Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 7TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI CRIMINAL APPEAL No.843 OF 2014 BETWEEN:
RAMESH SON OF NINGE GOWDA AGED ABOUT 33 YEARS RESIDING AT ANNECHAKANAHALLI VILLAGE SANTHEBACHAHALLI HOBLI K R PET TALUK, MANDYA DISTRICT PIN: 571 401. …. APPELLANT (BY SRI A.H.BHAGAVAN - ADVOCATE) AND:
STATE OF KARNATAKA BY KIKKERI POLICE STATION MANDYA DISTRICT, REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001. … RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE – ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 7.8.2014 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA, SITTING AT SRIRANGAPATNA, IN S.C. No. 5024 OF 2013 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND 449 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the judgment of conviction and the order of sentence dated 07.08.2014 passed in S.C.No.5024 of 2013 by the III Additional District and Sessions Judge, Mandya, in convicting the sole accused for the offence punishable under Section 302 and 499 of IPC, the State has filed this appeal.
2. Brief case of the prosecution are as follows :
The daughter of the complainant-Pavithra was given in marriage to one Narasimha. Since he did not have any land or property, he was residing in the house of the complainant. Marriage was solemnized three years prior to the incident. Pavithra has a two year old son. About two months prior to the incident, the son-in-law, Narasimha, had been to Bengaluru. Therefore, the complainant, her daughter-Pavithra and grandson were residing in the house. Parvathamma is the wife of the complainant’s brother. About 12 years earlier, Parvathamma had performed marriage of her daughter- Shobha with the accused. They have a nine year old daughter by name Preethi. Shobha used to visit the house of complainant. Pavithra and Shobha were friends. They used to work together. About one month back, complainant along with her daughter-Pavithra had been to K.R.Pet. Shobha told that Pavithra and herself would go to the hospital and would return to the village themselves. Therefore, the complainant alone returned to the village. Thereafter, she heard that her daughter-Pavithra and Shobha were talking to a man in K.R.pet. Subsequently both of them had come with the said person on the two wheeler. At that time, the complainant had advised her daughter not to do so. The said fact somehow came to the knowledge of the husband of Shobha-Ramesh, the accused. He started quarrelling with his wife. On 6.3.2013 at about 8.00 P.M. the accused took his wife- Shobha to the house of one Gavi Gowda and convened a panchayath. Nothing came of it. Thereafter, the deceased Shobha stayed in the house of Pavithra itself. On 7.3.2017 in the morning, the complainant had been to the land. At about 8.00 A.M. when she was returning to her house, the villagers told her that the accused had murdered her daughter and Shoba with a chopper. She came running to the house. Pavithra was lying in the pool of blood. She also found Shobha lying in the pool of blood. On enquiring the neighbours, she was informed that, the accused had come at about 7.30 a.m. and had committed murder of Pavithra and Shobha.
On the basis of the complaint, FIR was lodged against the accused. He was arrested on the same day. Investigation was taken up. Charge sheet was filed for the offences punishable under Sections 302 and 499 of IPC. Accused pleaded not guilty and claimed to be tried.
In order to prove its case, the prosecution examined 42 witnesses and marked 51 exhibits along with 18 material objects. By the impugned judgment dated 7.8.2014, the accused was convicted and sentenced. Hence, this appeal by the accused.
3. Sri.A.H.Bhagavan, learned counsel for the accused/appellant contends that PWs 1 to 33 have turned hostile i.e. to say that includes the complainant-PW1. The recovery of the chopper – MO14, which is alleged to have been used in the commission of offence, is doubtful. The motive has not been established. Even though medical evidence corroborates the injuries caused, the same is not sufficient to convict the accused. That the trial Court committed a blunder in relying upon the evidence of witnesses who have turned hostile to convict the accused. Hence, he pleads the appeal be allowed.
4. The same is disputed by the Additional State Public Prosecutor. He contends that the recovery of MO14- chopper has established the motive of the accused to commit murder and that the same has been proved.
5. Accused suspected the fidelity of his wife and so also he was of the view that Pavithra was instrumental in the same. Therefore, he had motive against both Pavithra and Shobha. Panchayath convened on the previous day would establish the said fact. The Medical evidence indicates that the injuries caused are by the weapon which is seized as MO14-chopper that the accused has committed the offence in a most brutal manner. The deceased Shobha has been inflicted with 32 injuries and the deceased Pavithra has been inflicted with 18 injuries. Therefore, the trial Court has rightly convicted the accused. Hence, he submits that the judgment of conviction passed by the court below need not be interfered.
6. Heard learned counsels and examined the records.
7. PWs 1 to 33 have turned hostile. These are witnesses, who in the normal circumstances, should have supported the case of the prosecution. PW1 is the complainant. PWs 2 to 4 and 8 to 10 are the inquest panch witnesses. PWs 5, 27 to 32 are hearsay witnesses who cannot be believed as they reached the spot after the incident. PW6 who is the sister of Pavithra and PW7 is the aunt of Pavithra, PW11 is the father of Shobha, PW12 is the mother of Shobha, PWs 13, 18 to 21 are panchayathdars who conducted panchayath in the house of PW18. PW19 is wife of PW18 and PW20 is the son of PW18. PWs 14 and 15 are the seizure panchas of the clothes of dead body of Pavithra and Shobha. PWs 16 and 17 are the seizure panch witnesses of the chopper-MO14 as well as blood stained clothes worn by the accused. PWs 20 to 24 are the eye witnesses to the incident. PWs 25 and 26 are parents of the accused. PW33 viz. the conductor of the bus, is the person who is said to have had illicit relationship with Shobha.
8. All these witnesses are witnesses who are interested in the life of both the deceased. The parents of both the deceased, their relatives have turned hostile. Even the complainant has turned hostile. Therefore, the prosecution has nothing to rely upon in order to bring home the guilt of the accused.
9. Further, the prosecution has relied on the evidence of PW-39, Police constable and PW-40 who is Police Sub Inspector, PW-41 who is the Circle Inspector and PW-42 who is the FSL expert. They are all official witnesses. The position in law is that the conviction would lie even on the basis of the sole testimony of witness to such an extent that there is no room to doubt that it is the accused alone who has committed the offence. In the instant case, we are not convinced to accept the same.
10. PWs 39, 40, 41 and 42 speak of the manner in which they have done their respective job. However, there is no proof to hold that recovery could be accepted.
Recovery is made from the person of the accused by PW41. The recovery was made one hour after the arrest of the accused. The recovery since being made from the person of the accused, should necessarily be made when the accused was arrested. Apparently, there is a serious flaw in the case of the prosecution. Recovery therefore, cannot be said to be proved.
11. So far as the motive is concerned, it is remote to the case of the prosecution. There is no material to indicate that the motive has been proved. Reliance placed by the prosecution that panchayath has been convened on the previous date of the incident is not supported by any evidence. Therefore, it would appear that the motive has not been established.
12. So far as the number of injuries are concerned, the same is narrated in the post mortem report in terms of Exhibits P36 and P37. No doubt there has been a brutal attack on both the deceased, however, the evidence does not indicate that the assault, as such, was committed by the deceased. It was for the prosecution to prove this aspect. Further, it is to be noted that in this case that are no eye witnesses. But the entire case of the prosecution is based on circumstantial evidence.
13. Therefore, every loophole in the case of the prosecution requires to be properly linked by the prosecution. They have apparently failed to do so. There are a number of gapping holes in the case of the prosecution which benefit should necessarily go to the accused. The recoveries, motive and the medical evidence being doubtful, we are of the view that there is perversity in the appreciation of evidence. Reliance placed by the prosecution on the official witnesses i.e. the Police Sub- Inspector and Circle Inspector as well as the FSL Expert as PWs 40, 41 and 42 is totally misplaced.
14. Hence, we have no hesitation to hold that based on the circumstantial evidence and the prosecution case, the conviction cannot lie. On the contrary, based on the available evidence and material, it could only be said that it is a case of a grave doubt against the accused and nothing more than that. Mere suspicion cannot lead to conviction. Hence, we are of the view that there is a perversity in the appreciation of evidence by the trial Judge.
15. For the aforesaid reasons, we pass the following:
ORDER Criminal Appeal No.843 of 2014 is allowed.
The judgment of conviction and the order of sentence dated 07.08.2014 passed in S.C.No.5024 of 2013 by the III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna for the offence punishable under Sections 302 and 449 of Indian Penal Code, is set aside.
The appellant-accused, namely, Sri Ramesh S/o.Ningegowda, is acquitted of all the charges leveled against him. He shall be released from custody, forthwith, if not required in any other case/s.
Registry to communicate the operative portion of this order to the Jail authorities at Mysuru, forthwith.
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