IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N.PHANEENDRA AND THE HON’BLE MR.JUSTICE B.A.PATIL CRL.A.No.504/2015 BETWEEN:
Manjunatha, S/o Hanumantharayappa, Aged about 25 years, R/at Borappanahalli, Koratagere Taluk, Tumkur District – 572 138. … APPELLANT (By Sri M.Shashidhara, Adv.) AND:
State of Karnataka, By Koratagere P.S., Represented by SPP, High Court Building, Bangalore – 560 001. … RESPONDENT (By Sri Vijayakumar Majage, Addl. SPP) This criminal appeal is filed under Section 374(2) of Cr.PC praying to set aside the order dated 26.02.2013 passed by the Presiding Officer, FTC-V, Madhugiri, in S.C.No.89/2012 convicting the appellant/accused No.2 for the offences punishable under Sections 302 & 201 of IPC.
This appeal coming on for Final Hearing, this day, K.N.Phaneendra J., delivered the following:
JUDGMENT 1. The appellant who was arrayed as accused No.2 in S.C.No.89/2012 who was convicted vide judgment dated 26.02.2013 by Fast Track Court-V at Madhugiri, is before us by way of this appeal. The Trial Court has convicted the appellant for the offence under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence of 2 years rigorous imprisonment. The appellant was also sentenced for the offence under Section 201 of IPC for a period of 7 years and to pay a fine of Rs.5,000/- with default sentence. Earlier, two accused persons were arrayed before the Trial Court. The mother of the appellant was also arrayed as accused. She was acquitted for the above said charges.
2. We have heard the learned Counsel for the appellant and the learned Additional SPP for the State and we have carefully perused the entire materials on record.
3. The brief factual matrix of the case are, that PW-2 – Smt. Geetha, wife of PW-1 – Hanumantharaju were all residing at Thovinakere village along with their son by name Manoj Kumar and another child by name Chandana. On 31.10.2011, they found their son missing from the said village. The complainant – Smt. Geetha was doing groundnut business in her village and her husband PW-1 was a driver of a bus. Everyday they used to go out from the house at 5’O clock in the morning leaving their children near the shop of a person by name Jayanna. It is their case that as usual, on 31.10.2011 also, they left Manoj Kumar and Chandana near the house of one Jayanna and they went to their regular work. PW-2 came back at 8.45 p.m. and found that their son Manoj Kumar was missing and their daughter Chandana alone was there. They searched for Manoj Kumar in their relatives and friends house and they could not trace him. Therefore, PW-2 has lodged a missing complaint and the same was registered in Crime No.284/2011 and the police have taken up the investigation.
4. Subsequently, on 02.11.2011, the dead body of the child Manoj Kumar was found near Ghatti Thimmanahalli by one Siddalingappa and the said body was identified by PWs-1 & 2 as that of Manoj Kumar. Thereafter, they suspected the hands of the accused persons and they lodged the complaint against all the members of the family of the accused. The police have investigated the case and found that accused persons are the culprits and hence they laid charge sheet in C.C.No.85/2012. After committal of the case, a sessions case was registered in S.C.No.89/2012. Accused were also arrested on 15.11.2011. After framing charges against them, the Sessions Court has tried them and found sufficient evidence against accused No.2, as such convicted for the aforesaid offences and sentenced as noted supra. However, accused No.1 was acquitted for the charges leveled against her.
5. The prosecution has examined as many as 13 witnesses and got marked Exs.P-1 to P-26 and MOs-1 to 7 – material objects. On the side of defence, DWs-1 & 2 were also examined.
6. It is the case of the prosecution that accused Nos.1 & 2 had some grievance against the family of PWs-1 & 2. In this context, for the purpose of teaching a lesson to PWs-1 & 2, the accused persons have kidnapped the child and accused No.2 has caused the death of deceased Manoj Kumar by cutting his neck and in order to wash off the evidence, he has half burnt the dead body and threw the same near Ghatti Thimmanahalli.
7. The evidence recorded by the prosecution shows that PWs-1 & 2 and PW-3 – Ranganatha are the father, mother and grandfather, respectively, of the deceased. They have spoken to about the missing of the child and also the dispute between the accused and the family members of PWs-1 & 2. PWs-4 & 5 are inquest witnesses. PWs-6 & 8 are the witnesses who have last seen the accused and the deceased together. PW-7 – Hanumantharaya is the mahazar witness to Ex.P-12, wherein the accused has shown the spot and also the place where MOs-5 & 6 were hidden in his house. PW-9 – Jagadish has seen the accused alone on the next day i.e., on 01.11.2011. PW-10 registered the case on the basis of Ex.P-9 – missing complaint and dispatched the FIR to the Court as per Ex.P-13. PW-11 is the photographer who exposed the photographs of the dead body and Exs.P-1 to P-5 are the photographs. PW-12 – Dr. Anil is the doctor who has conducted postmortem examination and he has specifically stated that there was cut injury on the neck of the dead body and that the said injury could have also been caused with the help of a knife. PW-13 is the investigating officer.
8. As could be seen from the entire evidence, the motive factor has been disclosed by PW-3. It is stated by him that prior to the incident, the accused and the family members of PW-3 were close to each other. Accused No.1 was not happy with them. She was not given saree during the festival and accused Nos.1 & 2 were actually residing in the house of PW-3 for sometime and thereafter they stated living separately. In this context also, the accused persons and the family members of PW-3 were not cordial with each other. He has specifically stated that prior to the incident, on one occasion, accused Nos.1 & 2 had assaulted one Kumara and also damaged the TVS vehicle of one Kumara and Kumara escaped from the clutches of accused and in this context, there was a complaint lodged by him. The accused suspected that PWs-1 & 2 had instigated the said Kumara to lodge a complaint against them. Therefore, on this motive, it is alleged that the accused have committed such an offence to teach a lesson to PWs-1 & 2 and they have kidnapped and killed the child Manoj Kumar. The said Kumara, in fact, has not been examined before the Court to establish the above said previous incident. In the course of cross-examination of this witness, motive has been denied. Even otherwise, motive would come to picture and strengthen the case of the prosecution if the prosecution is able to prove the case beyond reasonable doubt. Motive alone is not sufficient to lay conviction to the accused.
9. In the aforesaid background, learned Counsel for the appellant and the learned Addl. SPP have fairly submitted before the Court that except last seen together of the accused and the deceased, no other incriminating circumstances are available against the accused. Therefore, we would like to examine the said last seen theory, whether it is established beyond reasonable doubt or not. PWs-6 & 8 are the witnesses to the last seen theory.
10. PW-6 has stated that he knew the accused persons and as well as PWs-1 & 2. This witness has stated that he is the resident of Thovinakere village. He has stated that, after the death of Manoj Kumar, the police had visited their village for the purpose of conducting a mahazar. He has stated that, on one day in the morning about 5.30 a.m., he was proceeding to his land and he saw accused No.2 taking the child on his TVS moped. Except that, he has not stated anything before the police or before the Court. In the course of cross-examination, he never identified and stated that he knew the child and he had seen the child at any point of time earlier and he is not able to give the details of the colour of the clothes worn by the child on that particular day. Peculiarly, though this witness was available on the date of mahazar that was on 03.11.2011, he has not given any statement before the police or informed anybody about the last seen of accused No.2 and deceased together. He has also not stated the date, time and place where he actually saw accused No.2 and deceased together. His statement was recorded after long lapse of 70 days. Learned Counsel for the appellant has brought to the notice of this Court the evidence of the investigating officer who has stated that he recorded the statement of this witness on 13.01.2012. There is absolutely no explanation elicited at all in the evidence of PW-6 or from the investigating officer as to whether PW-6 was not at all available for those days to record his statement. More than that, it is evident from the records that Ex.P-8 which is the spot mahazar drawn by the police which bears the signature of this witness – Javaregowda.
Therefore, if at all he knew about accused No.2 and deceased going together, he would have disclosed the same at the earliest point of time of drawing up of mahazar or atleast within the reasonable time. Therefore, in our opinion, the evidence of this witness is not credible and trustworthy for acceptance.
11. PW-8 – Purushotham has stated that he is also the same villager residing at Thovinakere and he knew PW-1 and the children of PW-1. It is stated that one day at about 7.00 a.m. in the morning, he saw accused No.2 taking the son of PW-1 in a TVS moped. On the same day, he met PW-1 and told about the said factual aspects with regard to accused taking the deceased child along with him. But very peculiarly, if at all this witness had intimated PW-1, inturn PW-1 would have stated before the police or PW-2 would have stated before the police in their statements recorded by the police with regard to the information they had secured from this witness to the effect that accused No.2 was the person who has taken the child along with him on 31.10.2011. The statement of this witness was also recorded on 10.01.2012 after long lapse of 67 days. Even in the evidence of this witness also, nothing worth has been elicited that why such delay had been caused, why he did not disclose the said fact before the police and why PWs-1 & 2 have not disclosed this aspect before the police at the earliest point of time. Therefore, it appears that after detection of the dead body, the police have padded up the case for the purpose of implicating the accused persons taking advantage of the situation that there was some rivalry between the family of the accused and as well as PWs-1 to 3.
12. Looking to the above said facts and circumstances of the case, we are of the opinion that, the said sole circumstance of last seen as projected by the prosecution has not been proved beyond reasonable doubt. There is long delay between the alleged last seen together and the death of the deceased. In the aforesaid circumstances, when the prosecution itself has not established the case beyond reasonable doubt, there is no question of accused explaining anything and the onus has not been shifted on the accused in any manner. The Trial Court has mainly concentrated holding that the prosecution has proved the circumstance of last seen together and the accused is the person who has to explain as to what happened when he took the child along with him. Therefore, in the above said circumstances, we do not find any strong reasons to sustain the judgment of conviction and sentence passed by the Trial Court. Hence, we pass the following:
ORDER i) The appeal is allowed. Consequently, the judgment of conviction and sentence dated 26.02.2013 passed by the Fast Track Court-V, Madhugiri, in S.C.No.89/2012, is hereby set aside.
ii) Accused No.2/appellant herein is hereby acquitted of the charges leveled against him under Sections 302 & 201 IPC.
iii) Accused No.2/appellant herein shall be released forthwith, if he is not required in any other case.
iv) If accused No.2/appellant herein has deposited any fine amount, the same is ordered to be refunded to him on proper acknowledgment and identification.
v) Registry is directed to intimate the concerned jail authorities for releasing of accused No.2/appellant herein, forthwith, if he is not required in any other case.
Sd/- JUDGE Sd/- JUDGE KK