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2020 DIGILAW 1451 (KAR)

H. Nagaraja v. State Of Karnataka

2020-07-21

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The appellant-Sri. Nagaraja S/o H.Venkatesha is before this Court, seeking intervention in the judgment of conviction and order of sentence passed by the learned III Additional District and Sessions Judge, Bal lari, sitting at Hosapete (herein after referred to as the 'trial Court' ), in Sessions Case No.5056/2014 dated 26.7.2017. 2. We have heard the learned counsel Sri. K.L.Pati l for the appel lant-accused and the learned Additional S.P.P. Sri V.M. Banakar for the respondent-State. 3. The genesis of the case of the prosecution in brief is that accused is the distant relative of the deceased. He used to visit the house of the deceased and was trying to win over his wife. He used to visit the house when the complainant and the deceased were not there in the house, by taking lunch and diner. It is further alleged that in order to make his way clear, he assured the deceased of an employment in B.M.M. Factory and on 21/6/2014, he took him by getting his bio-data prepared with Ramtech Computer Centre. The deceased on his motorcycle bearing registration No.KA-35/S-4587 towards the factory. At about 3.30 pm, he purchased Imperial Blue whisky from Kalpana wine shop and accused told the deceased to stay in the said place and thereafter, the accused purchased the Dupont Coragen pesticide from Venkateshwara Traders and Ferti l izers and mixed the said pesticide in the whisky by sending the deceased to get 7 up' cold drinks behind the said shop and mixed 7 up' cold drinks in the said poison mixed whisky and made him to drink. Thereafter, left him near Sneha Cel l phone shop and one auto driver brought the deceased at about 4.30 pm, to the house in a serious condition to his house. Thereafter, the wife of the deceased took him inside and by his seeing condition, he was taken in a auto rikshaw to M.M.Hal l i Government hospital at 7.30 pm., whi le under treatment, the deceased died. 4. On the basis of the said death, the UDR complaint was registered as per Ex.P22. A case has been registered in Crime No.73/2014. Thereafter, after investigation, the charge sheet came to be filed. 5. The learned Magistrate after fol lowing the procedure, committed the case to the Sessions Court. 4. On the basis of the said death, the UDR complaint was registered as per Ex.P22. A case has been registered in Crime No.73/2014. Thereafter, after investigation, the charge sheet came to be filed. 5. The learned Magistrate after fol lowing the procedure, committed the case to the Sessions Court. Sessions Court took cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed, read over and explained to the accused. Accused pleaded not gui lty. He claims to be tried and as such, the trial was f ixed. 6. The prosecution in order to prove the guilt of the accused, got examined 29 witnesses, got marked 39 documents and 4 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said incriminating materials, but he has not led any evidence. After hearing both the sides, the trial Court passed the impugned Judgement of conviction and order of sentence. Chal lenging the legal ity and correctness of the said judgment, the appellant accused is before this Court. 7. The main grounds urged by the learned counsel for the appellant accused are that the impugned judgment of conviction and order of sentence passed by the Trial Court is erroneous and opposed to law and fact and probabil ities of the case on hand. It is his further submission that the entire case rests on the circumstantial evidence and in order to bring home the gui lt of the accused, al l the circumstances are to be establ ished with chain of events. If any one of the link in the chain of event is broken, then benefit of doubt has to be given to the accused. 8. It is his further submission that the prosecution is intending to rely upon the motive for the al leged offence that the accused had an eye on the wife of the deceased and in that l ight, he wanted to el iminate the deceased so as to make his way clear. But PW17, the wife of the deceased, except saying a stray sentence that his character was not good, has not al leged anything as against the accused with reference to motive is concerned. But PW17, the wife of the deceased, except saying a stray sentence that his character was not good, has not al leged anything as against the accused with reference to motive is concerned. Even that word also does not the point out the fact that he was having an eye on her. It is his further submission that, when a UDR Complaint was registered as per Ex.P21, only a suspicious circumstances has been stated. No specif ic motive has been al leged in this behalf . Subsequently, the said motive has been created only to impl icate the accused in the al leged crime. It is his further submission that the deceased was already employed in B.M.M. factory and because of dust al lergy, he left the place and he was working as a driver. When he has already left the job in the said company, under such circumstances, accused taking the deceased for securing the employment in the B.M.M. factory itself is going to falsify the case of the prosecution. It is his further submission that the evidence of PW18 is also not trustworthy and reliable. It is his further submission that, though this witness has supported the case of the prosecution in examination in chief, but he has given go-by to the examination in chief in his cross examination. It is his further submission that though the prosecution is intending to rely upon the evidence of the owner of the shop where the Imperial Blue whisky has been purchased, those witnesses have not supported the case of the prosecution. Even the owner of the pesticide shop PW12 has also not supported the case of the prosecution for having purchased the pesticide from his shop. The Manager of the B.M.M. Company and the worker PWs.13 and 14 have also not supported the case of the prosecution. It is his further submission that the prosecution is also intending to rely upon the evidence of PW22 to prove that the accused and the deceased were last seen together on 21/6/2014 at about 1.45 pm, but that witness has also not supported the case of the prosecution. It is his further submission that the prosecution is also intending to rely upon the evidence of PW22 to prove that the accused and the deceased were last seen together on 21/6/2014 at about 1.45 pm, but that witness has also not supported the case of the prosecution. When the material evidence which has been produced is not substantiated the fact that it is the accused who took the deceased with a promise to provide an employment and he administered the pesticide by mixing the same in the whisky, then under such circumstances, the trial Court ought to have given the benefit of doubt and ought to have acquitted the accused. It is his further submission that the trial Court has not given any reason with regard to the last seen theory is concerned. When the prosecution has utterly fai led to prove the guilt of the accused beyond all reasonable doubt, the trial court ought to have given the benefit of doubt. On these grounds, he prayed to al low this appeal and to set aside the judgement of conviction and order of sentence and to acquit the appellant. 9. Per contra, the learned Additional SPP vehemently argued and submitted that the mother, brothers and sisters of the deceased have clearly stated the fact that the accused used to visit their house and was closely behaving by bringing the meat and he also used to come as and when no family members were there and he used to behave closely with PW17. She has also deposed before the Court that the character of the accused was not good. It is his further submission that though PWs.10, 11, 12, 13, 14 and 15 have not supported the case of the prosecution, but the fact remains that the evidence of PW21 and PM report Ex.P32 indicates the fact that the death of the deceased is due to consumption of the poison (Diamide insecticide). It is his further submission that the evidence of the prosecution also clearly goes to show that the accused took the deceased on his motor cycle and thereafter, he has administered the pesticide by mixing the same in to the whisky. Taking into consideration the above said facts and circumstances, the trial Court has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. Taking into consideration the above said facts and circumstances, the trial Court has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 10. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the Trial Court records. 11. The entire case of the prosecution rests on circumstantial evidence and there are no eye witnesses in the present case on hand. It is well settled preposition of law that where the charge sheet indicates that the case rests on circumstantial evidence, link in the chain of the circumstances have to be completely established, then only, the conviction can be confirmed. This proposition of law had been laid down by the Hon'ble Apex Court in the case of Bandaru Ramesh Vs. State of Andhra Pradesh, (2017) 14 SCC 566 . It is trite of law that in order to bring home the guilt of the accused under circumstantial evidence, all the circumstances are to be linked upon with one another and the Court will be in a position to see the complete chain of events and if all the chain of events and important links have been established by the prosecution, then the case of the prosecution is said to have been proved. 12. Keeping in view the said proposition of law, let us consider the evidence and material placed on record. To prove the case of the prosecution, prosecution got examined 29 witness and the first circumstance on which the prosecution is relying upon is that of the deceased died homicidal death. In order to establish the said fact, the prosecution got examined PW5-the inquest mahazar pancha to Ex.P20 and the doctor who conducted autopsy over the body of the deceased PW-21 and had issued postmortem report as per Ex.P32 and opinion as per Ex.P33. On perusal of the evidence of PW5, in his evidence, he has deposed that he knows the accused and the deceased. He has deposed with regard to the accused coming to the house of the deceased and he has also spoken with regard to the case of the prosecution. On perusal of the evidence of PW5, in his evidence, he has deposed that he knows the accused and the deceased. He has deposed with regard to the accused coming to the house of the deceased and he has also spoken with regard to the case of the prosecution. He has deposed that after coming to know the fact that the deceased died in the hospital, he had been there and at that time, the Mahazar Ex.P20 has been signed by him. The cloths of the deceased were also seized in his presence. During the course of cross-examination, nothing has been elicited so as to discard his evidence. 13. Pw21 is the Doctor who has conducted autopsy over the body of the deceased. In his evidence he has deposed that the dead body was brought by the Pol ice with the history of poison consumption. Whi le conducting autopsy he has taken the liver part and the contents of the food from the stomach and sent it for chemical examination. He has issued postmortem report as per Ex.P.32. He has also given his opinion as per Ex.P.33. In his opinion he has clearly stated that the cause of death is due to consumption of poison (diamide insecticide). Even during the course of cross-examination of these witnesses the fact that the deceased died an unnatural death by consuming poison has not been disputed. Under such circumstances, it can be safely held that the prosecution has proved that the deceased died unnatural death. 14. The next circumstance on which the prosecution is intending to rely upon is motive. In order to substantiate the said fact, prosecution has relied upon the evidence of PW1-mother of the deceased and the complainant; PW6-brother of the deceased, PW7- relative of the complainant and the deceased, PW8-sister of the deceased and PW9 an independent witness. In the evidence of PW1 she has not deposed with regard to the motive aspect. On perusal of the evidence of PW6 he has deposed that accused Nagaraj used to come to their house and he was in good terms with the wife of the deceased. He had an intention to elope the wife of the deceased. He has denied the suggestion that as the deceased was an obstacle, he has murdered the deceased. So also the evidence of PWs 8 and 9. 15. He had an intention to elope the wife of the deceased. He has denied the suggestion that as the deceased was an obstacle, he has murdered the deceased. So also the evidence of PWs 8 and 9. 15. The material witness is PW17, the wife of the deceased. In her evidence except deposing the fact that the character of the accused was not good she has not deposed anything on the fact that the accused had an eye on her and he used to misbehave with her or used to come to the house when she was alone. Under such circumstances, the evidence of the prosecution which has been produced is not sufficient to prove the motive alleged as against the accused. 16. On perusal of the evidence of PW1 it indicates that some civi l disputes were pending in between the accused and the deceased. In that l ight, there is possibi l ity of false impl ication of the accused in this case. If the accused was intending to elope the wife of the deceased, definitely PW17 could have spoken with regard to the conduct of the accused. Merely because character of the accused was not good it cannot be held that the accused was intending to elope her by eliminating the deceased. In that l ight, the evidence which has been produced by the prosecution to establ ish the fact of motive is not acceptable. 17. It is well settled proposition of law that when the entire case rests on circumstantial evidence, motive plays an important part in order to ti lt the scale and if the motive has not been proved, the benefit of doubt has to be given to the accused. This proposition of law has been laid down by the Hon'ble apex court in the case of Kuna @ Sanjaya Behera vs The State Of Odisha, (2018) 1 SCC 296 . Para 20 of the said judgment reads as under: "20. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan Vs. State of Gujarat, (2014) 14 SCC 589 ." - - - 18. Para 20 of the said judgment reads as under: "20. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan Vs. State of Gujarat, (2014) 14 SCC 589 ." - - - 18. Taking into consideration the ratio laid down by the Hon'ble apex Court and the factual matrix of the case on hand, it is clear that the prosecution has utterly fai led to prove the motive aspect in this case. 19. The next circumstance on which the prosecution has relied upon is the last seen theory. In that regard the prosecution has relied upon the evidence of PW22 H. Mal lappa. He is supposed to speak that on 21.06.2014 at about 1.45 pm the deceased was seen going along with the accused on the motorcycle. But this witness has not supported the case of the prosecution and turned hosti le. Even during the course of cross-examination nothing has been elicited so as to substantiate the case of the prosecution. 20. Another circumstance on which the prosecution is intending to rely upon is that the accused with an intention to provide employment in BMM factory took the deceased. In that l ight, the prosecution has relied upon the evidence of PWs 13-Manager of BMM Factory and PW14, a worker. They have also not supported the case of the prosecution and were treated hosti le. Even the owner of the Computer Centre wherein the accused and the deceased visited to prepare the bio data turned hostile and not supported the case of the prosecution. In that l ight also the prosecution has utterly fai led to bring home the gui lt of the accused on this circumstance. Even the evidence of PW1 indicates that when the land has been acquired the deceased used to work in the said factory and he worked for a period of six months. When already he is working and because of the dust al lergy he has left the job, in such a situation, again the accused taking him to secure the job also falsif ies the case. 21. The prosecution is intending to rely upon one more circumstance that the accused went to Kalpana Wine shop to purchase Imperial Blue Whisky. When already he is working and because of the dust al lergy he has left the job, in such a situation, again the accused taking him to secure the job also falsif ies the case. 21. The prosecution is intending to rely upon one more circumstance that the accused went to Kalpana Wine shop to purchase Imperial Blue Whisky. To prove this fact, PWs 10 and 11 are examined and they have also not supported the case of the prosecution and turned hosti le. Even the owner of the pesticide shop came to be examined as PW12 but he has also turned hosti le. When al l these witnesses have not supported the case of the prosecution then the prosecution story that the accused purchased whisky, pesticide and soda, later mixed them and administered the same to the deceased, also fal ls to the ground. 22. One more circumstance on which the prosecution is intending to rely upon is that the deceased has been brought and dropped near the shop of PW16 also falls to the ground since PW16 also not supported the case of the prosecution and turned hosti le. 23. Taking into consideration al l the above said facts and circumstances it is clear that the motive and the last seen theory are not establ ished. Basical ly it has fai led to prove that the death of the deceased was a homicidal death. Under such circumstances the trial court ought to have given the benefit of doubt to the accused. 24. As discussed above, when the entire case rests on circumstantial evidence, all the l inks in the chain of circumstances are to be establ ished by the prosecution and if there is break of chain of events, the accused is entitled to the benefit of doubt. Even on perusal of Ex.P.21-UDR complaint there was no whisper with regard to the accused having an eye over the wife of the deceased. Only some suspicion has been expressed but subsequently, al l these circumstances have been brought on record. But the circumstances on which the prosecution is intending to rely upon have been falsif ied and the prosecution has utterly fai led to prove its case. In that l ight, the judgment of the trial Court requires to be interfered with the hands of this court. For the foregoing reasons we proceed to pass the fol lowing order. But the circumstances on which the prosecution is intending to rely upon have been falsif ied and the prosecution has utterly fai led to prove its case. In that l ight, the judgment of the trial Court requires to be interfered with the hands of this court. For the foregoing reasons we proceed to pass the fol lowing order. ORDER The appeal is allowed and the judgment of conviction and order of sentence passed by the learned III addl. Dist. & Sessions Judge, Bal lari sitting at Hosapete in S.C. No. 5056/2014 dated 26.07.2017 is set aside. Consequently, the appel lant-accused, i.e., H. Nagaraj son of venkatesh, has been acquitted of al l the charges levelled against him. Bai l bonds and surety bonds executed by the accused and the surety stand cancelled. Learned III addl. Dist. & Sessions Judge, Bal lari sitting at Hosapete is directed to refund the fine amount on proper identif ication, if the same has been deposited. It is also directed that, if the compensation amount deposited by the appellant-accused has not been disbursed to the wife of the deceased, i.e., PW17, the same is also ordered to be refunded to the appel lantaccused on proper identif ication and acknowledgement. Interim custody of the motorcycle is made absolute. Registry is directed to return the original records forthwith.