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2012 DIGILAW 795 (KAR)

Hoovappa v. State of Karnataka

2012-09-21

K.N.KESHAVANARAYANA

body2012
JUDGMENT K.N. KESHAVANARAYANA, J.—This appeal by the convicted accused is directed against the judgment of conviction and order of sentence dated 11.08.2005 passed by the Presiding Officer, Fast Track Court-I, Chickmagalur, in S.C. No. 52 of 2004 convicting him for offence punishable under Part-II of Section 304 of I.P.C. and sentencing him to undergo Rigorous Imprisonment for three years and to pay fine of Rs. 4,000/-. 2. The case of the prosecution in brief was that, at about 6.15pm on 26.03.2004 the accused and deceased Sanjeeva Poojari visited arrack shop of CW.13, husband of PW.8-Rama, consumed arrack and also purchased 3 to 4 packets of arrack; both them together left the arrack shop towards the garden land of PW.1-Thirtharaj K.S., and his brother: PW.7-Ravindra K.S., situated at Tanodi Village; that on the way at about 6.45 p.m., when the deceased insisted the accused to drink arrack, the accused refused saying that he has already consumed enough liquor; that nevertheless, the deceased insisted the accused to drink, tried to pour arrack into the mouth of the accused and also assaulted the accused on his head; that because of this, the accused became angry and being annoyed, picked-up a fire-wood piece lying nearby and hit the deceased on the head and other parts of the body, as a result of which, the deceased fell down; that thereafter, getting confused, the accused took the deceased near the water tank situated in Survey No. 108 belonging to PWs.1 & 7 to give the deceased water; that however, at that place, he realized that the deceased has died, therefore, he threw the dead body into the tank and went away from the place; that in the evening of 28.03.2004, when PW.1 visited his land, he noticed the dead body of the deceased-Sanjeeva Poojari floating in the tank water in the land; that immediately, he made a report to the jurisdictional police as per Ex.P1, based on which the police registered the case in Crime No. 19 of 2004 for the offence punishable under Section 302 of I.P.C. against unknown persons and took-up investigation. 3. During investigation, the dead body was taken-out of the tank water, inquest was held over the dead body and later subjected to post-mortem examination. PW.9-Dr. 3. During investigation, the dead body was taken-out of the tank water, inquest was held over the dead body and later subjected to post-mortem examination. PW.9-Dr. H.P. Lakshmi Narayana, who conducted post-mortem examination on the dead body and submitted the report as per Ex.P9, opined that the death was due to injury to vital organs like brain and spinal card. 4. During investigation, the statements of the witnesses recorded revealed that the accused and the deceased were working together under PWs.1 & 7 and on the relevant date, both of them had visited the arrack shop and left together. Thus, the deceased was last seen alive in the company of the accused. On that basis the accused was apprehended and interrogated. During interrogation, the accused said to have disclosed his complicity in the commission of the offence, therefore, he was arraigned as accused. The blood-stained shirt found on the person of the accused and the club said to have been used for the commission of the offence were seized at the instance of the accused. During investigation, from the scene of occurrence blood-stained mud was also recovered and thereafter, the seized articles were subjected to FSL examination. However, though the forensic report indicated the presence of some blood-stains on the shirt seized from the person of the accused, the club said to have been seized at his instance did not contain any blood-stains. The serology report-Ex.P.15 indicated that the origin of blood-stains found on the shirt seized from the person of the accused could not be ascertained. On completion of investigation, charge sheet came to be filed against the accused for the offence punishable under Section 302 of I.P.C. 5. On committal of the case, the learned Sessions Judge after hearing the learned counsel appearing on both sides and on perusal of the evidence produced along with the charge-sheet, did not find any prima facie material for framing charge for the offence punishable under Section 302 of I.P.C. On the other hand, according to the learned Sessions Judge, the materials on record are sufficient to frame charge only for the offence punishable under Section 304 Part II of I.P.C. Therefore, the learned Sessions Judge framed charge for the said offence. The accused pleaded not guilty for the same and claimed to be tried. 6. The accused pleaded not guilty for the same and claimed to be tried. 6. The prosecution in support of the said charge examined PWs.1 to 12 and relied on documentary evidence-Exs.P.1 to 16 and MOs. 1 to 6. The accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He did not choose to lead any defence evidence. His defence was one of total denial and that of false implication. 7. The learned Sessions Judge on hearing the learned counsel appearing on both sides and on assessment of oral as well as documentary evidence, by the judgment under appeal held that the evidence on record beyond reasonable doubt established that the death of the deceased was homicidal and that the deceased was last seen alive in the company of the accused, therefore, in the absence of any explanation from the accused, the accused was responsible for the homicidal death of the deceased. In that view of the matter, the learned Sessions Judge held the appellant guilty of the charge levelled against him and accordingly, convicted him for the said charge. Aggrieved by the said judgment, the accused is in appeal before this Court. 8. I have heard Sri. H.P. Leeladhar, learned counsel appearing for the appellant and Sri. K. Rajesh Rai, Learned HCGP appearing for the Respondent-State. Perused the records secured from the trial Court. 9. As noticed supra, the case of the prosecution rests on circumstantial evidence. Apart from the fact that the death of the deceased was homicidal, the only other circumstances relied upon by the prosecution were that the deceased was last seen alive in the company of the accused and the seizure of the blood-stained shirt found on the person of the accused as also the club. The evidence of the police officer, who conducted inquest and of PW.9-Dr. H.P. Lakshminarayana, who conducted post-mortem examination, beyond reasonable doubt establishes that the death of the deceased was homicidal. The accused also appears to have not seriously disputed the said fact. The dead body of the deceased was seen floating in the tank water situated in the land of PW.1 and there were severe injuries on the head of the dead body. The doctor in his cross-examination has denied that such injuries could occur by accidental fall. The accused also appears to have not seriously disputed the said fact. The dead body of the deceased was seen floating in the tank water situated in the land of PW.1 and there were severe injuries on the head of the dead body. The doctor in his cross-examination has denied that such injuries could occur by accidental fall. Therefore, the learned Sessions Judge in my opinion is justified in holding the death of the deceased was homicidal. 10. The next question would be as to whether the accused was responsible for the homicidal death of the deceased? 11. No doubt, the evidence of PW.8-Rama indicates that on a Saturday in the month of March, 2004 at about 6.00 or 6.30pm, both the accused and deceased came to the arrack shop run by her husband, each of them consumed a packet of arrack also bought two or three packets and left the shop together. According to the evidence of PW.6-Shyam, on 26.03.2004 at about 4.30 p.m. he had seen both the accused and the deceased going together towards arrack shop and both of them returning together at about 6.00pm., and proceeding towards the garden land of Appaiah-the younger brother of PW.1. According to him, later he saw both of them near the gate of the garden land of Appaiah and at about 7.15pm, he saw the accused alone returning and at that time he had noticed the blood-stains on the shirt of the accused. 12. As noticed supra, the specific case of the prosecution was that, on the way from arrack shop, the deceased tried to pour some more arrack into the mouth of the accused and also assaulted on the head of the accused, therefore, enraged by this act of the deceased, the accused assaulted the deceased. This incident according to the prosecution, occurred on the way from the arrack shop and after assault, according to the prosecution, the accused carried the deceased to the tank to give him some water. If that was so, PW.6 could not have seen both the deceased and accused going together towards the land of Appaiah. It is not the say of PW.6 that he saw the accused carrying the deceased and the deceased having sustained bleeding injury on the head. 13. According to PW.9-Dr. L.P. Lakshminarayana, he did not notice any alcoholic contents in the stomach of the dead body. It is not the say of PW.6 that he saw the accused carrying the deceased and the deceased having sustained bleeding injury on the head. 13. According to PW.9-Dr. L.P. Lakshminarayana, he did not notice any alcoholic contents in the stomach of the dead body. According to the case of the prosecution, the deceased breathed his lost immediately after the assault on the head and when the deceased was taken near the tank, the accused realized that the deceased has died and therefore, he threw the dead body into the tank. If this case of the prosecution is considered, the incident ought to have occurred within about 15 to 20 minutes, at the best within about 30 minutes of both of them consuming arrack at the shop. Absence of any alcoholic contents in the stomach would raise great amount of doubt about both of them going to the arrack shop and consuming arrack. 14. The evidence of PW.6 that he saw both the accused and the deceased together going towards the land of Appaiah is contrary to the case sought to be projected by the prosecution. In addition to this, PW.6 appears to have not disclosed these facts to any one for a considerable length of time. This conduct on the part of PW.6 also raises great amount of doubt about his having seen both the accused and deceased together. May be that the evidence led by the prosecution on record castes some amount of suspicion that the accused might have caused the death of the deceased. However, there is certainly great difference between ‘may be’ and ‘must be’. ‘Suspicion howsoever strong, would not take the place of proof’ is the well-recognized principal. Therefore, merely on the basis of the evidence of PW.6, it cannot be held that the deceased was last seen alive in the company of the accused and on that basis to hold the appellant guilty of offence charged. Thus, the important circumstance relied upon by the prosecution to connect the appellant to the homicidal death of the deceased is not satisfactorily established by the prosecution. 15. Thus, the important circumstance relied upon by the prosecution to connect the appellant to the homicidal death of the deceased is not satisfactorily established by the prosecution. 15. There is yet another important factor which is required to be considered is, though according to the prosecution, the shirt worn by the accused, when he was apprehended at about 9.30 am on 29.03.2004, was found stained with blood, therefore, it was seized under a mahazar and later at the instance of accused, the club said to have been used for the assault was also seized and both these articles were sent to forensic examination along with the blood-stained mud collected from the scene of occurrence, the forensic report as well as serology report marked as Exs.P.15 and 16 are of no help to the prosecution in incriminating the accused to the crime alleged. According to the contents of Ex.P16-Chemical Analysis Report, though there were some stains found on the shirt seized from the person of the accused, the club seized did not contained any stains. According to the serology report-Ex.P15, though the mud as well as dried plant leaves and the tree bark seized from the scene of occurrence were stained with human blood, the stains found on the shirt of the accused since were disintegrated, their origin could not be ascertained. Thus, it is not conclusively proved that the stains found on the shirt worn by the accused was that of human blood and human blood corresponds to the blood group found in the blood-stained mud recovered from scene of occurrence. Therefore, the prosecution, in my opinion, has utterly failed to establish the complicity of the accused for the homicidal death in the deceased. In this view of the matter, the findings recorded by the learned Sessions Judge is highly perverse and illegal. The learned Sessions Judge has merely proceeded to hold the appellant guilty on the basis of the evidence of PW.6 about the deceased having been last seen alive in the company of the accused. Having regard to the apparent infirmities in the evidence of PW.6, no reliance could be placed on his evidence. In this view of the matter, the judgment under appeal convicting the appellant/accused for the aforesaid offence cannot be sustained.16) In the result, the appeal is allowed. Having regard to the apparent infirmities in the evidence of PW.6, no reliance could be placed on his evidence. In this view of the matter, the judgment under appeal convicting the appellant/accused for the aforesaid offence cannot be sustained.16) In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 11.05.2005 passed by the Presiding Officer, Fast Track Court-I, Chikmagalur, in S.C. No. 52/2004 convicting the appellant/accused for the offence punishable under Section. 304 Part II of I.P.C. is hereby set aside. The appellant/accused is acquitted of the said charge. 16. The bail and surety bonds executed by the appellant/accused are ordered to be cancelled. 17. Fine amount if any deposited by the appellant/accused is ordered to be refunded to him.