State appeal against acquittal of four accused for murder of Dasa @ Dasappa near Mission Hospital, Mysuru. No eyewitnesses; identity established by DNA and relatives; last-seen theory and recoveries failed to connect accused. Court upheld acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF FEBRUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1903 OF 2016(A)
BETWEEN:
State of Karnataka by Mandi Police Station, Represented by State Public Prosecutor, High Court building, Bengaluru – 560 001. …Appellant
(By Shri P. Thejesh, HCGP)
AND:
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New Deluxe Lodge, Benki Nawab Road, Devaraj Mohalla, Mysuru – 570 001
…Respondents
(By Shri V.S.Vinayaka, Amicus Curiae for R1, R3 and R4; Shri Vasim Pasha, Advocate for Shri Sirajuddin Ahmed, Advocate for R2)
This Criminal Appeal is filed under Sections 378(1) and (3) of Cr.P.C. praying to grant leave to file an appeal against the judgment and order of acquittal dated 29.06.2016 passed by the I Additional Sessions Judge, Mysuru in S.C.No.100/2013, acquitting the respondent/accused for the offence punishable under Section 302 read with Section 34 of IPC.
This Criminal Appeal coming on for Further Arguments having been heard through Physical Hearing/Video Conference and reserved for judgment on 13.12.2023, coming on for pronouncement, this day, Umesh M Adiga J., delivered the following:
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JUDGMENT
This is a State’s appeal against the judgment in Sessions Case No.100 of 2013 on the file of the Additional Sessions Judge, Mysuru dated 29.06.2016. The accused Nos.1 to 4 were charge-sheeted for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the ‘IPC’ for brevity). The accused/ respondents had pleaded not guilty. After holding trial, by the impugned judgment, the learned Sessions Judge acquitted the accused for the offence punishable under Section 302 of IPC.
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the time of the alleged incident, he was serving as loader and un-loader in ‘Ramco Cement Godown’ along with others. It appears accused Nos.1 to 4 and deceased together were working as loader and un-loader in the cement factory. Within a short period of time they became friends. It appears that prior to the incident, the deceased lent an amount of `1,500/- to accused No.1. On 31.07.2012, accused Nos.1 to 4 along with the deceased after completion of coolie work, went to Adi Kaveri Bar and Restaurant, Mission Hospital Road, Mysuru. They had drinks. The accused demanded for repayment of the loan amount from accused No.1. There were some altercation in this regard between accused No.1 and deceased. Deceased Dasa @ Dasappa used abusive words against the accused No.1 and told accused No.1 “to send his wife and mother with him for sexual enjoyment if he is unable to repay the loan amount.” In view of the said words, accused Nos.1 to 4 were enraged against the deceased. They started fighting inside the Bar and Restaurant. The person working in the Bar, i.e., Cashier and Manager along with others pacified
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them and sent out of the Bar. Thereafter, it is said that about 50 feet away from the said Bar, on Mission Hospital, near entry gate of Staff Quarters, accused assaulted the deceased and one of the accused lifted a stone slab placed on the drainage, assaulted the deceased on his head with the said stone slab; and thereafter, threw the said stone slab on his stomach. Due to the said injuries, Dasa @ Dasappa succumbed to the injuries at the spot.
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Section 302 of IPC. As per the case of the prosecution, none witnessed the incident.
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body. With an intention to send it for Deoxyribonucleic acid (for short, DNA) test. Since at that point of time, the body was not identified. After securing the information that PW-8 was the mother of the deceased, the Investigating officer with the permission of the Court secured blood samples and sent the blood samples along with the materials collected during post-mortem and viscera sent it to DNA Centre, Forensic Science Laboratory (for short, FSL), Bengaluru. The Investigating officer also recorded the statement of the witnesses and on conclusion of the investigation, charge-sheeted the accused for the offences punishable under Section 302 of IPC read with Section 34 before the jurisdictional Magistrate.
case; secured presence of the accused; supplied copy of the charge-sheet to the accused as provided under Section 207 of Cr.P.C. The alleged offence is punishable under Section 302 of IPC. Hence, the learned Magistrate committed the case to the Court of Sessions for trial. Thereafter, the matter was re-registered in Sessions Case
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No.100 of 2013 and it was tried by I Additional Sessions Judge, Mysuru.
defence of evidence.
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High Court Government Pleader (for short, HCGP) and the learned advocate for the accused.
prosecution examined material witnesses as PWs-1 to 15. PWs-7 and 8 are brother and mother of the deceased. In their evidence, they have deposed about identity of the deceased. Blood stains found on wearing apparels of deceased, stone slab and at spot of incident, blood samples along with some of the materials collected during the course of post-mortem were sent to DNA Centre, FSL, Bengaluru. The DNA Centre, after assessing the blood samples of PW-8, bloods stains found on the weapon of the offence and also the dress materials of the deceased, so also, the materials collected during the post-mortem, opined that PW-8 is mother of the deceased. Both PW-7 and PW-8 identified the photograph of the deceased and identified him as Dasa @ Dasappa. The identity of the deceased is not in serious dispute.
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evidence of PW-12, Ex.P17 and Ex.P25 prove that the death of Dasa @ Dasappa is a homicidal death. The said fact is also not in serious dispute.
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deposing true facts with an intention to help the accused for getting acquittal. Hence, the statement given by PW-4, which is marked has to be considered. Therefore, it is proved by the prosecution that deceased was last seen in the company of the accused. The accused did not give any explanation as to what happened after that till the death of Dasa @ Dasappa. Therefore, it connects the accused with the death of Dasa @ Dasappa. PWs-2, 14 and 15 have stated about investigation done by them. All these evidence prove the case of the prosecution. The learned Sessions Judge did not consider the evidence properly and erroneously acquitted the accused, which needs to be interfered by this Court. With these reasons, prayed to allow the appeal and convict the accused.
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said evidence is not reliable. He admits that regularly during evening several customers visited the Bar and Restaurant and he did not explain how he remembered identity of accused and deceased, that too, when accused found after five months from the alleged date of incident. There was no special feature in the accused to identify them. Therefore, evidence of PW-5 is not reliable. There are no connecting materials to believe that the accused had committed murder of Dasa @ Dasappa. The learned Sessions Judge properly appreciated the evidence and rightly held that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The said order is well reasoned order and does not call for any interference by this Court. With these reasons, he prayed to dismiss the appeal.
determination:
i) Whether the prosecution prove beyond reasonable doubt on 31.07.2012 at about 9.30 p.m., near Mission Hospital Compound, Mysore on Shaddy Road, Mysuru, accused Nos.1 to 4 in
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furtherance of a common intention to murder Dasa @ Dasappa, as he abused accused No.1 in filthy language when the accused No.1 refused to repay the loan amount borrowed from him due to short of money, the accused Nos.1 to 4 assaulted him with a stone slab on his head and caused grievous injuries, as a result of which, Dasa @ Dasappa died and thereby, accused have committed an offence punishable under Section 302 r/w Section 34 of IPC?
ii) Whether the findings of the learned Sessions Judge is perverse, arbitrary, contrary to the law and findings, as such interference by this Court is required?
has appreciated the evidence on record. The complainant in this case is Police sub-Inspector of N.R.Mohalla Police Station, i.e., PW-2/ Shabbir Hussain. In his evidence, he has stated that on 31.07.2012, during night, he was on patrolling duty. He received information from control room to visit near Mission Hospital Compound, wherein a dead body was found. Immediately, he went to the said place and found a dead body of a man lying on the road with the
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bleeding injuries on his head. A stone slab was found on the abdomen of the body. Immediately, he returned to police station and lodged the complaint as per Ex.P2. On the basis of the registration of the case, the criminal law was set into motion.
was kept in mortuary of the Government Hospital. Thereafter, on 06.08.2012, PW-15 decided to hold the inquest and bury the body. Accordingly, PW-15 had drawn the inquest on the dead body, in the presence of PW-6/ S.N.Ramesha and two other witnesses by name, Nasir Khan and N.Ganesha. In Ex.P17, injuries found on the dead body are noted by the Investigating Officer, along with the witnesses and the witnesses has opined that death might
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be caused due to the said injuries and someone have murdered him.
Along with PW-6, PW-15 has also stated about drawing of inquest on dead body, as per Ex.P17, in the presence of witnesses. Thereby, drawing up of Ex.P17 is proved. The contents of Ex.P17 helps the prosecution to prove that death of Dasa @ Dasappa was homicidal death
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and it also supports the case of the prosecution to prove that there were external injuries found on the dead body.
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dissecting the dead body. He has also stated that “cause of death was due to shock and haemorrhage as a result of head injuries sustained by an assault.” PW-12 during oral evidence corroborated the same. He also identified MOs-14 to 18, which were found on the dead body. He has stated by assaulting with MO-13 on the head, such injuries could be possible.
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PW-12. It is pertinent to note that death of the deceased
was due to the injuries is not disputed or denied in the corss-examination of PW-12.
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Medical officer at the time of conducting the post-mortem along with the blood samples of PW-8 and other articles seized in this case to DNA Centre, FSL to ascertain identity of the dead body. The DNA report is produced at Ex.P22. From the said materials, the Scientific officer of DNA Centre, FSL opined that “deceased Dasa @ Dasappa is offspring of Smt.Thimmamma.” PW-8, during her evidence has stated that she saw the photo of the dead body and identified the same. She has also stated that prior to his death, Dasa @ Dasappa was serving as a driver in a lorry and he used to come home once in a week. However, three months prior to his death, he went on duty but did not return home. They searched for the said Dasa @ Dasappa, however, they could not trace him. In the meanwhile, three to four months after missing of Dasa @ Dasappa, police called her to Mandi Police Station and she identified the photograph of the dead body as of Dasa @ Dasappa. The relationship of deceased with PW-8 is not at all denied in her cross-examination.
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prosecution examined Manager, serving in Ramco Cement Factory Godown as PW-9. During the evidence, he could not identify the accused and deceased as working as loaders and un-loaders in the Ramco Cement Factory Godown. He was treated as a hostile witness and crossexamined by the prosecution. But nothing worth was brought out to show that he was deliberately giving false evidence before the Court.
were not permanent employees of Ramco Cement Factory Godown. As per the statement of PW-9 recorded as per Ex.P20, contractor used to supply labourers for loading or unloading the goods whenever cement loaded lorry came to Godown. Under such circumstances, it is quite natural that the Manager might not know as to who was the coolie working to load and unload. Therefore, merely PW-9 did not support the case of the prosecution, does not mean that he was deposing falsely before the Court. Evidence of PW-9, does not help the prosecution to prove that deceased and accused were working together as loader and
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un-loader for a period of about three to four months prior to his death. There is no other evidence to prove that accused and deceased were familiar with each other and were working together. When said fact is not proved, it is difficult to believe involvement of accused in the incident.
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the commission of the crime. But the same is not proved by the prosecution.
p.m. they assaulted the deceased with hand. Thereafter, accused No.1 removed stone slab from the foot path and assaulted the deceased on backside of his head. Due to the injury, deceased fell down and thereafter said stone slab was put on his abdomen/stomach. In the absence of proof of money transactions between accused and deceased so also abusive words used by deceased against the accused, it is difficult to trace out any motive behind the crime.
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with the accused on the basis of ‘last seen theory’. In this regard, prosecution examined PWs-4 and 5 who were manager and Cashier of “Adi Kaveri Bar and Restaurant” situated near the spot of the incident. PW-4 pleaded ignorance about visit of accused as well as deceased to the Bar few hours before the death of Dasa @ Dasappa. Even he denied that they quarrelled in the Bar. However, he has stated that about two years back opposite to Mission Hospital Compound, there was a dead body. The police and others gathered in the said spot. The police drew mahazar and seized MOS-11 to 13 and took his signature on the mahazar as per Ex.P1(c). Since he did not fully supported the case of the prosecution, he was treated as hostile witness and cross-examined. In the crossexamination, he denied suggestions of the learned Public Prosecutor and denied that he gave the statement before the Police as per Exx.P15 and P16. In the crossexamination, nothing was brought out to prove that he was wilfully giving false evidence before the Court. It is not the
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case of the prosecution that the accused were regular customers of the said Bar and Restaurant or they had friendship with PW-4. Moreover, he was working as a Manager in the said Bar and Restaurant. It was not brought out in his cross-examination regarding nature of work he was doing in the Bar and Restaurant, as a Manager or he had an opportunity to meet or look at the customers who visit the Bar. If he had an opportunity to see the customers, then there was no reason for him to deny the said fact before the Court.
to challenge his evidence regarding drawing up of mahazar. But in the cross-examination also, he has elaborated about drawing up of mahazar. There are no reasons to disbelieve his evidence regarding drawing up of mahazar. However, the said mahazar do not connect the accused with the incident.
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came to the Adi Kaveri Bar and Restaurant after having drinks, they started to quarrel in respect of money matter, therefore, he sent all of them from the Bar. Around 8.30 pm., few people gathered near the Bar and he went to the said spot and saw the dead body. The said person was one among the five persons who quarrelled in the Bar regarding money matter. In the detailed cross-examination, he once again reiterated and elaborated his evidence. Nothing was brought out to discard or disbelieve his evidence. The learned Sessions Judge disbelieved his evidence on the ground that he has stated in his cross-examination that “he cannot remember the face of each and every customer, who visits the Bar and Restaurant.” The Sessions Judge ought to have appreciated evidence of PW-5 properly. He has stated that about an hour or two, prior to seeing of the dead body, the said person along with four others visited the Bar and Restaurant. After having some drinks, they had a quarrel and he persuaded them to go out of the Bar and was successful in sending them out of the Bar. Within a span of an hour or two, the incident was said to be taken
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place. In view of these circumstances, one could naturally remember that a person a few hours prior to the incident had been to the Bar and had drinks. On that basis, he might have remembered the identity of the accused as well as the deceased. Thereafter, within four to five months, when accused were arrested by PWs-2, the Investigating Officer, has called him to the police station and shown the accused. Looking at them, he identified them. Therefore, he might have remembered the identity of the accused, due to unique circumstances. The other customers who had visited the Bar and Restaurant might not had such opportunity. Therefore, there is nothing strange or unbelievable if PW-5 had remembered the identity of the deceased as well as the accused.
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believe that they had committed murder of the deceased. As per the case of the prosecution, deceased and accused were not close friends. Two to three months prior to the incident, deceased came to Mysuru and working in different place as a Coolie. Thereafter, he was working as loader and un-loader in Ramco Cement Factory Godown on daily wages. As discussed above, it is not proved that accused and deceased were working together in the said Godown or deceased lent an amount of Rs.1,500/- to accused No.1 and accused No.1 did not repay the said amount inspite of demand by the deceased. In view of the absence of these circumstances, mere proof of visit of accused and deceased
to the Bar and Restaurant as stated by PW-5, do not help the prosecution to prove the guilt alleged against the accused.
arrest of the accused, PW-14 interrogated them and recorded their statements as per Exs.P27, 28, 29 and 30 respectively and on that basis, PW-14 and witnesses went to their respective place of residence and seized the dress
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materials said to be worn by the respective accused at the time of the incident and at that time, Exs.P5 to P9 were drawn. All the said mahazars were witnessed by PW-10/ G.Srinivas. During the evidence, he has turned hostile and not supported the case of the prosecution and he has stated that he signed on the said mahazar in the said police station. Therefore, evidence of PW-14 regarding recovery of articles on the confession of the accused is not proved by the prosecution. It appears, the said dress materials of accused Nos.1 to 4 were sent to DNA Centre, FSL. The Scientific Officer examined the said articles, which are mentioned at Sl.Nos.15 to 23 of Ex.P.22 and observed in his conclusion that “the presence of blood stains were not detected in item Nos.15, 16, 17, 18, 19, 20, 21, 22 and 23. Therefore, even if for the sake of discussion, it is accepted that the said articles were seized from the residence of respective accused but it will not connect the accused about the incident since none of the dress materials contained blood stains of the deceased.
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Aruna, the Investigating Officer seized purse containing photographs, Xerox copy of the ration card and the said purse was said to be found in a corner of the house of accused No.1. The learned Sessions Judge rightly observed that seizure of the said article is highly doubtful. The said purse was said to be belonging to the deceased. It is not the case of the prosecution that the said purse was containing money. Therefore, to grab the said money, accused No.1 snatched the purse of the deceased. Moreover, the accused was said to be arrested after about four months from the date of the incident. It was not kept in a hidden place. On the contrary, it was found in a corner of the house, which could be seen by anybody who visits his house. In the confession of accused No.1 said to be recorded by PW-14, there is no reference regarding the said purse. PW-14 in the cross-examination admits that in the property form (PF), seizure of purse was not specifically mentioned. Under such circumstances, the seizure of the said purse form the house of accused No.1 creates serious
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suspicion and it is not proved beyond reasonable doubt. Therefore, Exs.P5 to P9 are seizure of the said articles will not help the prosecution to connect the accused with the death of Dasa @ Dasappa.
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incident was a busy road and busy locality. Moreover, incident was taken place near the entry gate of staff quarters of Mission Hospital, Mysuru. He has also stated abut situation of commercial shops near the place of incident. However, according to the case of the prosecution, incident had taken place between 8.30 pm to 9.30 pm. The Investigating officer has not collected the evidence of any of the eye-witnesses to the incident. There is no material placed along with the charge-sheet to show that he has made all his efforts to trace out an eye-witness to the incident. In the cross-examination, PWs-14 and 15 have stated that they tried for tracing the eye-witnesses, however, none co-operated with them. They could have recorded such statement and enclosed with the charge-sheet. Therefore, best available evidence was not collected by the Investigating Officer. In view of all these reasons, prosecution was not able to prove the guilt of the accused beyond reasonable doubt.
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ORDER
ii) The impugned judgment passed by the learned I Additional District and Sessions Judge, Mysuru in S.C.No.100 of 2015 dated 29.06.2016, acquitting the accused Nos.1 to 4 for the offences of punishable under Sections 302 read with Section 34 of the Indian Penal Code is confirmed.
iii) Registry is directed to send back Sessions Court Records forthwith along with the copy of the judgment.
The Court, while acknowledging the services
rendered by Shri.V.S.Vinayaka, learned Amicus Curiae for Respondent Nos.1, 3 and 4, we direct the registry to pay
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an Honorarium of `6,000/- (Rupees Six Thousand only) to the learned Amicus Curiae, for the services rendered by him.
Sd/JUDGE
Sd/JUDGE
DH
2 issues framed by the court
Did the prosecution prove beyond reasonable doubt that accused Nos.1 to 4 murdered Dasa @ Dasappa in furtherance of common intention under Section 302 r/w Section 34 IPC?
Was the Sessions Judge's acquittal perverse or contrary to law requiring interference by this Court?
3 provisions across 2 enactments
State of Karnataka by Mandi Police Station
Aruna
Amarjith
Mahadevaswamy @ Raja
Mahadeva
H.B.Prabhakara Sastry
Umesh M Adiga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
