Accused No.3 challenged his conviction under Sections 302 and 201 IPC in a murder-cum-dacoity case. Co-accused had been acquitted as the circumstances were unproven. Applying the principle of parity, the High Court set aside the conviction and acquitted the appellant.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.285/2024 (C)
BETWEEN:
VENKATESH MURTHY @ VENKATESH @ LODDE S/O ASWATHAPPA AGED ABOUT 36 YEARS R/AT THURUVANAHALLI THUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT PIN CODE-561205.
…APPELLANT
(BY SRI. M SHASHIDHARA., ADVOCATE)
AND:
Digitally signed by K S RENUKAMBA Location: High Court of Karnataka
STATE OF KARNATAKA BY KAMASAMUDRAM P.S REPRESENTED BY S.P.P HIGH COURT OF KARNATAKA BENGALURU-560001. …RESPONDENT
(BY SMT. SOWMYA R., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) C.R.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTIONS AND SENTENCE DATED 27.04.2017, PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR, (SITTING AT KGF) IN S.C.NO.44/2015 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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JUDGMENT
Challenging the judgment and order of conviction passed against him, accused No.3 in S.C.No.44/2015 on the file of IIIAdditional District and Sessions Judge, Kolar (sitting at KGF) has preferred this appeal.
Krishna was operating car bearing No.KA-02-AA-673 as transport vehicle. On 25.11.2011 at 8.00 p.m. when Krishna was traveling in his car on Bangalore Hosur Road, with an intention to commit dacoity accused stopped his car near Bommanahalli Bus stop in the guise of passengers, sought lift
and boarded the car requesting him to give drop at Hosur. When the car was proceeding near PES Engineering College at
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Hosur road, they stopped the car in the guise of one of them attending the nature’s call. When he stopped the car, they dragged him from the driver’s seat, accused Nos.1 to 3 and 5 pushed him to the back seat and accused No.4 drove the car. When car was proceeding near Sooligere Road within the limits of Ramanadoddi Village, near nursery plant, accused No.4 went to the back seat, strangulated Krishna with wire. Other accused gagged the mouth, gripped the hands and legs of Krishna and they committed his murder. After committing his murder, accused threw the clothes, belt of Krishna and trip sheet of the vehicle in the drain under the bridge. Accused No.4 with an intention to screen the evidence of the offence collected the ligature material. Accused Nos.1 to 5 disposed of the dead body of Krishna in Patharamagola forest area within the limits of Kamasamudram police station and then sped away.
(ii) On 27.11.2011 PW.9 filed the missing complaint as per Ex.P15 before Hebbagodi police. On 30.11.2011 PW.3 the forest Guard of Malur Forest Range found the dead body in the forest area and lodged unnatural death report as per Ex.P5. Based on such complaint, PW.7 Assistant Sub-Inspector of Police of Kamasamudram registered UDR/FIR as per Ex.P8.
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(iii) On 11.01.2012 at 6.30 p.m. when PW.14 the Police Inspector of City Crime Branch, Bangalore was on patrol duty near BMTC Bus stop in front of Vidyapeeta Circle, Ward Banashankari within the limits of Channammanakere Achu Kattu Police station, he found accused Nos.2, 3 and five others moving in a suspicious manner. Therefore he apprehended them. Their interrogation revealed that armed with choppers, they were making preparations to commit dacoity and possessing car bearing No.KA-02-AA-978.
(iv) Interrogation of accused Nos.2 and 3 revealed their involvement in the commission of murder of Krishna and robbing his car. Based on their voluntary statements, PW.14 recovered three choppers, three knives, six mobile phones and Tata Indica car bearing No.KA-02-AA-978, one Bajaj Discovery bearing No.KA-51-L-6151, another Hero Honda Splendor motorbike which had no number plate. Their interrogation revealed that number plate of Car No.KA-02-AA-673 was tampered as KA-02-AA-978. He submitted his report Ex.P18 to PW.16 the then Assistant Sub Inspector of Police of Channammanakere Achukattu police Station. Based on that, PW.16 registered first information report as per Ex.P19 in Crime No.15/2012 of Channammanakere Achu Kattu police
station for the offences punishable under Sections 399 and 402
of IPC and handed over further investigation to PW.8.
(v) PW.8 conducted further investigation. During such investigation, he recorded the voluntary statements of accused Nos.1 to 3. Based on such voluntary statements he recovered MOs.1 to 7 the clothes, trip sheets and belongings of the deceased under mahazar Ex.P3 in the presence of panchas PWs.1 and 2. Then PW.8 along with his investigation records submitted the report as per Ex.P12 before the Station House Officer of Kamasamudram Police Station and produced accused Nos.1 to 3. Based on that, first information report as per Ex.P24 was registered against accused Nos.1 to 5 for the offences punishable under Sections 302 and 201 of IPC.
(vi) PW.20 the then Circle Inspector of Police of Bangarpete police circle took up investigation. On the basis of voluntary statements of the accused, he received MOs.1 to 7, conducted further investigation and filed the charge sheet against the accused in Crime No.12/2012.
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was registered in S.C.No.172/2013. Subsequently, on arresting and producing accused Nos.1,3 and 4, case against them were registered in S.C.Nos.177/2015, 44/2015 and 148/2016 respectively. Along with accused Nos.1 to 4, accused No.5 by name Seena @ Malavalli Seena was also chargesheeted.
| Sl. No. |
Convicted for the Offence |
Sentence | Fine in Rs. |
Default Sentence |
|---|---|---|---|---|
| 1. | 302 of IPC | Life Imprisonment |
20,000/- | Imprisonment of 1 year |
| 2. | 201 of IPC | RI of 2 years | 10,000/- | Imprisonment of 6 months |
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on the circumstantial evidence, the recovery of the belongings of the deceased as per MOs.1 to 7 from their custody under Ex.P3 and the car under Ex.P17 was proved by the evidence of
the mahazar witnesses and the properties were identified by PW.9 the wife of the deceased. The trial Court further held that in S.C.No.948/2017, where the accused were being tried for the offences punishable under Sections 399 and 402 of IPC, the said Court on verifying the vehicle with reference to the chassis number and engine number found that the accused had tampered the number plate to screen the evidence of offence and that the car belonged to the deceased, granted interim custody of the said car to PW.10 Satish the brother-in-law of deceased Krishna, thereby the recovery of the car of Krishna from the custody of the accused was proved. By such circumstantial evidence, the prosecution has proved the charges beyond reasonable doubt.
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dated 03.01.2024 set aside the impugned judgment and order of conviction against them and acquitted them of all the charges alleged against them. Subsequent to that, the third accused has preferred the above appeal.
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was earlier found by PW-3 a forest guard from Patharamagola forest area on 30.11.2021. On his report Ex.P5 UDR case was registered by PW-7 as per Ex.P8. It is also observed in the said judgment that, to prove the dead body so found was that of Krishna, the DNA test was not conducted. The dead body was not got identified through PW-9 the wife of Krishna. Thereby identity of the dead body was not proved beyond reasonable doubt.
Krishna was driving car bearing number KA-02-AA-673, the accused got into the car in the guise of seeking drop and committed murder, then they robbed his car and escaped. It is further case of the prosecution that at the instance of the accused the said car was seized by PW-14 under the mahazar Ex.P17. This Court in the judgment dated 03.01.2024, held that admittedly, the registration number of car of the deceased was KA-02-AA-673, but the one seized was KA-02-AA-978. It was further observed that though according to the Investigating Officer the accused has tampered the car number, the transport authorities were not examined to confirm that both the cars were one and the same. Thus, the finding of the trial Court that the recovery of the car was proved was incorrect.
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that the case was based on circumstantial evidence and the
circumstances set up by the prosecution were not proved beyond reasonable doubt.
" 15 . When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the criminal court should decide like cases alike, and in such cases, the court cannot make a distinction between the two accused, which will amount to discrimination."
ORDER
i) The appeal is hereby allowed.
1 (2023) 9 SCC 164
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ii) The impugned judgment and order of conviction and sentence against the appellant/accused No.3 in S.C.No.44/2015 passed by III Additional District & Sessions Judge, Kolar, (sitting at KGF) is hereby set aside.
iii) The appellant/accused No.3 is hereby acquitted of the charges for the offences punishable under Sections 302 and 201 of IPC. He shall be set at liberty forthwith, if his detention is not required in any other case.
iv) The trial Court shall dispose of the properties in accordance with law after the split-up case against accused No.5 is decided.
Communicate copy of this order to the trial Court and the Central prison, Bengaluru forthwith.
Sd/JUDGE
Sd/JUDGE
PKN,ABK
List No.: 1 Sl No.: 14
1 issue framed by the court
Whether accused No.3, convicted on circumstantial evidence for murder and destruction of evidence, should be acquitted on parity with already acquitted co-accused.
Colour shows how this judgement treated each authority
Javed Shaukat Ali Qureshi v. State of GujaratRelied on¶14
(2023) 9 SCC 164 · Who else cites this
3 provisions across 2 enactments
Venkatesh Murthy @ Venkatesh @ Lodde s/o Aswathappa
State of Karnataka by Kamasamudram P.S.
K.S. Mudagal
Vijaykumar A. Patil
As recorded by the court registry
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