IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.595/2013 BETWEEN:
STATE OF KARNATAKA BY KOLAR RURAL POLICE ... APPELLANT (BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP) AND:
1. SURESHA @ UPPI S/O RAJANNA AGED ABOUT 21 YEARS R/O AMBEDKAR COLONY KANNURHALLI ROAD HOSAKOTE TOWN-562114 2. P. ASHOK KUMAR @ ASHOKA @ KATA S/O RAMESH KUMAR 19 YEARS, R/O AMBEDKAR COLONY KANNURHALLI ROAD HOSAKOTE TOWN-562114 ... RESPONDENTS (BY SRI VAGEESH HIREMATH, AMICUS CURIAE) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT OF ACQUITTAL DATED 07.02.2013 PASSED BY THE II ADDL. S.J., KOLAR IN SPECIAL S.C. NO.12/2012-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B, 302 READ WITH SECTION 34 OF IPC AND UNDER SECTION 3(2) (V) OF SC/ST (PREVENTION OF ATROCITY) ACT, 1989.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K. N. PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The State has come up with this appeal challenging the judgment of acquittal passed in favour of the respondents herein who were arraigned as Accused Nos.2 and 3 in Spl.S.C.No.12/2012 on the file of the II Addl. Sessions Judge, Kolar vide judgment dated 7.02.2013.
2. We have heard the arguments of the learned Addl.
State Public Prosecutor for the appellant - State and perused the records and also the judgment of the trial Court.
3. The learned Additional State Public Prosecutor submitted that though the prosecution has proved the motive, last seen theory and recovery of knife at the instance of accused Nos.2 and 3, the trial Court has not properly appreciated and considered the above said circumstances with reference to the evidence on record and has wrongly recorded the judgment of acquittal against the State and in favour of accused Nos.2 and 3. Therefore, the judgment of acquittal passed by the trial Court deserves to be set aside and accused are liable to be convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code.
4. The brief factual matrix of the case are that the complainant – P.W.1 by name Anjinappa, son of Muniyappa has lodged the first information as per Ex.P.1 on 14.7.2012 at about 10.40 a.m. stating that he had a son by name Manoj Kumar alias Chikka, aged about 19 years, who was a mason. Accused Nos. 1 to 3 before the trial Court were close friends of the deceased Manoj Kumar. About one year ago, prior to the incident, when accused No.2 and his brothers were quarrelling, the deceased Manoj Kumar went there and there was some quarrel between accused No.2 and deceased Manoj Kumar. In this context, there was a case registered against Manoj Kumar. In this background, it is alleged that on 5.7.2012 in the afternoon at about 3.00 p.m., all the three accused persons came to the house of P.W.1 and called the deceased Manoj Kumar to come with them for rendering mason work. They all went together and they did not return. However, on 13.7.2012, accused No.3 – Ashok Bin Ramesh alone returned to the village and in fact P.W.1 went to the house of accused No.3 Ashok and questioned him as to what happened to Manoj Kumar. Then accused No.3 disclosed to P.W.1 that on 5.7.2012 they have committed the murder of his son – Manoj Kumar and threw the dead body near Therahalli Betta. Infact P.W.1 had detained accused No.3-Ashok and on the next day morning, he took Ashok Kumar to Therahalli wherein accused No.3 showed the dead body to P.W.1 and others and thereafter, P.W.1 went to the police station along with accused No.3 Ashok and lodged a complaint which was registered as Crime No.330/2012 under Section 302 r/w 34 of Indian Penal Code and also under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The police after thorough investigation submitted a charge sheet against three accused persons i.e., accused Nos. 1 to 3. As accused No.1 was not available and was shown as absconding, the trial Court after committal, proceeded to frame charges against accused Nos. 2 and 3 for the above said offences, tried them and acquitted them vide its judgment dated 7.02.2013.
5. The prosecution in all examined 12 witnesses P.Ws. 1 to 12 and got marked Exs.P.1 to 16 and material objects M.Os. 1 to 6. The accused were also examined under Section 313 of the Code of Criminal Procedure, but they neither took any special defence nor choose to lead any evidence on their side.
6. After hearing both sides and appreciating both oral and documentary evidence on record, the trial Court has arrived at a conclusion that the prosecution has not proved the case beyond all reasonable doubts as such, the trial Court has acquitted accused Nos. 2 and 3.
7. The prosecution evidence divulges that P.W.1, who is the father of the deceased has spoken to about the motive factor and has specifically stated about the last seen of accused Nos.1 to 3 taking away Manoj Kumar along with them. It is specifically stated that the deceased did not wish to go along with accused Nos. 1 to 3 but the accused Nos.1 to 3 have assaulted him and forcibly took him along with them on 5.7.2012, but P.W.1 has not lodged any complaint even after his son was forcibly taken by the accused Nos.1 to 3. It is further stated that after few days, particularly on 13.7.2012, accused No.3 alone returned to his house and in fact, he has made an extra judicial confession before P.W.1 and he (accused No.3) took P.W.1 to the place where the dead body was found disclosing that accused Nos. 1 to 3 together have committed the murder of Manoj Kumar. This witness also has stated that both accused Nos.1 and 3 have surrendered before the police on the previous day itself i.e., on 13.7.2012 itself and the accused persons have told the police that they have committed the murder of the deceased and also thrown the dead body by cutting the neck which was shown underneath some boulders. This witness also has stated during his cross-examination that he had visited the spot where the dead body was found and he observed the knife - M.O.6 thrown near the dead body and the police have seized the same and sealed in a cover, etc.
8. P.W.2-C.Shivappa is the cousin brother of P.W.1.
He also states in similar line to that of P.W.1, but totally excludes the presence of accused No.2 at any point of time and further stated that on the next day of lodging the complaint, accused No.3 Ashok Kumar told that he would show the place where the dead body is concealed and thereafter, accused No.3, P.W.1 – Anjinappa and other witnesses had been to Therahalli Betta where the dead body was thrown and the same was recovered at the instance of accused No.3 – Ashok Kumar.
9. P.W.3 - Munikrishna is also panch witness to Ex.P.2 the spot mahazar. According to him, accused Nos.2 and 3, who were in the custody of the police have shown the dead body to the Police which was concealed underneath the boulders and the police have recovered the dead body by drawing a mahazar and also seized the material objects M.Os.1 to 5 in the spot which are clothes of the deceased, one pair of chappal and two stones.
10. P.W.4-Ravikumar M. is the panch witness to seizure mahazar - Ex.P.2 and also to the inquest mahazar Ex.P.3.
11. P.W.5 – Jayakumar H.M., is the panch witness to Ex.P.4 under which the police alleged to have recovered M.O.6 – knife at the instance of accused No.2.
12. P.W.6 – Dr. H.S. Raghunatha Reddy who conducted the post mortem examination on the dead body of Manoj Kumar alias Chikka and given the post mortem report as per Ex.P.5 and has stated that, the death of the deceased was due to shock and hemorrhage as a result of injuries sustained by him.
13. P.W.7 - Kaviraj is the Police Constable who has apprehended the accused at 2.00 p.m. on 14.7.2012 and produced them before the investigating officer at 2.30 p.m.
14. P.W.8 is a Police constable who carried FIR to the jurisdictional Magistrate as per Ex.P.7.
15. P.W.9-H.P. Rajanna, the Deputy Superintendent of Police states that he has investigated the matter partly and arrested accused No.2 and visited the spot along with P.W.1, discovered the dead body at the instance of accused No.1 and also speaks about the arrest of accused No.2, recording of voluntary statement of accused No.2 and about recovery of knife M.O.6 at the instance of accused No.2.
16. P.W.10 – Ramu is the Auto rickshaw Driver, who states about the last seen of the accused and deceased together on 5.7.2012. This witness particularly excluded accused No.1 and speaks only about accused Nos.2 and 3. Added to this, he has stated that he dropped accused Nos. 2 and 3 as well as the deceased near K.E.B. Circle, Hosakote on 5.7.2012.
17. P.W.11 – the Deputy Superintendent of Police, Kolar, is the person who filed the charge sheet against accused Nos.1 to 3.
18. P.W.12 - P.N. Ganesh was working as Sub Inspector of Police, Kolar Rural Police Station has registered a case on the basis of Ex.P.1 filed by P.W.1 on 14.7.2012 under Crime No.330/2012 and submitted FIR – Ex.P.7 to the Court.
19. On re-evaluation of the entire material on record and after re-appreciation of the evidence on record, it appears that the prosecution has relied upon the motive factor, last seen of accused Nos.1 to 3 with the deceased and the recovery of dead body at the instance of the accused and lastly recovery of knife at the instance of accused No.2.
20. Of course there is some material to prove the motive factor. P.Ws.1 and 2 have categorically stated about the relationship between accused No.1 and the deceased and quarrel between accused No.2 and deceased in connection with some previous dispute and also on the case lodged against the deceased by accused No.2. P.W.1 has stated about this motive factor that it is sufficient to believe that accused Nos.1 to 3 have taken the deceased on 5.07.2012 along with them. If such hatredness was existed between accused and the deceased on 5.7.2012, the evidence of P.W.1 goes to show that though deceased was not willing to go along with accused Nos.1 to 3, forcibly by assaulting him, the accused Nos.1 to 3 took him along with them in an auto rickshaw for construction work at Horavalli. If that were to be the case, P.W.1 would have immediately gone to the police and lodged the complaint or would have gone to the construction place to ascertain whether Manoj Kumar had been to that place on that particular day or not, this fact is relevant as the complaint shows that the deceased was missing and he had been to work along with accused Nos.1 to 3. There was no such allegation of forcibly taking the deceased by accused Nos. 1 to 3. P.Ws.1 and 5 have spoken to about motive factor. Even if it is said to have been proved, that by itself is not sufficient to draw any inference of guilt against the accused which adequately strengthens the case of the prosecution, if further circumstances are established.
21. The second circumstance is last seen:
P.Ws. 1 and 2 have stated about accused Nos. 1 to 3 and deceased going together on 5.7.2012 and till 13.7.2012, they did not return. P.W.10 – an auto rickshaw driver also has stated that accused Nos.2 and 3 along with the deceased traveled in his autorikshaw and he left them at K.E.B. Circle, but no material is available as to what happened from 12.7.2012 to 13.7.2012 till accused No.3 returned to the village. Therefore, the last seen alone is not sufficient to draw an inference and no such circumstances are established to connect the accused persons. As such, the last seen theory only indicates that on 5.7.2012, accused Nos. 2 and 3 and deceased went together, but thereafter, nobody has explained as to whether they parted each other and what happened etc.
22. In order to connect the accused persons, the prosecution has relied upon the fact that the dead body was recovered at the instance of accused No.3. It is the case of P.W.1 and other witnesses that accused No.3 alone returned to the village on 13.7.2012 and P.W.1 and his brother and others had been to the house of accused No.3 to enquire about the deceased Manoj Kumar. Then accused No.3 said to have disclosed that he himself and accused Nos. 1 and 2 have committed the murder of Manoj Kumar and threw the dead body near Therahalli Betta by cutting his neck. On receiving such information, P.Ws.1, 2 and others on the next day took accused No.3 to the place where the dead body was thrown by them by committing the murder of Manoj Kumar. After taking note of the place where the dead body was found, they came back along with accused No.3 and P.W.1 produced accused No.3 before the police along with a complaint-Ex.P.1. The police, thereafter, appear to have taken accused No.3 to their custody and thereafter, it is the evidence of the Investigating Officer that he along with P.W.1 and other witnesses went to the place where the dead body was found and discovered the place where the dead body was concealed and conducted the inquest proceedings and spot mahazar on the spot. P.W.1 has further deposed in contradiction to the above said evidence, that accused Nos.2 and 3 have voluntarily surrendered before the police on 13.7.2012 itself and they were kept in the police custody and they have told about the commission of murder of Manoj Kumar, throwing the dead body near Therahalli Betta and hiding the same underneath the boulders. Therefore, this creates a serious doubt whether accused Nos.2 and 3 were present with the police on the previous day on 13.7.2012 itself or accused No.3 alone was there with P.W.1 when they went to the spot and that P.W.1 already knew the place where the dead body was concealed. If that being so, there cannot be any question of recovery or discovery of any fact with regard to recovery of the dead body at the instance of either accused Nos.2 and 3. It is also evident from the records that accused No.2 was arrested on 14.7.2012 at about 2.00 p.m. by the police personnel and he was produced before the Investigating Officer at 2.30 p.m. by which time, the police had already visited the spot and drew the mahazar as per Exs.P.2 and 3 which are the spot mahazar and inquest proceedings.
Therefore, recovery of the dead body at the instance of accused is also falsified and absolutely there is no evidence to show that any of the accused has shown the place where the dead body was hidden or where the place of commission of murder had taken place.
23. Last but not the least, circumstance projected by the prosecution was recovery of knife at the instance of accused No.2. P.W.5 has deposed that on 14.7.2012, the police had called him to panchayath to Therahalli Betta and accused No.2 was in the custody of the police along with accused No.3. Both of them have taken the police to Therahalli Betta. Both of them have produced a knife which was concealed under a stone and police have recovered the same as M.O.6 under a mahazar – Ex.P.4. The evidence of this witness and also the Investigating Officer is not believable because of the evidence of P.W.1, who has stated that when the police first visited the spot and when the dead body was discovered, at that time itself, P.W.1 saw M.O.6 – knife which was lying by the side of the dead body but during the course of cross-examination, he has specifically identified the said knife as M.O.6. Therefore, the recovery of knife at the instance of accused No.2 is also doubtful. Therefore, looking into above said facts and circumstances, the trial Court after analyzing the above said factual aspects has rightly come to the conclusion that the prosecution has not made out a case for conviction of the accused persons. Even after re- appreciation of the entire evidence on record, we do not find any strong reason to interfere with the judgment of acquittal passed by the trial Court. Appeal is devoid of merits and the same is liable to be dismissed. Hence, we proceed to pass the following:
O R D E R Accordingly, it is dismissed.
The learned amicus curiae though has not argued the matter today, but has represented the respondent on the previous occasions. His fee is fixed at Rs.1,000/- (Rupees One Thousand Only).
Sd/- JUDGE Sd/- JUDGE Nsu*