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2020 DIGILAW 1474 (KAR)

Arjun v. State Of Karnataka

2020-07-23

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This appeal has been preferred by the appellant accused No.1 challenging the legality and correctness of the judgment of conviction dated 14.01.2020 and the order of sentence dated 16.01.2020 passed by the learned V Additional District and Sessions Judge, Dharwad, sitting at Hubballi in S.C. No.143/2017. 2. We have heard the learned counsel Sri.Gourishankar Mot for the appellant accused No.1 through virtual hearing and the learned Additional S.P.P. for the respondent State, who is present before the Court. 3. Though the case is listed for admission, with the consent of the learned counsels appearing for the parties, the same is taken up for final disposal. 4. The facts leading to the case are that on 01.07.2016 at about 05:30 p.m., the complainant received a phone call from P.W.6 Mahadevappa Hebballi stating that someone had slit the throat of his brother Moulasab near Anchatageri at Gangivala road and he has been admitted to KIMS Hospital, Hubballi for treatment. He along with the villagers reached to the KIMS Hospital, there he found his brother in ICU and he was in COMA. There he met the wife of his brother and on enquiry with her, he came to know that on that day morning, she and her husband came to Hubballi for medical check up, as she was conceived. By asking her to sit in the bus stand, he went to bring money by pledging the gold. Though she was sitting till evening, her husband did not turned up and when she was preparing to go back to her village, she had received a call from somebody stating that someone had slit the throat of her husband and he has been sent to KIMS Hospital, Hubballi. Accordingly, he prayed the jurisdictional Police to investigate the case. On the basis of the said complaint, a case has been registered in Crime No.200/2016. Thereafter, after investigation, the charge sheet was came to be filed. The learned Magistrate after taking the cognizance and after following the procedure by supplying the copies of the charge sheet material, committed the said case to the Sessions Court. The Sessions Court took cognizance and after hearing the learned counsel appearing for the parties, the charge was framed, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, trial was fixed. 5. The Sessions Court took cognizance and after hearing the learned counsel appearing for the parties, the charge was framed, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, trial was fixed. 5. To prove the case of the prosecution, it got examined as many as 20 witnesses, marked 30 documents and 7 material objects. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. He denied the same. He did not led any evidence on his behalf nor produced any documents. After hearing the learned counsels, the Trial Court convicted the accused. Challenging the legality and correctness of the same, the appellant accused is before this Court. 6. The main grounds urged by the learned counsel for the appellant accused No.1 are that the judgment of conviction and order of sentence passed by the Trial Court is not sustainable in law and the same is required to be set aside. 7. It is his further submission that P.W.2 is the brother of the deceased and he has filed a case against unknown persons. Subsequently, the accused has been apprehended and a false case has been registered. It is further submitted that the entire case rests on circumstantial evidence and the circumstances which are required to be proved have not been proved by the prosecution. The Trial Court only by relying upon the evidence of P.Ws.1, 9 and 19 and the Police officials, has come to the conclusion that it is the accused who has committed the alleged offence. It is his further submission that the Trial Court has not properly appreciated the fact that the statement recorded under Section 161 of Cr.P.C. is not a gospel truth and that the said statement can be used only for the purpose of contradictions and omissions and whatever the evidence which has been produced before the Court has to be taken into consideration while appreciating. 8. It is his further submission that though there is no material as against the accused, the Trial Court has erroneously convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 9. 8. It is his further submission that though there is no material as against the accused, the Trial Court has erroneously convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 9. Per contra, the learned Additional S.P.P. vehemently argued and submitted that P.W.1 is the Head Constable and P.W.19 is the PSI, who were on patrolling duty and on 02.08.2016 they have apprehended the accused and immediately personal search has been made and a mobile phone and cash were recovered from the possession of the accused. It is his further submission that P.W.9 is the discovery pancha. He has also supported the case of the prosecution that the accused has shown the place of incident. It is his further submission that how he was knowing the place of incident has not been properly explained by the accused. Under such circumstances, the Trial Court has rightly come to the conclusion and has rightly convicted the accused. It is his further submission that the appellant has not made out any good ground so as 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 counsels appearing for the parties and perused the records, including the Trial Court records. 11. P.W.1 is the Head Constable, who was on patrolling duty on 02.08.2016 in the morning hours along with P.W.19 and when they were checking the autorickshaws and two wheelers, an autorickshaw came with four persons sitting in it and on seeing the Police, they started to runaway and the accused was apprehended and came to know that he is an accused in Crime Nos.70/2016, 122/2016 and alongwith him three juvenile offenders were also there and when he has been questioned, he told that about one month back, he has committed the murder of deceased Satish by slitting his throat and had snatched Rs.17,000/- and a mobile. During the course of cross-examination, nothing has been elicited from the mouth of this witness. 12. P.W.2 is the brother of the deceased. He has filed the complaint. During the course of cross-examination, nothing has been elicited from the mouth of this witness. 12. P.W.2 is the brother of the deceased. He has filed the complaint. He has deposed that on 01.07.2016 his brother's wife and the deceased had come to KIMS Hospital, Hubballi to have a checkup, as she was conceived and at that time, he was in his village and he received a phone call and he was informed that someone has slit the throat of his brother and he was not in a position to speak and he was in COMA and immediately he came and visited the Hospital. Thereafter, he filed complaint as per Ex.P-2. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. 13. P.W.3 is the spot mahazar pancha to Ex.P-5, where the alleged incident has taken place and the same has been shown by C.W.1 and a mahazar has been also drawn as per Ex.P-5. During the course of crossexamination, nothing has been elicited so as to discard the evidence. 14. P.W.4 is none other than the wife of the deceased. In her evidence, she has deposed that on 01.07.2016 herself and her husband came to the Hospital to have a checkup and the deceased went for pledging the gold chain which was with him by asking her to sit in the bus stand and he went at about 12:00 p.m. and she waited up to 04:00 p.m. and her husband did not returned. When she was about to go back to her village someone belonging to Anchatageri informed over the phone that her husband's throat has been slit and he is in the Hospital and immediately she informed the same to C.W.1 and went to KIMS Hospital, Hubballi and there they saw that the deceased was not in a position to speak. She is also a witness to Exs.P-6, P-7 and P-8. She has also identified her signature. During the course of crossexamination, nothing has been elicited so as to discard the evidence of this witness. 15. P.W.5 is the panch witness to Ex.P-10, whereunder the place of incident has been shown by the accused and a mahazar has been drawn. She is also a witness to Exs.P-6, P-7 and P-8. She has also identified her signature. During the course of crossexamination, nothing has been elicited so as to discard the evidence of this witness. 15. P.W.5 is the panch witness to Ex.P-10, whereunder the place of incident has been shown by the accused and a mahazar has been drawn. P.W.6 is the person who has received a call that the deceased has sustained injuries and he in turn informed the same to the family members of the deceased and these two witnesses have not supported the case of the prosecution and they have been treated as hostile. Nothing has been elicited by the learned Public Prosecutor to accept their evidence. 16. P.W.7 is the Doctor who has conducted autopsy over the body of the deceased. In his evidence, he has deposed that he has noticed one external injury, surgically sutured bone deep, measuring 11 cm with 10 stitches, obliquely placed present over left side of neck and he has conducted the autopsy and has issued the postmortem report as per Ex.P-14. In his evidence, he has deposed that death is due to hemorrhage and shock as a result of the injury sustained to the neck structures and he has also given the opinion as per Ex.P-15. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. 17. P.W.8 is another witness to Ex.P-10, the spot shown by the accused. He has also not supported the case of the prosecution and he has been treated as hostile. P.W.9 is another panch witness. No recovery has been made while drawing the mahazar at the spot. P.W.10 is the person who has first seen the injured and called the ambulance. He has deposed that the deceased was unconscious and he called the ambulance and sent him for treatment. He has further deposed that subsequently he came to know that somebody has slit his neck with an intention to rob the amount. During the course of crossexamination, nothing has been stated so as to discard his evidence. 18. P.W.11 is the Manager of the Bar from where the accused said to have purchased the liquor one hour prior to the alleged incident. But he has not supported the case of the prosecution and he has been treated as hostile. During the course of crossexamination, nothing has been stated so as to discard his evidence. 18. P.W.11 is the Manager of the Bar from where the accused said to have purchased the liquor one hour prior to the alleged incident. But he has not supported the case of the prosecution and he has been treated as hostile. Even during the course of cross-examination by the learned Public Prosecutor, nothing has been elicited so as to substantiate the case. 19. P.W.12 is the ASI who registered the case on the basis of the complaint Ex.P-2 and has issued the FIR as per Ex.P-21. P.W.13 is the Head Constable who handed over the requisitions to know as to whether the deceased is in a position to give his statement as per Exs.P-22 and P-23. 20. P.W.14 is the Manager of Manappuram Finance. He has produced Exs.P-6 to P-8 to show that the deceased by pledging the gold articles has taken an amount of Rs.20,500/-. This witness has not been crossexamined. P.W.15 is the pancha of seizure mahazar Ex.P- 24, whereunder two mobile phones and the knife were recovered by drawing mahazar as per Ex.P-24 and he is also a witness to Ex.P-18. He has not supported the case of the prosecution and he has been treated as hostile. 21. P.W.16 is the PSI who had sent the request letter and partly investigated the case. P.W.17 is the Investigating Officer who has also partly investigated the case. P.W.18 is the owner of the autorickshaw where brother of accused No.2 was working. He has not supported the case of the prosecution. P.W.19 is the CPI who apprehended the accused in the first instance on 02.08.2016 and the recovery has been made by drawing mahazar as per Ex.P-24 and thereafter on the basis of the jurisdiction, the said case was transferred to the Rural Police Station. P.W.20 is the CPI who investigated the case and filed the charge sheet against the accused. 22. Though the prosecution is intending to rely upon the various parts of the evidence, but none of the witnesses have stated anything incriminating against the accused. When the entire case rests upon circumstantial evidence, then under such circumstances, the prosecution has to prove all the chain of events so connected and they must point out to the guilt of the accused, accused alone. 23. When the entire case rests upon circumstantial evidence, then under such circumstances, the prosecution has to prove all the chain of events so connected and they must point out to the guilt of the accused, accused alone. 23. Keeping in view the trite of law, the prosecution has relied upon to prove the fact that the deceased died a homicidal death. It has got examined P.W.7 Doctor, who has conducted autopsy over the body of the deceased and inquest mahazar Ex.P-9. P.W.7 in his evidence he has deposed that he noticed external injuries and he has given his opinion that the death is due to hemorrhage shock as a result of injury sustained to the neck structures and he has also given his opinion as per Ex.P-15 that the said injury can be caused by the weapon, which has been sent for his opinion. During the course of cross-examination of this witness, nothing has been elicited to discard the evidence. In that light, the prosecution has clearly established the fact that the deceased died an unnatural death. 24. The second circumstance on which the prosecution is intending to rely upon is that the accused only with an intention to extract the money from the deceased, he has committed the offence. In order to prove the said fact, the prosecution has relied upon the evidence of P.W.14 who he is none other than the Manager of Manappuram Finance. In his evidence he has deposed that on 01.07.2016 Moulasab Chandaragi has pledged 10 grams 10 milligram gold and has taken Rs.20,500/- and he has also produced the photographs, as per Exs.P-6 to P-8 and this witness has not been cross-examined by the accused. That indicates the deceased by pledging gold articles has taken an amount of Rs.20,500/-. But as could be seen from the evidence, prosecution is also intending to rely upon the recovery of the said gold articles and the amount from the accused. But the recovery mahazar panchs have not supported the case of the prosecution and they have been treated as hostile and even no incriminating material has been produced to connect the accused to the alleged crime. When the material evidence has not been substantiated by the prosecution by cogent and acceptable evidence, then under such circumstances, the benefit of doubt goes to the accused. When the material evidence has not been substantiated by the prosecution by cogent and acceptable evidence, then under such circumstances, the benefit of doubt goes to the accused. Recovery of the said amount and other materials are at the instance of the accused plays a vital role when the case is entirely rests on circumstantial evidence. In the absence of any such material, benefit of doubt has to be given in this behalf to the accused. 25. We have carefully and cautiously gone through the judgment of the Trial Court. The judgment of the Trial Court indicates that it has only relied upon the evidence of P.W.1 Head Constable who apprehended the accused and P.W.9 the discovery of the place of the incident as per Exs.P-18 and P.W.19 who was also present alongwith P.W.1 at the time of apprehension of the accused for the first time on 02.08.2016. This evidence is not going to point out the guilt of the accused beyond all reasonable doubt. Though the Trial Court has relied upon the statement recorded under Section 161 of Cr.P.C. during investigation, but the method adopted by the Trial Court in relying on the statement under Section 161 of Cr.P.C. that itself is not justifiable. When that there is no material as against the accused and even that the evidence produced is not going to point out the guilt of the accused beyond all reasonable doubt, under such circumstances, the benefit of doubt ought to have been given and accused ought to have been acquitted of the charges levelled against him. In that light, appellant accused has made out a case to interfere with the judgment of the Trial Court. 26. Accordingly, we proceed to pass the following order: ORDER Appeal is allowed. The judgment of conviction dated 14.01.2020 and the order of sentence dated 16.01.2020 passed by the learned V Additional District and Sessions Judge, Dharwad, sitting at Hubballi in S.C. No.143/2017 is set aside. The appellant accused is acquitted of all the charges levelled against him and he is set at liberty forthwith. Registry is directed to intimate the Principal District Judge, Dharwad and the concerned Jail Authorities through e-mail to release the appellant accused No.1 Arjun S/o. Parashuram Bugadi forthwith, if he is not required in any other case. The appellant accused is acquitted of all the charges levelled against him and he is set at liberty forthwith. Registry is directed to intimate the Principal District Judge, Dharwad and the concerned Jail Authorities through e-mail to release the appellant accused No.1 Arjun S/o. Parashuram Bugadi forthwith, if he is not required in any other case. The operative portion of the Trial Court, seizing of the autorickshaw bearing No.KA-25/AA-2633 from its owner is set aside. The interim custody given to him has been made absolute. Registry is directed to send back the Trial Court records forthwith.