Dismissed

State of Karnataka, v. Gopichanda

Karnataka HC27 Jan 2021CRL.A/100104/2016

Case brief

AI extract

What is this about?

In a criminal appeal under Section 378 CrPC, the High Court dismissed the State's challenge against the acquittal of the accused charged with murder. The Court held that the prosecution failed to prove beyond reasonable doubt that the death was homicidal, noting discrepancies in the version of key prosecution witnesses and medical evidence.

What did the court decide?

The criminal appeal was dismissed and the acquittal of the respondent was upheld.

State of Karnataka, Vs Gopichanda — Murder and Culpable Homicide | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 27^{T H} DAY OF JANUARY, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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AND

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THE HON’BLE MR.JUSTICE P.N.DESAI

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CRIMINAL APPEAL NO.100104/2016

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BETWEEN:

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STATE OF KARNATAKA, THROUGH POLICE SUB-INSPECTOR, CHITTAKULA POLICE STATION, UTTAR KANNADA, KARWAR, REPRESENTED BY ADDITIONAL STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL’S OFFICE, HIGH COURT BENCH UNIT, DHARWAD.

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….APPELLANT

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(BY SHRI V.M.BANAKAR, ADDL.SPP.)

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AND:

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GOPICHANDA S/O RATNAKAR PADVALKAR, AGE: 36 YEARS, R/O: BHEEMKOL, HOTEGALI, KARWAR. ….RESPONDENT (BY SRINAND A PACHCHAPURE, ADV.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 20.11.2015 PASSED BY THE LEARNED DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN SESSION CASE NO. 67 OF 2012.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY SRI.P.N.DESAI, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The State has filed this appeal challenging

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the judgment of acquittal dated 20.11.2015, in SC.No.67/2012, passed by the District and Sessions Judge, Uttar Kannada, Karwar. The accused has been acquitted of the offence punishable under section 302 of IPC.

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Brief case of the prosecution is as

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under:

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There was a bore well near the house of the deceased, Umesh belonging to panchayath. Accused raised objection for fetching water from the said bore well stating that water level in his bore well will go down. But the deceased did not hear request of accused. In this regard, the accused developed an ill-will against the deceased.

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It is the case of prosecution that, on 09/06/2012, at about 7-15 pm, when the deceased was riding motorcycle towards Hanakona village,

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the accused came from opposite side in a car bearing registration No.GA-01/S 4668 and dashed to the motorcycle of the deceased. Due to the said impact, the deceased fell down on the road. Then accused got down from the car, sprinkled chilly powder and assaulted the deceased Umesh with club all over the body. The deceased sustained grievous injuries. Witnesses Ganapati, Kishor and Tanaji who were present there rescued the deceased. They took the deceased in an ambulance to the District hospital, Karwar. As per advice of doctor, they took him to Mangaluru hospital, but on the way the deceased succumbed to the injuries.

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PW.23 Kishor Kalgutkar, lodged a compliant before Chittakula police station as per Ex.P.15, at 8.45 pm on the same day, which was registered in crime No.64/2012. Dy.S.P Manjunath took further investigation and conducted inquest panchanma of the deceased as per EX.P.5, visited the spot, drawn spot mahazar, seized the car,

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motorcycle and also club kept in the car. After collecting medical records, forensic science laboratory report and RTO report, filed the charge sheet against the accused for the offences punishable under Section 302 of IPC.

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The learned Sessions Judge framed the charge against the accused for the offence punishable under section 302 of Indian Penal Code.

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The prosecution in all examined 27 witnesses as PWs.1 to 27 and got marked 67 documents as Exs.P.1 to P.67 and got identified 8 material objects as MOs.1 to 8. Thereafter, statement of accused as required under section 313 of Cr.P.C. was recorded. The accused denied the incriminating evidence appearing against him. After hearing the arguments, the trial Court acquitted the accused.

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Aggrieved by the same, the State has preferred this appeal on the ground that judgment

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and order passed by the trial Court is contrary to law, facts and evidence on record.

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The learned Addl. SPP for the State

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argued that, the trial Court has not appreciated evidence in its proper perspective, which has resulted in miscarriage of justice. Learned Addl. SPP further submits that, though eye witnesses PWs.3 and 4 have not supported the prosecution, the other eye witnesses PWs.18, 23 and 24 fully supported the case of prosecution. These witnesses have specifically stated about the overtacts by the accused. Though prosecution has proved the charge leveled against accused, the trial Court wrongly held that the death of the deceased was an accident, but not homicidal and acquitted the accused. Therefore, the said judgment is perverse and illegal, and needs to be set aside.

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Per contra , Sri.Srinanad A Pachchapure,

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learned counsel for accused argued that, alleged eye witnesses are highly interested in the case.

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They are having enmity with the accused. According to prosecution, the time of the incident was 7.15 p.m. there would be darkness at that time. Therefore, there is no possibility that, these eye witnesses could have witnessed the said incident from a distance of 200 feet by standing near the arch, this creates a doubt about their presence. One Mr.Kushal, before whose shop alleged eye witnesses were standing, was not examined. PW.14 doctor, who examined the injured first does not mention or say anything about the presence of chilly powder on deceased. There is no evidence to show that, the accused neither knew driving nor had a car. The owner of the said car stated that some other person was the driver of said car and the driver informed the owner that the car met with an accident when it was parked at Hankona to Hotagali road. He further submits that damage to the car and motorcycle as per the Motor Vehicle Inspector’s report indicates that it is an accident. The Doctor

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has also mentioned in medical records and register that the deceased sustained injuries in a “road traffic accident (RTA)”. Subsequently, it is mentioned as “assault”. If at all there was such an accident, the accused could have sustained some injuries. The accused was arrested from his house on next day morning itself. The accused was not absconding or any injuries were noticed by police when accused was arrested. Investigating Officer has not seized clothes of the accused and M.O.2 club was not sent for scientific examination. All the alleged eye witnesses were having mobile phones with them but none informed any person till a complaint came to be lodged. The deceased was having number of enemies. He was involved in a number of criminal cases. He was a rowdy sheeter. The conduct of the alleged eye witnesses is unnatural. The witnesses who are interested and having ill-will against accused tried to implicate the accused by taking advantage of the accused sustaining grievous injuries in the accident. The

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trial Judge by giving proper reasons, rightly acquitted the accused. The learned counsel supported the judgment of trial Court.

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We have heard the arguments and perused the impugned judgment and the trial Court records.

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The learned Sessions Judge came to conclusion that evidence of prosecution is not sufficient to hold that death of Umesh was homicidal, but it was an accident and acquitted the accused. The learned Sessions Judge opinioned that PWs.18, 23 and 24 are close relatives of deceased Umesh. Their presence at the time of incident itself is doubtful. The trial Court found that PW.24 Ganapathi was a student studying engineering. Why he came from Mangaluru to Hotagali village is not forthcoming. The learned Sessions Judge further observed that there was long standing enmity between two groups. The wife of the deceased had also made a complaint against the accused when he was in custody. The

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Investigating Officer has seized the scalp hair from front wind glass screen of the car. None of the witnesses have stated that the car hit the motorcycle and deceased Umesh fell on the bonnet of car or on front wind screen glass of the car. The learned Sessions Judge further observed that if the damages found on both the vehicles as per the report of Motor vehicle Inspector are noticed, then the story of prosecution creates doubt. The learned Sessions Judge further observed in view of damages to both vehicles, it appears that there was open fight between two groups and car was damaged.

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The learned Sessions Judge also

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observed that there is no evidence to show that the accused had licence to drive four wheeler. Accused is no way connected with the car in question. He further observed that deceased was not a perfect rider. Earlier deceased met with an accident and filed compensation claim petition before MACT. The motorcycle in question belongs

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to the complainant. The learned Sessions Judge concluded that there is no evidence to hold that death the deceased was a homicidal, but it was accidental and acquitted the accused.

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We have reassessed the evidence on record. According to prosecution, the accused drove the car bearing Registration No.GA-01/S4668 with an intention to kill Umesh and dashed against the motorcycle of the accused bearing Registration No.KA-30/R-1414 from opposite direction. The deceased fell down, accused got down from the car and sprinkled chilly powder on the face of the deceased and assaulted him with club. Pws.18, 23 and 24 are the eye witnesses to the said incident. It is also evident that all these eye witnesses are close relatives of the deceased and having enmity with accused.

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PW.23 Kishor Mahabaleshwar Kalgutkar is the complainant. He has stated in his evidence that, on 09.06.2012 at 7-15 pm., when he was standing near the arch of a temple at Hotagali

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cross along with PW.18 Tanaji Maslekar and PW.24 Ganapathi Thamase, they saw accused proceeding in Indigo car from Hotagali towards Hanakona. The deceased was coming from opposite direction on a motorcycle. Accused drove his vehicle on wrong side and dashed to the motorcycle driven by deceased. Deceased fell down, accused sprinkled chilly powder on him and assaulted with club. He has further stated that, by that time they went near the injured, accused ran away. They saw the incident at a distance of 200 feet. PW.23 further stated that immediately he went to the spot, then in 108 ambulance he took his brother, the injured, to Karwar District hospital. From there, when they were taking injured to Tejashwini hospital, Mangaluru, on the way, the injured succumbed to the injuries. In this regard a complaint was lodged by him at Karwar police station as per EX.P.15.

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PW.23 has further stated that the police have seized scalp hair from the front wind screen glass. He has produced number of documents

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about cases filed against the accused. But in the cross examination he has admitted that there were number of criminal cases filed against himself, Tanaji and deceased about trespass and assault. He has admitted that there were about 4 to 5 excise cases filed against him. A criminal case was also filed against him alleging that he had caused an accident. A case alleging transport of explosives in his scooter was also filed. PW.23 has further stated that in the year 2011 while the deceased was riding motorcycle, met with an accident and filed MVC case. The deceased was running ‘gulguli’ game which is a type of gambling. He also admitted that a place where the bore well is situated was encroached by himself and his brother. He has also admitted that there were open wells belonging to the village in and around the said bore well. The accused house is situated about 400 meters away from the said bore well. The said bore well was installed by the Gram Panchayath. He does not know whether the vehicle

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seized in this case belongs to accused or not. He has also admitted that earlier himself and his wife had filed 3 or 4 complaint against the accused.

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PW.23 Kishor’s evidence indicates that

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he is the brother of deceased. He is involved in number of heinous criminal cases. He is having a strong enmity and ill will against the accused. His evidence shows that he had never seen the accused driving any car. On the other hand, his evidence discloses that deceased earlier met with an accident involving motorcycle. The motorcycle belongs to PW.23. Why he gave the motorcycle to deceased on that day is not stated by him. Why this witness came near the arch at evening 7-15 p.m. is not forthcoming. How he saw the accused sitting inside the car from such a long distance is not forthcoming. His presence at the time of incident itself is doubtful.

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PW.18 Tanaji has given similar evidence to that, of PW.23 Kishor. He has also stated that by the time they went near the scene of offence,

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accused left the place. PW.18 has not stated that accused had left the car and ran away. PW.24 Ganapathi Thamse has also given similar type evidence to that of PWs.18 and 23.

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It is pertinent to note that PW.24 has not stated that PW.18 was also standing with them. Neither PW.18 nor PW.23 has stated that at the time of assault they went near the scene of offence and tried to rescue the deceased from the assault. On the other hand, they have stated that, from a distance of about 200 feet they saw the incident. According to them, by the time they went near the deceased, the accused had run away. Why they were present infront of the said arch is not forthcoming.

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In the cross examination PW.18 has stated that he is accused in number of criminal cases. He has also admitted that PW.23 Kishor and PW.24 Ganapathi are relatives of deceased. He cannot say as to how long the incident took place. Though he has got mobile phone, he did not inform

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anybody. He has also admitted that deceased had earlier fallen down twice from the motorcycle and had sustained injuries. He has denied the suggestion that motorcycle of the deceased hit the car, which was parked by the side of the road and as a result the deceased fell down and sustained injuries.

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PW.18 very strangely stated that the police station is about 100-150 kms away from the scene of occurrence. But actually the police station is at a distance of 10 km away from the scene of offence as per the FIR. He has admitted that he is very well acquainted with the police and police station. There are number of criminal cases filed and pending against him. He further stated that, at the time of incident, none among the public came there. His evidence creates a doubt about his presence at the time of incident.

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PW.18 has stated the bore well was in existence long back. Gram Panchayath was looking after the bore well. It is not the property of the

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deceased Umesh. Therefore, the motive alleged by the prosecution that due to bore well there was enmity between the accused and the deceased has no force.

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According to prosecution, PW.24

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Ganapathi Thamse is another eye witness. The accused wife Usha is sister of this witness. He has stated in his examination-in-chief that himself and Kishor were standing near the arch and he saw the accused dashing car to motorcycle of the deceased, then assaulting him. Himself, Kishor and Tanaji rescued the deceased; by that time, the accused ran away. In the cross examination, he has admitted that the deceased earlier met with motor cycle accident and sustained injuries. He has stated that he was a student, studying in final year diploma at Government Polytechnic, Karwar as on the date of the incident. According to him said incident was witnessed by number of persons. One Mr.Kushali near whose petty shop he was standing was not present in the shop, but some

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other person was present in the shop. But PW.18 stated that Kushali was present in his shop. PW.23 has never stated that he was standing in front of the said shop. This creates doubt about their presence near shop.

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PW.1 Sachin and PW.2 Rupesh are panch witnesses. They have not supported the prosecution case. PW.3 Ullas and PW.4 Smt.Saroja, who are independent eye witnesses have not supported the prosecution case. Nothing is elicited from their cross examination by the prosecution after treating them as a hostile.

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PW.6 Santosh is the owner of the car involved in this incident. He is a resident of Goa. He has clearly stated that one Maruthi Borkar was the driver of the said car. The accused was never driver of his car. He has further stated that he had sent his car along with Maruthi Borkar to Goa. Near Hotagali village his car was parked because of some trouble and mechanical defect. His evidence was fatal to the prosecution, as it shows

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that accused is no way concerned with said car. The prosecution treated him as hostile, nothing helpful to the prosecution is elicited in the cross examination.

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PW.7 Dayanand ASI’s evidence regarding arrest of the accused on the very next day morning in his village strengthens defence of accused. It is evident that neither accused sustained injuries nor he was absconding from the village. This circumstance also goes against prosecution.

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PW.14 Dr.Santosh Kumar Rao was the Senior Surgeon of District hospital Karwar, stated about examining the deceased on 09.06.2012 when he was brought in an ambulance by one Kishor. He found the injuries such as fracture of tibia, fibula, femur and left hand forearm wrist. There was only one lacerated wound which was simple in nature, other injuries were grievous in nature. In the cross examination he has admitted that in the hospital register the alleged history with which the accused

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was brought is mentioned as road traffic accident (RTA). He has stated that the injuries sustained by the deceased could be caused in a motor accident. The Investigating Officer has not produced MO.2 club before him to take his opinion as to whether the injuries stated by him could be caused by MO.2. He denied suggestion that subsequently a word “assault” was added afterward “road traffic accident”. His evidence shows possibilities of deceased sustaining injuries in an road traffic accident cannot be ruled out.

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PW.15 Narayana, Assistant Director of Forensic Science Laboratory, Belagavi after examining viscera given an opinion that no poison was found in it.

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PW.16 Shobha, PDO of panchayath has stated that a scheme was proposed to supply water to Hotagali villagers from a pipeline situated near Bhimkol High School. The deceased Umesh had given application in this regard, villagers of the Bhimkol including accused objected for the

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same. In the cross examination, she has stated that the said water scheme project work did not commence nor any order to commence the work was issued. The said scheme is in no way concerned with the deceased Umesh. All the villagers including accused objected for the said scheme. He has not seen any enmity between accused and the deceased in this regard. So the motive alleged by the prosecution falls flat.

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PW.5 Dr.Ratnakar has stated about conducting Post Mortem and has given report as per Ex.P.8. He has mentioned the injuries sustained by the deceased. He has admitted in the cross examination that the injuries shown in Ex.P.8 could be caused if a person falls down from a motor cycle. This strengthens the view of the learned Sessions Judge that it is not a homicidal death.

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PW.20 Usha, wife of the deceased has stated that she came near the arch on hearing the assault on her husband and took her husband to

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hospital. PWs.18, 23 and 24 have not stated that PW.20 Usha came near scene of offence place after the indecent. She has not stated the presence of accused. She has stated that prior to this incident the accused had assaulted the deceased with a beer bottle and that case was compromised. But no records were produced in this regard.

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PW.21.Om Prakash, Motor Vehicle Inspector has issued certificate about inspecting both the vehicles. According to his report there were damages to the front right side bumper of the Car bearing registration No.GA-01/S-4668, front right fender damaged, both head lights were damaged, front wind screen glass was broken, both rear door window glasses, dickey door glass and front left door window glass were broken and left rear indicator and parking light were damaged. If at all the car dashed to the motorcycle from opposite direction then these damages could not have caused to the said vehicle. Therefore, the report creates a doubt about the manner of the

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accident alleged by the prosecution. Even the damage to the motorcycle also creates a doubt about the alleged incident.

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PW.22 Balachandra, Assistant director working at Goa Government Transport Department has stated that, with effect from 26.05.2009 the car was standing in the name of Santosh Desai. He has produced ‘B’ extract of the said vehicle as per Ex.P.11. This circumstance also indicates that the car does not belong to accused.

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PW.25 Rama Naik, ASI has stated about receiving EX.P.15 complaint and registering the case. He has also stated that on the same day morning at 6.00 am, the accused was arrested. In the cross examination, he has admitted that he has not verified whether the clothes worn by the accused were blood stained.

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PW.26 Manjunath Gowda’s evidence regarding compromise of previous case between the deceased and accused will not help the

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prosecution as he does not know whether the accused was acquitted in that case.

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PW.27 Manjunath, Dy.S.P has stated about the investigation done by him and filing of charge sheet. He stated that at the time of spot panchanama he has seized scalp hair from the front wind screen glass of car and collected pieces of head light fiber and drawn panchanama as per EX.P.1. But panch witnesses have not supported panchanama. In the cross examination PW.27 admitted that earlier also deceased had fallen down from the motorcycle and sustained grievous injuries. Admittedly, the deceased was not having any motorcycle in his name. The motorcycle in this case belongs to PW.23. Why the deceased was driving the motorcycle when he was not able to drive motorcycle properly is not forthcoming.

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According to PW.27 he has noted damage to the car. It appears that after dashing to the car, the head of the deceased hit the front show glass and in that event his scalp hair might

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have struck there. It shows that the impact was very high and that might have caused grievous and fatal injuries to the deceased. That possibility also cannot be ruled out.

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It is pertinent to note that the Investigating Officer has stated that he found one club below the back seat of the car. PW.23 in his chief examination has stated that accused assaulted with club and ran away and he saw it from 200 feet. Even in the cross examination he has not stated that he chased the accused. In chief examination he has not stated that the club was seized from back seat of the car which was lying there. PW.23 has also not stated that accused threw the said club in the car.

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PW.27 has further admitted that complainant-Kishor and witness-Tanaji were visiting the police station frequently. A rowdy sheet was opened against them. He has stated that there were number of criminal cases pending against the deceased and Kishor. He has admitted

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that he has not seized any driving licence of the accused. He has also admitted that accused was not the owner of the said car.

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On reassessing the evidence of

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prosecution witnesses it is evident that presence of PWs.18, 23 and 24 at the time of the alleged incident is doubtful. It is not possible to see any incident that occurred about 200 feet away from the place where the witnesses were standing that too at 7-15 pm. It is pertinent to note that none of the witnesses has stated that the deceased fell on the bonnet of the car and the front wind screen glass of the car was broken. But panchanama clearly indicates that there is a possibility of rider of the motorcycle dashed to the car and his head hit the bonnet of the front wind screen glass. How side glasses of the car and back side glasses were broken is also not forthcoming. If the damage to the motorcycle and car was considered then evidence of PWs.18, 23 and 24 cannot be believed. It is true that the corroboration is not a rule of law

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but it is a rule of prudence. When the independent eye witnesses and panch witnesses turned hostile, the evidence of these PWs.18, 23 and 24 who are very close relatives of the deceased and who are admittedly acquainted with the criminal cases, police station, and two of them being rowdy sheeters, their evidence will have to be scrutinized very carefully in view of their grave enmity and illwill towards accused to implicate him.

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The learned trial Judge has given detailed reasons for disbelieving their evidence. The Investigating Officer has mentioned in the panchanama that after the incident, people around might have damaged the car. Nobody have stated that any villagers came there and damaged the vehicle. On the other hand, the owner of the vehicle PW.6 has stated that, on a road near Hotagali village his car was parked due to mechanical defect. The accused was not the driver the said car.

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It is settled principle of law that this appeal being an appeal against the judgment of acquittal this Court will not interfere unless the finding of the trial Judge is perverse. Simply because the other view is possible, this Court will not interfere. The ill-will or enmity is like a double edged weapon. It cuts either way. The prosecution has to prove its case as alleged beyond all reasonable doubt. If from the evidence of prosecution witnesses two views are possible then the view which is favourable to the accused will have to be accepted. The possibilities of falsely implicating the accused due to enmity or ill-will also cannot be ruled out. The medical evidence, evidence of Investigating Officer and evidence of the other witnesses cannot be ruled out. There are possibilities of deceased sustaining injuries by dashing the motorcycle to the stationed car in a very high speed and succumbing to the injuries sustained by him in a road traffic accident. Taking disadvantage of that, implication of the accused

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also cannot be ruled out. The trial Judge has rightly held that the prosecution has failed to prove beyond all reasonable doubt that the death of the deceased was homicidal. Even assuming, it is not so, then also the prosecution has miserably failed to prove beyond all reasonable doubt that the accused is guilty of the offence alleged. The trial Court has rightly come to a conclusion for acquitting the accused by giving benefit of doubt.

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We find no grounds to interfere with the finding of the trial Court. Appeal being devoid of merits is liable to be dismissed. Accordingly, the appeal is dismissed.

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Send back the trial Court records.

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Sd/JUDGE

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Sd/JUDGE

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VB/-

State of Karnataka, v. Gopichanda

Case brief

What is this about?

What did the court decide?

State of Karnataka, v. Gopichanda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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