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2013 DIGILAW 731 (KAR)

RAMESH v. STATE OF KARNATAKA

2013-06-26

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed challenging the judgment dated 14.03.2012 passed by the Fast Track Court-III, Shimoga in S.C. No. 188/2011 convicting the appellant for the offence under Section 304 Part-I IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/-, in default to further undergo rigorous imprisonment for a further period of 6 months. 2. It is the case of the prosecution that on 22.04.2011 at about 2.00 p.m., the appellant has committed the murder of his brother by name Anantha Bhatta in their residential house at Hosur Village, Thirthahalli Taluk by assaulting him by means of an iron rod (called as sabbal) on his forehead and thereby, he is alleged to have committed an offence under Section 302 IPC. 3. In order to prove the case, the prosecution has examined in all 22 witnesses and got marked Exs.P1 to 29 and produced MOs.1 to 9. The defence of the accused was one of total denial. However, by the impugned judgment, the learned Sessions Judge was pleased to convict the accused for the offence under Section 304 Part I IPC and sentenced him as aforesaid. It is the aforesaid order of conviction and sentence which has been challenged by the accused in this case. 4. The Sub-Inspector of Police, Agumbe Police Station received a complaint from Smt.H.A.Nagamani on 22.04.2011. It is stated in the complaint that she is residing in Umburu Katte, Dasanagadde village alongwith her brother B.S.Subramanya. She had married about 20 years back to one Anantha Bhatta S/o Shankara Bhatta of Hosur village and they have got one female and one male child, aged 19 and 15 years respectively. Her husband and children are residing alongwith her father-in-law-Shankara Bhatta, mother-in-law-Nagaveni, brother-in-law-Ramesh and his wife Kavya. Another brother-in-law by name Nabhushan is residing with his wife separately at Guddekere. There are certain properties belonging to the joint family. She is residing with her brother since she was having uterus operation for the last 5 months. There is some dispute between her husband and his brother Ramesh in respect of landed properties and in this connection, they were advising the accused Ramesh. However, accused was quarreling with her husband always. There are certain properties belonging to the joint family. She is residing with her brother since she was having uterus operation for the last 5 months. There is some dispute between her husband and his brother Ramesh in respect of landed properties and in this connection, they were advising the accused Ramesh. However, accused was quarreling with her husband always. On 22.04.2011 at about 2.15 p.m., when she was in her brother's house, her brother-in-law Nagabhushan phoned up and informed her that Ramesh has assaulted her husband Anantha Bhatta by means of a sabbal on his forehead and Anantha Bhatta has expired. She and her brother Subramanya and daughter Smitha went to the house of her husband and observed that her husband was lying in the hall inside the house. He had sustained injuries on his forehead. Blood had fallen in the hall and her husband had died. Thereafter, she had spoken to her mother-in-law Nagaveni and latter informed her that both the deceased and Ramesh quarreled with each other in respect of the property and Ramesh assaulted deceased Anantha Bhatta on his forehead by means of a sabbal and that Anantha Bhatta had died. Hence, she has requested for taking suitable action against the aforesaid Ramesh. 5. PW-18-Sreerama Upadyaya was the Assistant Inspector of Police of Agumbe Police Station. On receipt of the information at about 2.00 p.m. on 22.04.2011 that the deceased Anantha Bhatta has been murdered by his brother Ramesh, he went to the scene of occurrence and obtained the statement of Nagamani, wife of the deceased at about 3.45 p.m. at the spot itself and thereafter, he returned to the police station and registered the complaint as Crime No. 24/2011 for offence under Section 302 IPC and transmitted FIR to the Court. Thereafter, he has handed over the papers to the CPI for investigation. 6. PW-21-Fakirappa was the CPI of Agumbe police station during the relevant time. On receipt of the file in this case, he visited the scene of occurrence in Hosur Village at about 4.50 p.m. and found that the accused was not found at the scene of occurrence. Thereafter, he has handed over the papers to the CPI for investigation. 6. PW-21-Fakirappa was the CPI of Agumbe police station during the relevant time. On receipt of the file in this case, he visited the scene of occurrence in Hosur Village at about 4.50 p.m. and found that the accused was not found at the scene of occurrence. He appointed his staff for tracing the accused and after securing the panchas, he drew the spot panchanama and observed the blood at the scene of occurrence and collected the sample of mud and unstained mud for chemical examination, thereafter, subjected the said articles to FSL. PW-21 thereafter conducted inquest proceedings on the dead body of the deceased and during the inquest proceedings; he recorded the statement of wife of the deceased and daughter of the deceased and another brother of the deceased and also the neighbouring persons. After completing the inquest panchanama, he sent the dead body to the Government Hospital, Thirthahalli with a request to conduct post mortem on the dead body. The accused was apprehended on the same day by his staff and he was produced before PW-21. PW-21 who arrested him, recorded the statement of the accused. Thereafter, he has seized the shirt worn by the accused which was found blood stained in the presence of two panchas viz., PW-8-Sri.K.T.Raveesha and PW-9-Sri. V. Vishnu Bhatta. Based on the information given by the accused, PW-21 recovered the weapons viz., iron rod called as sabbal from a place where he had hidden the said weapon. Thereafter, PW-21 subjected the seized articles to the FSL. Since the accused was found having an injury on his lips, PW-21 sent him to the Government Hospital, Thirthahalli for medical examination through his staff. On the next day, he was forwarded to the Court. The dead body of the deceased was subjected to the post mortem examination and after seizing the clothes worn by the deceased and subjecting them for FSL, the materials collected by the I.O. were sent for FSL examination. PW-21 thereafter secured P.M. examination report and also the documents relating to the house of the complainant and the accused. He has recorded further statements of certain witnesses and on receipt of the FSL report and on securing the sketch of scene of occurrence; PW-21 filed a charge sheet against the accused. PW-21 thereafter secured P.M. examination report and also the documents relating to the house of the complainant and the accused. He has recorded further statements of certain witnesses and on receipt of the FSL report and on securing the sketch of scene of occurrence; PW-21 filed a charge sheet against the accused. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate & JMFC, Thirthahalli committed the case to the Court of Sessions at Shimoga. The trial Court after receipt of the records secured the presence of the accused and thereafter, framed charge against him for the offence under Section 302 IPC for which the accused has pleaded not guilty. Whereafter the prosecution examined the complainant Nagamani before the Court. 7. In her evidence, PW-1 has stated that the accused is her brother-in-law, i.e., the brother of her husband. Her husband is Anantha Bhatta and they have got two children. Her husband has been murdered by accused on 22.4.2011 at the time when she was not in the house. She had gone to her brother's house for taking rest consequent upon an operation conducted on her. At about 2.00 p.m., her brother-in-law Nagabhushan and his relative Srinivas Hosmane were in the house of her brother. At that time, the accused telephoned to Nagabhushan stating that he had killed his brother by assaulting him and requested him to come. Thereafter herself and her brother-in-law Nagabhushan went to the place of occurrence and when she saw him in the house, her husband was found lying with bleeding injuries and had died. The eyes of her husband had come out. It is in the evidence of PW-1 that on the date of incident, her mother-in-law was only in the house. When they reached there, the neighbouring people had gathered. When she asked her mother-in-law she told that her husband and the accused fought with each other regarding the property and thereafter, they assaulted each other. Hence, PW-1 has given a complaint to the police. She has identified her complaint as Ex. P1 and her signature as Ex. P1 (a). It is in the evidence of PW-1 that thereafter police came and conducted enquiry and noted the position of the dead body and the blood stains found on the walls of the house and drawn a mahazar as per Ex.P2. PW-1 has signed the mahazar also. P1 and her signature as Ex. P1 (a). It is in the evidence of PW-1 that thereafter police came and conducted enquiry and noted the position of the dead body and the blood stains found on the walls of the house and drawn a mahazar as per Ex.P2. PW-1 has signed the mahazar also. In the cross-examination, it is elicited that her father-in-law Shankar Bhatta is alive. That her father-in-law is having three male and two female children and all properties are self-acquired properties of her father-in-law. Her father-in-law owns 3 acres of wet lands, IY2 acres of dry land and one house and one acre of vacant land. He had raised loans from the society and banks. When the question of partition of property came, it was decided that the partition would be done after the repayment of bank loans. It is suggested that during the negotiations, it was discussed that female children should also get a share in the property. However, PW-1 has stated that such a subject did not arise for discussion. It is further suggested that the accused or another brother Nagabhushan did not interfere with the management of the properties and PW-1 has admitted the said suggestions. Nagabhushan was residing separately alongwith his family. It is further admitted that about5 months prior to the death of her husband, accused Ramesh had married. It was suggested that her husband was having drinking habit for which she has admitted that he was drinking. It is suggested that the accused did not commit the murder of her husband. The said suggestion has been denied by her. It is further suggested that the deceased had fallen from the atta of the house which is about 8 to 9 feet in height and that he had sustained injuries and dead. But the same is denied by PW-1. She has admitted that at the time when her husband was murdered, though her another brother-in-law Nagabhushan and one Srinivas were in her brother's house, this fact was not informed by her in her complaint. It is further suggested that her husband the deceased Anantha Bhatta has died after being fully drunk and after falling from the staircase of the house which suggestion is also denied by PW-1. 8. PW-2 - Mahabalesha is a witness to the spot mahazar to Exs.P1 and P2. 9. It is further suggested that her husband the deceased Anantha Bhatta has died after being fully drunk and after falling from the staircase of the house which suggestion is also denied by PW-1. 8. PW-2 - Mahabalesha is a witness to the spot mahazar to Exs.P1 and P2. 9. PW-3-Nagaveni is mother-in-law of PW-1 and mother of the deceased. She has stated that her son, the accused Ramesh and her another son deceased Anantha Bhatta were in the house on the date of incident in the morning. She had gone to the temple in the morning. At about 2.00 p.m., she came to know that the deceased has been done to death by the accused after a quarrel between them. She has stated that the deceased was looking after the management of their properties. However, she has not supported the case of the prosecution against the accused, who is her own son. She has been treated hostile by the prosecution. It is suggested that since the accused is her son, she is supporting the case of the accused and deposing falsely. However, PW-3 denied the said suggestion. In the cross-examination, it is elicited that when she went out in the morning at about 9.00 a.m., both her sons, accused and the deceased were in the house. At that time, they were not quarreling. It is suggested that both of them had gone to the garden but the said suggestion has been denied by PW-3. Though, it is suggested that people were talking that the deceased had died due to falling from the atta of the house, PW-3 denied such suggestion. 10. PW-4-Smitha is the daughter of PW-1 and the deceased. She has stated that her father had died on a Good Friday. She has stated that her father died after a quarrel between her father and uncle Ramesh. She has stated that she was in the house of her mother on the date of incident. After coming to know about the death of her father, she came to the scene of occurrence. She also stated that when the accused had telephoned, she was present in the house of her uncle and her uncle informed that accused had killed Anantha Bhatta, her father. In the cross-examination, it is suggested that she is deposing falsely and she has denied the same. 11. She also stated that when the accused had telephoned, she was present in the house of her uncle and her uncle informed that accused had killed Anantha Bhatta, her father. In the cross-examination, it is suggested that she is deposing falsely and she has denied the same. 11. PW-5 Nagabhushan is none other than the younger brother of the accused and the deceased. He has stated that he came to know about the death of his brother and immediately arrived at the scene of occurrence. At that time, his mother had gone to the temple. Police has not questioned him. He has been treated hostile by the prosecution. In the cross-examination, it is elicited that he is deposing falsely in favour of his brother-accused. It is admitted by him that he is living alongwith his father, mother and also the wife of the accused in one house even after the incident. However, wife of the deceased and his children are residing in Bangalore. It is suggested that in order to save his brother, he is deposing falsely and the same has been denied by him. 12. PW-6-Surya Narayana, PW-7-Manjunatha, PW-8-K.T. Raveesha, PW-9-Vishnu Bhatta, PW-11-Annapurna, PW-12-H.P. Srinivasaiah, PW-13-Vishnumurthy, PW-14-B.S. Subramanya, PW-15-Sulochana and PW-16-Shankar Bhat have turned hostile and none of them have supported the case of the prosecution and all of them have been treated hostile by the prosecution. 13. PW-10-Manjunatha is a witness to Ex.P9. However, he is not aware as to why his signature is taken in Ex.P9. It is further elicited in his evidence that police has seized the clothes of the deceased in his presence for which they have obtained a signature. 14. PW-14-B.S. Subramanya is a villager. He is the brother-in-law of the deceased and brother of PW-1. He has stated that on the date of the incident, his sister PW-1 was in his house. Both PW-5-Nagabhushan and PW-12-H.P.Srinivasaiah had come to their house and at about 2.00 p.m. they received a message that accused has committed murder of the deceased by means of a sabbal. Thereafter, they went to the scene of occurrence and found the deceased having died. 15. PW-17-Ravikumar is the constable who has apprehended the accused on the date of incident itself. 16. PW-18-Sreerama Upaadhya is ASI who has registered the case. 17. Thereafter, they went to the scene of occurrence and found the deceased having died. 15. PW-17-Ravikumar is the constable who has apprehended the accused on the date of incident itself. 16. PW-18-Sreerama Upaadhya is ASI who has registered the case. 17. PW-19-Dr.B.C.Nishchal is the Medical Officer who has conducted post mortem examination on the dead body of the deceased and has opined that the death is due to the injuries sustained by the deceased as per Ex.P17. He has further stated that if a person is assaulted by a weapon like M.O.4 sabbal injuries as found on the dead body of the deceased could be caused. 18. PW-20-Dr.Prabhakar is the Medical Officer who has stated that on 23.04.2011 at about 12.30 midnight he has examined the accused Ramesh. He found that the accused had sustained injury on his lower lip and also on his left maxillary and he has opined that both injuries were simple in nature and that the accused is of 'A' positive blood group. 19. PW-21-Fakirappa is the CPI whose evidence has been discussed in the earlier part of the judgment. 20. PW-22 is the signatory to Ex.P9. He has turned hostile to the case of the prosecution. 21. It is from the above evidence, the learned Sessions Judge has convicted the accused for the offence under Section 304 Parit-I IPC and sentenced him as aforesaid. 22. Heard Sri. B.S. Prasad, learned Counsel for the appellant and Sri. Vijayakumar Majage, learned HCGP for State. 23. Learned counsel for the appellant submits that though there is no evidence at all from the prosecution witnesses after having all the relevant witnesses turned hostile to the prosecution case, the learned Sessions Judge has ventured to convict the accused by relying on the circumstances. He submits that all the circumstances put together would not lead to the conclusion that the accused has committed the offence of murder of the deceased and the learned Sessions Judge has erroneously convicted the accused. Hence, he submits that the accused is entitled for an order of acquittal. 24. Sri. He submits that all the circumstances put together would not lead to the conclusion that the accused has committed the offence of murder of the deceased and the learned Sessions Judge has erroneously convicted the accused. Hence, he submits that the accused is entitled for an order of acquittal. 24. Sri. Vijayakumar Majage, learned HCGP on the other hand submits that the evidence of PW-1 indicates that on the date of the incident, the accused had telephoned to PW-5-Nagabhushan when he was in the house of PW-1 stating that he has committed the murder of the deceased and hence, this forms extra-judicial confession made by the accused to PW-5. He further submits that PW-3-Nagaveni in her evidence has stated that the accused and the deceased were living in the house alongwith herself and on the date of incident, when she went to the temple in the morning, both were in the house. This evidence of PW-3 is corroborated by the evidence of PW-1 that the accused and the deceased were in the house on the date of the incident and on the same day, the murder of the deceased had taken place. He submits that PWs.8 and 9 who are attestor to the seizure mahazar have admitted to the signature on the recovery mahazar whereunder accused has pointed out the weapon of offence and when such weapon was seized, it was found to be blood stained. It is further submitted that the shirt worn by the accused which was seized was also blood stained and he has not stated as to how his shirt was stained with blood. Therefore, he submits that the circumstances proved by the prosecution conclusively proves that the appellant has caused the death of the deceased on 22.4.2011 and hence he submits that the appeal being meritless may be dismissed. 25. However, learned Counsel for the appellant submits that the weapon sabbal and the shirt of the accused though were subjected to FSL examination, the report indicates that the blood found on the said articles were inconclusive so far as the presence of the blood belonging to the deceased is concerned and therefore, the FSL report will not go against the accused so far as his involvement is concerned. 26. I have carefully gone through the evidence on record. 26. I have carefully gone through the evidence on record. So far as eye witnesses are concerned, though they have given statement before the police and all of them not supported the case of the prosecution. The evidence against the accused in so far as circumstances are concerned, is that the accused had telephoned to PW-5 Nagabhushan inculpating himself that he has committed the murder of the deceased. However, PW-5 Nagabhushan in the Court does not state that the accused had informed him that he himself has killed the deceased. Under the circumstances, the extra judicial confession said to have been made by the accused is not proved in this case. So far as the other circumstances is concerned, PW-3-Nagaveni, mother of the deceased was not present when the incident happened. Her only case is that when she went out of the house in the morning, both the accused and the deceased were in the house. However, there is no evidence to show that the accused and the deceased quarreled with each other, since all the witnesses who are supposed to be speak about this fact have turned hostile. So far as the recovery is concerned, not only PWs.-8 and 9, the attestors of recovery mahazar have turned hostile, the FSL report regarding the blood stains on the weapon M.O.4 is also inconclusive and hence, the said evidence cannot connect the accused with the crime. Insofar as blood stained shirt of the accused is concerned, the FSL report does not state the blood group of the said blood stains. Though the learned counsel for the appellant submits that the FSL report indicates that shirt worn by the accused which is item No. 4 in the list is stained with the human blood, the prosecution case itself is that accused was also injured on his lips. Since the accused himself is injured, there is a possibility of falling his own blood on his shirt. From the above discussion, prosecution has not proved the case against the accused beyond all reasonable doubt. Hence, the accused is entitled for an order of acquittal. 27. Accordingly, the appeal is allowed. The order of conviction and sentence dated 14.03.2012 passed in S.C. No. 188/2011 by the Fast Track Court-III, Shivamogga is hereby set aside. The accused is acquitted of the offence levelled against him. The appellant is in custody. Hence, the accused is entitled for an order of acquittal. 27. Accordingly, the appeal is allowed. The order of conviction and sentence dated 14.03.2012 passed in S.C. No. 188/2011 by the Fast Track Court-III, Shivamogga is hereby set aside. The accused is acquitted of the offence levelled against him. The appellant is in custody. He shall be released forthwith, if not required in any other case. Office is directed to transmit the operative portion of the judgment to the learned Sessions Judge for onward transmission to the prison.