IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 3RD 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.645/2013 (C) BETWEEN 1. SUNIL S/O SAGGYANAYAK AGED 21 YEARS R/O CHINHALLI THANDYA HARAPPANAHALLI TALUK DEVANAGERE DISTRICT 2. ANIL NAYAK S/O BOJA NAYAK AGED MAJOR R/AT MUDLAGIRI THANDYA HARAPPANAHALLI TALUK DAVANAGERE DISTRICT ... APPELLANTS (BY SMT. BUDRANNISSA, ADV. FOR APPELLANT No.1; SRI. S. SUNIL KUMAR, ADV. FOR SRI. C. H. HANUMANTHARAYA, ADV. FOR APPELLANT No.2) AND STATE OF KARNATAKA REP. BY SAKLESHPURA RURAL POLICE, HASSAN ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT CONVICTION AND ORDER OF SENTENCE DATED 25.03.2013 PASSED BY THE P.O., F.T.C. – II, HASSAN IN S.C.NO.55/2012, CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341, 302, 201 AND 392 READ WITH 34 OF IPC AND EACH OF THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO IMPRISONMENT FOR THE AFORESAID OFFENCES, ETC..
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, B. A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT The present appeal has been filed by Accused Nos. 1 & 2 being aggrieved by the judgment of conviction and order of sentence passed by the II Additional Fast Track Court, Hassan, in SC 55/2012 dated 25.03.2013, whereunder, Appellant Nos. 1 & 2 were convicted and sentenced for life imprisonment for the offence punishable under section 302 r/w 34 of IPC.
2. We have heard the learned counsels appearing for the appellant and the learned Addl. SPP for the respondent-State.
3. The brief facts of the case as per the complaint are that,-
3.1. On 15.08.2011, PW.6 informed PW.1 that, he saw the motor bike in front of the coffee estate and thereafter PW.1 came to the garden to see the motor bike in front of the garden and along with PW.6 and others went to the spot where the motor bike was parked and they noticed that the motor bike has been damaged and they also noticed that the said motor bike was standing in the name of Arun Kumar and at a shorter distance they found one MTC mobile phone and at about 100 to 150 feet in the coffee garden they found a male body lying in Sufion position and they suspected that some unknown person has committed the murder of the said person, and immediately they informed the said fact to the Police and the Police came to the spot and thereafter a complaint was lodged as per Ex.P1. On the basis of the complaint, the Police investigated the case and filed charge sheet against the accused persons. The committal court has committed the case to the Sessions Court after following the formalities. Sessions Court took cognizance of the offence and secured the presence of the accused and after hearing them, recorded the charge and charge was read-over to the accused. The accused pleaded not guilty and they claimed to be tried and as such the trial has been fixed.
3.2 In order to prove the case of the prosecution, the prosecution got examined 26 witnesses as PWs. 1 to 26 and got marked 30 documents as per Exs. P1 to P30 and also got marked MOs. 1 to 18. Thereafter, the statement of the accused came to be recorded under Section 313 of Cr.P.C. by putting incriminating materials as against them. The accused have denied the said questionnaires and they have not led any evidence on their behalf and they have not got marked any documents.
3.3. The trial Court after hearing the learned counsels appearing on both sides and after appreciating the oral and documentary evidence produced/adduced by both sides, passed the impugned judgment and sentence convicting the appellants for the aforesaid offences with the punishment as noted above. Being aggrieved by the said impugned judgment of conviction and order of sentence, the appellants/Accused Nos. 1 & 2 are before us.
4. It is the submission of the learned counsel appearing for the appellants that, though the entire case rests on the circumstantial evidence, the prosecution has utterly failed to prove the circumstances on which it relied upon. They also further submitted that, though the prosecution has proved that, the death of the deceased is homicidal, but motive and recovery factors are not established in accordance with law. He further submits that, even though there is perfunctory investigation, the trial Court without considering the materials on record, has wrongly convicted the appellants/accused and on the said grounds, they prayed to allow the appeal and acquit the accused by setting aside the impugned judgment of conviction and order of sentence.
5. Per contra learned Addl. SPP has vehemently argued and submitted that, the prosecution has clearly established the fact that the accused persons, for gain, have committed the murder of the deceased and it has also proved the recovery of MOs. 13, 14, 15 and 16 and it has also proved that, the said SIM Cards (MOs. 14 & 15) have been recovered at the instance of the accused. He further submitted that, though the prosecution has not established the fact that the SIM Cards are standing in the name of the deceased, but in order to establish the said fact, the prosecution has got examined the father and brother of the deceased to show that the said mobile (MO.16) and SIM Cards (MOs.14 & 15) were used by the deceased. He further submitted that PW.19-Thirtha Kumar, who is the owner of the retile shop has seen the accused persons sitting on a slab constructed to drain near the place of incident and in the said circumstances, the prosecution has clearly established the fact that, it is the accused alone have been committed the alleged offences. He further submitted that, Ex.P22 (request) clearly goes to show that, on the basis of the IMEI Number, Tower Location of the alleged mobile has been collected and the mobile which is stated to have been used by the deceased has been recovered at the instance of the accused and even PW.12 has also clearly deposed before the court that, he has purchased the mobile from Accused No.1 for a sum of Rs.1,200/-. All these circumstances clearly point-out the guilt of the accused. On these grounds he prayed that, the trial Court after considering all the circumstances has rightly come to the right conclusion and has rightly convicted the accused/appellants for the aforesaid offence. The accused/appellants have not made-out any good grounds to interfere with the judgment of conviction and order of sentence. On the said grounds, he prayed to dismiss the appeal.
6. We have carefully and cautiously heard the arguments of the learned counsel for the appellants and the learned Addl. SPP and we have also gone through the judgment of conviction and order of sentence, including the original records secured by this court.
7. Before considering the case of the accused/appellants, we feel it just and necessary to mention here what are all the criterias, which have to be considered and appreciated by the courts when the entire case rests on circumstantial evidence. It is well established principles of law that, if the case rests on circumstantial evidence the prosecution has to establish that, the proved circumstance should lead to one and only conclusion towards guilt of the accused. The evidence must be complete and capable of explaining any other hypothesis than the guilt of the accused. This preposition of law has been laid by the Hon’ble Apex Court in the case of Rukia Begum Vs. State of Karnataka reported in AIR 2011 SC 1585. Keeping in view the ratio laid down by the Hon’ble Apex Court, let us consider the evidence in this case, which has been placed on record.
7.1. PW.1-S.N. Ravindra is a coffee planter at Hebbanahalli, Sakaleshpura Taluk and he states that, he received a call from PW.6-Ramesha that a motor bike is standing in front of the garden and on the basis of the information, he came to the garden and he saw the Hero Honda Splender Motor Bike and it was damaged to some extent and on searching the side box of the said bike to get the information of the bike owner, they got Xerox copies of the DL and RC book which pertains to one Arunkumar son of Basavaraju, Byrapura and also near the fence, they also saw the dead body lying in a sufian position and thereafter, he informed the police and after arrival of the police, he filed a complaint as per Ex.P1. In his examination he also reiterated the contents of the complaint-Ex.P1. He was also a witness to spot mahazar (Ex.P2) and whereunder, MOs. 1 to 8 were also recovered. Further, PW.1 is also a witness to Ex.P3 (photos). Though this witness has been cross- examined at length, nothing has been elicited so as to discard his evidence.
7.2. PW.2-Harisha is also a panch witness to Ex.P4 (Inquest Mahazar) under which MOs. 10 to 12 have been seized. He has deposed that, he knows the deceased Arunkumar since a year and the deceased was having TV and Dish Repair Shop in Byrapura. In the month of August 2011 and at about 4.00 p.m., the deceased told him that, he is going to fix a dish and went along with a boy to fix a dish box, who requested for fixing of dish.
7.3. PW.3-Lingaraju is a friend of PW.1. He accompanied PW.1 to the spot and he has also a witness to Ex.P4 (Inquest Mahazar).
7.4. PW.4-Basavaraju is the father of the deceased. He identified the belongings of the deceased and as well as the dead body and he has also deposed that he was using the mobile phone and the SIM Card. He has also disclosed with regard to SIM numbers. He is also a witness to Ex.P5 under which MOs-14, 15 & 16 were seized and signature was also obtained to Ex.P5 which is marked as Ex.P5(a). He has also identified the MOs. 13 to 15.
7.5. PW.5-S.B.Chidananda is a panch witness to the spot mahazar to Ex.P2.
7.6. PW.6- Ramesh is the worker in the coffee plantation of PW.1 and he saw the motor bike standing in front of the gate of the said coffee estate and he informed the same to PW.1 and thereafter, he accompanied PW.1 and saw the dead body and other articles lying nearby the dead body.
7.7. PW.7-Sathyamurthy, is the neighbor of PW.1 and he also accompanied PW.1 to the spot. PW.8-S.C. Kumar is a neighbourer of PW.1.
7.8. PW.9-Lokesh has accompanied the deceased to his house and he took the deceased for fixing the Dish Antena. He further deposed that after fixing the said Dish, he offered the coffee and after taking coffee he went alone on the motor bike. Even during the course of cross-examination, nothing has been elicited from this witness. He denied the suggestions put to him in the cross examination.
7.9. PW.10-B.B.Ashwath is the brother of the deceased and he also reiterated the evidence of PW.4.
7.10. PW.11-Jagadeeish Rao is the owner of the electric shop. He deposed that the deceased was the student of him and he was giving training to the deceased Arunkumar regarding fixing of T.V. Dish and he was working in part time. He went for fixing Dish Antena to Udayawara on 14.08.2011 and next day he came to know about the incident from the father of the deceased through telephone. He went to the spot and saw the dead body of the deceased.
7.11. PW.12-Motlanayaka is the person who purchased MO.16 (mobile phone) from Accused No.1 for Rs.1,200/- and he deposed that he do not know about the accused producing SIM Cards to the Police.
7.12. PW.13 is a panch witness to Ex.P9 whereunder, a recovery has been made in respect of the MOs. 14 & 15, the SIM Cards belonging to the deceased and he is also a panch witness to Ex.P10 recovery mahazar, under which a stone which was alleged to have been used to assault the deceased, has been recovered.
7.13. PW.14-Smt. Chandramma was the Tahsildar of Sakaleshpura. She issued Pahani in respect of Survey No.68, wherein the dead body was found, as per the request of the CPI of Sakaleshpura which is marked as Ex.P11.
7.14. PW.15-Dr. Ganesh is the Doctor, who conducted autopsy over the dead body of the deceased. He issued post-mortem report as per Ex.P12 and he has also given his opinion as per Ex.P13.
7.15. PW.16-Sannegowda is the Assistant Engineer, who has prepared the sketch of the spot as per Ex.P14.
7.16. PW.17-Ramaswamy M., is the writer in the coffee estate of J.T. Pinto and he produced Ex.P15 (Salary Register) where they used to work in the said coffee estate.
7.17. PW.18 –Shashikumar, is a panch witness to Ex.P5 –seizure mahazar of MO.16 (Mobile ) at the instance of Accused No.1 from PW.12 in the police station.
7.18. PW.19 –Thirtha Kumar, who states that he saw the accused persons near his shop on 14.08.2011, when the accused persons were sitting on a Katta, which is near the place of incident.
7.19. PW.20-Rajanna is the Head Constable, who received a complaint on the spot and handed over the same to PW.35.
7.20. PW.21-K. Manjaiah is the Head Constable transported the dead body to the Sakleshpura Hospita and after Post Mortem, again collected the dead body from the Government Hospital and handed over the same to the concerned family members of the deceased. He is also a witness to Ex.P6, wherein clothes of the deceased were seized as per MOs.10 to 12 and MO.18.
7.21. PW.22–Jamrud Khan,who gave information about the SIM Cards.
7.22. PW.23-Srinath is the police constable, who produced Airtel SIM Card (MO.17) and the same was seized as per Ex.P7 in the Police Station.
7.23. PW.24-Nagarajegowda is the ASI, who registered a case and issued FIR as per Ex.P17.
7.24. PW.25-M.S.Raju is the PSI, who partly investigated the case and PW.26-K.L. Ganesh is the PSI, who investigated the case and filed charge sheet against the accused persons.
8. With the above evidence, let us consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubts.
9. In order to establish the case, the prosecution has relied upon four circumstances,-
i) Homicidal death of the deceased ii) Motive for gain iii) Recovery of the mobile SIM Cards (MOs. 14 & 15) & MO.9 (Stone) at the instance of the accused and iv) Lastly, the accused were found sitting on Katta near the place of incident.
10. As could be seen from the prosecution evidence of PWs. 1, 2, 3 and the Doctor (PW.15), who conducted post mortem over the dead body of the deceased, their evidence clearly goes to show that the deceased died a homicidal death. Even the learned counsels appearing for the appellants have also not seriously disputed the death of the deceased as homicidal death. In this behalf, prosecution has proved the circumstance.
11. In so far as the second circumstance is concerned, the prosecution has relied upon the motive ie., for gain and in order to establish the said circumstance, except the evidence of PW.12-Motla Naika, no other evidence has been produced in this behalf. Though PW.12 has deposed before the court that, he has purchased MO.16 (Mobile) from Accused No.1, he has turned hostile with regard to production of the SIM Card, at the instance of the accused. Even as could be seen from Ex.P22 issued by the PSI of Sakleshpura Police Station, on the basis of the said IMEI number, the tower location has been detected on 22.08.2011 and as on that date, the SIM Card No.9663869508 was used by the said IMEI number. The said statement discloses that the said SIM Card has been used by one Sumaki Bai, the mother of Accused No.1. But, the prosecution has not established the said fact by examining the said Sumaki Bai, who has used the said mobile.
12. Be that as it may. The prosecution has utterly failed to show that the said SIM Cards are belonging to the deceased. Even if the investigation has been done, it is noticed that it has not been cross- verified by the Investigating agency, as to who was using the said SIM and mobile. Only on the basis of the IMEI number, it cannot be held that the said SIM Card has been used by the deceased. Even though the prosecution has examined the father and brother of the deceased and they have deposed that the said SIM Cards have been used by the deceased, but even though documentary evidence is available, the Investigating Agency has not collected any such documentary evidence and produced the same before the court to connect the said fact that the said SIM Card being used by the deceased. By going through the materials which have been produced before the court, it clearly goes to show that, though the recovery has been proved at the instance of the accused, but connectivity of the same with the deceased has not been established by the prosecution to show that the said SIM Cards and the mobile have been used by the deceased and the same were recovered at the instance of the accused. When once the prosecution has failed to establish that the said SIM Cards and the mobile have been belonging to the deceased. Under such circumstances, the burden will not shift upon the accused to show as to how come the said mobile and SIM Cards have been in the possession of the accused. Even the prosecution has not produced any document to show that in whose name the SIM Cards were standing. Until and unless the said fact is established by the prosecution, simply only on the basis of the suspicion on the basis of the evidence of PW.4 and PW.10, it cannot be held that the said mobile and SIM Cards have been used by the deceased. Be that as it may. Even though the prosecution has tried to rely upon the evidence of PW.19-Tilak Kumar, the owner of the retile shop, who has seen the accused persons sitting on the slab of drain near the place of incident, even on that point, only on the basis of suspicion, it cannot be held that the prosecution has proved the guilt of the accused beyond all reasonable doubt. The prosecution has not even established fact that the said witnesses have last seen accused along with the deceased. Under such circumstances, the evidence of PW.19 is also not helpful in any manner, to establish the case of the prosecution.
13. Looking from any angle, the evidence which has been produced before the court is not going to establish the circumstances, so as to bring home the guilt of the accused beyond all reasonable doubts. The trial Court though recorded the evidence, but has not kept in view the above said aspect while coming to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt.
14. We have carefully and cautiously gone through the impugned judgment of conviction and sentence passed by the trial Court. The trial Court without considering the above said aspects, has wrongly convicted the accused/appellants. Hence, the appellants/accused are entitled to the benefit of doubt. In the above said facts and circumstances, the appellants/accused have made-out a case to allow the appeal and accordingly, we pass the following order:-
ORDER The appeal is allowed. Consequently, the Judgment of Conviction and Order of Sentence dated 25.03.2013 passed by the II Fast Track and Sessions Court, Hassan, in S.C. No.55/2012, for the offences punishable under Sections 341, 302, 201 & 392 of IPC, is hereby set aside.
The 1st appellant (A1) – Sunil and the 2nd appellant (A2)-Anil Nayka are hereby acquitted of the above said offences. Therefore, they shall be set at liberty forthwith, if they are not required in any other case.
If any fine amount is already deposited by the appellants/accused (A1 and A2) in connection with this case, the same is hereby ordered to be refunded to them, on proper acknowledgement and identification.
The Registry is hereby directed to communicate this order to the concerned Jail Authorities forthwith, for release of the said appellants (A1 & A2) forthwith, if they are not required in any other case.
Sd/- JUDGE Sd/- JUDGE KGR*