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2020 DIGILAW 1273 (KAR)

Basavaraj v. State Of Karnataka

2020-06-29

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - Appellant-Accused is seeking the intervention of this Court in the judgment of conviction and order of sentence passed by I Addl. District and Sessions Judge, Bagalkot, sitting at Jamkhandi, in S.C.No.53/2013 dated 29.11.2016. 2. We have heard learned counsel Sri S.S.Patil and Sri Sanjay Chanal, for the appellant/accused and Sri V.M.Banakar, learned Additional State Public Prosecutor, for the respondent/State. 3. The genesis of the case of the prosecution is that the daughter of the complaint was given in marriage to the accused (Basavaraj Ramappa Talawar) and his son (Janu Yamanurappa) was doing the contract work by obtaining a contract licence. Accused being the son-inlaw was assisting the son of the complainant in executing the work of the contract. Accused always used to ask son of the complainant to get a contract licence for him, for which he used to tell to gain the work experience and then, he would get a licence for him. On the date of the alleged incident i.e., on 11.03.2013, a petty quarrel took place and when they were sleeping in the morning at 5 a.m., the appellant-accused being the son-in-law informed over phone to the complainant that on Petlur road near Ningapur Silk Centre in a field while they had slept, someone had put a big stone on the head of the complainant's son Janu and crushed his head and he died and immediately asked him to go over there. On hearing that, the complainant went to the spot and found that his son had died with head injuries and a big stone was also lying by the side of the head. On enquiry of his son-inlaw, he informed that at about 10.30 a.m., the deceased and other workers came for pipeline work and after finishing the work, in the evening they had their dinner and slept in the land. In the night, they heard a sound and when they woke up, three persons who had worn black lungi ran away towards Ningapur. In the night, they heard a sound and when they woke up, three persons who had worn black lungi ran away towards Ningapur. One of the worker by name Neelappa told that when they had slept, son of the complainant, Janu and his son-in-law/accused quarreled in respect of the contract licence and they had pacified the quarrel and later, they heard crying sound and woke up and at that time, saw son-in-law of the complainant sitting on Janu and assaulting him with a big stone and all the four who were present dragged him and because of the assault, the deceased sustained grievous injuries on the left side of the head and it started bleeding and he died. It is further stated that when they asked the accused as to why he had done so, he told that as he did not get contract licence for him, he has assaulted him with stone and he also threatened them that if they tell the said fact to the police or others, they would also be done away with their lives. On the basis of the said say of Neelappa, a complaint was filed and a case was registered in Cr.No.32/2013. Thereafter, after the investigation, charge-sheet has been filed. The learned Magistrate after following the procedure committed the case to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused who was in custody and after hearing the learned counsel appearing for the parties, charge was framed. The accused pleaded not guilty. He claimed to be tried and as such, the trial was fixed. 4. In order to prove the case of the prosecution, prosecution got examined 20 witnesses, got marked 28 documents and 9 material objects. Thereafter, the statement of the accused was recorded under Section 313 of the Cr.P.C. He has denied the incriminating evidence appearing against him. The accused has not led any evidence nor got marked any documents. After hearing the learned counsel for the accused as well as the learned Public Prosecutor, the trial Court came to the conclusion that there is material evidence as against the accused and convicted him. Challenging the legality and correctness of the said judgment, the appellant/accused is before this Court. 5. After hearing the learned counsel for the accused as well as the learned Public Prosecutor, the trial Court came to the conclusion that there is material evidence as against the accused and convicted him. Challenging the legality and correctness of the said judgment, the appellant/accused is before this Court. 5. Learned counsel for the appellant/accused submitted that the judgment of conviction and order of sentence passed by the trial Court is contrary to law, evidence and material placed on record. It is his further submission that there are five eye witnesses. Out of them, four have not supported the case of the prosecution and it is only PW-6 who has supported the case of the prosecution. During his examination-in-chief but he has given a go bye and taken a 'U' turn during the course of cross-examination and has admitted that it is not the accused who had assaulted with stone and caused the death of the deceased. Under such circumstances, the trial Court without there being any material to connect the accused to the alleged crime, ought to have acquitted the accused. It is further submitted that the motive which is alleged by the prosecution is silly and that he himself could have applied for the licence and he could have got the licence. Under such circumstances, motive is not material to connect the accused to the alleged offence. It is his further submission that the deceased himself was a small contractor and he getting licence to the accused itself is a doubtful circumstance. He further submits that till the case has been posted for judgment, the charge was not framed and thereafter the charge was framed and proceeded to pass the impugned order whereby the right of the accused has been affected or deprived for taking a proper defence in the absence of proper charge. It is his further submission that the other witnesses who have been examined have not substantiated the case of the prosecution. Under such circumstances, the trial Court ought to have given the benefit of doubt to the accused and he ought to have been acquitted. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence by acquitting the accused. 6. Per contra, learned Addl. State Public Prosecutor vehemently argued and submitted that PW-6 is the material eye-witness to the alleged incident. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence by acquitting the accused. 6. Per contra, learned Addl. State Public Prosecutor vehemently argued and submitted that PW-6 is the material eye-witness to the alleged incident. He informed the complainant/PW-3 about the act of the accused. On the basis of the said say of PW-6, the complainant lodged the complaint and his examination-inchief was conducted on 09.09.2015 and when he has been further cross-examined on 13.10.2015, he has given a go bye to his examination-in-chief and supported the case of the accused. That itself clearly goes to show that the said witness was won over by the accused and in that light, the conduct of the accused if it is taken into consideration, the evidence of this witness has to be appreciated on weighing with a scale and the trial court after looking into all the materials, has come to a right conclusion and has rightly convicted the accused. It is further submitted that the shirt/M.O.1 has been recovered at the instance of the accused by drawing mahazar as per Ex.P.1. The said seizure mahazar witnesses/PWs-1 and 2 have also supported the case of the prosecution and it is corroborated with the evidence of the FSL report which has been marked as Ex.P.19. It is his further submission that the relationship between the deceased and the accused is also not disputed and the presence of the accused at the place of the incident is also not disputed. If the conduct of the accused if it is taken into consideration, he himself falsely intimated the complainant that three persons have committed the murder by throwing the stone and even no motive or illwill has been stated against those three persons. Under such circumstances, the only inference which has to be drawn is that it is the accused who has committed the offence. After hearing both the sides, the learned Sessions Judge passed the impugned judgment of conviction and order of sentence. On these grounds he prays for dismissal of the appeal. 7. We have carefully and cautiously gone through the submissions made by the learned counsel for the appellant accused and the learned Additional S.P.P. for the respondent State. Perused the records including the Trial Court records. 8. On these grounds he prays for dismissal of the appeal. 7. We have carefully and cautiously gone through the submissions made by the learned counsel for the appellant accused and the learned Additional S.P.P. for the respondent State. Perused the records including the Trial Court records. 8. Pws-1 and 2 are the seizure Mahazar Panchas which is as per Ex.P1 whereunder the shirt worn by the accused has been seized. But as could be seen from Ex.P1 it contains the date on the top of it as 11/3/2013 and the seizure Mahazar is dated as 13/3/2013. If really the accused could have produced the shirt, admittedly, the alleged incident has taken place on 11/3/2013 and accused was apprehended on 13/3/2013. As per the FSL report Ex.P19, it indicates that the shirt of the deceased as well the accused were stained with blood extensively and the size was also large and the stains of the blood was there all over the shirt. Under such circumstances, wearing of the shirt by the accused after the incident for two days and moving with the said extensive stains itself creates a suspicion in the case of the prosecution. No man in the ordinary course if he has committed the offence like murder and if his shirt has been extensively stained under such circumstances, he will not move with the said shirt to show the same to the villagers. The prosecution has not come up with any explanation for the said doubt in the case of the prosecution is concerned. 9. Pw-3 is the father-in-law of the accused and father of the deceased. He has filed the complaint as per Ex.P2 and he has also spoken with regard to the motive. As per his evidence, that the deceased was doing contract work and in the said contract work, accused was assisting and the accused was insisting the deceased to get him licence. But he was postponing the said issue of licence for one or the other reasons and in that light, there was some quarrel between the deceased and the accused and even prior to the alleged incident also, they have quarreled. But he was postponing the said issue of licence for one or the other reasons and in that light, there was some quarrel between the deceased and the accused and even prior to the alleged incident also, they have quarreled. He has also further deposed that in the first instance, at about 5.30 a.m., he received a phone call form his son-in-law and he informed that after the meals, they had slept in the field and at about 4.00 a.m., he got up and heard a sound and at that time, some persons have put the stone on the head of the deceased and ran way and they were wearing black lungi and immediately, he went there and he noticed that the deceased had died with head injury and when he made an enquiry, with Neelappa he told that it is the accused who has assaulted with stone and caused the death of the deceased. During the course of cross examination of this witness, nothing has been elicited so as to discard the evidence of this witness. 10. Pw-4 is the Panch witness to the spot Mahazar Ex.P7 wherein MOs.2 to 5 have been recovered and he is also a witness to the seizure cloths of deceased Panchanama as per Ex.P8, as per MOs.6-9. PW-5 is also a panch witness to Ex.P6. The spot mahazar Ex.P7 and seizure Mahazar of the cloths of the deceased as per Ex.P8. PW-4 has partly supported the case of the prosecution. PW-5 has supported the case of the prosecution. PWs.-6 to 9 are the eye-witnesses to the alleged incident and they are the co-workers working along with the deceased. PWs-7 to 9 have not supported the case of the prosecution and they have been treated as hostile. Nothing has been elicited from them so as to substantiate the case of the prosecution. 11. The only evidence which is available before the Court is that of PW-6. PW-6 in his evidence has deposed that they were laying the pipeline and because of the late night, they had meals and were sleeping in the field. He has further deposed that at the time of taking the meals there was a quarrel between the deceased and accused with reference to getting the licence to the accused and they have pacified the said quarrel and thereafter, they have slept. He has further deposed that at the time of taking the meals there was a quarrel between the deceased and accused with reference to getting the licence to the accused and they have pacified the said quarrel and thereafter, they have slept. He has further deposed that at about 3.00 a.m. he heard a sound and all the four got up and at that time, saw the accused sitting on the chest of the deceased and was hitting with a stone on his head and immediately, they dragged the accused but found the deceased has already dead. They asked the accused and he confessed that deceased has not getting the licence to him and as such, he has done the said act. He informed that they should not reveal the said fact to anybody or else they are also going to be dealt with in the same way. Because of the fear, they have not told the said fact to anybody. But however, he had disclosed the same fact to PW-3 when he came. 12. During the course of cross examination, witness admitted the fact that when they were working by laying the pipe there other people were also working in the field and do not know who is the owner of the land where they have slept. He has also further deposed that while taking the meals, the deceased and the accused have quarreling verbally. He has further admitted the fact that the deceased and the accused have jointly taken the work. He has further admitted till the incident, they were cordial and there was no difference. He further admitted that at about 3.00a.m., the police came to the spot and they have taken all the four witnesses as well as accused to the police station and up to 6.00a.m. they were made to sit in the police station. He further admitted the fact that by the side of the deceased, he was sleeping and by his side one Somappa was sleeping and then thereafter, the accused was also sleeping and they has further admitted the fact that the accused was also sleeping and they saw the deceased and it is the accused who pushed the deceased to know whether he is alive or not and at that time, they noticed that he had already dead. He has further admitted the fact that the accused had not crushed the head with the stone and for that reason, the deceased had not died and he has also further admitted that in the night somebody has assaulted the deceased with stone and the police made them to sit in the police station for three days and thereafter, they have registered the case. He has also further admitted that because of the threat given by the police, that he will also be arrayed as accused, he made acquisition against the accused. He has also further admitted the fact that he has not stated before the police that the accused was sitting on the chest and hitting with the stone and at that time, they have dragged him. 13. Though during the course of argument, the learned public prosecutor vehemently argued and submitted that this witness was examined in examinationin- chief on 9/9/2015 and subsequently, after some gap, the said witness was cross examined on 13/10/2015 and that is why there is every possibility of winning over the said witness by the accused and in that light, he has given a U turn to his examination-in-chief and has given the said admission. It is the contention of the learned counsel for the appellant- accused that during the course of recording the evidence, the accused-appellant was in judicial custody. It is his further submission that there is no material brought on record that the prosecution to show that this witness has been tampered and pressurized to give such evidence after examination-inchief. 14. We have carefully and cautiously gone though the evidence of this witness. We are of the considered opinion that the conduct of this witness if it is taken into consideration, in the examination-in-chief itself that he has supported the case and only when this witness was cross examined on 13/10/2015, that he has given all the admissions. Under such circumstances, a cloud is there on the evidence of this witness. But when the prosecution re-examined this witness, except suggesting that for some consideration he has is deposing falsely, nothing has been brought on record. When the witness has given clear admission stating that it is not the accused who has assaulted the deceased, under such circumstances, that the evidence of this witness cannot be accepted and accused cannot be convicted. But when the prosecution re-examined this witness, except suggesting that for some consideration he has is deposing falsely, nothing has been brought on record. When the witness has given clear admission stating that it is not the accused who has assaulted the deceased, under such circumstances, that the evidence of this witness cannot be accepted and accused cannot be convicted. When the evidence of the witness is shaky and that the witness is also not trustworthy and reliable, under such circumstances, much importance cannot be given to this type of evidence given by PW-6. 15. Apart from that, the other witnesses who are also quoted by the prosecution as PWs.-7-9, they have also not supported the case of the prosecution. Under such circumstances, much credence cannot be given to the evidence of PW-6 so as to bring home the guilt of the accused. Even the presence of the said witnesses itself creates a doubt. In the cross examination he has admitted the fact that he did not know who is the owner of the land where they have slept. When they have worked by laying the pipe line, he was working along with the deceased as co-worker, then under such circumstances, definitely they will be knowing where exactly they were sleeping, nobody will go and sleep in an unknown place. Under such circumstances, the trial Court has not properly looked into this aspect while appreciating the evidence of this witness. Though there is no sufficient cogent evidence to connect the accused to the alleged crime the trial Court has came to a wrong conclusion by wrongly appreciating his evidence and has convicted the accused. 16. Pw-10 is the owner of the land where the alleged incident has taken place. He has also not spoken with regard to the knowledge about the accused, deceased and other persons sleeping in his land. PWs.11 and 12 are the brothers of PW-10 and they have also not supported the case of the prosecution. PW-13 is the elder brother of the deceased and only a hearsay witness and his evidence is not going to help in the matter. PW-14 is the Assistant Executive Engineer who has drawn the sketch as per Ex.P15 of the place of incident. PW-15 is the police constable who has taken the body for conducting the postmortem and PW-16 is the police constable who apprehended the accused on 13/3/2013. PW-14 is the Assistant Executive Engineer who has drawn the sketch as per Ex.P15 of the place of incident. PW-15 is the police constable who has taken the body for conducting the postmortem and PW-16 is the police constable who apprehended the accused on 13/3/2013. PW-17 is the doctor who has conducted the autopsy over the body of the deceased and has given postmortem report as per Ex.P18 and opinion as per Ex.P20. PW-18 is the P.S.I. who has registered the case and issued the FIR as per Ex.P21. PW-19 is the A.S.I., he has carried the seized articles for chemical examination to RFSL. PW-20 is the Investigating officer who investigated the case and filed the charge sheet. 17. In sofaras the death of the deceased as a homicidal death, has not been disputed by the accused during the course of cross-examination. It is the version of the prosecution that the son-in-law of the accused himself has informed the complainant i.e. father-in-law that three persons came there and have crushed the head of the deceased by throwing the stone and ran away. In that light, we will not be having any hesitation to hold that the deceased died the homicidal death. Even it cannot be over ruled that those three reasons causing death of deceased. On perusal of other evidence produced by the prosecution it is not sufficient and cogent so as to bring home the guilt of the accused beyond all reasonable doubt to convict him for the alleged offence. 18. We have carefully and cautiously gone though the judgment of the Trial Court. The trial Court has not looked into the admission and material evidence of the witnesses and has came to a wrong conclusion and has wrongly convicted the accused. So in that light, we are of the considered opinion that there is a perversity and illegality in passing the impugned order which requires interference at the hands of this Court. 19. For the discussion held by us above and the circumstance narrated, we pass the following order: ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in Sessions Case No.53/2013 dated 29.11.2016 is set aside and the appellant accused is acquitted of the charges levelled against him. The bail bond and surety bond stood cancelled. The judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in Sessions Case No.53/2013 dated 29.11.2016 is set aside and the appellant accused is acquitted of the charges levelled against him. The bail bond and surety bond stood cancelled. If any fine amount has been deposited, the same may be refunded to the appellant-accused on proper identification and acknowledgement. The Registry is directed to send back the LCR to the Trial Court.