Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 115 (KAR)

SHIVAKUMAR @ KUMAR v. STATE OF KARNATAKA

2013-01-30

H.S.KEMPANNA, K.L.MANJUANTH

body2013
JUDGMENT H.S. KEMPANNA, J.-This appeal by the accused is directed against the judgment and order dated 29.3.2008 passed in S.C. No. 28/2007 by the Sessions Judge and Presiding Officer, Fast Track Court, Kollegala, convicting them for the offence punishable under Section 302 read with Section 34 of IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs. 20,000/- each, in default to undergo SI for one year. 2. The brief facts of the case are: 2.1 The appellants/accused were tried on the charges for the offence punishable under Section 302 read with Section 34 of IPC. 2.2 It is alleged that on 14.8.2006 at about 11.00 p.m. at Palya Village, these accused along with A. 3 and A. 4, who expired prior to commencement of the trial, in furtherance of their common intention did commit the murder of deceased Jayaram firstly by assaulting with hands and kicking him in the liquor shop of A.1 and A.2, thereafter removed him to the pial of the house of PW.3 and from the said place, they threw him into a water pit located in front of the house of PW.3 and there A.2 poured kerosene and A1 set fire to him, on account of which, the deceased sustained burn injuries and succumbed to the same and thereby, they have committed the aforementioned offence. 2.3 It is the case of the prosecution, A.1 is the son of A. 2. They are running a liquor shop situated at Palya village in Kollegala Taluk. A3 and A4 are also resident of the same village and are customers of A. 1 and A.2. 3. It is further the case of the prosecution, the deceased Jayaram hails from Palya village and he was working as a coolie in APMC Yard at Bangalore. He was addicted to drinks. PW.5 is his wife. He was visiting his native place frequently and whenever, he was visiting his place, he used to visit liquor shop of A. 1 and A.2. He was buying liquor on loan basis. 4. It is further the case of the prosecution, on 14.8.2006 the deceased returned to his village Palya from Bangalore at about 8.30 p.m. He walked into the shop of A.1 and A. 2. There he had two packets of liquor. He was buying liquor on loan basis. 4. It is further the case of the prosecution, on 14.8.2006 the deceased returned to his village Palya from Bangalore at about 8.30 p.m. He walked into the shop of A.1 and A. 2. There he had two packets of liquor. At that time a wordy-dual took place between A.1, A.2 and deceased in respect of the amount that was due by the deceased towards liquor, which he had purchased earlier. Despite the same, A.1 and A.2 provided him the liquor. He consumed the same. Since he was over drunk, he vomited in the shop of A.1 and A.2. Seeing the same, A.1 and A.2 accosted him saying that who would clean the same and at that point of time, they also assaulted him with hands. This was around 10 p.m. or 10.30 p.m. By that time A.3 and A.4, who are regular customers of A.1 and A.2, also walked into the shop of A.1 and A. 2. Seeing what had transpired in the shop, they also assaulted and kicked the deceased saying that he is in the habit of creating nuisance, on account of which, he fell down. Thereafter, all the four, i.e., A1 to A4 removed the deceased to the pial of the house of PW.3 located very close to the shop of A.1 and A.2. In the meantime, it is the prosecution case, PW.9, who was near the shop of A.1 and A.2, witnessed this occurrence, which had transpired in the shop of A.1 and A. 2 and also removing the body to the pial of the house of PW.3. After the body was shifted to pial, the accused apprehending that if he is let-alive it may go against them, threw the body into the water pit located in front of the house of PW.3. Thereafter, A.2 poured kerosene on the deceased and A.1 set-fire. On account of the same, deceased Jayaram sustained burn injuries and succumbed to the same. PW.9, who witnessed the same went and informed the occurrence to PW.2, who is maternal uncle of the deceased Jayaram. Thereafter, both PWs.2 and 9 came to the spot where the deceased had been set fire. They noticed the deceased having been burnt to death. 5. PW.9, who witnessed the same went and informed the occurrence to PW.2, who is maternal uncle of the deceased Jayaram. Thereafter, both PWs.2 and 9 came to the spot where the deceased had been set fire. They noticed the deceased having been burnt to death. 5. It is further the case of the prosecution thereafter PW.2 in turn requested PW.9 to inform PW.1 of the occurrence, who obliged to the same and informed to PW.1 accordingly. Thereafter, PW.1 accompanied by PW.9 came to the spot and saw the deceased having been burnt to death. 6. Thereafter, it is the case of the prosecution, on 15.8.2006 PW.1 proceeded to Kollegala Rural Police station at about 12.30 p.m. and there he filed his complaint as per Ex.P.1 before PW.8 Police Sub-Inspector. On receipt of Ex.P.1, PW8 registered case in Crime No. 158/2006 for the offence punishable under Section 302 read with Section 34 of IPC against the accused and issued FIR as per Ex. P. 7 to the Jurisdictional Magistrate. Thereafter, he handed over further investigation of the case to PW. 10-Investigating Officer. PW. 10 on taking over the investigation came to the spot of the occurrence situated at Palya village. At the said place, first he drew up scene of the offence panchanama as per Ex.P.2 in the presence of panch PW.3 and another. Thereafter PW10 held inquest over the body of the deceased and drew the panchanama as per Ex.P3 in the presence of the very pancha PW3 and at the time of inquest he also recorded the statement of the blood relatives of the deceased including PW5 wife of the deceased. After completing Ex.P3, he forwarded the body for subjecting to PM examination by issuing requisition. In pursuance of the same, PW6 Medical Officer conducted Autopsy over the body of the deceased Jayaram on the very day and issued PM report as per Ex.P5. After completion of the PM, officials who had been deputed to take the body for PM examination produced before him the clothes of the deceased-M.Os. 1 to 3 and he seized the same under the panchanama Ex.P10. Thereafter, he recorded the statement of PW2, PW3, PW9 and other witnesses examined in the case and also cited in the charge sheet. He also deputed his staff to apprehend the accused. 1 to 3 and he seized the same under the panchanama Ex.P10. Thereafter, he recorded the statement of PW2, PW3, PW9 and other witnesses examined in the case and also cited in the charge sheet. He also deputed his staff to apprehend the accused. On 17.8.2006 he arrested A1, A2 and A3 on being produced by his staff who had been deputed for the said purpose. He interrogated them and recorded the voluntary statements of A1 and A2 as per Ex.P12 and P13. Thereafter in pursuance of the voluntary statement of A1 as per Ex.P12, he recovered MOs. 5 to 7 under the panchanama Ex.P9 in the presence of the pancha PW9 and another. After completing Ex.P9 at the instance of Accused No. 2, he recovered MO4 under the panchanama Ex.P8 in the presence of the very same pancha. Thereafter on completion of the arrest formalities of A1 to A3, he got them remanded to judicial custody. Continuing the investigation he also forwarded all the seized articles in the case for subjecting them to chemical examination to FSL office. He also got Ex.P6 prepared from PW7 by issuing necessary requisition to the concerned authorities. Thereafter he also made efforts to trace the absconding 4th accused, but he was not traced. Thereafter he secured all the relevant documents like, PM report, sketch, FSL report from the concerned authorities and as A4 could not be traced, he submitted the final report against the accused before the Jurisdictional Magistrate showing A4 as absconding. Thereafter efforts were made to secure the presence of A4. As he could not be secured, the case as against A4 came to be spilt up and separate case in C.C. No. 106/07 was registered against A4 and the case of A1 to A3 was committed to the Court of Sessions, which in turn on receipt of the records secured the presence of A1 to A3 and posted the case for hearing before charge. When the case was pending for hearing before charge, A3 was reported to be dead on 4.11.2007, as such the case of A3 came to be abated before the commencement of the trial. Thereafter, the learned Sessions Judge proceeded to frame charge against A1 and A2 as aforesaid, to which the accused pleaded not guilty but claim to be tried. When the case was pending for hearing before charge, A3 was reported to be dead on 4.11.2007, as such the case of A3 came to be abated before the commencement of the trial. Thereafter, the learned Sessions Judge proceeded to frame charge against A1 and A2 as aforesaid, to which the accused pleaded not guilty but claim to be tried. (Note: In so far as A4 whose case had been spilt up, the records do not reveal as to what transpired after the case was spilt up as against him. Further the cause title of the Trial Court Judgment reveals that A4 has expired and as such the case against him also has to be taken as abated) 7. The prosecution in support of its case, in all examined PWs. 1 to 10 and got marked Exs.P1 to P16 and M.Os. 1 to 7. The accused during the course of examination of the prosecution witnesses got marked Ex.D1 and D2. 8. After the closure of the prosecution evidence, the accused denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses at the time of their examination under Section 313 Cr.P.C. They also submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 9. The learned Trial Judge on considering the oral and documentary evidence on record came to the conclusion that the prosecution has established the charge leveled against the appellants-accused and accordingly by the impugned Judgment and order convicted and sentenced them as aforesaid. 10. The appellants/accused being aggrieved by the Judgment and order of conviction and sentence are in appeal before this Court. 11. Sri. Venkata Reddy, Learned counsel for the appellants, assailing the impugned Judgment and order contended the evidence on record relied upon by the prosecution more particularly that of PW2 and PW9 who are alleged eye witnesses being contradictory with each other as to the time of the occurrence and further as their evidence also does not corroborate with each other as to the actual occurrence, no reliance can be placed on their testimonies. He further contended the recitals in Ex.P1 is in conflict with the version of both PW2 and PW9 as to the time of occurrence and further their evidence also does not go to show that they have actually witnessed the occurrence. He further contended the recitals in Ex.P1 is in conflict with the version of both PW2 and PW9 as to the time of occurrence and further their evidence also does not go to show that they have actually witnessed the occurrence. The learned Trial Judge without appreciating their evidence in its right perspective has come to an erroneous conclusion in holding that the prosecution has established the charge leveled against the accused. He further contended the other evidence on record which comprises of the recovery of the material objects at the instance of the accused since the direct testimony pressed into service is untrustworthy, recoveries that have been made at the instance of the accused also does not in any way further the case of the prosecution pointing towards the guilt of the accused. Therefore, he contended taking from any angle, since testimonies of PW2 and PW9, among whom PW2 is none other than the maternal uncle of the deceased is not corroborated from the testimony of PW9, the Trial Judge could not have come to the conclusion that their testimonies are trustworthy and in turn the prosecution has established the charge leveled against the accused. Therefore, he submitted that impugned Judgment and order of conviction and sentence cannot be sustained, it be set aside and the appellants-accused be acquitted of the charge leveled against them. 12. Countering the submissions made by the learned counsel for the appellants, Sri. Nawaz. Addl. SPP supporting the impugned Judgment and order contended the evidence of PW2 and PW9 is corroborated from the version narrated in Ex.P1. Their evidence is consistent and cogent as to the actual occurrence that has taken place on the night of 14.8.2006. Merely because there are some inconsistency that does not take away the root of the prosecution case. The evidence of PW2 and PW9 who have actually seen the occurrence has not been shaken in any manner in the cross-examination. Their evidence is consistent and cogent as to the actual occurrence that has taken place on the night of 14.8.2006. Merely because there are some inconsistency that does not take away the root of the prosecution case. The evidence of PW2 and PW9 who have actually seen the occurrence has not been shaken in any manner in the cross-examination. The learned Trial Judge on appreciation of their evidence has come to the right conclusion in holding that their testimony is trustworthy and further in view of the recovery that has been made coupled with the other evidence on record, has come to the right conclusion in holding that the prosecution has established the charge leveled against these accused and therefore the findings of the learned Sessions Judge, in the circumstances, does not suffer from any infirmity calling for interference in this appeal and accordingly it be dismissed. 13. In the light of the submission made, the evidence and the documents on record, the points that arises for our consideration are: (1) Whether the prosecution has established that the deceased Jayaram has died an homicidal death? (2) If so, whether the prosecution has established that the accused are responsible for the homicidal death of the deceased? (3) Whether the impugned Judgment and order of conviction and sentence passed by the Trial Court calls for any interference? 14. Re. Point No. 1: PW6 is the Medical Officer who has conducted Autopsy over the body of the deceased Jayaram on 15.8.2006. His testimony reveals that at the time of PM examination he noticed there was burn injuries all over the body to the extent of 100%. Regor-Mortis was not present and he is of the opinion that the death is due to shock and as a result of 100% burn injuries. He has issued the PM report as per Ex.P5 reflecting what he has testified before the Court. His testimony has not been seriously challenged in the cross-examination. On the other hand, the deceased having died on account of burn injuries is also not disputed either before the Trial Court or before this Court. In view of the evidence ofPW6 and the PM report Ex.P5, we are of the clear view that the deceased has died on account of burn injuries and as such the prosecution has established that the deceased Jayaram has died an homicidal death. 15. Re. In view of the evidence ofPW6 and the PM report Ex.P5, we are of the clear view that the deceased has died on account of burn injuries and as such the prosecution has established that the deceased Jayaram has died an homicidal death. 15. Re. Point No. 2: The prosecution in order to establish that the accused are responsible for the homicidal death of the deceased Jayaram, have relied upon the direct testimony of PW2 and PW9. Apart from the same they have also relied upon the testimony of PW1 who has filed the complaint Ex.P1. Further they have relied upon the recovery of MOs.4 and 5 to 7 at the instance of A2 and A1 respectively. It is the case of the prosecution as stated earlier on 14.8.2006 at about 8.30 p.m. the deceased Jayaram came to the Arrack shop of A1 and A2, he bought Arrack and drank the same in their shop. An exchange of words took place between A1, A2 and the deceased in respect of amount that was due by the deceased towards the arrack that he had purchased earlier and also on that very day. According to the prosecution, the deceased consumed Arrack in the shop of A1, A2 and on account of heavy boozing he lost his control and vomited in the shop. This was around 10.30 p.m. or 11.00 p.m. On seeing the deceased vomiting in the shop, A1 and A2 accosted him saying as to who is going to clean the same and at that point of time, being enraged by the conduct of the deceased, A1 and A2 assaulted him with hands. In the meantime, A3 and A4, who are the regular customers of A1 and A2, walked into the shop of A1, A2 and they also on seeing what had transpired abused the deceased assaulted him with hands and kicked him with legs due to which he fell down. Thereafter all the four, A1 to A4 removed the deceased to the pial of the house of PW3 which is situated very close to the shop of A1 and A2. This according to the prosecution was witnessed by PW9 at the first instance. Thereafter all the four, A1 to A4 removed the deceased to the pial of the house of PW3 which is situated very close to the shop of A1 and A2. This according to the prosecution was witnessed by PW9 at the first instance. Thereafter, according to the prosecution accused apprehending that if he is let alive, it may go against them threw him into the water pit situated in the front of the house of PW3, A2 poured kerosene and A1 set fire due to which he sustained burn injuries and succumbed to the same. This was also witnessed by PW9. PW9 in his evidence claims that on that day, he saw the occurrence and he reported the same immediately to PW2 who came along with him to the scene of occurrence and saw the deceased having burnt to death. Thereafter, according to PW2, he directed PW9 to inform the same to PW1 who obliged the same and brought PW1 to the spot. PW1 on coming to the spot noticed the deceased having been burnt to death. Though PW9 claims that he saw the occurrence, he has been treated partly hostile by the prosecution. In his examination-in-chief at the first instance, he claims that the occurrence took place at about 10.00 a.m. on 14.8.2006. In his cross-examination after treating him hostile, he narrates occurrence as per the prosecution version. That goes to show that the occurrence has taken place at 11.00 p.m. on 14.8.2006. His evidence does not reveal that PW2 directed him to go and report the occurrence to PW 1 and accordingly he went and reported the same to PW1. Ex.P1 does not reveal that it was PW9 who came and informed PW1 of the occurrence. PW9 himself does not claim that he went and informed PW1. It is only the say of PW2. Apart from this, PW2 claims in his evidence that the occurrence took place at 4.00 a.m. on 15.8.2006, at which time, PW9 was no where in picture as claimed by him. Both PW2 and PW9 have given different versions with regard to the date and time of occurrence. According to PW9 in his examination-in-chief he has stated that it was at 10.00 a.m. on 14.8.2006. In his cross-examination by learned Public Prosecutor, he has stated that it is at 11.00 pm on 14.8.2006. Both PW2 and PW9 have given different versions with regard to the date and time of occurrence. According to PW9 in his examination-in-chief he has stated that it was at 10.00 a.m. on 14.8.2006. In his cross-examination by learned Public Prosecutor, he has stated that it is at 11.00 pm on 14.8.2006. According to PW2, the occurrence took place at about 4.00 a.m. on the morning of 15.8.2006. The version in Ex.P1 which has been filed by PW1 on being claimed to be informed by PW9 is at 11.00 p.m. on 14.8.2006. As already pointed out PW9 does not claim on being directed by PW2 he went and reported the matter to PW1, who in turn has filed the complaint Ex.P1. In view of the inconsistent version of both PW9 and PW2, it is difficult to place any reliance on their testimony because both of them have admitted in their evidence that the occurrence took place at different time and on different dates. As already pointed out, according to PW9 it is at 10.00 a.m. on 14.8.2006, in the cross-examination it is 11.00 p.m. Whereas the evidence of PW2 is contrary to the same saying that it is at 4.00 a.m. on 15.8.2006. If we accept the testimony of PW9 that the occurrence took place at 11.00 p.m. on 14.8.2006 as projected by the prosecution, we cannot believe the same because in examination-in-chief he has stated it is at 10.00 a.m. on 14.8.2006 and he does not claim that on the direction of PW2 he went and informed PW1 of the occurrence on that night. Even otherwise, if the occurrence has taken place at 11.00 p.m. the question of he informing PW2 does not arise as projected by the prosecution because PW2 does not claim the occurrence took place at 11.00 p.m. The evidence of PW2 as already discussed reveals the occurrence took place at about 4.00 a.m. on 15.8.2006 which is not the case of the prosecution at all. Since the evidence of these two direct witnesses is in conflict with each other and does not corroborate as to the date and time of occurrence and further as the evidence on record does not reveal that PW1 was not informed by PW9 of the occurrence, it is difficult to place any reliance on the testimony of these two witnesses, namely PW2 and PW9 as to the actual occurrence. Nextly, PW6 the Medical Officer does not say in his evidence as to the time of death prior to conducting his PM examination. He has stated in the cross-examination since rigor-mortis was not present time of death prior to PM examination cannot be given. If that is so, it is difficult to fix the time of occurrence as projected by the prosecution in view of the conflicting version of both PW2 and PW9 as regards the date and time of occurrence. Apart from this, a perusal of the material on record reveals the burning of the deceased has taken place in the middle of village amidst houses located in that Palya Village. If according to the prosecution and PW2 and PW9, had taken place in front of the house of PW3 located in the main road of the Palya, it would have been quite natural that the villagers also would have got awakened and they would have played some role in either putting off the fire and taking steps to inform the Police. Investigation is silent on this aspect. In so far as recovery of MO4 at the instance of A2 and MOs. 5 to 7 at the instance of A1, in view of we having held that the ocular testimony does not inspire any confidence, recovery also does not in any manner further the case of the prosecution pointing towards the guilt of the accused. Since the direct testimony is untrustworthy, it is needless for us to say that the recovery by itself may not be sufficient to hold the accused of guilty of the offence. The learned Trial Judge in our view without appreciating the evidence on record in its right perspective has come to an erroneous conclusion in placing reliance on the testimony of PW1, PW2, PW9, Ex.P1 and also the recovery to hold that the prosecution has established the charge, which in our view cannot be sustained and accordingly the impugned Judgment and order deserves to be set-aside. 16. In the result, we proceed to pass the following order: The appeal is allowed. The impugned Judgment and Order of conviction and sentence passed on the appellants by the Session Judge and Presiding Officer, Fast Track Court, Kollegala in S.C. No. 28/2007 dated 29.3.2008 is hereby set aside. They are acquitted of the charge leveled against them. They are in custody. The impugned Judgment and Order of conviction and sentence passed on the appellants by the Session Judge and Presiding Officer, Fast Track Court, Kollegala in S.C. No. 28/2007 dated 29.3.2008 is hereby set aside. They are acquitted of the charge leveled against them. They are in custody. They are ordered to be set at liberty forthwith, if they are not required in any other case.