Abhishek S/O Kallappa Javoor Vs the State of Karnataka

THE STATE OF KARNATAKA THROUGH KESHWAPUR POLICE STATION, HUBBALLI, DIST. DHARWAD, NOW REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, AT DHARWAD BENCH.

¶14

…RESPONDENT (BY SRI. A.M. GUNDAWADE, ADDITIONAL S.P.P.)

¶15

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C 1973., SEEKING TO CALL FOR RECORDS IN S.C.NO. 67/2017 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 13.01.2021 AND ORDER OF SENTENCE DATED 16.01.2021 IN SESSIONS CASE NO. 67/2017 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND

¶16

2 -

¶17

CRL.A No.100108 OF 2024

¶18

THEREBY ACQUIT THE APPELLANT/ACCUSED NO.1 FROM THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC, 1860.

¶19

THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, JUSTICE RAJESH RAI K , DELIVERED THE FOLLOWING:

¶20

CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

¶21

CAV JUDGMENT

¶22

(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

¶23

This appeal is directed against the judgment of conviction dated 13.01.2021 and order of sentence dated 16.01.2021 passed in Sessions Case No.67/2017 by the I Addl. District and Sessions Judge, Dharwad, Sitting at Hubballi (hereinafter referred to as the ‘learned Sessions Judge’), whereby the learned Sessions Judge convicted the appellant/accused No.1 for the offence punishable under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.55,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 2 years.

¶24

Briefly stated, the facts of the prosecution case are as follows:

¶25

3 -

¶26

CRL.A No.100108 OF 2024

¶27

The Complainant-PW.1 Pavan Kumar is the brother of deceased-Akash Konnur. The marriage of PW.1 was fixed with the sister of accused No.1 i.e., PW.15 on 24.04.2016. The accused No.3 Vithal Kalagaggari is also a resident of same locality. There was a quarrel between PW.1 and accused No.3 one day prior to Holi festival in 2016. Therefore, accused No.3 was grinding vengeance against PW.1 and his brothers. Accused No.1 opposed the marriage proposal of his sisterPW.15 with the complainant-PW.1. Hence, accused No.3 approached accused Nos.1 and 2, hatched a conspiracy to commit the murder of PW.1 or any of his brothers. On 22.04.2016 at 5:30 p.m., the brother of PW.1 i.e., Akash was playing with PWs.10 to 14 in the open ground of Kadasiddeshwar Mutt, Talawar Oni, Keshwapur Hubballi. The accused Nos.1 and 2 went to the said place and inflicted stab injuries on the deceased with M.O.3-knife. The complainantPW.1 and PWs.10 to 14, who were present at the said spot, chased the accused who fled from the spot. Later, PW.1 and others shifted the injured to KIMS Hospital, Hubballi. However the Doctor declared him as brought dead. Subsequently, PW.1 lodged a complaint against the accused on the same day at about 08:30 p.m. before the respondent-Police as per Ex.P1.

¶28

4 -

¶29

CRL.A No.100108 OF 2024

¶30

On the strength of Ex.P1, FIR was registered against accused Nos.1 and 2 in Crime No.58/2016 for the offence punishable under Section 302 r/w Section 34 of IPC as per Ex.P22. Subsequently, PW.19-Investigation Officer apprehended the accused Nos.1 to 3 on the following day i.e., 23.04.2016 and conducted further investigation by drawing relevant mahazars. Thereafter, he recorded the statement of witnesses and on obtaining necessary documents from the concerned authorities, he laid charge-sheet against accused Nos.1 to 3 before the committal Court for the offences punishable under Sections 302, 120(B) and 109 r/w Section 34 of IPC. The appellant was arraigned as accused No.1.

¶31

After committal of the case before the Sessions Court, the learned Sessions Judge framed charges against the accused for the aforementioned offences and the same was read over to them. The accused denied the charges leveled against them and claimed to be tried.

¶32

In order to prove the charges leveled against the accused, the prosecution examined 21 witnesses as PW.1 to PW.21, marked 28 documents as Ex.P1 to Ex.P28 and identified

¶33

5 - CRL.A No.100108 OF 2024

¶34

10 material objects as M.O.1 to M.O.10. However, the accused marked 1 document as Ex.D1 on their behalf.

¶35

On completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as stipulated in Section 313 of Cr.P.C. However, they refuted the same and claimed that they were falsely implicated.

¶36

After assessing the oral and documentary evidence placed before the Sessions Court, the learned Sessions Judge convicted this appellant/accused No.1 for the charges leveled against him and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal.

¶37

We have heard the learned counsel Sri. K.L. Patil for the appellant and learned Addl. State Public Prosecutor Sri.A.M. Gundawade for the respondent-State.

¶38

The primary contention of the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Sessions Court suffers from perversity and illegality. The learned Sessions Judge has grossly erred

¶39

6 -

¶40

CRL.A No.100108 OF 2024

¶41

while convicting the appellant/accused without appreciating the evidence in the right perspective. He contended that there are material contradictions and omissions in the evidence of alleged eyewitness to the incident i.e., PWs.1, 11 to 13. Moreover, they are the relatives and friends of the deceased and most interested witnesses to the prosecution case. He further contended, the offence was allegedly committed in an open area and there were several persons in and around the said area. However, none of them were cited as charge sheet witness nor examined before the Court. The independent witnesses-PWs.10 and 14 turned hostile to the prosecution case. In such circumstance, no credence can be attached to the evidence of PWs.1, 11 to 13. He also contended that, the prosecution failed to prove the recovery of M.O.3-knife and M.O.4-motorbike of accused under Ex.P5 mahazar since PW.4 the witness for Ex.P5 turned hostile to the prosecution case. He also contended that though PW.1 shifted the deceased to the Hospital, there was no blood stain on his clothes and the same were not recovered by the Police. The Investigation Officer also failed to recover the clothes of accused allegedly worn at the time of incident. Additionally, he contended that the prosecution miserably failed to prove the motive for the alleged

¶42

7 -

¶43

CRL.A No.100108 OF 2024

¶44

incident. The accused No.1 had no ill-will against the deceased to commit his murder. Per contra , it is the case of prosecution that accused No.3 nursed ill-will against PW.1 and his brothers, but no evidence available on record that accused No.3 hatched conspiracy with this appellant to commit the murder of deceased. He contended, on the same evidence the learned Sessions Judge acquitted accused No.3 from the charges leveled against him. In such circumstance, conviction against this appellant cannot be sustained. Accordingly, he prays to allow this appeal.

¶45

Per contra , the learned Addl. SPP for the respondent-State contended that, judgment under this appeal neither suffers from perversity nor illegality as the learned Sessions Judge has meticulously examined the evidence on record and passed a well-reasoned judgment which does not call for any interference. He submitted that the evidence of PWs.1, 11 to 13-the eyewitness to the incident is consistent and corroborates each other. All these witnesses have categorically deposed that on the fateful day, this appellant along with child in conflict with law, came to the spot in a motorbike and stabbed the deceased and fled away from the spot. Though, PWs.1 and 11 made an attempt to chase them,

¶46

8 - CRL.A No.100108 OF 2024

¶47

but they escaped in the motorbike. Further the prosecution also

¶48

examined PW.15 i.e., wife of PW.1 to prove the motive for the alleged incident. According to PW.15, accused No.1 i.e., her brother was opposing her marriage proposal with PW.1. The accused No.3 was grinding ill-will against PW.1 and his brothers. As such, at the instance of accused No.3, accused No.1 and child in conflict with law murdered her brother-in-law i.e., the deceased. Further, the weapon used for the commission of offence was seized by the Investigation Officer under Ex.P5. In such circumstance, the prosecution proved the guilt of accused beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal.

¶49

Having heard the learned counsel for the respective

¶50

parties and also on perusing the entire evidence on record including the impugned judgment, the following points arise for our consideration:

¶51

1. Whether the judgment under this appeal suffers from either perversity or illegality?

¶52

2. Whether the learned Sessions Judge is justified in convicting the appellant/accused No.1 for the offence punishable under Section 302 of IPC?

¶53

9 - CRL.A No.100108 OF 2024

¶54

In order to prove the homicidal death of deceased, the prosecution predominantly relied on the evidence of PW.17Doctor who conducted the autopsy on the body of deceased and postmortem report as per Ex.P18. On careful perusal of Ex.P18, PW.17 opined that the cause of death is due to ‘hemorrhage and shock as a result of injuries sustained’. Apart from that, he stated that all the injuries sustained by the deceased are ante-mortem in nature. Further, the prosecution also relied on Ex.P8-inquest panchanama, drawn on the body of deceased by PW.19-Investigating Officer. PWs.7 and 8 are the witnesses for the same. Both these witnesses identified the injuries on the body of deceased. Hence, on a collective reading of the evidence of PWs.17, 19, 7 and 8 coupled with Exs.P8 and P18, we are of the view that the prosecution has proved the homicidal death of deceased. Even otherwise, the defence has not seriously disputed the homicidal death of the deceased.

¶55

To connect the accused with the homicidal death of the deceased, the prosecution significantly relied on the evidence of PWs.1, 11, 12, 13, 15 and the evidence of PW.19Investigating Officer. On a careful examination of the evidence of these witnesses, PW.1-brother of the deceased set the criminal law into motion by lodging complaint-Ex.P1 soon after

¶56

10 -

¶57

CRL.A No.100108 OF 2024

¶58

the incident. It is stated in the complaint that on 22.04.2016 at about 5:30 p.m., the accused No.1 along with the child in conflict with law stabbed his brother i.e., deceased at Talavara Oni, Kadasiddeshwara Mutt. Thereafter, he and others shifted the inured to Hospital, but the Doctor declared him brought dead. Hence he lodged a complaint. PW.1 has reiterated the averments of Ex.P1 in his evidence before the Court. He also stated that accused No.3 was grinding ill-will against him and his brothers in connection with a quarrel between them prior to the incident. However, on perusal of cross-examination of PW.1 he has stated that there was no ill-will between accused No.1 and deceased. He also admitted in his cross-examination, at the time of incident when he saw the deceased, he was sitting on the ground and he was already stabbed. Thereafter, he and his brother one Abhilash shifted the deceased to the Hospital. This evidence of PW.1 is quite contrary to the testimony of PW.12, who was allegedly playing with the deceased at the time of incident. According to him, after the incident, one of the boys who were in the ground informed PW.1 and he came to the spot and they shifted the deceased to the Hospital. Further PW.1 also admitted in his cross-examination that the place of incident i.e., Kadasiddeshwara Mutt is not visible from his

¶59

11 -

¶60

CRL.A No.100108 OF 2024

¶61

house. Further, on perusal of the complaint lodged by PW.1 i.e., Ex.P1, he stated that at the time of incident he was standing near Kadasiddeshwara Mutt and after hearing the commotion at Kadasiddeshwara Mutt, he went to the said spot. Moreover, on perusal of the Inquest Panchanama-Ex.P8, the column No.4 reveals that PW.1 had seen the deceased finally when he was alive and shifting him to the Hubballi Hospital in an auto rickshaw. Hence, on careful analysis of the evidence of PW.1 along with the evidence of PW.12, there arises a doubt about the presence of PW.1 at the spot at the time of incident.

¶62

Further, on perusal of the evidence of other eyewitness-PWs.11 to 13, the statement of PWs.11, 12 were recorded on 24.04.2016 i.e., after lapse of two days from the date of incident. The statement of PW.13 was recorded on 21.06.2016 i.e., after lapse of two months. On perusal of the evidence of PWs.11 and 12, they only shifted the deceased to the Hospital along with PW.1 and they were present at the time of inquest panchanama. Despite that the Police did not record their statement for a period of 2 days, though they were eyewitnesses to the incident. PW.11 was allegedly playing with the deceased at the time of incident. There was no reason why his statement was recorded belatedly. Hence, their evidence

¶63

12 -

¶64

CRL.A No.100108 OF 2024

¶65

cannot be believed at any stretch of imagination. If PWs.11 to 13 were really present at the scene of occurrence and witnessed the incident, then the Police left them without enquiring on the date of incident or at the time of inquest panchanama. Moreover, in the complaint-Ex.P1, PW.1 has stated that the incident was witnessed by some persons, but he did not remember their names. PWs.11 to 13 are close friends of deceased and PW.1 and according to them on the date of incident, they and PW.1 distributed the marriage invitation card of PW.1. Hence, it is impossible to accept that PW.1 forgotten their names while lodging complaint. This generates doubt whether PWs.11 to 13 were present at the spot of incident.

¶66

As rightly contended by the learned counsel for the appellant, there are material contradictions in the evidence of PWs.11 to 13 and PW.1 in respect of the incident in question. There is no explanation offered by the Investigation OfficerPW.19 for the inordinate delay in recording the statement of eyewitnessses-PWs.11 to 13 who were present at the time of drawing inquest panchanama. The Hon’ble Apex Court in the case of Jafaruddin and Others vs. State of Kerala in reported in 2022 INSC 464 held that there may be adequate circumstance for not examining a witness at an appropriate

¶67

13 -

¶68

CRL.A No.100108 OF 2024

¶69

time. However, non examination of witness despite being available may call for an explanation from the Investigation Officer. It only causes doubt in the mind of the Court, which is required to cleared. When witnesses are available for examination when Investigation Officer visited the scene of occurrence or soon thereafter, non recording of their statement may be itself amount to a serious infirmity in the prosecution case. It may assume such a character if there is concomitant circumstance to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced.

¶70

The Hon’ble Apex court in the case of Darya Singh

¶71

v. State of Punjab reported in 1963 SCC OnLine SC 123 ,

¶72

held in paragraph No.6 as under:

¶73

“ 6 . There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to

¶74

14 -

¶75

CRL.A No.100108 OF 2024

¶76

share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence. Courts naturally begin with the enquiry as to whether the said witnesses were chance-witnesses or whether they were really present on the scene of the offence. If the offence has taken place, as in the present case, in front of the house of the victim, the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the three eyewitnesses cannot be properly characterised as unlikely. If the criminal court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to the examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. We do not think it would be possible to hold that

¶77

15 - CRL.A No.100108 OF 2024

¶78

such witnesses are no better than accomplices and that their evidence, as a matter of law, must receive corroboration before it is accepted. That is not to say that the evidence of such witnesses should be accepted light-heartedly without very close and careful examination; and so, we cannot accept Mr Bhasin's argument that the High Court committed an error of law in accepting the evidence of the three eye witnesses without corroboration.”

¶79

In the instant case, the two independent eyewitnesses-PWs.10 and 14 have turned hostile to the prosecution case. It is admitted by PWs.1, 11 to 13 there were 50-60 persons in the ground i.e., at the spot of the offence. Despite, that the Investigation Officer chose to record the statement of close friends and relatives of the deceased. Hence, applying the principles laid down by the Hon’ble Apex Court in the above judgment to the facts and evidence of this case, we are of the view that the evidence of PW.1, 11 to 13 was not reliable to prove the charges leveled against the accused since they were chance witnesses to the incident. Further, the prosecution also failed to prove the recovery of M.O.3-knife used by the accused for the commission of offence, since PW.4-the panch witness for Ex.P5-recovery mahazar turned hostile to the prosecution case. Further, PW.2-the panch witness for spot mahazar-Ex.P4 also turned hostile to the

¶80

16 -

¶81

CRL.A No.100108 OF 2024

¶82

prosecution case. Though the prosecution examined PW.15 to prove the motive for the incident, she is totally a hearsay witness to the incident. Moreover, according to the prosecution this appellant i.e., accused No.1 committed the murder of deceased at the instigation of accused No.3. However, the prosecution failed to prove the guilt of accused No.3 that he had conspired with accused No.1 to commit the murder of deceased. Accordingly, the accused No.3 was acquitted for the charges leveled against him. The said judgment of acquittal is not challenged by the State. In such circumstance, as rightly contended by the learned counsel for the appellant, since accused No.1 had no ill-will or motive against the deceased, the prosecution failed to connect this appellant/accused No.1 to the homicidal death of deceased by placing cogent evidence.

¶83

Hence, on an overall analysis of the evidence and the material witnesses, we are of the view that the prosecution failed to prove the charges leveled against the appellant beyond reasonable doubt. The Hon’ble Apex Court in the case of Nagendra Singh and Another vs. State of Madhya Pradesh and others reported in (2004) 10 SCC 699 held that, the prosecution has to prove its case beyond reasonable doubt and there is a difference between place of proof “may

¶84

17 -

¶85

CRL.A No.100108 OF 2024

¶86

be” and “must be”. In the case on hand, on careful perusal of the entire evidence on record, the prosecution has not passed the test of must prove the charges leveled against the accused.

¶87

Hence, in view of the above discussion, we are of the view that interference with the impugned judgment is warranted. Accordingly, we answer the point No.1 raised above in the ‘affirmative’ and point No.2 in the ‘negative’ and proceed to pass the following.

¶88

ORDER

¶89

i. The Criminal Appeal No.100108/2024 is hereby allowed .

¶90

ii. The judgment of conviction dated 13.01.2021 and order of sentence dated 16.01.2021 passed in S.C.No.67/2017 by the I Addl. District and Sessions Judge, Dharwad, Sitting at Hubballi is set-aside.

¶91