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2020 DIGILAW 1388 (KAR)

Shivanand v. State Of Karnataka

2020-07-13

B.A.PATIL, M.G.UMA

body2020
JUDGMENT M.G.Uma, J. - Heard the learned senior counsel Shri Ravi B.Naik and Shri J.Basavaraj for the appellants and Shri V.M.Banakar, Addl. SPP for respondent-State. 2. The appellants are before this Court aggrieved by the impugned judgment of conviction and order of sentence passed by the learned Addl. District and Sessions Judge, Gadag (in short referred to as "the trial Court"), dated 06.01.2018, passed in S.C.No.48/2014, convicting the accused for the offences punishable under Sections 143, 147, 148, 504, 506, 341, 201, 302 read with Section 149 of IPC 3. The first informant Manjunath Magalad, the brother of the deceased lodged first information as per Ex.P17, wherein he has stated that he is residing in Adavi Somapur village along with his mother Shantavva, brother Raghavendra, younger brother Hemant, his wife Shankravva and his sister-in-law Renavva. It is also stated that his brother Hemant was working in Tamil Nadu Roadlines for five to six years which was run by Sunil and Shivanand. About a year earlier to the incident, Hemant was removed from the job and thereafter, he started his own transport business near Dambal Naka, Gadag under the name and style "Manjunath Transport". He used to travel every day from Adavi Somapur to his office at Dambal Naka. It is also stated that his cousins Marthandappa and Kariyappa, who are the sons of his uncle Mallappa, were also having ill-will and used to pick up quarrel every now and then and about five to six months earlier to the incident, they had picked up quarrel and even have assaulted the brother of the complainant Shri Raghavendra. Similarly, Sunil and Shivanand, who were running Tamil Nadu Transport, were also related to the complainant, as they are the sons of maternal aunt of the complainant, were having ill-will against Hemant, as there was business rivalry and they used to pick up quarrel every now and then. 4. The informant further stated that as usual his brother Hemant started from his house on the date of incident i.e., on 12.08.2014 in the morning to go to Gadag and he was returning to Adavi Somapur in the night. 4. The informant further stated that as usual his brother Hemant started from his house on the date of incident i.e., on 12.08.2014 in the morning to go to Gadag and he was returning to Adavi Somapur in the night. The informant was returning to Adavi Somapur in a Tata Ace, along with Parashuram Koppal and Basavaraj and when reached near Bannikatti, they found the body of a person with bleeding injuries by the side of the road and when they got down from TATA Ace, they found that it was the body of Hemant. They notice that Hemant had sustained bleeding injuries all over the body, which might have been caused with sharp edged weapon and he had already dead. The motorcycle belonging to the deceased was also laying nearby. Therefore, he suspected that some miscreants might have assaulted him with sharp edged weapon, with some ill-will or motive and caused his death. Therefore, he requested the Police to register the case and to initiate legal action. Gadag Rural Police registered the case in Crime No.216/2014 against the unknown persons for the offences punishable under Sections 302 and 201 of IPC. 5. After investigation into the matter, the charge sheet was filed against accused Nos.1 to 6 and juvenile accused No.7 alleging that as accused No.1 was having illwill against the deceased in the matter of transport business, with a common object of committing dacoity and murder of the deceased, formed unlawful assembly with accused Nos.2 to 6 and juvenile accused Nos.1 to 7 on 12.08.2014 at Adavi Somapur village and accused Nos.1 to 3, 5 and 6 came in the car bearing registration No.KA- 11/6747 while accused Nos.4 and 7 in the motorcycle bearing registration No.KA-19/U-4723 and dashed the car to the motorcycle on which the deceased was proceeding. As a result of dashing the car, the deceased fell down and accused Nos.2 to 4 have assaulted him with knives on his forehead, cheek, neck, shoulder and back; accused No.1 assaulted the deceased with kandli and caused his murder and criminally intimidated CWs.10 and 11 to runaway from the scene of offence or else to take away their lives, they ran away from the scene of offence with kandli and knives to destroy the evidence of the commission of offence and thereby all the accused have committed the offences punishable under Sections 143, 147, 148, 504, 506, 341, 302 and 201 read with Section 149 of IPC. 6. The committal Court took cognizance of the matter, secured the presence of accused Nos.1 to 6 and after following the procedure contemplated under Sections 207 and 208 of Cr.P.C. passed the committal order under Section 209 of Cr.P.C. and committed the matter which is exclusively triable by the Sessions Court. The learned Prl. District and Sessions Judge made over the matter to the trial Court for disposal in accordance with law. Accused No.7 being the juvenile was tried before the Juvenile Justice Board. 7. The trial Court secured the presence of all the accused. The accused pleaded not guilty for the charges levelled against them for the offences stated above. Thereafter, trial was fixed and the prosecution got examined 28 witnesses, marked 39 documents and 23 material objects in support of its contention. The accused have denied the incriminating materials available on record in their statement under Section 313 of Cr.P.C., but they have not chosen to lead any evidence in support of their defence. However, Exs.D1 to D14 were came to be marked during cross-examination of the prosecution witnesses. The trial Court after taking into consideration all these materials on record, formed an opinion that the prosecution is successful in proving the guilt of the accused for the offences punishable under Sections 143, 147, 148, 504, 506, 341, 302 and 201 read with Section 149 of IPC and convicted them with separate sentence. Aggrieved by the impugned judgment of conviction and order of sentence passed by the trial Court, accused Nos.1 to 6 have preferred this appeal on several grounds. 8. Aggrieved by the impugned judgment of conviction and order of sentence passed by the trial Court, accused Nos.1 to 6 have preferred this appeal on several grounds. 8. Learned Senior Counsel for the appellants submitted that the trial Court has committed an error in convicting all the accused for the charges levelled against them without there being any materials to prove their guilt. He further submitted that as per the case made out by the prosecution, there were two eyewitnesses to the incident. The prosecution examined PW5 as an eyewitness, but his conduct as stated in his evidence, is highly suspicious. His version cannot be believed even for a moment. The incident in question had taken place on 12.08.2014 at about 8:30 9:00 p.m., but PW5 stated that he had not disclosed the fact of commission of offence by the accused to anybody till 14.08.2014. Even thereafter, the conduct of this witness do not repose confidence in the mind of the Court. He further submitted that as per the case of the prosecution, CW11 was the another eyewitness, who accompanied PW5 while witnessing the incident. But the prosecution has not examined CW11 before the trial Court for the reason best known to it. Except the evidence of PW5, the prosecution has not placed any other material against the accused. 9. The learned Senior Counsel further submitted that as per the first information-Ex.P17, the deceased was having ill-will with his relatives, with whom there was frequent quarrels. Under such circumstances, the commission of offence by them cannot be ruled out. The learned Senior Counsel drawn our attention to the evidence of PW11 mother of the deceased, who stated that she came to know about the commission of offence by the accused on 13.08.2014 itself, which is quite contradictory to the say of the so called eyewitness-PW5. 10. The learned Senior Counsel also submitted that admittedly there was no source of light at the scene of offence and under such circumstances, PW5 and CW11 seeing the incident and identifying the accused is highly improbable. Therefore, the prosecution has failed to place any material before the trial Court to connect these accused to the offence in question. Inspite of that, the trial Court proceeded to convict the accused without any basis which has resulted in miscarriage of justice. Therefore, the prosecution has failed to place any material before the trial Court to connect these accused to the offence in question. Inspite of that, the trial Court proceeded to convict the accused without any basis which has resulted in miscarriage of justice. Therefore, he prays for allowing the appeal by acquitting accused Nos.1 to 6, who are appellants herein, for all the charges levelled against them and to acquit them in the interest of justice. 11. Per contra, the learned Addl. SPP supporting the impugned judgment of conviction and order of sentence passed by the trial Court, submitted that the trial Court has taken into consideration the oral and documentary evidence placed before it, arrived at a right conclusion that the prosecution is successful in proving the guilt of the accused beyond all reasonable doubt and therefore convicted the accused. He submitted that there is no illegality or perversity in the impugned judgment of conviction and order of sentence. The evidence of PW5 clearly discloses that he is an eyewitness to the incident and his version cannot be disbelieved in the absence of any strong circumstance. Moreover, the motive for the accused to commit the offence was also suspected by the informant at the earliest point of time i.e., while filing the first information. Moreover PWs.6, 7, 10 and 11 have also spoken about the motive for the accused to commit the offence. Even though the learned advocate representing the accused cross-examined all these prosecution witnesses at length, nothing has been elicited from them to disbelieve their version. Under such circumstances, he submits that there are no good grounds to interfere with the impugned judgment of conviction and order of sentence and prays for dismissal of the appeal as devoid of merits. 12. We have given our thoughtful consideration to the materials on records including the trial Court records. 13. In the light of the submissions made by both the learned advocates, we have given our thoughtful consideration to the materials on record including the trial Court records. 14. Even though the first informant-PW7 lodged first information as per Ex.P7 against unknown persons, there is reference to accused No.1 who said to be running Tamil Nadu Transport Company, wherein the deceased was employed. 14. Even though the first informant-PW7 lodged first information as per Ex.P7 against unknown persons, there is reference to accused No.1 who said to be running Tamil Nadu Transport Company, wherein the deceased was employed. There is also reference to the removal of the deceased from his job in Tamil Nadu Transport Company and thereafter the deceased starting his own transport company in the name and style "Manjunath Transport". It is the contention of the prosecution that during the investigation, it was revealed that PW5 and CW11 are the eyewitnesses to the incident and on the basis of their statement, further investigation was undertaken and charge sheet was filed. 15. Before the trial Court, the prosecution examined PW5 as eyewitness to the incident. This witness stated on oath that on 12.08.2014 while he along with CW11-Mabusab was proceeding on the motorcycle from Gadag towards Adavi Somapur village, they noticed that these accused persons were holding the deceased Hemant and were assaulting him with knives and kandli. This incident had taken place at 8:45 p.m. He pleaded his ignorance about the names of the accused persons, but however the witness identified them before the Court and stated that it was accused No.2 - Somappa, accused No.4 Manjunath along with Juvenile Lohit Gouda were holding the deceased Hemant, while accused No.1 along with other accused were assaulting him with knives and kandli. It is stated that he saw the accused assaulting the deceased on his neck, chest, stomach, shoulder, back and all over the body. The witness also stated that the deceased was trying to ran towards Gadag but the accused held him tightly. They were also abusing him and proclaiming to finish him off. The witness stated that on seeing the incident, he was very much afraid. He noticed the bleeding from the wounds sustained by the deceased. In the meantime, the accused threatened him and Mabusab, not to reveal the same to anybody. About two days after the incident, they have gone to the house of the deceased Hemant and informed his family members about the commission of offence by the accused. This witness identified the kandli-MO19 and knives as MOs.14, 16 and 20. 16. During cross-examination, this witness stated that he had witnessed the incident from about 20 feet away from the scene of offence. This witness identified the kandli-MO19 and knives as MOs.14, 16 and 20. 16. During cross-examination, this witness stated that he had witnessed the incident from about 20 feet away from the scene of offence. He further stated that he had seen the incident with the help of head light of his motorcycle. Witness stated that he had gone to the burial of the dead body of the deceased. He sympathized with the members of the family of the deceased on 14.08.2014. The villagers came to know that it was the accused themselves have committed this offence. Thereafter, he went to the house of the deceased and informed the fact to the mother, brothers-Manjunath and Raghavendra of the deceased. Thereafter, he went to the Police Station and gave his statement, but denied the suggestion that he is deposing falsely in favour of the prosecution, as he and the deceased were belong to the same caste. 17. The prosecution examined PW1, the inquest pancha for the inquest mahazar Ex.P1. PW2 is the panch for the seizure mahazar-Ex.P7, whereunder the clothes of the deceased were seized. PWs.3 and 4 are the panchas for the seizure mahazar-Ex.P8, whereunder the car, motorcycle and the weapons said to have been seized at the instance of the accused. But both these witnesses have not supported the case of the prosecution. PW6 is an employee in the tea stall that was run by the deceased and his mother. He has also not supported the case of the prosecution. 18. Pw7 is the first informant, who is the brother of the deceased. This witness lodged the first information as per Ex.P17 against unknown persons and this witness speaks about the motive for the accused to commit the offences. He further stated that on 14.08.2014 at 7:00 a.m., PW5 and CW11 have come to his house and informed about the commission of offence by the accused by using knife and kandli. They also informed that the accused have criminally intimidated both PW5 and CW11 not to reveal this fact to anybody else. They also stated that they had seen the motorcycle and white colour car at the scene of offence. 19. During cross-examination, the witness stated that there was dispute between him and his uncle and his children Marthandappa and Kariyappa. Further, he stated voluntarily that both Marthandappa and Kariyappa were instigated by the accused themselves. They also stated that they had seen the motorcycle and white colour car at the scene of offence. 19. During cross-examination, the witness stated that there was dispute between him and his uncle and his children Marthandappa and Kariyappa. Further, he stated voluntarily that both Marthandappa and Kariyappa were instigated by the accused themselves. During crossexamination regarding the motive of the accused to commit the offence, the witness stated that he had not handed over any of the documents relating to transport business of the deceased to the Police. He pleaded his ignorance about the reason for the accused to remove the deceased from the job in Tamil Nadu Transport Company. The witness denied the suggestion that his paternal aunt, who is the mother of the accused was demanding share in the family property and therefore, the accused were falsely implicated in the matter. 20. Pws.8 and 9 are the seizure mahazar panchas, which is marked at Exs.P8 and 9, whereunder the shirt of accused No.6 was seized. Both witnesses have not supported the case of the prosecution. 21. Pw10 is circumstantial witness, who is uncle of the deceased working with deceased in the business. 22. Pw11 is the mother of the deceased. She spoke about the motive for the accused in commission of the offence. She further stated that on 13.08.2014, PW5 and CW11 have come to her house and informed about the commission of offence by the accused. During the crossexamination it was stated that both PW5 and CW11 had came for funeral of the deceased, but at that time, they have not stated anything regarding commission of the offence by the accused. 23. Pw12 is the circumstantial witness, who deposed about seeing the dead body of the deceased Hemant near Bannikatti and his motorcycle in the said place. As the witness has not fully supported the case of the prosecution, he was treated hostile. During the cross-examination by the learned public prosecutor, the witness has stated that there was ill-will between accused No.1 and the deceased: Hemant, but he denied the suggestion that he had given statement as per Ex.P19 before the Police. 24. Pw13 is the one more circumstantial witness who say that the deceased-Hemant had died in an accident. He was treated as hostile. During the cross-examination by the learned public prosecutor nothing has been elicited from him to support the case of the prosecution. 24. Pw13 is the one more circumstantial witness who say that the deceased-Hemant had died in an accident. He was treated as hostile. During the cross-examination by the learned public prosecutor nothing has been elicited from him to support the case of the prosecution. PW14 is the wife of PW7 and she deposed regarding hearsay information. PW15 is the head constable, who carried the FIR, which is marked at Ex.P22 and submitted to the jurisdictional Magistrate. PW16 is the Police Constable, who shifted the dead body of the deceased for postmortem examination. 25. Pw17 is the Doctor, who conducted postmortem examination on the dead body of the deceased and issued postmortem report as per Ex.P23. As per the evidence of this witness, the deceased had sustained as many as 16 external injuries on the body, which are all anti mortem in nature and he is of the opinion that the death of the deceased was due to shock, hemorrhage, large wound, abdomen injuries following assault using sharp instruments. This witness also states that he examined one kandli, one butten knife and two other knives and he has given his opinion regarding the injuries found on the dead body as per Ex.P24. He identified those weapons as MOs.14, 19, 16 and 20. The witness stated that in his opinion, the injuries sustained by the deceased could be caused with the said weapons. This witness was cross-examined at length by the learned advocate appearing for the accused, but nothing fatal has been elicited from him. 26. Pw18 is the Police constable, who carried the material objects seized in the matter for RFSL. PW19 is the AHC, who was assisted the Investigating Office as photographer. PW20 is the Police Constable, who assisted the Investigating Officer in the Investigation and spoke about the apprehension of the accused and recording their voluntary statement by the Investigating Officer. PW21 is the Assistant Engineer, PWD, who had drawn the spot sketch as per Ex.P29. PW22 is the Police Constable, who is the scribe to the panchanama i.e., spot panchanama and seizure panchanama. PW23 is the Motor Vehicle Inspector, who inspected two wheeler and the car and has given his report as per Ex.P30. PW24 is the PSI, who received the first information and registered the same in FIR, which is marked at Ex.P22. PW22 is the Police Constable, who is the scribe to the panchanama i.e., spot panchanama and seizure panchanama. PW23 is the Motor Vehicle Inspector, who inspected two wheeler and the car and has given his report as per Ex.P30. PW24 is the PSI, who received the first information and registered the same in FIR, which is marked at Ex.P22. He also speaks about the apprehension of accused Nos.1 to 4 near Bannikatti Zoo cross. PW25 is the Scientific Officer of RFSL, Mysore, who subjected the material objects for chemical examination and issued FSL report as per Ex.P31. The witness stated that except in item No.3, she noticed 'A' group human bloodstains on all other material objects. PW26 is the CPI, who is the investigating Officer, who further investigated the matter. 27. Pw27 is the Dy.S.P., who completed the investigation and filed the charge sheet against the accused. This witness speaks about the voluntary statement of the accused recorded as per Exs.P33 to P37 and about recovery of blood stained shirt of accused No.2 and butten knife at his instance, a knife and a shirt at the instance of accused No.3, a knife and a blood stained shirt at the instance of accused No.4, a shirt and a pant at the instance of accused No.5, which were seized under the seizure mahazar-Ex.P8 in the presence of panchas. But both panchas to Ex.P8 have not supported the case of the prosecution. 28. Pw28 is the Scientific Officer of RFSL, Mysore, who subjected the shirt sent for examination and issued report as per Ex.P38 with a finding that the said shirt was stained with 'A' group human blood. 29. It is the contention of the prosecution that the deceased had died homicidal death. This fact is not in serious dispute as the prosecution examined PW1, the inquest mahazar witness and PW17 the Doctor, who conducted postmortem examination. The evidence of these witnesses along with inquest mahazar-Ex.P1 and postmortem report-Ex.P23 and the opinion of the Doctor at Ex.P24 discloses that the deceased had sustained as many as 16 injuries and it is the opinion of the Doctor, who conducted postmortem examination that the death was due to shock, hemorrhage, large wound, abdomen injuries following assault using sharp instruments. From these materials, the prosecution is successful in proving that the deceased had died homicidal death. 30. From these materials, the prosecution is successful in proving that the deceased had died homicidal death. 30. Even though the prosecution examined as many as 28 witnesses, got marked as many as 39 documents and identified 23 material objects, the main witness on whom, it is relying to prove the case of the prosecution is PW5-the eyewitness. He is the star witness to the case of the prosecution, who states that on the date of incident, he along with CW11 was coming near the scene of offence and he saw the accused assaulting the deceased with kandli and knife. He stated that he had seen the incident from a distance of about 20 feet. It is not the contention of the prosecution that there was sufficient light at the scene of offence. Admittedly, the scene of offence is by the side of the road leading from Gadag towards Adavi Somapur. Ex.P29 is the spot sketch drawn by the Assistant Engineer, PWD, there is no reference of any electric pole near by the scene of offence as the incident had taken place, which is about 5 feet away from the main road. 31. Pw5 in his evidence states that he could see the incident with the help of the headlight of his motorcycle, which is most improbable as according to this witness, there were in all seven accused persons and if at all PW5 and CW11 have to stop their motorcycle and saw the accused committing the offence, with the help of headlight of the motorcycle, definitely the accused would not have spared PW5 and CW11. It is not the contention of the prosecution that there were any other persons other than PW5 and CW11 who have seen the incident. CW11 is not examined by the prosecution for the reason best known to it. Therefore, only connecting link for the prosecution to connect the accused to the offence in question is PW5. The conduct on the point of PW5 is strange as he states that he could identify the deceased. He could also identify the accused along with the weapons used by them, for committing the offence. Still neither he nor CW11 disclosed this fact to anybody including the Police for about two days, even though they have attended the funeral of the deceased on 13.08.2014 and even though they have seen the family members of the deceased in grief. He could also identify the accused along with the weapons used by them, for committing the offence. Still neither he nor CW11 disclosed this fact to anybody including the Police for about two days, even though they have attended the funeral of the deceased on 13.08.2014 and even though they have seen the family members of the deceased in grief. On the other hand, it was on 14.08.2014, PW5 along with CW11 went to the house of the deceased and informed his mother and brother about the incident. Whereas PW11, the mother of the deceased deposed before the Court that PW5 and CW11 have come to her house on 13.08.2014 and informed regarding the accused being assailants. 32. When the prosecution is relying on the version of the sole eyewitness, when the prosecution is relying on the version of the sole witness, we have to make sure that the witness is honest and truthful and his version is credible. On the other hand, if the version of the sole eyewitness is found to be wholly reliable, we have to look for corroboration in support of his testimony. Even though it is not the rule of law, which insists for corroboration, but the rule of prudence requires corroboration. 33. The Hon'ble Supreme Court in RAMJI SURJYA AND ANOTHER Vs. STATE OF MAHARASHTRA, (1983) AIR SC 810 made this position very clear and held as under: "8. There is no doubt that even where there is only a sole eye-witness of a crime, a conviction may be recorded against the accused concerned, provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill-will is suggested." This proposition of law was reiterated by the Hon'ble Supreme Court in ANIL PHUKAN Vs. STATE OF ASSAM, (1993) 3 SCC 282 "3. Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. STATE OF ASSAM, (1993) 3 SCC 282 "3. Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. ." 34. Therefore, the trait of law is settled and when the reasonable doubt arises in the mind of the Court about the credibility of the sole eyewitness to the incident, the law of prudence requires to look for corroboration, but in the present case, as we have already noted, the prosecution has not examined the other eyewitness-CW11. It amounts withholding of the material evidence before the Court. There is absolutely no explanation by the prosecution as to why the said material witness is not examined when there are no other materials to connect the accused to the offence in question. Under such circumstances, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond all reasonable doubt. Even though the prosecution has placed some material to probablise its contention, the same is not sufficient to bring home the guilt of the accused. 35. One more circumstance to which our attention was drawn by the learned Senior Counsel is with regard to the motive to commit the offence by the close relatives of the deceased. Admittedly there was ill-will and strong motive to commit the offence by the cousins of the deceased. Under such circumstance, the prosecution should have ruled out such possibility of committing the offence by them or by other persons. No such attempt is seen to have made. Admittedly there was ill-will and strong motive to commit the offence by the cousins of the deceased. Under such circumstance, the prosecution should have ruled out such possibility of committing the offence by them or by other persons. No such attempt is seen to have made. Under such circumstances, we are of the opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and the accused are entitled for the benefit of doubt and are to be acquitted. 36. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court, it has proceeded to convict the accused only on the testimony of the sole eyewitness PW5, which cannot be upheld, when there are serious doubt regarding the conduct of this witness, immediately after the incident. The trial Court could not have relied on such version of the sole eyewitness to convict the accused. Therefore, we are of the opinion that the impugned judgment of conviction and order of sentience passed by the trial Court is liable to be set aside and the accused are entitled to be acquitted. Hence, we proceed to pass the following: ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the Additional District and Sessions Judge, Gadag in S.C.No.48/2014 dated 06.01.2018 is set aside and the appellants/accused Nos.1 to 6 are hereby acquitted of all the charges leveled against them. Their bail bonds and surety bonds have been cancelled. The learned District and Sessions Judge, Gadag is hereby directed to refund the fine amount, if the same has been deposited by the appellants/accused, on proper identification and acknowledgment.