain the order of conviction awarded by the trial court. We have no hesitation to hold that the conviction awarded by the trial court is bereft of any valid and acceptable reasonings. The conviction not being based on the evidence and material on record, the Judgment of the trial court, therefore, requires to be set aside.
18. We are constrained to notice the very sad state of affairs so far as the investigation is concerned. The investigation in our considered view, is highly perfunctory. We fail to understand as to how on the basis of the available material, 11 persons could be sent up for trial. The material does not even indicate the involvement of more than one person, in the offence. Even if the entire case is to be accepted in toto, the material placed by the prosecution, is only so far as Accused No.1 is concerned. The question of implicating 11 accused in this case, is distant to the evidence. The investigation by the prosecution is pathetic. We do hope and expect that the quality of investigation improves, to ensure real and complete justice.
19. On considering the entire evidence, the material and the reasoning of the trial court, we are of the considered view that the trial court has not appreciated the evidence in the right perspective. There has been absolute unsatisfactory appreciation of evidence. The evidence has been misread into recording an order of conviction. When the prosecution has failed to prove its case, the question of awarding a death sentence would not arise for consideration at all.
20. Even otherwise, we have considered the case of the prosecution, as to whether it is sufficient to attract a lesser offence. Based on the evidence placed by the prosecution, even that is not possible. In the given facts and circumstances of the case, even a lesser offence would not get attracted based on the evidence led-in by the prosecution.
21. For the aforesaid reasons, we pass the following order:
ORDER Criminal Appeal No.521 of 2011 and Criminal Appeal No.795 of 2011 are allowed.
The impugned Judgment of conviction dated 17-8-2010 and the order of sentence dated 30-9-2010 passed by the XXXIV Additional City Civil & Sessions Judge(Special Judge), Central Prison, Parappana Agrahara Bengaluru in S.C.No.445 of 2004 in Criminal Appeal No.521 of 2011 and S.C.No.445 of 2004 and S.C.No.43 of 2006 in Criminal Appeal No.795 of 2011 are set aside. The appellants/accused are acquitted of the offences punishable under Section 396 read with 34 of Indian Penal Code.
In view of the appellants/accused being acquitted, Criminal RC 13 of 2010 does not survive for consideration and it is accordingly disposed off.
The appellants/ accused are ordered to be set forth at liberty forthwith in these cases, if not required in other cases.
The Office is directed to communicate this order to Jail Authorities, Central Prison, Parappana Agrahara, Bengaluru, forthwith.
SD/- SD/-
JUDGE JUDGE Rsk/-