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2015 DIGILAW 442 (KAR)

State of Karnataka v. Mahesh Sundara Shetty

2015-04-16

MOHAN M.SHANTANAGOUDAR, P.D.WAINGANKAR

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. This appeal is filed by the State questioning the judgment and order dated 22.03.2007 passed by the Sessions Court, Udupi, in S.C. No. 52/2003. Five accused/respondents were tried for the offences under Sections 109, 353 and 302 of IPC. Accused Nos. 2 to 5 are acquitted by the Trial Court; whereas accused No. 1 is convicted and sentenced for the offence under Sections 304-II and 333 of IPC. The State, by filing this appeal prays that all the accused be convicted for the offence under Section 302 of IPC. 2. Case of the prosecution in brief is that accused Nos. 1 to 5 (respondents herein) along with absconding accused Nos. The State, by filing this appeal prays that all the accused be convicted for the offence under Section 302 of IPC. 2. Case of the prosecution in brief is that accused Nos. 1 to 5 (respondents herein) along with absconding accused Nos. 6 to 8 committed dacoity at a village by name Marakada within the jurisdiction of Mangalore Rural Police Station on 11.03.2003 at about 4.00 p.m. to 4.30 p.m. by damaging Maruthi Zen car; all the accused escaped from Marakada in a Maruthi Suzuki Belano Car bearing registration No. MH-06/M-3922; after getting news of such dacoity by the accused, the information was sent to all the police stations of Mangalore and Udupi districts through wireless message; consequently, the police personnel of all the police stations of Mangalore and Udupi districts were alerted to nab the culprits who committed dacoity; likewise, the police officials of Padubidri police station, Udupi district also became alert; Station House Officer-K. Ramesh (P.W. 1) deputed deceased-Sathish (police constable) to stop the car if it comes on the highway abutting Padubidri Police Station; the deceased went to the road to watch the car bearing registration No. MH-06/M-3922 with a rifle; P.W. 1/Station House Officer of Padubidri Police Station also went behind the deceased; the deceased was in the police uniform; at about 4.40 p.m., Maruthi Suzuki Belano Car in which respondents and other accused were sitting, came on the National Highway and was rushing towards Udupi; the vehicle came in a high speed; when the deceased tried to stop the car by giving signal to the driver of the car, accused No. 1 who was driving the car slowed down the car near the police station; however, the other accused who were sitting in the car instigated accused No. 1 to takeaway the life of the deceased by dashing against him; all the accused instigated accused No. 1 by saying (usse udado); being instigated by other accused, accused No. 1 suddenly raised the speed of the car and came to the extreme left side of the road and consequently, the car hit the deceased; accused No. 1 drove the car rashly at the instigation of other accused only with an intention to takeaway the life of the deceased who wanted to stop the car for apprehending the accused; thereby all the accused prevented the police personnel from discharging their duties; due to the impact of the car, the deceased was thrown down to a distance for about 60 feet and suffered severe injuries on his head and other parts of the body; despite the same, the accused did not stop the car but proceeded further with a high speed; the injured was shifted to K.M.C. Hospital, Manipal and he succumbed to the injuries at about 8.45 p.m. in the hospital; Maruthi Suzuki Belano Car which was also damaged to certain extent was found abandoned at Yermal, and is seized during the course of investigation. Complaint came to be lodged by P.W. 1-eye witness to the incident; P.W. 1 is none other than the Station House Officer of Padubidri Police Station during the relevant point of time; the complaint is at Ex. P1; P.W. 1 himself registered the complaint in Crime No. 32/2003 in Padubidri Police Station and sent F.I.R. to jurisdictional Magistrate as per Ex. P2; he is also the witness for scene of offence panchanama Ex. P3, under which MOs-1 to 6 are seized. The Inspector of Police/P.W. 22 completed the investigation and laid the charge-sheet. 3. In order to prove its case, the prosecution in all examined 27 witnesses, got marked 46 exhibits and 13 material objects. On behalf of the defence, 9 exhibits were got marked. As aforementioned, the Trial Court acquitted accused Nos. 2 to 5 and convicted accused No. 1 for the offence under Sections 304-II and 333 of IPC. 4. Learned Government Pleader as well as learned advocate for the defence including Amicus Curiae have taken us through the material on record and argued in support of their respective cases. 5. Sri. Vishwajith Shetty, learned advocate appearing on behalf of accused No. 1 draws the attention of the Court to the fact that the wife of the deceased has admitted that it is a case of accidental death and not a case of homicidal death; wife of the deceased had filed MVC No. 472/2003 before Motor Accident Claims Tribunal, Udupi, claiming compensation; in the said claim petition, claimant averred that it is a case of accident and claimant's husband has died in the accident that occurred on 11.03.2003 in front of Padubidri Police Station; in the said claim petition, accused No. 1 herein is the first respondent; the claim petition was allowed holding that the driver of the Maruthi Suzuki Belano Car/accused No. 1 herein has driven the car negligently and rashly, consequent upon which the deceased lost his life; the Tribunal has awarded compensation of Rs. 8,03,400/-. The judgment and award passed by the Claims Tribunal in MVC No. 472/2003 is confirmed by this Court in M.F.A. No. 8746/2004 C/w Cross-Objection No. 37/2010. He further submits that this Court in M.F.A. No. 472/2003 also on verifying the records concluded that it is a case of accident and thus granted compensation in favour of wife of the deceased. 6. P.Ws. He further submits that this Court in M.F.A. No. 472/2003 also on verifying the records concluded that it is a case of accident and thus granted compensation in favour of wife of the deceased. 6. P.Ws. 1, 3, 4, 6, 19, 24 and 26 are eye witnesses to the incident in question. P.W. 2 is the owner of Maruthi Suzuki Belano Car bearing registration No. MH-06/M-3922. He had given a complaint regarding the missing of his car before Panavel city Police Station in Maharashtra State as per Ex. P5 which came to be registered in Crime No. 46/2003 under Section 379 of IPC. P.W. 5 is the Police Constable attached to Udupi District, Superintendent of Police; he passed on the wireless message to all the police stations of Udupi district regarding the dacoity that took place at about 4.00 p.m. on 11.03.2003 and for nabbing accused who were proceeding in Maruthi Suzuki Belano Car bearing MH-06/M-3922. P.W. 7 is the receptionist of Ramdeva lodge, wherein accused No. 1 had stayed. She has turned hostile to the case of the prosecution. P.Ws. 8, 9, 10 who are witnesses for mahazars Exs. P11, 12 have turned hostile to the case of the prosecution. P.W. 11 is Taluka Executive Magistrate who conducted test identification parade. His report is at Ex. P7. P.W. 12 is witness for mahazar Ex. P14 under which seizure of rifle was made on the spot. He has turned hostile to the case of the prosecution. P.W. 13 is the Doctor who conducted post mortem examination. Post mortem report is at Ex. P15. P.W. 14 is the motor vehicle inspector who examined the car involved in the accident. His report is at Ex. P16. The same reveals that the incident has not occurred due to mechanical defects in the vehicle. P.W. 15 is the Press Reporter who went to the spot subsequent to the incident. He also deposed about the scene of offence mahazar Ex. P3. P.Ws. 16 and 18 are the witnesses who were supposed to depose regarding the apprehension of accused No. 2 and seizure of Maruthi Suzuki Belano Car under panchanama Ex. P11. Both of them have turned hostile to the case of the prosecution. P.W. 17 is the Head Constable, who carried the articles to F.S.L. P.W. 19 is the eye witness, but he turned hostile. P11. Both of them have turned hostile to the case of the prosecution. P.W. 17 is the Head Constable, who carried the articles to F.S.L. P.W. 19 is the eye witness, but he turned hostile. P.W. 20 is the Head Constable who registered Crime No. 70/2003 relating to dacoity of certain articles within the jurisdiction of Mangalore Rural Police Station. The said crime was registered based on the complaint lodged by Mr. Abdul. P.W. 21 is the Assistant Sub-Inspector of Police. He participated during the course of investigation. P.W. 22 is the Investigating Officer who laid the charge-sheet. P.W. 23 is the finger print expert; he gave report as per Ex. P36. Finger prints are at Ex. P42 and 43. Such finger prints were allegedly found on the Maruthi Suzuki Belano Car. P.W. 25 is the Forensic Science Laboratory Official; he examined Maruthi Suzuki Belano Car and gave his report as per Ex. P46. P.W. 27 is the Assistant Commissioner; he informed about the robbery of the Maruthi Zen Car at Marakad on 11.03.2003 at about 4.00 p.m. He has also deposed about the accused leaving the place of dacoity in a Maruthi Suzuki Belano Car bearing registration No. MH-06/M-3922. 7. As aforementioned, P.Ws. 1, 3, 4, 6, 19, 24 and 26 are the eye witnesses to the incident in question. Among them, P.W. 19 has turned hostile to the case of the prosecution. All other eye witnesses who have supported the case of the prosecution are police officials of Udupi district. 7. As aforementioned, P.Ws. 1, 3, 4, 6, 19, 24 and 26 are the eye witnesses to the incident in question. Among them, P.W. 19 has turned hostile to the case of the prosecution. All other eye witnesses who have supported the case of the prosecution are police officials of Udupi district. All of them have deposed that accused No. 1 was driving the vehicle bearing registration No. MH-06/M-3922 and all other accused were sitting inside the car; on getting information from the wireless message which was splashed from the office of Superintendent of Police, police of Udupi district became alert and they wanted to waylaid the aforementioned vehicle; accordingly, P.W. 1 being Station House Officer of Padubidri Police Station had deputed deceased to stop the said car if it comes on the national highway; the deceased was standing on the left side of the road with a rifle in order to stop the car if it comes on the said road; P.W. 1 was standing behind the deceased; on seeing the deceased with a rifle in his hand, the accused felt that they would be apprehended; hence, all the accused who were sitting in the car told accused No. 1 as (usee udado); accordingly, accused No. 1 who had slowed down the car once again raised speed of the car and ran over the deceased only with an intention to do away with his life. Thus, according to all the eye witnesses, it is a clear case of murder and not the case of accident. 8. Though all these witnesses have deposed almost consistently before the Court, P.W. 1 who was present alongwith the deceased on the spot does not anywhere depose about the presence of P.Ws. 4, 6, 19, 24 and 26. He has merely deposed that he was standing with the deceased for watching the movement of Maruthi Suzuki Belano Car. However, he has also deposed the presence of P.W. 3 alongwith him at the time of accident. Since P.W. 1 has not mentioned about the names of any other eye witnesses on the spot, the Trial Court, according to us has rightly doubted the version of other eye witnesses except P.Ws. 1 and 3. 9. P.W. 1 has deposed that the car was having tinted glass. So also, P.W. 3 deposed that car was having tinted glass. Since P.W. 1 has not mentioned about the names of any other eye witnesses on the spot, the Trial Court, according to us has rightly doubted the version of other eye witnesses except P.Ws. 1 and 3. 9. P.W. 1 has deposed that the car was having tinted glass. So also, P.W. 3 deposed that car was having tinted glass. However, P.W. 1 has deposed that he was able to see the face of accused No. 1 who was driving the vehicle. It is also admitted by the eye witnesses that they came to know about the names of the accused only after the arrest of the accused and not earlier. Thus, what transpires from the evidence of these eye witnesses, more particularly with P.Ws. 1 and 3 that accused No. 1 was driving the vehicle and he drove the vehicle rashly. The prosecution has also relied upon the material collected during the course of investigation relating to test identification parade. However, such evidence falls to the ground in view of the clear admission of Inspector of Police/P.W. 26 that accused were arrested on the next day of incident and they were brought to Padubidri Police Station at about 8.30 p.m.; P.W. 26 saw all the accused from 8.30 p.m. to 9.00 p.m. on the next day of incident. This version of P.W. 26 makes it amply clear that all the accused were arrested within one day of incident and they were brought to Padubidri Police Station on the next day itself. If it is so, the importance of test identification parade is lost, inasmuch as all the police officials (eye witnesses) had seen the faces of all the accused in the police station itself immediately i.e., within one day of incident in question. Test identification parade was held subsequently. Hence, significance of test identification parade is lost. 10. Question to be decided in this appeal is as to whether it is a case of murder or it is a case of accident. Test identification parade was held subsequently. Hence, significance of test identification parade is lost. 10. Question to be decided in this appeal is as to whether it is a case of murder or it is a case of accident. Though it was not brought to the notice of the Trial Court during the course of trial that wife of the deceased had filed claim petition claiming compensation by making specific averments that her husband lost his life in the accident that occurred in front of Padubidn Police Station, the same was brought to the notice of the Trial Court by defence at the time of hearing the accused on sentence. It is also relevant to note that the Trial Court had already pronounced the judgment of conviction, convicting accused No. 1 for the offences under Sections 304-II and 333 of IPC and acquitting other accused. When the matter was posted for hearing accused No. 1 on the question of sentence, the defence produced the records pertaining to the claim petition. On seeing such records, the Trial Court has observed thus: "The learned Counselor the accused has also brought to my notice that the victim is also not left in lurch. The victim's wife and children have made a Motor Vehicle Accident Case making this particular accused as the 1st respondent in M.V.C. No. 472/2003. He has produced the claim petition and evidence of the claimant by way oft affidavit and also the statement of one of the witnesses by name Doomappa Shettigar, a Police Constable working at Padubidri Police Station during that particular point oft time. Very peculiarly enough these documents placed for the consideration of the Court disclose that all the witnesses examined in M.V.C. No. 472/2003 including the wife of the victim by name Smt. Anusuya have categorically stated that it was an accident committed by the 1st respondent (accused herein) and in which Sathish lost his life. The Police Constable has also categorically stated in his evidence that on that particular day, he has actually witnessed the said Car driven by accused No. 1 in a rash or negligent manner dashed against Sathish and went away. At that time 4 other Police Constables were also present. But very peculiarly enough the person, who examined as P.W. 2 in M.V.C. case Doomappa Shettigar was not all cited as a witness in the charge sheet. At that time 4 other Police Constables were also present. But very peculiarly enough the person, who examined as P.W. 2 in M.V.C. case Doomappa Shettigar was not all cited as a witness in the charge sheet. Whatever may be, the admission on the part of the wife of the victim Smt. Anusuya creates a serious doubt whether she understood the cause as an accident or whether this Mahesh Shetty accused No. 1 committed the offence with any intention or knowledge. However, I have already discussed in detail in the judgment that it is not an accidental death, it was a homicidal death of Sathish, which has been proved to the satisfaction of the Court. These documents were not available to the Court in this Sessions Case at the relevant point of time. If at all these documents are produced, I don't know what stand I would have taken while discussing the point, whether the death is an accidental death or homicidal death. But however, these documents clearly disclose that a Motor Vehicle Accident Claim case was filed by the victim's wife. I have secured the Motor Vehicle Accident Claim register maintained by this Court (Tribunal), as the entire documents pertaining to the said M.V.C. case were already sent to the Hon'ble High Court as the award has been challenged. The Register discloses that the petition filed by Smt. Anusuya wife of the victim Sathish was allowed awarding a total sum of Rs. 8,03,400/'-. It is also admitted in her evidence before the Motor Vehicle Accident Claims Tribunal that she has also received the insurance amount of Rs. 2,00,000/- from the insurance Company of the deceased. Under the above said circumstances, the dependents of the deceased were also not left in lurch. They were also amply and definitely compensated by the Court. That it does not mean that a lenient view has to be taken by the Court against the accused. But looking from the above stated circumstances, particularly the age of the accused and also his conduct during the course of trial and also the conduct prior to the incident, all will be weighed for the purpose of awarding sentence. " (Emphasis supplied by us) 11. But looking from the above stated circumstances, particularly the age of the accused and also his conduct during the course of trial and also the conduct prior to the incident, all will be weighed for the purpose of awarding sentence. " (Emphasis supplied by us) 11. From the records produced by the defence before the Trial Court, based on which the aforementioned observations were made, it is clear that the wife of the deceased herself pleads that it is a case of the accidental death and not a homicidal death. She had filed claim petition, claiming compensation under the provision of Motor Vehicles Act. Said claim petition is allowed by the Trial Court and the same is confirmed in M.F.A. No. 8746/2004 C/w Cross Objection No. 37/2010. The accused No. 1 herein was respondent No. 1 before the Claims Tribunal. It is specifically averred in the claim petition that accused No. 1 drove the vehicle rashly and negligently, consequent upon which the deceased died. In the claim petition, one of the eye witnesses examined is police constable attached to Padubidri Police Station. Such eye witness also has deposed that it is a case of accidental death and such accident was seen by four other police personnel. Such material on record creates doubt in the mind of the Court as to the truthfulness of the allegations made by the prosecution. The burden is on the prosecution to prove its case beyond reasonable doubt. The aforementioned material produced by the defence before the Trial Court would lead us to conclude that the case as made out by the prosecution with regard to homicidal death is not proved by the prosecution beyond reasonable doubt. The benefit of doubt needs to be granted to the accused. Since accused No. 1 who was driving the vehicle has already undergone about 4 years of imprisonment which is more than the maximum punishment prescribed for the offence under Section 304-A of IPC, no interference in this appeal is called for. Accordingly, the appeal fails and the same stands dismissed. We place on record the valuable services rendered by Sri. Somshekar Angadi, learned Amicus Curiae in assisting the Court. Registry is directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand Only) as honorarium to the learned Amicus Curiae.