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2020 DIGILAW 1015 (KAR)

Shankarappa v. State Of Karnataka,

2020-06-09

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - We have heard the learned counsel Sri. Srinand A. Pachhapure for the appellant/accused and learned Addl.SPP Sri. V. M. Banakar for the respondent/state. 2. The appellant/accused is before this Court challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Gadag, in S.C.No.71/2012 dated 23.04.2016, whereunder the accused was convicted for the offences punishable under Section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.25,000/- with default sentence to undergo imprisonment for six months. 3. The brief facts of the case as averred in the prosecution case are that, in the year 2008, accused had committed rape on the daughter of the complainant and in that context, a case was registered in S.C.No.50/2009. In the said case, daughter of the complainant, who is deceased in the instant case, gave her evidence before the Court on 29.05.2012 and immediately thereafter accused threatened the deceased for having given evidence in the said case, by saying that he is going to commit her murder. It is further alleged that, when the deceased was sleeping on the katta in front of the house along with her son PW5, in the intervening night on 16.06.2012 and 17.06.2012, at about 2.00 am to 3.00 am, accused assaulted the deceased with an axe on her throat and committed her murder. Next day morning when one Kalakamma came and informed to the complainant that her daughter was lying injured, she rushed to the spot and found her daughter lying dead. When she woke up the son of the deceased, who was sleeping, he narrated the story. On the basis of the complaint a case has been registered in Crime No.98/2012. Thereafter, after investigation charge sheet came to be filed. Learned Magistrate after following the procedure committed the case to the Sessions Court. The Sessions Court procured the presence of the accused and after hearing the learned Public Prosecutor and learned counsel for the accused, charge was prepared, read over and explained to the accused. The accused pleaded not guilty and he claimed to be tried and as such trial was fixed. The prosecution in order to prove its case examined 28 witnesses and got marked 27 documents and 13 material objects. The accused pleaded not guilty and he claimed to be tried and as such trial was fixed. The prosecution in order to prove its case examined 28 witnesses and got marked 27 documents and 13 material objects. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. and accused has not led any evidence on his behalf, but however, Exs.D1 and D2 were got marked on behalf of the accused. After hearing the learned Public Prosecutor and learned counsel for the accused, the impugned judgment came to be passed. 4. The main ground urged by the learned counsel for the appellant/accused are that, the judgment of conviction and order of sentence passed by the trial Court is contrary to law and materials placed on records. It is his further submission that the learned Sessions Judge has not properly appreciated the evidence on record in its right perspective and passed an illegal order. The Court below has failed to take into consideration the conduct of the child witness - PW5. Though his evidence discloses the fact that he was also sleeping along with the deceased, but his clothes or any part of the body has not been stained with blood even though the accused is said to have assaulted the deceased with an axe. It is his further submission that PW5 has not reacted immediately after the incident. Though in his evidence PW5 has deposed that due to fear he turned his face on the other side and went to sleep, but till PW12 Kalakamma came in the morning and woke him up, he has not informed about the incident to any of the persons who are there including the neighbors. He further submits that, so many other persons were also sleeping on the katta and temple, but none of them have seen the accused person assaulting the deceased with an axe. The conduct of PW5 is very strange and under these circumstances, his presence at the place of incident does not appear to be natural and his evidence appears to be cooked up only to suit the case of the prosecution. He further submitted that no person will be silently watching the heinous act of the accused. The conduct of PW5 is very strange and under these circumstances, his presence at the place of incident does not appear to be natural and his evidence appears to be cooked up only to suit the case of the prosecution. He further submitted that no person will be silently watching the heinous act of the accused. Though he might have kept silent at the time when the accused assaulting the deceased, but immediately after the accused disappearing from the scene of offence, he could have made hue and cry and he could have waked up other persons who are sleeping nearby him. In that light, his conduct is not natural and probable. It is his further submission that the material witnesses have not supported the case of the prosecution including recovery of the axe at the instance of the accused. Except the evidence of PW1 that there was a case registered against the accused for having sexually assaulted the deceased, there is no other material to show that, after giving the evidence by the deceased, she was threatened with dire consequences and in pursuance of the same, the accused took an opportunity on the alleged date of incident and assaulted her with an exe. In the absence of any such material, the trial Court ought to have acquitted the accused. On these grounds he prayed to allow the appeal by setting aside the judgment of conviction and order of sentence. 5. Per contra, learned Addl. SPP vehemently argued and submitted that, PW5 is the material and star witness. He has categorically deposed before the Court that, in the street light he has seen the accused assaulting the deceased with an axe on her neck and thereafter he ran away from the spot. It is his further submission that, during the course of evidence he has identified the axe - M.O.11 which was used by the accused to assault his mother. He further submitted that the evidence of PW5 clearly goes to show that he was aware of the facts and nothing has been brought on record to discard his evidence. It is his further submission that, merely because PW5 is a child witness his evidence cannot be discarded and his evidence has to be scrutinized with care and caution. He further submitted that the evidence of PW5 clearly goes to show that he was aware of the facts and nothing has been brought on record to discard his evidence. It is his further submission that, merely because PW5 is a child witness his evidence cannot be discarded and his evidence has to be scrutinized with care and caution. When nothing has been brought on record to show that the said witness has been tutored by the police or some other persons, in the absence of such material, the said evidence is liable to be acceptable. The trial Court relying upon the said evidence has come to a right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeal. 6. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 7. Learned counsel for the appellant/accused fairly submitted that he will not dispute the fact that the deceased died homicidal death. But however, the prosecution has also got examined PWs. 2, 3 and 6, who are the panchas to inquest mahazer Ex.P2 and PW18, who is the doctor and who conducted autopsy over the body of the deceased. PW18 in his evidence has stated and noted the injuries found over the body of the deceased including the cut lacerated wound over the neck and he opined that the cause of the death is due to shock as a result of the injuries sustained by the deceased on her neck. By taking into consideration the evidence of the PW18 and Ex.P2, it can be safely held that the deceased Suvarna died homicidal death. 8. In order to prove its case, the prosecution got examined 28 witnesses. PW1 is the mother of the deceased. She has deposed with regard to the accused having sexually assaulted the deceased in the year 2008 and a complaint having been registered in S.C.No.50/2009. She has also deposed that her deceased daughter has gone to the Court for giving evidence and on 29.05.2012 her evidence has been recorded and at that time, the accused threatened for her life for having given the evidence against him. She further deposed that, on the date of alleged incident at about 10.00 pm, they have taken the dinner and she went to old house for sleeping. She further deposed that, on the date of alleged incident at about 10.00 pm, they have taken the dinner and she went to old house for sleeping. She deposed that the deceased along with her son were sleeping in the Katta of their house and next day morning Kalakamma came to the old house and informed that the deceased was found on the katta with injuries and the blood was scattered and the tongue was protruded. She further deposed that, when she waked up her grand son he was crying and he informed that the accused has committed murder of the deceased in the night hours. She further deposed that, because of the evidence given by the deceased, the accused committed her murder. She further deposed that, she has given the complaint as per Ex.P1. This witness has been cross-examined in length, but nothing has been elicited so as to discard the evidence of this witness. 9. Pws. 2, 3 and 6 are the panchas to inquest mahazer Ex.P2 and also spot mahazer Ex.P3. They have not supported the case of the prosecution and they have been treated as hostile. PW4 is the pancha to seizure mahazer of clothes of the deceased Ex.P4. 10. Pw5 is the son of the deceased and he is an eyewitness. In his evidence he has deposed that about 3 years back accused has committed rape on complainant's daughter and in this regard a case has been registered against him and his deceased mother had been to the Court to give her evidence and at that time, the accused has threatened the deceased and the said fact has been stated by the prosecution. He has further deposed that on the date of the alleged incident, himself and the deceased were sleeping on the katta at about 11.00 p.m. and at about 2 a.m. to 3.00 a.m. when he woke up, that he saw the accused was assaulting the deceased with axe on her neck and throat and thereafter he ran away and he further deposed for having seen such an incident, he was afraid and slept. He has seen the alleged incident in the street light and when that he got up, he has seen that his mother was dead and the blood was oozing from her neck. He has identified the axe-MO11. He has seen the alleged incident in the street light and when that he got up, he has seen that his mother was dead and the blood was oozing from her neck. He has identified the axe-MO11. During the course of cross examination that he has deposed that when the murder of his mother took place, he was having holiday to the school and he has denied the fact as stated by the police that he has deposed this fact before the Court. In his evidence, he has also deposed that the people in the village used to sleep outside the house during summer and there were so many houses at the place of the incident and other persons were also sleeping on the katta. In between his house and the agasi, there is a laxmi temple and there also the people were sleeping. He has further deposed that immediately after the accused assaulted and went away, he went to sleep, except that, nothing has been brought on record. PW7 and 11 are the panch witnesses to the seizure mahazar Ex.P5. PW8, 9, 10 and 12 are the persons who were present at the time of the accused threatening the deceased with dire consequences but these witnesses have not supported the case of the prosecution. PW13 is the person to whom the accused made extra judicial confession over phone. These two witnesses have not supported the case of the prosecution and were treated hostile. PW14 and 15 are the neighbors, who speak about the threat given by the accused but they have not supported the case of the prosecution. PW16 and 17 are the persons who were sleeping on the katta. They have not supported the case of the prosecution. PW18 is the doctor who has done autopsy over the body of the deceased and issued postmortem report as per Ex.P15 and has also given his opinion as per Ex.P16. PW19 the assistant engineer, who has prepared the sketch as per Ex.P17. PW20 is the police constable who has carried complaint to the police station for the purpose of registration. PW21 is the ASI who received the complaint brought by PW20 and registered the case, issued FIR at Ex.P18. PW22 is the police constable who carried FIR to the jurisdictional magistrate. PW23 is the doctor who conducted chemical examination of the articles as given at Ex.P19. PW21 is the ASI who received the complaint brought by PW20 and registered the case, issued FIR at Ex.P18. PW22 is the police constable who carried FIR to the jurisdictional magistrate. PW23 is the doctor who conducted chemical examination of the articles as given at Ex.P19. PW24 is the police constable who carried the MOs to RFSL, Belagavi. PW25 is the PSI who received the message through phone, thereafter went to the spot, recorded the statement of the complainant and sent it to the police station through PW20 and thereafter that he has conducted the spot mahazar and seizure mahazar MO1 to 4 as per Ex.P4. PW26 is the Dy. SP who has investigated the case and filed charge-sheet. PW27 and 28 are the engineers who are working in HESCOM and they have given the report as per Ex.P23 stating that on the alleged date of incident there was uninterrupted electricity supply in the said village. 11. By going through the above said evidence, the only evidence which is material for the purpose of consideration by this Court is that of PW1 who is not the eye witness and she only spoke with regard to the circumstances and that rape case was registered against the accused and that the deceased had gone to give evidence and the deceased informed that the accused has threatened to take away her life. Except that, nothing is on record. 12. But PW5 is the eye witness to the alleged incident and he has seen the accused assaulting the deceased with axe. Admittedly PW5 is a child witness. It is well settled proposition of law that the evidence of child witness is not required to be rejected but the Court as a rule of prudence, consider such evidence with close scrutiny only if convinced for the quality thereof and reliability can be recorded and conviction can be based thereof. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Golla Yelugu Govindu Vs. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Golla Yelugu Govindu Vs. State of Andhra Pradesh, (2008) AIR SC 1842 at paragraph 9 it has been observed as under: "9.The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 13. Keeping in view the ratio laid down in the above decision, evidence of PW5, if it is considered, in his evidence he has deposed that in between 2.00 to 3.00 a.m., he woke up and saw the accused coming to the house, where they were sleeping and assaulted the deceased with axe on her neck and thereafter he ran away. While that he woke up in between 2.00 am to 3.00 am, has also not been properly explained in the evidence. Be that as it may. Even the conduct of the said witness if he had seen the incident he would have raised hue and cry and would have reacted immediately after seeing the incident like murder with an axe. At that time the age of this witness may be about 14 years. Even assuming that due to fear if he has not reacted at the spur of moment by seeing the alleged incident, but when the incident occurred, other people were also sleeping on the katta. At that time the age of this witness may be about 14 years. Even assuming that due to fear if he has not reacted at the spur of moment by seeing the alleged incident, but when the incident occurred, other people were also sleeping on the katta. Under such circumstances, he could have made hue and cry and from that other persons would have woke up. That aspect has not also been done by this witness. In his evidence itself he has deposed that the accused assaulted and thereafter ran away from the place. If really he had seen the said incident, definitely he could have informed the neighbors, who were none other than the relatives staying by the side of the place of the incident. By seeing the conduct of PW5, it is so unnatural and is not in accord with acceptable human behaviour, even allowing for variations, then his testimony becomes questionable and is likely to be discarded. For this proposition of law, we want to rely upon the decision of the Hon'ble Apex Court in the case of LAHU KAMLAKAR PATIL AND ANOTHER Vs. STATE OF MAHARASHTRA, (2013) 6 SCC 417 at paragraphs 21, 26 and 27 that it has been observed as under: " 21. The attack is based on the grounds, namely, that the said witness ran away from the spot; that he did not intimate the police about the incident but, on the contrary, hid himself behind the pipes near a canal till early morning of the next day; that though he claimed to be eye witness, yet he did not come to the spot when the police arrived and was there for more than three hours; that contrary to normal human behaviour he went to Pune without informing about the incident to his wife and stayed there for one day; that though the police station was hardly one furlong away yet he did not approach the police; that he chose not even to inform the police on the telephone though he arrived at home; that after he came from Pune and learnt from his wife that the police had come on 21-2-1988, he went to the police station; and that in the backdrop of such conduct, his version does not inspire confidence and deserves to be ignored in toto. 26. 26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded. 27. Keeping in mind the aforesaid, we shall proceed to scrutinize the evidence of PW-2. As is evincible from his deposition, on seeing the assault he got scared, ran away from the hotel and hid himself behind the pipes till early morning. He went home, changed his clothes and rushed to Pune. He did not mention about the incident to his family members. He left for Pune and the reason for the same was also not stated to his family members. He did not try to contact the police from his residence which he could have. After his arrival at Pune, he did not mention about the incident in his sister-in-law's house. After coming back from Pune, on the third day of the occurrence, his wife informed him that the police had come and that Bhau, who had accompanied him, was dead. It is interesting to note that in the statement under Section 161 of the Code, PW-2 had not stated that he was hiding himself out of fear or he was scared of the police. In the said statement, the fact that he was informed by his wife that Bhau was dead was also not mentioned. One thing is clear from his testimony that on seeing the incident, he was scared and frightened and ran away from the hotel. In the said statement, the fact that he was informed by his wife that Bhau was dead was also not mentioned. One thing is clear from his testimony that on seeing the incident, he was scared and frightened and ran away from the hotel. He was frightened and hid himself behind the pipes throughout the night and left for home the next morning. But his conduct not to inform his wife or any family member and leaving for Pune and not telling anyone there defies normal human behaviour. He has also not stated anywhere that he was so scared that even after he reached home, he did not go to the police station which was hardly at any distance from his house. There is nothing in his testimony that he was under any kind of fear or shock when he arrived at his house. It is also surprising that he had not told his family members and he went to Pune without disclosing the reason and after he arrived from Pune and on being informed by his wife that his companion Bhau had died, he went to the police station. We are not oblivious of the fact that certain witnesses in certain circumstances may be frightened and behave in a different manner and due to that, they may make themselves available to the police belatedly and their examination gets delayed. But in the case at hand, regard being had to the evidence brought on record and, especially, non-mentioning of any kind of explanation for rushing away to Pune, the said factors make the veracity of his version doubtful. His evidence cannot be treated as so trustworthy and unimpeachable to record a conviction against the appellants. The learned trial court as well as the High Court has made an endeavour to connect the links and inject theories like fear, behavioural pattern, tallying of injuries inflicted on the deceased with the Post Mortem report and convicted the appellants. In the absence of any kind of clinching evidence to connect the appellants with the crime, we are disposed to think that it would not be appropriate to sustain the conviction." 14. In the absence of any kind of clinching evidence to connect the appellants with the crime, we are disposed to think that it would not be appropriate to sustain the conviction." 14. It is the case of the prosecution that deceased and her son that is PW5 were sleeping on the katta and even if the accused had came and assaulted, then the clothes of the said witness would have been stained with blood and why not the clothes were stained with blood, is also not explained by the prosecution in its proper and legal manner. In the above said facts and circumstances and by taking into consideration the conduct of this witness and the manner in which he has behaved, the saying that the alleged incident took place in the presence of this witness at the place of alleged incident, appears to be doubtful. This witness does not repose any confidence so as to convict the accused. As stated supra, that if close scrutiny of the evidence of the child witness if it is not convinced for the quality thereof and is not reliable, then under such circumstances, Court can give benefit of doubt to the accused. 15. Taking into consideration the above facts and circumstantial evidence that the evidence which has been lead as eye witness, is not trustworthy and not sufficient to convict the accused. 16. Be that as it may. With other persons were also sleeping on the katta and immediately after the alleged incident some sound might have taken place and immediately after the assault on the neck, how that they have not heard the sound, also creates doubt in the case of the prosecution and as that they were sleeping on the katta and that the accused came and caused death of the deceased that also creates doubt in the case of the prosecution. Looking from any angle the presence of PW5 at the place of incident, accused coming and assaulting the deceased with axe, all these aspects creates doubt in the case of the prosecution and that a scanty and thin evidence has been produced by the prosecution. The learned Sessions Judge without properly appreciating the said evidence has wrongly convicted the accused. The judgment of the trial Court deserves to be set aside. 17. We have carefully and cautiously gone through the judgment of the trial Court. The learned Sessions Judge without properly appreciating the said evidence has wrongly convicted the accused. The judgment of the trial Court deserves to be set aside. 17. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court without looking into the evidence has wrongly convicted the accused and as such the same is liable to be set aside. Hence we pass the following: ORDER The appeal filed by the appellant-accused is allowed and the judgment of conviction and order of sentence dated 23.04.2016 passed by the learned District & Sessions Judge, Gadag in S.C. No.71/12 is hereby set aside. The appellant-accused Sri.Shankarappa S/o. Mallappa Huilgol is hereby acquitted of all the charges levelled against him and he has to be released forthwith, if he is not required in any other case. The jail authorities are directed to release him, if he is not required in any other case. Registry is directed to intimate the operative portion of this order forthwith through e-mail to the concerned jail authorities as well as to the Principal District and Sessions Court, Gadag to release the appellant-accused, forthwith if he is not required in any other case and send back the lower court records.