IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.352/2015 BETWEEN:
Bheemaiah, S/o Kambadooraiah, Aged about 26 years, R/o Mavakere Village, Kora Hobli, Tumkur District. (By Sri. Rajashekar K. Advocate) AND:
…Appellant State of Karnataka By Koratagere Police, Rep. by the State Public Prosecutor, High Court of Karnataka, Bengaluru- 560 001. …Respondent (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. to set aside the order dated 30.5.2013 passed by the 5th Fast Track Court, Madhugiri, in S.C.No.117/2012- convicting the appellant/accused for the offence punishable under Section 302 of IPC.
This Criminal Appeal coming on for hearing this day, B.A.PATIL J. delivered the following:-
J U D G M E N T The present appeal has been preferred by appellant/accused No.2 (accused No.4 as per charge sheet) being aggrieved by the judgment of conviction and order of sentence passed by 5th Fast Track Court, Madhugiri, in S.C.No.117/2012 dated 30.5.2013.
2. We have heard the learned counsel Sri Rajashekar K. appearing for the appellant and the learned Additional State Public Prosecutor Sri.Vijayakumar Majage, appearing for the respondent-State.
3. Before going to consider the submissions made by the learned counsels appearing for the parties, we feel to place on record briefly the case of the prosecution.
4. Complainant is the son of the deceased Basappa, a retired Junior Engineer and used to reside in Tumkur and he also used to go to see the farm land at Bisadi Halli. On 16.08.2011 he came from Tumkur and after moving around in the lands, he returned to Tumkur at about 4.30 p.m. by holding an umbrella as it was raining. He went from the said land and at about 6.30 p.m. one Hanumantharaju of nearby land came and informed the complainant that his father’s body was lying near the land of Siddalingappa under a tree. He further stated that probably due to motor vehicle accident the said act might have happened. The complainant denied the same and immediately he went to the spot found the dead body of his father, there were wounds over the dead body and he also thought that some motor vehicle might have caused the accident, he might have died on the spot. Hence, a complaint was registered.
5. Earlier the complaint was registered under Sections 279, 304(A) of Indian Penal Code r/w Section 134(a) and (b) and 187 of the Indian Motor Vehicles Act. During the course of investigation it is concluded that it was a murder and some miscreants have committed the murder of the deceased Basappa and during the course of investigation the accused persons were apprehended, the voluntary statement of the accused was recorded and after investigation charge sheet was laid as against the appellants/accused Nos.1 to 4 and the learned Magistrate took the cognizance and thereafter the trial Court committed the case as against accused Nos.1 and 4 to the Sessions Court, as accused Nos.2 and 3 were Juvenile, the said case was referred to the Juvenile Court.
6. The learned Sessions Judge took the cognizance and secured the presence of the accused and after hearing the learned counsel for the accused and the learned Public Prosecutor, charge was framed and read over to the accused. The accused pleaded not guilty and charge was framed for the offences punishable under Sections 302, 201,115 of Indian Penal Code.
7. In order to prove the case of the prosecution, prosecution got examined PWs.1 to 13 and got marked Exs.P1 to P24 and also got marked Mos.1 to 14. After closure of the evidence of the prosecution, the statement of the accused was recorded under Section 313 of Cr.P.C. and accused denied the incriminating material as against them and thereafter the accused persons have got examined DW1 i.e. wife of accused No.1. After closure of the evidence, after hearing the learned counsel for the accused and the learned Public Prosecutor, the learned Fast Track Court Judge acquitted accused No.1 and convicted accused No.4 for the offences punishable under Section 302 of IPC and acquitted for the offences punishable under Sections 201, 115 r/w 34 of Indian Penal Code. Challenging the legality and correctness of the same, accused No.4 is before this Court.
8. It is the submission of the learned counsel for the appellant/accused that the order of conviction and sentence passed by the Fast Track Court is not justifiable and the same is liable to be set aside. It is his further submission that under the similar facts and circumstances, the Court has not accepted the evidence as against accused No.1 and he has been acquitted, but on relying upon the same evidence, accused No.4 has been convicted, as such the judgment is not sustainable in law, thereby the learned Fast Track Court has misapplied the facts and circumstances and erroneously passed the impugned judgment of conviction. It is his further submission that the judgment which has been passed is unreasoned judgment. He further submitted that there are no eyewitnesses to the alleged incident. The entire case rests on circumstantial evidence and even though all the circumstances have not been clearly established, the Court below has come to a wrong conclusion and has wrongly convicted the appellant/accused. He further submitted by relying upon the decision in the case of RAMESH BHAI AND ANOTHER Vs. STATE OF RAJASTHAN reported in (2009) 12 SCC 603 that in order to convict the accused, when the entire evidence rests on circumstantial evidence, the evidence led by the prosecution must prove and draw an inference of guilt only when all the circumstances and incriminating material should point out towards the guilt of the accused and the circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the instant case on hand there is joint recovery and even the recovery evidence of PWs.11 and 12 is also not cogent and acceptable and the same is not reliable. It is his further submission that the Court below has erred in passing the impugned order. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
9. Per contra, the learned Additional State Public Prosecutor vehemently argued and submitted that the prosecution has relied upon various circumstances and PW4-Parvathamma is the owner of the land and when she was working in the field, at that time she has seen the deceased going towards the bus stand and at that time the accused persons were also standing beneath the tree and she also identified the accused persons. It is his further submission that PW3 is the owner of the jewellary shop, he has categorically deposed before the Court below that it is accused No.4 who brought the gold articles and pledged for a sum of Rs.5,170/- and he has also produced the receipt and the same has been recovered by drawing a mahazar as per Ex.P15. He further submitted that PW5 is the person who was working in the lodge and he has also deposed about the accused persons going there and staying in the said lodge and he has also identified them by seeing the photographs. He further submitted that PW8 is an employee in the wine shop. He has stated that the accused came to the wine shop and consumed the alcohol and he refused to pay the money. When PW8 insisted for money he left his mobile phone with PW8 and after the incident they came and got released the mobile phone. That itself clearly goes to show that the accused persons with an intention to make a gain they have committed the murder of deceased Basappa and snatched the gold chain and ring and after pledging the same with PW3 they have taken the money and got released the mobile phone. There are ample material and circumstances to show that this appellant along with other accused persons have committed the murder of the deceased for gain. The trial Court after considering the material has come to a right conclusion and has rightly convicted the appellant/accused. There are no good grounds to entertain the appeal. The appeal is devoid of merits and same is liable to be dismissed and accordingly he prayed to dismiss the appeal.
10. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and we have given our thoughtful consideration to the entire material and the proposition of law.
11. In order to prove the case of the prosecution, the prosecution has got examined PWs.1 to13.
PW.1 is the son of the deceased and he is also the complainant. At the first instance he has given the complaint under Sections 279, 304(A) of Indian Penal Code and subsequently during the course of investigation it has been revealed that it is not the accidental case, but it is murder for gain.
PW2 is the person who saw the dead body beneath the tree and he has also seen the deceased standing and he is also the witness who show that accused No.1 has pledged the ring with PW3.
PW3 is the owner of the jewellary shop, he speaks about pledging of the gold ring and recovery of the same at the instance of the accused/appellant by the police.
PW4 is the neighbouring land owner. She has seen the deceased going towards bus stop and accused Nos.1 to 3 were standing beneath the tree and she has also identified accused No.1.
PW5 is the person who was working in the lodge. He has spoken with regard to the accused persons coming to the lodge and stayed there and received the receipt for having staying there.
PW6 is the person who has affixed his signature to the inquest Ex.P11. PW7 is the daughter of deceased Basappa. She was witness to the inquest mahazar and stated that the left hand ring finger and the ring was missing and injuries were found over the body of the deceased.
PW8 is the employee in the wine shop, he has identified accused/appellant and others coming to his shop and consuming alcohol, as they were not having any money, they kept the mobile phone and subsequently after sometime they got released the mobile phone by paying money.
PW9 is the Doctor who conducted autopsy over the body of the deceased as per Ex.P12 and he has given his opinion as per Ex.P13.
PW10 is the PSI who received the complaint and registered the case and issued the FIR.
PW11 is the spot mahazar pancha as well as the recovery mahazar pancha to Exs.P2 and P3 and also Ex.P15.
PW12 is the pancha to seizure mahazar at Ex.P16 by which the clothes of the deceased were seized and also the recovery of the mobile at the instance of accused No.1 as per Ex.P18.
PW13 is the police inspector who investigated the case and filed the charge sheet against the accused persons.
12. We have thoroughly gone through the evidence which has been produced before the Court below.
13. As could be seen from the records there are no eyewitnesses to the alleged incident and the entire case rests on circumstantial evidence. It is well settled proposition of law that if a case rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Those proposition of law has been laid down by the Hon’ble Apex Court in the case of Ramesh Bhai quoted supra. At paragraph Nos.5 and 6 it has been observed as under:
Paragraph 5: It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063; Eradu and Ors. Vs. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa Vs. State of Karnataka, AIR 1983 SC 446; State of U.P. V.Sukhbasi and Ors., AIR 1985 SC 1224; Balwinder Singh Vs. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee Vs. State of M.P., AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstance. In Bhagdt Ram Vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
6. We may also make a reference to a decision of this Court in C.Chenga Reddy and Ors. Vs. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….”.
14. Keeping in view the above said proposition of law, let us consider whether the prosecution has established its case so as to bring home the guilt of the accused No.4 beyond all reasonable doubt.
15. It is an admitted fact that in the first instance the case was registered as an accidental case under Sections 279, 304A of Indian Penal Code and subsequently during the course of investigation it was converted to 302, 201, 115 r/w Section 34 of Indian Penal Code. In order to establish the case of the prosecution the prosecution has relied upon the following circumstances.
16. The death of the deceased Basappa is a homicidal death and last seen theory and recovery of the gold articles at the instance of the accused persons and before the alleged incident the accused persons have consumed the alcohol and as they were not having any money, they have pledged the mobile phone and subsequently got it released, lastly the lodge boy who has seen after the incident they came and stayed in the said lodge.
17. In order to prove the case of the prosecution that it is a homicidal death, the prosecution has got examined PWs.1, 6, 7, 9 and also relied upon Exs.P10 and P11.
18. On going through the post mortem report Ex.P12, there were about eight injuries found over the body of the deceased and the doctor has given his opinion that death is due to shock and hemorrhage as a result of multiple injuries sustained by the deceased. Even the inquest mahazar pancha and the other witnesses have also noticed the said injuries and even during the course of cross-examination, the said fact has also not been seriously disputed by the learned counsel appearing for the accused. Under the said facts and circumstances it can be safely held that the prosecution has clearly established the fact that the deceased Basappa died a homicidal death.
19. But insofar as the other circumstance last seen theory is concerned, in order to establish the said fact the prosecution has got examined PW4 - Parvathamma who is the owner of the neighbouring land. She in her evidence has deposed that when she was working in the land at 4.30 p.m. the deceased was passing through the land towards the bus stand and immediately thereafter it was raining and she wanted to go to home, at that time, she saw the deceased standing beneath the tree and three other persons were also standing in this behalf. Though nothing has been elicited during the course of cross- examination, as could be seen from the evidence of PW4, PW4 was standing along with one Pankaja and it is the Pankaja who has shown the accused persons who are standing beneath the tree and even the statement of PW4 has been recorded on 24.11.2011 after ten days after the incident and even her evidence is also not acceptable because of the reason that the Investigating Officer has also not held the test identification parade as contemplated under Section 9 of the Evidence Act, when the accused persons were strangers to them.
20. When admittedly the accused persons were not known to the said witnesses and that too they have seen the accused persons standing beneath the tree, when it was heavily raining and they were also wet and they were also proceed hurriedly to the house, then under such circumstances holding of test identification parade is must so as to identify the accused persons to show that same persons are standing beneath the tree and immediately thereafter the alleged incident has taken place in this behalf. The evidence which has been produced by PW4 in respect of the last seen theory is not trust worthy and reliable so as to accept the same. Even the said Pankaja who was there with PW.4 is not examined before the Court. She is a material witness in the case of prosecution.
21. Be that as it may, the next circumstances on which the prosecution is intending to rely upon is recovery of the gold ring at the instance of the accused persons. In order to establish the said fact the prosecution has relied upon the evidence of PW3, the owner of the jewellary shop. He has deposed before the Court that he is running the jewellary shop and the accused/appellant along with other accused persons came to the shop on 18.8.2011 and he has pledged the gold ring along with them one Ramakrishna was also there and same was pledged and an amount of Rs.5,170/- was taken and a receipt has been issued and he has also produced the receipt as per Ex.P7. He has also attested the recovery mahazar Ex.P9. But the said evidence if it is looked into, the prosecution has not examined the said Ramakrishna who is considered to be the material witness to substantiate the fact that it is through him the gold ring has been pledged with PW3.
22. Be that as it may. If we take the evidence of PW11 who is also a witness to the recovery mahazar Ex.P9 at Page No.69 of the paper book he has clearly deposed before the Court that he knows the owner of the jewellary shop and the police have come earlier and they requested the owner of the shop to give the pledged gold ring and thereafter the accused persons came and a mahazar was drawn in this particular behalf. This evidence falsifies the case of the prosecution to the effect that at the instance of accused the said gold ring was recovered. It is against Section 27 of the Evidence Act. Even in his evidence he has deposed that four persons were there at the time when the said recovery has been done. That itself clearly goes to show that it is not at the instance of present appellant/accused the recovery has been made and it is a joint recovery. When once the evidence shows that it is a joint recovery, then also the evidence is not acceptable in this behalf. Even the evidence of PW12 is also not trustworthy and reliable. In his evidence he has deposed that only when police went to the shop of PW3 and one accused person was there, he do not know the name of the accused person and he also not identified the said accused persons and in his evidence he has deposed that it is police who asked the owner of the jewellary shop to trace the ring and same has been seized. So, the evidence discloses that at the instance of the police PW3 has produced the ring but not at the instance of the accused. This also clearly goes to show that the said ring has not been recovered at the instance of the accused/appellant.
23. Be that as it may. Even the evidence discloses the fact that all the four accused persons were there and a recovery has been made. Under the similar facts and circumstances the trial Court has not relied upon the evidence as against accused No.1 and he has been acquitted. When the entire case rests on circumstantial evidence and though the Court below has accepted the evidence as against the present appellant and rejected the evidence as against accused No.1, then under such circumstances the said evidence is not going to help the prosecution to convict the accused/appellant, that too when the prosecution has also not preferred any appeal against the judgment of acquittal of accused No.1.
24. Insofar as the other evidence of the lodge boy and the wine shop boy, they are all not going to help the case of the prosecution to clearly establish that it is the accused persons who have committed the murder of the deceased Basappa.
25. Looking from any angle the circumstances on which the prosecution is intending to rely upon is not trustworthy and reliable as held in the decision quoted supra that the circumstantial evidence if it is led, the inference of the guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of the accused or guilt of any other person.
26. Taking into consideration the said proposition of law, the evidence which has been led is not acceptable and reliable and the appellant/accused has made out a case so as to allow the appeal. Hence, we pass the following order.
27. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence passed by the 5TH Fast Track Court, Madhugiri, in S.C.No.117/2012 dated 30.05.2013 is set aside. The appellant-accused (Bheemaiah S/o Kambadooraiah) is acquitted of the charges levelled against him for the offence under Section 302 of the Indian Penal Code.
The concerned prison authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
The Registry is directed to communicate the operative portion of this judgment to the concerned prison authorities forthwith.
Sd/- JUDGE Sd/- JUDGE *AP/-