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.296/2016 BETWEEN:
Suresh S/o Heriya Markala Aged about 30 years R/o Honnekumbri Mandarthi Post, Heggunje Village, Udupi Taluk-576 101.
(By Sri D.Nagaraja Reddy, Advocate) AND:
… Appellant State of Karnataka through Brahmavara Police Station, Udupi, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
…Respondent (By Sri I.S.Pramod Chandra, SPP-2) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment dated 12.03.2015 passed by the Additional District and Sessions Judge, Udupi, Kundapura, in S.C.No.54/2013 convicting the appellant/accused for the offence punishable under Section 302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this day, B.A.PATIL J. delivered the following:-
J U D G M E N T Appellant/accused has preferred this appeal assailing the judgment of conviction and order of sentence passed by Additional District and Sessions Judge, Udupi, Sitting at Kundapura in S.C.No.54/2013 dated 12.3.2015.
2. We have heard the learned counsel Sri D.Nagaraja Reddy, appearing for appellant/accused and Sri. I.S.Pramod Chandra, SPP-II for respondent- State.
3. The gist of the case of the prosecution is that the elder brother of the complainant deceased Heriya Marakala was residing with his wife Babi Marakalthi along with his three children. Accused Suresh the son of the deceased was earlier residing and working at Hubli in a hotel. He returned to his parents’ place and was not doing any work. He was insisting his parents for payment of money for his day to day expenses. The parents were working as coolie and were not able to attend the demand of the accused. In this behalf quarrel used to take place between the parents and the accused and many a times he has been advised. There was no improvement in the behaviour of the accused. On 2.5.2012, accused picked up a quarrel with his parents and even though the complainant came to know that there was a quarrel, he did not intervene under the impression that it was day to day affair between them. But on 3.5.2012 at about early morning 4.00 a.m. accused came to the house of the complainant and make him awoke and confessed before him that he has committed the murder of his parents. Immediately, himself, his brother-in-law and the neighbourers went to the place and there they saw the father of the accused and the mother of the accused were lying in a pool of blood with external injuries and on enquiry Suresh accused told that he has committed the murder of the deceased with the help of wooden cudgel. On the basis of the complaint, a case has been registered. Thereafter, after investigation the charge sheet was filed against the appellant/accused.
4. After following the procedure under Section 209 of Cr.P.C. the case was committed to the Sessions Court and it was made over to Fast Track Court, Kundapura. The said Court took the cognizance and secured the presence of the accused and after hearing the Public Prosecutor and the learned counsel for the accused charge was prepared, read over and explained to the accused. Accused pleaded not guilty and as he claims to be tried, the trial was fixed.
5. In order to prove the case of the prosecution, prosecution got examined 16 witnesses as PWs.1 to 16, got marked 22 document as per Exs.P1 to P22 and also got marked MOs.1 to 12. Thereafter, after closure of the prosecution evidence, the statement of the accused was recorded by putting incriminating material as against him, he denied the same. He has not led any evidence on his behalf. After hearing the arguments, the learned Fast Track Court Judge came to the conclusion that there is ample material to connect the accused to the alleged offence and convicted him and sentenced him to undergo imprisonment for life. Challenging the legality and correctness of the said judgment, the appellant/accused is before this Court.
6. It is the submission of the learned counsel for the appellant/accused that the prosecution has failed to prove the motive for the alleged incident and there are so many contradictions and omissions in the evidence of PW.1 to 4 and even the recovery evidence is not convincing and it has been prepared in the police station. He further submitted that the Court below erred in appreciating the evidence in its right perspective. On these grounds he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
7. Per contra, the learned SPP-II vehemently argued and contended that the entire case of the prosecution rests on circumstantial evidence. It is not in dispute that the parents of the accused died a homicidal death and the appellant/accused used to quarrel with them for demanding money and when they refused to pay, he assaulted them with wooden cudgel and even immediately after the incident, accused went to the house of PW2 and made a extra judicial confession so also before PW1. Even there is recovery evidence of MOs.2 and 3 at the instance of the accused. The prosecution has established all the circumstances and they point out towards the guilt of the accused. The trial Court after considering the said material has rightly convicted the appellant/accused. There are no good grounds to interfere with the said judgment. Hence, he prayed to dismiss the appeal.
8. We have carefully and cautiously giving our thoughtful consideration have gone through the submissions made by the learned counsel appearing for the parties and we have gone through the original records and the paper book prepared in this behalf.
9. Before going to consider the submissions, it is relevant to state in brief the evidence which has been led by the prosecution.
PW1 is the uncle of the accused. He has deposed before the Court below regarding the motive and the appellant/accused was not having any work and he used to ask money from the deceased parents and there used to be galata between them. He has further deposed before the Court below that on 3.5.2012 when he was sleeping in his house, at about 4.00 a.m. accused came and knocked the door and has told and confessed that he has committed the murder of his parents. Immediately, he went to the place and saw the parents of the accused lying in a pool of blood and also the injuries over the bodies and when police came, he filed the complaint as per Ex.P1. He is also a witness to the spot mahazar Ex.P2 and the confession has also been got marked as Ex.P7. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
PW2 is the neighbourer, he has also deposed on the line of PW1 regarding motive and demanding money for his personal expenses and also elders advising him. He has also deposed regarding extra judicial confession made before him, immediately after the incident by coming over to his house. During the course of cross-examination of this witness nothing is elicited so as to disbelieve such evidence.
PW3 is also a neighbourer, he has also spoken with regard to the galata, motive i.e. demand of money for his personal expenses and he has further deposed that he came to know through PWs.1 and 2 about the confession made by the accused. In his cross-examination also nothing has been elicited so as to discard his evidence.
PW4 is the brother of the accused, he has not supported the case of the prosecution. PW5 and PW6 are the inquest mahazar pancha to Ex.P6. PW5 is also a seizure mahazar pancha to Ex.P8, whereunder MOs.2 and 3 have been recovered at the instance of the accused.
PW7 is also a inquest mahazar pancha to Ex.P6 and also a spot mahzar pancha to Ex.P2. PWs8 and 9 are inquest mahazar panchas over the body of the mother of the accused as per Ex.P9. PW10 is the sister of the deceased, she has identified the dead body of her sister and she has been treated as hostile partly. PW11 is the uncle of the accused. He is only a hearsay evidence, he came to the place of incident after coming to know the death of the parents of the accused. PW12 is a witness regarding seizure of the wooden cudgel MO.3 and stained panche MO.2 as per Ex.P8. PW13 is the Doctor who conducted autopsy over the body of the father and mother of accused and has issued the post mortem report as per Exs.P12 and 14 respectively and also opinion as per Exs.P16 and 17. PW14 is the Head Constable who went in search of accused and apprehended the accused and produced before the Inspector by giving a report. PW15 is the PSI who received the credible information, immediately he went to the spot and after coming to know about the cognizable offence, he received the complaint from PW1 and sent through the Police Constable for getting it registered and also drawn the mahazar on the spot. PW16 is the Police Inspector who investigated the case and filed the charge sheet.
10. From the above evidence let us consider the case of the prosecution. Admittedly, the entire case rests on circumstantial evidence, there are no eyewitnesses. It is well established principles of law that when a case rests on circumstantial evidence, the prosecution has to prove the chain of events so as to point out the guilt of the accused and there should not be any break of the chain of events. In that light, if the prosecution case is perused, the prosecution is intending to rely upon four circumstances. First one is Homicidal death, II) Motive, III) Extra Judicial confession and IV) recovery of wooden cudgel and stained panche at the instance of the accused 11. Insofar as the homicidal death is concerned, the prosecution has got examined PWs.1 to 3, 5 to 9 and PW13. The above said witnesses when they went to the spot they have noticed external injuries over the body of the deceased Heriya Marakala and Babi Marakalthi. It is also corroborated with Exs.P6 and P9. Even PW13 the doctor who conducted the post mortem in his evidence he has deposed regarding the injuries found over the body of the deceased. As per Ex.P12 post mortem report, there were as many as six injuries over the body of deceased Heriya Marakala and in respect of Babi Marakalthi, she has suffered with six injuries and the Doctor has also opined that the death is due to head injury secondary to blunt force impact to the head, so also in respect of Babi Marakalthi. All these materials clearly goes to show that the deceased Heriya Marakala and Babi Marakalthi died due to the head injury suffered at the hands of the appellant/accused. This aspect has also been not seriously disputed by the learned counsel for the appellant/accused during the course of argument.
12. The next circumstances is, about motive. In this behalf, the prosecution has relied upon the evidence of PWs.1 to 3. PW1 is the uncle and PWs.2 and 3 are the neighbourers, they have categorically deposed that the accused earlier working at a Hotel in Hubli and he left the work and joined the parents and he was not working and he used to demand money for day to day expenses from his parents and there used to be a quarrel, when the parents never used to pay any amount. Even PW2 has deposed that elders have also advised the accused in this behalf. To discard this evidence, nothing is placed on record. In this behalf also the prosecution has established that the accused was having grudge against the parents for having not paid the amount as and when he demanded.
13. The next circumstance the prosecution relied upon is that of extra judicial confession said to have been made by accused before PWs.1 and 2. In this behalf if we peruse the evidence of PW2, he has deposed that immediately after the incident, accused came to his house knocked the doors and confessed that he has committed the murder of his parents. Even PW1 the uncle of the accused has also reiterated the same. Immediately, they went to the spot and noticed the death of the parents of the accused. To discard their evidence nothing has been elicited. Even it appears to be natural that immediately after the commission of the offence accused went to the house of his uncle PW1 and confessed who is the elder member of the family, so also PW2 is the neighbourer who is residing by the side of the house of accused and even he has also advised earlier when there was a quarrel. The accused himself has gone and confessed and thereafter along with these witnesses came to the spot and showed the bodies. All these circumstances clearly establish about the extra judicial confession said to have been made by the accused.
14. We are conscious of the fact that extra judicial confession is a weak limb so as to establish the circumstance, but if it is compared with other circumstances, it also points out towards the guilt of the accused. Apart from that even there is recovery evidence of the seizure of wooden cudgel MO.2 and the stained panche which was worn by the accused at the time of the alleged incident, as per Ex.P8. Even PW12 has also substantiated the said fact. The accused led and thereafter the said MOs.2 and 3 have been recovered at the instance of the appellant/accused. Even the FSL report Ex.P20 also substantiate the fact that the wooden club which has been marked as ‘M’ was stained with blood towards one end and one Panche it is also having stains of blood here and there. This evidence corroborates the evidence of PW12 and the prosecution.
15. Looking from any angle the evidence which has been produced clearly goes to show that there was a homicidal death of two persons i.e. the parents of the accused, motive, extra judicial confession and recovery of a wooden cudgel and Panche which is stained with blood at the instance of the accused. All these circumstances points out towards the guilt of the accused. Even during the course of cross- examination nothing has been made out to show that the other persons were having enmity towards the deceased and they might have caused the death. The evidence produced incompatibly does not point out the innocence of the accused. It is well settled proposition of law that, men may lie, the circumstances may not. All the circumstances together if they are looked into they point out towards the guilt of the accused and no other inference can be drawn towards the accused so as to doubt the offence. In this behalf prosecution has proved the guilt beyond all reasonable doubt.
16. We have carefully and cautiously gone through the judgment of conviction and order of sentence passed by the Court below. There is no illegality or irregularity while passing the impugned order. The same deserves to be confirmed. But however, the trial Court has not given set off under Section 428 of Cr.P.C. while passing the impugned order. We feel that if it is confirmed and the benefit under Section 428 of Cr.P.C. is given, it is going to meet the ends of justice.
For the above said reasons, the appeal is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
Sd/- JUDGE Sd/- JUDGE *AP/-