IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1266 OF 2019 BETWEEN:
The State of Karnataka By Virajpet Town Police, Represented by State Public Prosecutor, Bengaluru – 01.
(By Sri. Vijayakumar Majage, Addl. SPP) AND:
Sajumon @ Saju S/o Gopinathan @ Mani, Aged about 41 years, Labourer, Kochupanaveed, Mannadimud, Cheriyangil, Sahakara Village, Alur Post, Thiruvanthapuram City, Kerala – 671 121.
...Appellant ...Respondent This Criminal Appeal is filed under Section 378(1) and (3) of Criminal Procedure Code, praying to grant leave to file an appeal against the judgment and order dated 30.10.2018 passed in S.C. No.5007/2018 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet, acquitting the respondent/accused for the offence P/U/S 304 of IPC.
This Criminal Appeal coming on for Dictating Orders, this day, the Court delivered the following:
JUDGMENT The present appeal has been preferred by the State challenging the legality and correctness of the judgment and order of acquittal passed by II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet in S.C.No.5007/2018 dated 30.10.2018.
2. I have heard the learned additional SPP for the appellant-State.
3. Though this case is listed for hearing on interlocutory application, notice on the respondent has been dispensed with and the matter has been heard finally.
4. The case of the prosecution in brief is that on 12.11.2017, at about 9 p.m, near public toilet situated in Appaiahswamy Road of Virajpet Town, the accused picked up quarrel with deceased-Siddaraju when the deceased fell down while going towards said toilet to sleep. In the altercation between the accused and the deceased, when the deceased assaulted the accused by stating that it is the accused, who is responsible for his fall, accused who got enraged, kicked on the head, stomach and chest of the deceased with his foot by wearing slippers and even dragged out the deceased from the passage of the toilet. In the result, the deceased succumbed to those injuries.
5. On the basis of the complaint, the case has been registered in Crime No.150/2017 under Section 302 of IPC and after investigation, charge sheet has been filed for the offence punishable under Section 304 of IPC. Copy of the charge sheet was given to the accused, thereafter matter was committed to the Sessions Court. The Sessions Court took the cognizance of the offence and the presence of the accused was secured. In order to prove the case of the prosecution, it has got examined 17 witnesses as PWs-1 to 17 and got marked 30 documents as Exs.P-1 to P-30 and marked 14 material objects as MO-1 to MO-14. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied the incriminating material as against him and he has not led any evidence and he has not got marked any documents. After hearing the learned Public Prosecutor and learned counsel for the accused, the trial Court acquitted the accused for the offence punishable under Section 304 of IPC. Being aggrieved by the same, the State is before this Court.
6. The main grounds urged by the learned Additional SPP are that the impugned judgment and order of acquittal is illegal, perverse and contrary to law, evidence and material placed on record. It is his further submission that PW-1 and PW-2 are witnesses, who have lastly seen the accused and deceased together and the said evidence has not been properly appreciated by the trial Court. It is his further submission that immediately after the incident, the accused has confessed before PW-1 and PW-2. Though the Court below has recorded the submissions made by PW-1 and PW-2, but has wrongly acquitted the accused. It is further submitted that CCTV footages of the incident, which have been produced at Exs.P-25 to P-27 would clearly go to show that accused and deceased were lastly seen together and in that light, the Court below ought to have held that the accused is guilty for the alleged offence. It is his further submission that RFSL report at Ex.P-12 would clearly goes to show that the lungi, which is marked as MO-6, contains the stains of blood of the deceased and even serology report, which has been marked as Ex.P-30 would clearly goes to show that it contains ‘O’ Blood Group, which relates to the Blood Group of the deceased. This aspect has also not been appreciated and considered by the trial Court. It is his further submission that though there is sufficient material to convict the accused, the trial Court has wrongly acquitted the accused for the said offence. Thus, learned SPP prayed to allow the appeal and to set aside the impugned judgment and to convict the accused.
7. I have carefully and cautiously gone through the submission of the learned Additional SPP and perused the judgment of the trial Court, evidence and documents made available by the learned Additional SPP.
8. PW-1, who is the cashier working in the Balaji Wine Stores, Virajpet, has deposed that on the date of the alleged incident, accused and deceased came to his wine shop and both consumed liquor and thereafter, they went together out of the wine shop. At about 9.00 p.m to 9.15 p.m., the accused alone came and told him that the person, who accompanied with him, has been murdered. As the accused has consumed alcohol, he has not considered the say of the accused seriously. Again, when the accused told him that the person, who came with him has been murdered, he came to know that some incident has taken place. In the meanwhile, his friend-PW-2 - T.N.Satish came to that spot. He asked his friend to go and verify the said aspect. Immediately, his friend T.N.Satish went to the spot and came back and informed that he found nothing on the spot. He further deposed that when the owner came to the shop, by leaving the owner in the cash counter, he went to the said public toilet, where he found a person lying dead. Immediately, he informed the same to the Police over phone. Thereafter, he has filed complaint as per Ex.P1. During the course of cross-examination, nothing has been elicited to substantiate the case of the prosecution.
9. PW-2, T.N. Sathish is the friend of PW-1. He has also reiterated the evidence of PW-1 by stating that he came to meet PW-1. As per his friend’s instructions, he went and verified the body near the public toilet but, he found nothing. Thereafter, PW-1 went and saw the dead body. He is also the witness to the spot mahazar.
10. PW-3 is the Spot Mahazar Panch and PW-6 to PW-8 have turned hostile. PW-4 is the father-in-law of PW-3. He has not supported the case of the prosecution and has turned hostile. PW-5 is the Panch to Ex.P9 and the inquest mahazar. PW-7 is the wife of the deceased. She has stated that since two years, she is residing separately and six months back, her husband has been murdered and she has seen some injuries on the body of the deceased. PW-8 is the daughter of the deceased. Deceased was residing in Palangal and when she came to know about the murder of her father, immediately, she went to mortuary and saw the injuries on the body of her father. PW-9 is the Doctor, who conducted autopsy over the body of the deceased and has issued Post Mortem report as per Ex.P-11. He has further deposed that he found lacerated wound over left eyebrow, abrasion-contusion above left eyebrow, abrasion over left side of cheek, contusion injury over left side of chest and he has also given his opinion that the cause of death is due to Intraperitoneal bleed due to spleenic laceration and the deceased was influenced with alcohol at the time of death. PW-10 is the Police Constable, who watched the dead body and carried the clothes of the deceased after Post Mortem and produced before the Investigating Officer. PW-11 is the head constable, who has translated the statement of the accused and produced to the Investigating Officer. PW-12 is the Police Sub-Inspector, who received the complaint and registered the case and issued FIR and also partly investigated the case. PW-13 is the Scientific Officer working in FSL, has issued certificate as per Ex.P-12. PW-14 is Seizure Mahazar Pancha of the clothes of the deceased. Clothes of the deceased have been got marked as MOs.2 to 4. PW-15 is the Senior Officer, Municipal Office, who has issued the Certificate of the property i.e., Public Toilet as per Ex.P-18. PW-16 is the photographer, who has taken the photographs as per Exs.P-19 to P-24. PW-17 is the CBI Officer, who has investigated the case against the accused.
11. On close reading of the materials, which have been produced before the Court below would clearly go to show that the entire case rests on circumstantial evidence. There are no eye witnesses to the alleged incident. It is the well proposed proposition of law that if the case is rests on circumstantial evidence, under such circumstances, the prosecution has to prove all the circumstances. All the circumstances are to be linked with one another and the court will be in a position to see the chain of evidences and if the chain of events and important links have been established by the prosecution, then, it could be said that prosecution has been proved the case beyond all reasonable doubt. This proposition of law has been laid down by the Hon’ble Supreme Court in the case of Sheikh Abdul Hamid and another Vs. State of Madhya Pradesh reported in AIR 1998 SC 942.
12. Keeping in view the law laid down in the aforesaid decision, the prosecution is intending to rely upon three circumstances:
i) The first circumstance on which the prosecution is intending to rely upon is that accused and deceased were seen together lastly and in order to substantiate the said fact, the prosecution got examined PW-1 and PW-2. PW-1 is the Cashier, working in Balaji Wine Stores, Virajpet and on the date of the alleged incident, the accused and the deceased came to the wine shop and consumed alcohol. Thereafter, accused and deceased went away. At about, 9 or 9.15 p.m., the accused alone came and told him that the person, who accompanied him has been murdered. He did not believe in the first instance and sent PW-2 and thereafter, he went and saw the dead body. PW-2 also reiterated the same. Though it is the contention of the learned Additional SPP that accused has confessed before PW-1 and PW-2, which is one of the circumstances to see, as could be seen from the depositions of PW-1 and PW-2, they have told that accused alone came and told him, that person who had accompanied him, has been murdered. He has not uttered the word that he has murdered the deceased. Then, under such circumstances, the said say of the accused cannot be stated as confession. Therefore, in that light, he might have informed the person, who had accompanied him was murdered. In that light, evidence of PW-1 and PW-2 cannot help the prosecution to prove the confession said to have been made by the accused and it is not a confession. Be that as it may, even as per the evidence of PW-1, he has seen accused and deceased had come together and have consumed alcohol and thereafter, they have left the place and subsequently, the deceased was found to be dead. Even the statement of the accused, if it is taken, he came and informed that the person who had accompanied him has been murdered, then under such circumstances, one cannot infer that the accused alone has committed the murder of the deceased. In that light also, evidence of PW-1 and PW-2 is not going to repose any confidence to bring home the guilt of the accused.
ii) The second circumstance on which the prosecution is intending to rely upon is FSL report. It indicates that the blood stains found over lungi, which contains blood stains of the human being is tallying with the blood group of the deceased i.e., ‘O’ Group. In the instant case on hand, clear picture of the injuries found on the body of the deceased are abrasion- contusion and no such serious injuries are caused. Then under such circumstances, the stains of blood found over the lungi of the accused are also very doubtful. Under such circumstances, it will not help in any manner to bring home the guilt of the accused.
iii) The third circumstance on which the prosecution is intending to rely upon is CCTV footages, which has been produced at Ex.P-27. On seeing the said CCTV footages, it only indicates the fact that the accused and deceased came to the wine shop and consumed alcohol. In that light, it cannot be inferred that it is the accused, who has caused the death of the deceased. The prosecution has failed to prove the chain of events clearly pointing out the guilt of the accused alone. If there is any break in the chain of the events, then under such circumstances, the benefit of doubt should go to the accused. To bring the accused for the guilty of the offence, all the circumstances of the prosecution, which have been relied upon have to be proved. If they have not been satisfied and explained, accused cannot be convicted. In that light, the appellant-State has not made out any good grounds so as to interfere with the judgment and order dated 30.10.2018 of acquittal passed by the II Additional District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet.
13. I have carefully and cautiously gone through the judgment of the trial Court. The learned Sessions Judge, after considering all the materials placed on record has come to a right conclusion and has rightly acquitted the accused-respondent. The judgment is neither perverse nor illegal. It is also well settled proposition of law that if an appeal against the order of the acquittal have been filed, appellate Court must be very slow in interfering with such order. Looking from any angle, the appeal is devoid of merits and accordingly, the same stands dismissed.
In view of dismissal of the appeal, I.A.No.1/2019 seeking condonation of delay, does not survive for consideration. Accordingly, the same is dismissed.
Sd/- JUDGE Mds/-