IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.498 OF 2013 BETWEEN:
STATE BY HOSAKOTE POLICE STATION.
(BY SRI:I.S.PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) AND:
1. B.A. MAHESH @ MAHESH KUMAR SON OF ARVALLAPPA AGED ABOUT 26 YEARS RESIDING AT: CARE OF MOHAN @ MOHAN KRISHNA RAMAGONDANAHALLI YELAHANKA HOBLI BENGALURU SOUTH TALUK-560 064.
2. SUBBARAYAPPA @ SUBRAMANI @ NAGESH SON OF ARVALLAPPA ... APPELLANT AGED ABOUT 41 YEARS RESIDING AT BANNYMANGALA GRAMA KUNDANA HOBLI DEVANAHALLI TALUK BENGALURU DISTRICT-562 110.
... RESPONDENTS (BY SRI:S.A.KHADRI, ADVOCATE FOR R1 AND R2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 18.12.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-IV, BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.328 OF 2011, ACQUITTING THE RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120-B, 302 AND 201 READ WITH 34 OF IPC.
***** THIS CRIMINAL APPEAL COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that, accused No.1 was working as a Driver under the deceased for his TATA Indica Car bearing No.KA-52-7997. On the information given by accused No.1, the deceased Chandrappa agreed to leave the car to Eco Space company on rent for Rs.23,000/- to Rs.24,000/- per month. Accused No.1 did not pay the rent even after three months. Thereafter, the deceased insisted accused No.1 to pay the rent or in the alternative to return the car. Even then, neither the payment was made nor the car was returned. The deceased informed accused No.1 that he is coming to his village to collect the rent amount and also to take back the car. At that time, accused No.1 hatched a plan with the collusion of accused No.2 in order to avoid the payment of Rs.70,000/- to the deceased and also for the return of the car. Accused No.1 informed the deceased that the company has issued a cheque amounting to Rs.70,000/- for three months rent and that the cheque is with the Supervisor at Bettadaulsoor village. He also informed the deceased that the Supervisor will give the cheque. As per the plan, accused No.1 took the deceased on 03.07.2011 at 9.00 p.m., in Maruthi Suzuki Car bearing No.KA-53- PW/1562 stating that the Supervisor will give the cheque towards the rent amount. Accused No.1 took the deceased near Kundana Circle, Devanahalli Taluk from Hosakote and he also told accused No.2 to come to the spot. Thereafter, accused No.1 took the car to Devanahalli road towards Jala. When the car was moving near Novadaya Bovipalya village gate, accused No.1 stopped the car and caught hold the neck of the deceased and cut his neck with a knife. Accused No.2 stabbed the deceased on his stomach and both the accused have committed the murder of the deceased. They took away the gold ring and Nokia mobile phone from the deceased. After that, they shifted the dead body of the deceased near Banemahalli near the Eucalyptus groove and put the eucalyptus branches on the body of the deceased, poured petrol over the body and set it on fire. Thereafter, they returned to their house.
2. On the basis of the complaint lodged by CW-2 on 04.07.2011, the police registered a missing complaint in Crime No.1140 of 2011. During the investigation, accused No.1 was arrested and his voluntary statement was recorded. Based on the same, accused No.2 was also arrested and his voluntary statement was recorded. They went to the spot and recovered the bones and skull of the deceased which was half burnt and also the knife and jerkin buttons as well as the artificial teeth at the instance of accused. The scooter was also seized which was used by accused No.2 for the commission of the offence. On completion of investigation, the Investigating Officer submitted the charge sheet against the accused for the offences punishable under Sections 120-B, 302 and 201 read with 34 of Indian Penal Code.
3. In order to prove its case, the prosecution examined 45 witnesses and marked Exhibits-P1 to P106(a) along with Material Object Nos.1 to 27. By the impugned judgment, both the accused were acquitted. Hence, the State has filed this appeal.
4. During the consideration of this appeal, an application in IA.1 of 2019 has been filed by the appellant- State under Section 391 read with Section 482 of Cr.P.C., with a prayer to take additional evidence on the reports dated 30.07.2012 and 30.04.2013 issued by the then Scientific Officer, DNA Centre, Madivala, Bengaluru and also for examination of the said expert before the Court or before the Trial Court. It is stated in the affidavit that the DNA report was received only on 10.05.2013 by the then Investigating officer. The judgment was delivered on 18.12.2012. The appeal was filed on 30.04.2013. Therefore, the same could not have been produced at the stage of filing of this appeal. That one of the reasons given by the Trial Court to acquit the accused is that, the body was not identified as that of the deceased. The DNA report which has been annexed along with the application would therefore form necessary documents in order to assist the prosecution to identify the deceased. Since one of the grounds for acquittal of the accused is the absence of the prosecution in identifying the deceased, the said application requires to be allowed.
5. The respondents-accused have filed their statement of objections. They have stated that there is a delay in filing the application. That there is no prima facie case made out by the State for the production of additional evidence. That the accused having been acquitted, they cannot be subjected to trial once again. Hence, he pleads that the application be rejected.
6. Heard learned Counsels and examined the records.
7. On considering the contentions advanced as well as the application in IA.1 of 2019, we are of the considered view that the consideration of the said application is necessary before considering the appeal on merits. In the application, it is narrated that the DNA report was not produced for consideration before the Trial Court. The same was not available and it was received by the Investigating Officer only on 10.05.2013. That in spite of best efforts made by the Investigating Officer, the DNA report could not be procured before the trial concluded. That the preparation of the DNA report was not in the hands of the prosecution. The DNA report has been prepared by the expert. It is he alone who could have prepared the report. Therefore, it cannot be said that there was any laxity on the part of the prosecution in not producing the DNA report.
8. In fact, even on the date when the judgment was delivered, the DNA report did not exist. It was received by the Investigating Officer only on 10.05.2013. The judgment was delivered on 18.12.2012. Therefore, the prosecution remained helpless in not producing the said documents. Hence, we do not find that the prosecution could be blamed for not producing the documents. In a given case, when the documents were available with the prosecution and if they are not produced it before the Trial Court, either deliberately or for any other reason, then it could be held that the prosecution was not diligent. We find no fault with the prosecution in their inability to produce the DNA report.
9. The learned Trial Judge has recorded a finding at paras 81 and 82 of the judgment that, the entire case depends on circumstantial evidence. That there is a serious dispute relating to the identification of the deceased. Even then, the Investigating Officer has not made any efforts to produce the DNA report.
10. Even if the learned Trial Judge was justified in arriving at such a finding, as stated by us herein above, every effort has been made by the Investigating Officer to secure the DNA report. The preparation of the report is not in the hands of the prosecution. Therefore, since the additional evidence is sought to be produced herein, we are of the view that the same is required for the just and final adjudication of the trial. That truth will emerge only after all the evidence is placed before the Court. Even if the evidence is to be led-in, it is needless to state that the accused would also have an opportunity so far as the very evidence and the documents are concerned. Hence, we do not find any infringement of the legal right of the accused that would stand affected by allowing this application. Under these circumstances, we do not find it appropriate to hear the appeal on merits. Hearing the appeal on merits without considering the evidence based on the documents would be futile. Therefore, we are of the view that the appeal requires to be allowed on this ground alone. That the application for production of additional documents requires to be allowed.
11. Under these circumstances, we do not find it necessary that the entire evidence requires to be re- recorded for all the witnesses. It is suffice to record the evidence pertaining to the additional documents, namely, DNA reports dated 30.07.2012 and 30.04.2013 as enclosed in IA.1 of 2019 and with a liberty to lead relevant evidence with regard to the same. The accused is always entitled to cross examine the witness with regard to the evidence as well as with regard to the documents, which would be produced. However, it is made clear that no evidence is permitted to be led-in, other than relatable to the documents annexed to IA.1 of 2019.
12. For the aforesaid reasons, the appeal is allowed. The judgment and order of acquittal dated 18.12.2012 passed in S.C.No.328 of 2011 by the Presiding Officer, Fast Track Court-IV, Bengaluru Rural District, Bengaluru, is set aside. IA.1 of 2019 filed by the appellant-State is allowed. The appellant-State is permitted to lead additional evidence pertaining to the reports dated 30.07.2012 and 30.04.2013 annexed in IA.1 of 2019 as well as to produce all relevant documents. The accused is permitted to cross examine the said witness or witnesses. No other evidence is permitted to be led-in by the prosecution. After recording the evidence of the witnesses, arguments shall be heard on merits and the Trial Court shall pass appropriate orders in accordance with law.
The matter be listed before the Trial Court on 26.08.2019 without any further notice to the respondents- accused herein. All the original records be sent back to the Trial Court including IA.1 of 2019 and its annexed documents. The appellant’s Counsel is permitted to take back the original documents produced along with IA.1 of 2019 in accordance with the Criminal Rules of practice.
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JUDGE JUDGE *bgn/-