Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 498 (KAR)

Marappa v. State of Karnataka

2015-04-29

MOHAN M.SHANTANAGOUDAR, P.D.WAINGANKAR

body2015
JUDGMENT P.D. Waingankar, J. 1. By judgment dated 17.10.2011 in S.C. No. 87/2010 on the file of Fast Track Court - II at Chmtamani, the accused has been convicted for the offence punishable under Section 302of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/-. Aggrieved by the same, the accused has preferred this appeal. 2. The facts which gave rise to this appeal are as under: The accused-Marappa @ Marappareddy and deceased-Lakshminarayanappa, the husband of P.W. 1-Smt. Susheelamma were close friends. The accused was doing rewinding work and repairing water pumps. The deceased was working with him in his work. About 15 days prior to the murder of the deceased, the deceased, his wife (P.W. 1) and Rathnamma (P.W. 5), the elder brother's wife of the deceased purchased a gold necklace and Chandrahara from a jewellery shop at Chintamani. On 10.04.2010 at about 8.00 a.m., the deceased-Lakshminarayanappa took the necklace and Chadrahara, while going to the house of his friend/the accused at Hosahudaya village in order to show the ornaments to the wife of the accused. He did not turn up. His wife (P.W. 1) contacted him over mobile. The deceased told that he was in the company of the accused and both of them were purchasing steel pipes at Chintamani and that he would return after some time. Throughout the said day, he did not turn up. On 11.04.2010, one Narayanaswamy (P.W. 2) came and informed P.W. 1 and her son that the dead body of her husband was lying by the side of a rock in the land of one Siraj (P.W. 4). Immediately, P.W. 1, her son (P.W. 15) alongwith others rushed to the spot and found the dead body of her husband with injuries and towel tied to his neck. They also found the empty beer bottles and empty sprite bottles on a rock. A complaint was given to Kencharlahalli Police Station as per Ex. P1 by P.W. 1. On the strength of the complaint, the police registered Crime No. 47/2010 against the accused. P.W. 22-CPI of Chintamani Rural Police Station, who undertook the investigation proceeded to scene of occurrence, secured the presence of fingerprint experts so as to find out the fingerprints on beer bottles and sprite bottles. Thereafter, P.W. 22 conducted inquest panchanama Ex. On the strength of the complaint, the police registered Crime No. 47/2010 against the accused. P.W. 22-CPI of Chintamani Rural Police Station, who undertook the investigation proceeded to scene of occurrence, secured the presence of fingerprint experts so as to find out the fingerprints on beer bottles and sprite bottles. Thereafter, P.W. 22 conducted inquest panchanama Ex. P8 in the presence of panchas followed by spot panchanama as per Ex. P2, whereunder he seized the empty beer bottles, sprite bottles, chappals, lungi, stained mud, unstained mud MOs. 1 to 6. The dead body was sent for post mortem examination. The police constable, who was entrusted with the dead body for post mortem examination produced the clothes found on the dead body marked as MOs-6 to 9 which were seized under mahazar Ex. P9. The accused-Marappa was arrested on 23.04.2010. On the strength of his voluntary statement, a necklace, Chandrahara and a cash amount of Rs. 26,000/- were recovered from the accused under a panchanama Ex. P14. P.W. 22 received a post mortem report as per Ex. P15, wherein it was opined that the death was due to poisoning. He also received the report from fingerprint expert. He recorded the statement of the witnesses and after completion of all the formalities of investigation, filed charge-sheet against the accused for the offence punishable under Section 302 of IPC. In order to prove the charge levelled against the accused, the prosecution examined 24 witnesses as P.W. 1 to P.W. 24 and one N. Somasheakr, fingerprint expert as C.W. 1. Exs. P1 to P23 were marked apart from MOs. 1 to 13. The learned Sessions Judge, upon consideration of submission of the public prosecutor and defence counsel and on appreciation of the evidence, convicted the accused for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life. Hence, this appeal by the accused. 3. We have heard the learned counsel appearing for appellant/accused and the learned High Court Government Pleader for the State. Perused the records and the judgment and order passed by the Court below. 4. As aforesaid, the prosecution examined in all 24 witnesses. P.W. 1-Smt. Susheelamma is the wife of the deceased-Lakshminarayanappa. She is the complainant. 3. We have heard the learned counsel appearing for appellant/accused and the learned High Court Government Pleader for the State. Perused the records and the judgment and order passed by the Court below. 4. As aforesaid, the prosecution examined in all 24 witnesses. P.W. 1-Smt. Susheelamma is the wife of the deceased-Lakshminarayanappa. She is the complainant. She has deposed that on 10.04.2010, at about 8.00 a.m., her husband took the necklace and Chandrahara and went to the house of his friend/accused so as to show the same to the wife of the accused. But, he did not return and as such, she contacted her husband over mobile at about 2.00 p.m. and she was told by her husband that after withdrawing an amount of Rs. 29,000/- from the Bank, he went to Chintamani to purchase steel pipes alongwith the accused and that he would return in the evening. Further, she has deposed that he did not turn up and next day morning at about 9.00 a.m., Narayanaswamy (P.W. 2) came and informed that the dead body of her husband was lying in a drainage nearby the land of Siraj (P.W. 4); immediately thereafter she rushed to the spot alongwith her son and saw the dead body and she gave her complaint as per Ex. P1. P.W. 2-Narayanaswsamy has deposed that on 11.04.2010, he was proceeding in order to bring diesel for the tractor which he was riding and at that time, he saw the dead body by the side of the agricultural land of Siraj. At that time, one Zaheer and Prasanna were also there. He got down from the tractor and went to the spot and saw the dead body and identified the same as that of Lakshminarayanappa. He deposed that he noticed number of injuries on the dead body and the blood was oozing from mouth, ears and nose and thereafter he proceeded to his work. P.W. 3-Lokesh has deposed that he is shepherd. He was with his sheeps by the side of land of Siraj and by that time he saw the dead body; he informed the same to Zaheer and also showed the dead body to P.W. 2-Narayanaswamy. He has deposed having seen the empty beer bottles, sprite bottles and a towel tied to the neck of the dead body and that the police seized all those articles marked as MOs. He has deposed having seen the empty beer bottles, sprite bottles and a towel tied to the neck of the dead body and that the police seized all those articles marked as MOs. 1 to 7 which were lying by the side of dead body. P.W. 4-Siraj is the owner of the land by the side of which the dead body was lying. After coming to know of the same, he also went and saw the dead body and identified the dead body as that of Lakshminarayanappa with injuries all over the dead body and a towel tied to the neck apart from empty beer bottles, sprite bottles by the side of the dead body. P.W. 5-Rathnamma is the wife of the brother of deceased-Lakshminarayanappa, who was residing in Bengaluru. Her evidence is that she had come down to her native place and at that time, she alongwith deceased and his wife went to Chintamani and purchased a necklace and Chandrahara. She has deposed that after her return to Bengaluru, she was informed by the wife of deceased that her husband had taken those gold ornaments to show the same to the wife of the accused and that he had been killed and the dead body was thrown into drainage. P.W. 6-Lakshmidevamma is the wife of the accused. She has turned hostile. P.W. 7-Zaheer has deposed that the shepherd-Lokesh told him that the dead body of Lakshminarayanappa was lying by the side of land of Siraj and thereafter he went to the spot, saw the dead body with the injuries all over the body and the articles empty beer bottles, bank pass book, sprite bottles, lungi and chappals that were lying by the side of the dead body which were seized by the police. P.W. 8-Ramesh is the Manager of 'Pragathi Gramma Bank' with whom the deceased had the account. But his evidence would go to show that the pass book showed that on 16.06.2008 the deceased had withdrawn Rs. 31,600/- from his account and thereafter, no entry was found for having withdrawn any amount muchless an amount of Rs. 29,000/- on 10.04.2010. P.W. 9-Syed Imam is the owner of the shop wherein the accused was doing rewinding work. He has deposed that the deceased-Lakshminarayanappa used to be with the accused. So far other aspects are concerned, he has turned hostile. 29,000/- on 10.04.2010. P.W. 9-Syed Imam is the owner of the shop wherein the accused was doing rewinding work. He has deposed that the deceased-Lakshminarayanappa used to be with the accused. So far other aspects are concerned, he has turned hostile. P.W. 10-Shankar Reddy is a cashier working in 'Mahesh Wines'. He was examined to depose that the accused had purchased beer bottles from the shop on 10.04.2010. But, he has turned hostile to the prosecution case. He went to the extent of deposing that accused never came to his shop. P.W. 11-Narasimhappa is a petty shop keeper. He was examined to speak that the accused had purchased the sprite bottle from his shop. But, he has deposed that he is not selling soft drinks in his shop, though he has deposed that accused is known to him since two years and that he was doing winding work in a shop situated in front of the petty shop of P.W. 11. He has deposed that the accused was not in the habit of consuming liquor. He is also treated as hostile witness. P.W. 12-K.N. Ramu is a goldsmith who has deposed that he has got a jewellery shop at Narasinghapete, Chintamani Taluk, wherein he is preparing gold and silver ornaments for his customer, that he was called by CPI to Kencharlahalli Police Station, where he was shown a gold necklace and Chandrahara; he examined the same and opined that they are of gold and the necklace weighed 23 grams and Chandrahara 28 grams. Further, by looking at photograph Ex. P7, he has confirmed that the ornaments appearing in the photograph-Ex. P7 are the very same necklace and Chandrahara examined by him. P.W. 13-Venkataramanappa is a pancha to the spot panchanama Ex. P2, whereunder MOs. 1 to 6 were seized. He was also pancha to Ex. P8 inquest panchanama and Ex. P9 the panchanama, whereunder the clothes of the dead body were seized. P.W. 14-Lakshmmarayanappa is another pancha to Exs. P2 and P8. P.W. 15-Venugopal is the son of deceased-Lakshminarayanappa. He has deposed that his father was working with accused in his motor repair work and also doing agriculture work, that one day prior to his death, he had taken the gold ornaments purchased by him so as to show the same to wife of accused. P2 and P8. P.W. 15-Venugopal is the son of deceased-Lakshminarayanappa. He has deposed that his father was working with accused in his motor repair work and also doing agriculture work, that one day prior to his death, he had taken the gold ornaments purchased by him so as to show the same to wife of accused. He has specifically deposed that his father was accompanied by the accused and both of them left together the house. Further, he has deposed that at about 2 O' clock, his mother telephoned his father and at that time, he told that he had gone to Chintamani to bring steel pipes alongwith the accused after withdrawing an amount of Rs. 29,000/- from his Bank Account, but he did not turn up on that night and next day one Narayanaswamy came and informed that he had been murdered and his dead body was thrown in the land of one Siraj. He has specifically deposed that the accused is solely responsible for the murder of his father. Further, he has deposed that when he tried to contact the accused over his mobile, his mobile was switched off. The suggestion made to him that his father was heavy drunkard and he died of consumption of excess liquor has been denied by him. P.W. 16-Subbarayappa is another pancha to Ex. P2-the spot panchanama, Ex. P9-the panchanama, whereunder the clothes of the deceased were seized. P.W. 17-M.T. Hegde was working in Fingerprint Bureau in the office of ACP, Kolar. He has deposed that on receipt of message on 11.04.2010 at Kolar Control Room that the deceased has been murdered within the jurisdiction of Kencharlahalli Police Station and that the beer bottles are found by the side of the dead body, the officials from Fingerprint Bureau went to the spot and developed the fingerprints on the beer bottles found by the side of the dead body. Thereafter, they took the fingerprints of the accused and found that the fingerprint of little right finger of the accused matched the fingerprints found on the beer bottle and accordingly, he submitted the photographs of both the fingerprints as per Exs. P12 and P13 after superimposition test that they are of the same person. In the cross-examination, he has deposed that the fingerprints were developed by one Somashekar a fingerprint expert. He has admitted that he has not developed the fingerprints personally. P12 and P13 after superimposition test that they are of the same person. In the cross-examination, he has deposed that the fingerprints were developed by one Somashekar a fingerprint expert. He has admitted that he has not developed the fingerprints personally. He has further deposed in the cross-examination that whenever the message is received, the experts go to the spot and take the fingerprints and thereafter they submit a report which P.W. 17 forwarded to the Superior Officer. P.W. 18-K.E. Krishnappa is a pancha to seizure panchanama Ex. P14, whereunder the gold ornaments necklace and Chandrahara and cash were seized under his presence and the presence of one Seenappa. He has identified the ornaments seen in Ex. P7 photographs are the same ornaments recovered from the accused. P.W. 19-T.O. Srinivasa is another pancha to Ex. P14. But he has turned hostile. P.W. 20-Krishnappa is yet another pancha to Ex. P14. He identified that the ornaments recovered were the same ornaments seen in Ex. P7 photographs. P.W. 21-Dr. Ramesh is the Doctor who conducted the post mortem examination over the dead body and issued post-mortem report Ex. P15. He has opined that the death was due to poisoning. P.W. 22-T.C. Venkatesh, the CPI Chintamai Rural Police Station who took up further investigation. He has deposed that he went to the spot alongwith Sriiffer dogs; he summoned the fingerprint experts to take the fingerprints; he conducted inquest panchanama over the dead body as per Ex. P8 followed by spot panchanama Ex. P2, whereunder he seized MOs. 1 to 5; he has also spoken about the seizure of clothes found on the dead body MOs. 6 to 9 which were produced by police constable Muniraju. Further, he recorded statement of Susheelamma, Lokesh, Zaheer, Siraj on 12.04.2010; he obtained the documents pertaining to the account of the deceased in Burugunte village, Pragathi Bank; he recorded the statement of other witnesses; he arrested the accused on 23.04.2010 and seized his motorcycle No. KA-32-J-8232 and brought him to the police station; he recorded his voluntary statement and thereafter accused led the Police Inspector and the panchas towards his motorcycle and by opening the tool box he produced a necklace, Chandrahara and a cash amount of Rs. 26,000/- which were seized under a panchanama Ex. P14 and upon completion of investigation he filed charge-sheet against the accused. P.W. 23-R. Rangegowda is the Deputy Superintendent. 26,000/- which were seized under a panchanama Ex. P14 and upon completion of investigation he filed charge-sheet against the accused. P.W. 23-R. Rangegowda is the Deputy Superintendent. He was working as Assistant in Forensic Science Laboratory Bengaluru. He has deposed that on 29.04.2010, he received 7 articles in Crime No. 47/2010 of Kencharlahalli Police Station in a sealed condition for examination and report. Accordingly, he examined the articles such as sprite bottles and the parts of the dead body including viscera and found the poison in article No. 1 i.e. sprite bottle seized from the spot. P.W. 24-H.N. Chandrappa was the PSI of Kencharlahalli Police Station who has deposed having received a complaint as per Ex. P1 from P.W. 1, that he registered a case in Crime No. 47/2010 and forwarded FIR-Ex. P23 to the jurisdictional Magistrate. C.W. 1-Somashekar is the fingerprint expert attached to the police department. He has deposed that as ordered, he went to the spot of the incident and examined the fingerprints on the knockout beer bottles and the sprite bottles and developed the same. Thereafter, he took the fingerprint of the accused developed the same and on comparison, he found that the right hand's small fingerprint found on the sprite bottle matched with the right hand small finger print of the accused and accordingly, a report was given. 5. So far as the cause of death is concerned, Dr. Ramesh who has been examined as P.W. 21 who conducted a post mortem examination has clearly opined that there was presence of Cypermethine (insecticide) and Ethyl Alcohol in specimen and hence death can be due to combined effect of Cypermethme and alcohol poisoning. Even otherwise, the accused has not come out with any other theory as to the cause of death. Thus, by the evidence of P.W. 21 coupled with Ex. P15 the post-mortem report, the prosecution has proved that the death was due to combined effect of Cypermethme and alcohol poisoning. 6. There are no eye witnesses to the incident. The prosecution case fully rests upon the circumstantial evidence. The circumstances relied upon by the prosecution to prove the guilt of the accused are as under: "i) Last seen theory; ii) Recovery of the robbed articles; iii) Report of the fingerprint expert." I) Last seen theory; 7. The prosecution has not set up any motive as such for the commission of the offence. The circumstances relied upon by the prosecution to prove the guilt of the accused are as under: "i) Last seen theory; ii) Recovery of the robbed articles; iii) Report of the fingerprint expert." I) Last seen theory; 7. The prosecution has not set up any motive as such for the commission of the offence. It has relied upon the last seen circumstances, which is spoken by P.W. 15, the son of the deceased in his evidence. P.W. 1 is the wife of the deceased and mother of P.W. 15. As soon as she found the dead body of the deceased/her husband, she went to the spot, saw the dead body and lodged a complaint as per Ex. P1. If we go through the entire contents of her complaint Ex. P1, nowhere she has stated that the deceased/her husband was last seen in the company of the accused. What has been stated in the complaint that on 10.04.2010 at about 8.00 a.m., her husband took necklace and Chandrahara from her so as to show the same to the wife of accused/his friend resident of Hosahudaya and to bring back after showing the ornaments to the wife of the accused. The reading of the complaint itself makes it very clear that the accused did not come to the house of the deceased. On the other hand, the deceased took the gold ornaments from his wife and went out of the house so as to show the necklace and Chandrahara to the wife of accused and thereafter he was found dead. Even if we go through the evidence of P.W. 1, nowhere she has stated that her husband alongwith the accused left her house with ornaments at 8.00 a.m. on 10.04.2010. However, P.W. 15 her son for the first time has not stated that his father alongwith the accused left their house on 10.04.2010. In other words, according to P.W. 15, the deceased was last seen in the company of the accused. The evidence of P.W. 15 that his father was last seen the company of the accused is impossible to accept for the reason his mother either in the complaint or in her evidence has stated that her husband left the house in the company of the accused. The evidence of P.W. 15 that his father was last seen the company of the accused is impossible to accept for the reason his mother either in the complaint or in her evidence has stated that her husband left the house in the company of the accused. Even otherwise, early in the morning at about 8.00 a.m. the accused coming to the house of the deceased and thereafter both of them were going together does not arise. Except the evidence of P.W. 15 which does not inspire the confidence of the Court, no other witness has spoken about the last seen theory. It is suffice to say that the prosecution failed to establish the last seen circumstance. II) Recovery of robbed articles; 8. The next circumstance on which the prosecution has placed reliance is the recovery of gold necklace, Chandrahara and cash amount of Rs. 26,000/- from the possession of the accused at his instance under Ex. P14 panchanama. To speak about the same, the prosecution examined P.W. 18-K.E. Krishnappa, P.W. 19-T.O. Srinivasa, P.W. 20-Krishnappa apart from the evidence of Investigating Officer P.W. 22. Out of the three panchas P.Ws. 18, 19 and 20, P.W. 19 has turned hostile. He has identified his signature on Ex. P10. But, he has deposed that for what purpose his signature was taken he did not know and that the accused before the Court was not present while taking his signature nor any ornaments or cash amount were shown to him. P.W. 18-Krishpanna is another pancha to Ex. P14. He has spoken that his signature was taken by the police in the Police Station at about 7.00 p.m., at that time, accused-Marappa was in the Police Station and from motorcycle he produced Chandrahara, a necklace before the police, who in turn seized the same and obtained his signature. But, nowhere he has spoken about the seizure of an amount of Rs. 26,000/- in this presence. He has admitted in the cross-examination that before production of the ornaments, there was no communication between himself and the accused-Marappa and he was not enquired by the police in his presence. He has also deposed that at the time of production of these ornaments, wife of the deceased or his son were not present. P.W. 20 the other pancha to Ex. He has also deposed that at the time of production of these ornaments, wife of the deceased or his son were not present. P.W. 20 the other pancha to Ex. P14 has deposed that about 2 years ago at about 4.00 p.m. his signature was taken by Circle Inspector after recovery of necklace and amount from the accused. He has identified the necklace by looking at Ex. P7-photograph. In the cross-examination, he has deposed that while he was standing near Kencharlahalli gate, he was called by the Police Inspector; accused was in the police van when the accused produced the ornaments. He has admitted that the contents of the panchanama were not read over to him. He has further deposed that he does not know the name or the place of the accused. Of course, the recovery of gold ornaments is also spoken by Investigating Officer P.W. 22. If we look at the evidence as to the recovery, it is evident that the accused was roaming on his motorcycle keeping the gold necklace, Chandrahara and cash amount of Rs. 26,000/- in the tool box of the motorcycle which appears to be rather strange. No person would keep the gold ornaments and cash amount robbed in the tool box of his motorcycle for more than 12 days. Moreover, P.W. 19 the so called pancha to the seizure panchanama has not supported the case of prosecution. The evidence of other two witnesses is also not free from infirmities. There is no consistency between the evidence of P.W. 18, P.W. 20 and P.W. 22 as to recovery. Under such circumstances, it has to be held that the prosecution has also failed to prove the recovery of gold ornaments and cash amount from the possession of the accused. III) Report of the fingerprint expert; 9. It is borne out from the evidence on record that immediately after receipt of the information regarding the murder of the deceased, the Investigating Officer (P.W. 22) proceeded to the spot of the incident alongwith Sriiffer dog and flashed message to fingerprint expert, who in turn went there and brought the fingerprints found on the beer bottle and developed the same and thereafter compared with the fingerprints of the accused and that the right hand little finger of the accused and the fingerprint found on the beer bottle found to be one and the same after conducting superimposition test. To that effect, the prosecution has examined P.W. 17 and C.W. 1 who have spoken about the same in their evidence. After all, it is the expert evidence. The Court is not bound by the report. The Court may accept or may reject it. Even, if it is accepted, that circumstance alone is not sufficient to complete the chain of circumstance so as to convict the accused, since the prosecution failed to establish the other circumstances like last seen theory, the recovery of gold ornaments beyond reasonable doubt. 10. The learned Sessions Judge without examining the evidence placed on record in its proper perspective has erroneously came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt and convicted the accused. On our re-appreciation of evidence, we are of the considered opinion that the evidence placed on record by the prosecution is not sufficient to prove the guilt of the accused. Hence, we pass the following order; ORDER "i) The appeal is allowed. ii) The judgment and order of conviction and sentence dated 17.10.2011 in S.C. No. 87/2010 on the file of Fast Track Court - II at Chintamani, is hereby set aside. iii) The accused is acquitted of the charge under Section 302 of IPC." He shall be released forthwith if his detention is not required in any other case.