IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM CRIMINAL APPEAL No.444/2014(A) BETWEEN STATE BY BANAKAL POLICE MUDIGERE TALUK-577 132 ...APPELLANT (BY SRI S.RACHAIAH, HCGP) AND 1. B R VISHWANATH S/O. RAMACHANDRA, AGED 31 YEARS, HOTEL BUSINESS, R/O. BIKKODU VILLAGE, AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT-573 115.
2. SMT. SAVITHA, W/O. LATE H.K. JAGADEESH, AGED ABOUT 29 YEARS, BUSINESS, R/O BIKKODU VILLAGE, AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT-573115. …RESPONDENTS (BY SRI K DIWAKARA, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 14.3.2014 PASSED BY THE PRL.S.J., CHIKMAGALUR IN S.C.NO.9/2013- ACQUITTING THE RESPNDENT/ACCUSED FOR THE OFFENCE P/U/S 120B, 302, 201 R/W 34 OF IPC.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The complainant – State in SC.No.9/2013 on the file of the Court of the Principal Sessions Judge, Chikmagalur, has come up in this appeal impugning the judgment dated 14.3.2014 passed therein and also the order of acquittal passed in the said proceedings.
2. The brief facts leading to this appeal are as under:
The case of the prosecution is that accused No.1 before the Sessions Court had an affair with accused No.3, wife of H.K.Jagadeesh. It is the said illicit relationship between accused No.1 and 3 is said to be the cause for accused No.1 trying to commit homicidal death of the husband of accused No.3 – H.K.Jagadeesh. According to the prosecution, a conspiracy is hatched by accused No.1 and 3 to put an end to the life of husband of accused No.3, who according to them was an hurdle in their illicit relationship. It is in the aforesaid effort to put an end to his life, they took the assistance of accused No.2. Admittedly, accused No.2 is a native of the same village where accused No.1 and 3 were residing with five houses apart from their respective houses.
3. According to the prosecution, on 27.8.2012 accused No.2 approached H.K.Jagadeesh, the husband of accused No.3, who was running a Tea Shop and was also providing Taxi Services, requested his services as Taxi Driver and they left at about 8.30 pm., on 27.8.2012. However, the said person, namely H.K.Jagadeesh, did not come back home the next day. Instead, on 28.8.2012 near Annappa Swamy Temple at Charmadi Ghat, his body was found inside a Maruthi Omni Car bearing registration No.KA-46/M.2356, which initially indicated that the vehicle went off the main road and caused the accident, resulting in the death of H.K.Jagadeesh. In this regard, the police have registered a complaint in Crime No.81/2012 with Banakal Police Station in Mudigere Circle, where initially it was taken as death due to accident. Accordingly, the provision of law invoked in the FIR was for the offence under Sections 279 and 304A of IPC.
4. Subsequently, it is stated that a complaint was filed by the step-mother of deceased H.K.Jagadeesh with the very same Banakal Police of Mudigere Cirlce alleging that the death of her step-son is not due to the accident, it is a make believe accident and accused No.2 has put an end to the life of H.K.Jagadeesh at the instance of accused No.1 and 3. In this background a criminal complaint was registered and thereafter, based on that complaint, FIR which was registered in Crime No.81/2012 was modified. Subsequently, the police after investigation filed charge sheet against accused No.1 to 3 in CS.No.59/2012 on 3.11.2012 wherein the offence alleged to be committed by accused No.1 to 3 is punishable under Sections 120(b), 302, 201 r/w Section 34 of IPC. Based on this, proceedings was conducted before the Sessions Court, which has resulted in acquittal of accused No.1 and 3. So far as accused No.2 is concerned, it is stated that the charge sheet was subsequently split up and the case against him is kept pending. However, the case which was registered against accused No.1 and 3 was conducted in SC.No.9/2013, wherein the offence alleged against them is not proved, consequently, they were acquitted of the same by judgment dated 14.3.2014 which is subject matter of challenge in this appeal.
5. When this appeal was taken up for consideration and this matter was heard, it is noticed that the entire case of prosecution was on circumstantial evidence, where the sequence and chain of events which lead to the death of H.K.Jagadeesh was required to be proved in linking the involvement of accused No.1 and 3 in the offence beyond all reasonable doubt. The records would indicate that prior to filing of the charge sheet, the investigation was conducted by PW.20, Sri.R.Ramesh, who was required to produce the relevant link which would indicate conspiracy theory propounded by the prosecution/State. However, when this matter was heard, this Court noticed particularly, Exs.P24, 25 and 26, which are the call records of mobile phones of accused 1 and 2 as well as deceased – H.K.Jagadeesh. The documents which are marked clearly indicate that there is no reference to which of the person the telephone number of each call record produced before the Court could be linked. Further, there is no document to show whether accused had submitted applications for purchase of sim numbers from which the calls have originated by and between accused No.1 to 3 and also with the deceased, which is not properly brought on record. In fact, the number of the telephone belonging to each one of them with reference to the application which they have made and allotted in their name have not come on record, thereby giving sufficient room for confusion as to which of the telephone belongs to whom and when the conversation has taken place between these people, which is not properly tendered by the prosecution.
6. It is in this background, when this Court directed the learned HCGP to secure the presence of Sri.R.Ramesh, PW.20 to ascertain why the minimum requirement of collecting the aforesaid information is not done by him, the said officer who is presently working in the office of District Crime Record Bureau (for short DCRB), Chitradurga, appeared before the Court. He would state that, in fact, he had collected all the information which are required, produced the same before the Court below and he also brought the same to the notice of this Court from the original record, which is available in this Court. The same would indicate that he has secured all the information from each of the telephone service provider with reference to the ownership of which telephone number belongs to accused No.1 to 3 as well as victim by securing the documents which would indicate issuance of sim cards in the name of accused persons.
7. It is seen that though aforesaid documents are available in the record, the same are not marked, which is definitely not by oversight as the learned counsel for respondents 1 to 3 would state in this appeal. However, this Court is of the considered opinion that it is a deliberate attempt to ensure that these crucial documents do not come on record and the same should not be available to the Court while deciding the case and that is exactly what has happened when this matter was taken up for consideration, after recording of evidence and while hearing the prosecution and accused in the proceedings before the Court below. It is in this background, the learned Sessions Judge, has rightly expressed that the material on record is not establishing the chain of events which lead to the alleged murder of H.K.Jagadeesh, husband of accused No.3 at the hands of accused No.1 to 3. While appreciating the evidence the Sessions Court has also expressed that in the absence of connecting material being placed before the Court, the Court could not come to a conclusion about the involvement of accused 1 and 3 as the same is not established beyond all reasonable doubt. Therefore, left with no other option, the Sessions Court has passed the judgment impugned holding that the prosecution has failed to prove the offence alleged against accused 1 and 3 in SC.No.9/2013 and consequently, by an order of acquittal, acquitted the said persons. This serious lapse is only due to deliberate manipulation of records, in not marking the relevant documents as exhibits before the Court below and not bringing on record all the relevant documents which were collected and collated by the Investigating Officer while filing the charge sheet and the same are deliberately excluded while recording evidence in the said proceedings resulting in acquittal of accused No.1 and 3.
8. Admittedly, the proceedings against accused No.2 is still pending consideration as the charge sheet was split up at an earlier point of time. Therefore, the trial is required to be conducted as against No.2 in the said charge sheet. Under the circumstances, this Court is of the considered opinion that the judgment dated 14.3.2014 passed in SC.No.9/2013 is required to be set aside. While doing so, the order of acquittal which is passed against accused No.1 and 3 also should be set aside and consequently, the entire record should be sent to the Sessions Court to enable the prosecution to produce and mark all the documents which are already on record and if necessary to produce additional evidence if any to establish the offence alleged against accused No.1 to 3 in causing the homicidal death of H.K.Jagadeesh - husband of accused No.3.
9. With such observations, this appeal is allowed.
The judgment and order of acquittal dated 14.3.2014 passed in SC.No.9/2013 on the file of the Court of the Principal Sessions Judge at Chikmagalur, is set aside and the matter is remanded to the said Court for fresh trial in the said proceedings. While taking up the same, if the prosecution finds that the presence of accused No.2 is already secured, then the Sessions Court shall conduct de novo trial as against all the three accused with reference to their alleged involvement in the homicidal death of victim – H.K.Jagadeesh.
Sd/- JUDGE Sd/- JUDGE nd/-