Hanamant S/O Pandurang Bhajantri Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., SEEKING TO ALLOW THE CRIMINAL APPEAL AND TO SET ASIDE JUDGEMENT AND ORDER OF CONVICTION AND SENCTENCE DATED 13.12.2016 PASSED BY THE LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT SITTING AT JAMAKHANDI, IN SESSIONS CASE NO. 7 OF 2013 PUNISHABLE UNDER SECTION 304, 201, 511 READ WITH 34 OF IPC AND ACQUIT THE APPELLANTS.

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NC: 2025:KHC-D:4140 CRL.A No. 100117 of 2017 C/W CRL.A No. 100127 of 2019

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IN CRL.A.NO.100127/2019:

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BETWEEN:

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HANAMANT S/O. PANDURANG BHAJANTRI, AGE: 30 YEARS, OCC: DRIVER, R/O: JAMAKHANDI, DIST: BEAGALKOT – 587 301.

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…APPELLANT

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(BY SRI SHAIKH SAOUD, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY JAMKHANDI RURAL POLICE REPRESENTED BY: THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, DHARWAD – 560 011.

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…RESPONDENT

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(BY SRI ABHISHEK MALIPATIL, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CODE OF CRIMINAL PROCEDURE, SEEKING TO, THE APPEAL MAY PLEASED BE ALLOWED. THE RECORDS IN RESPECT OF S.C.NO.07/2013 FOR THE OFFENCE UNDER SECTIONS 376, 304, 201, 511 READ WITH 34 IPC MAY PLEASED BY CALLED FOR FROM THE 1^ST ADDITIONAL DISTRICT AND SESSIONS JUDGE BAGALKOT SITTING AT JAMKHANDI. THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 13.12.2016 PASSED BY THE 1^ST ADDITIONAL DISTRICT AND SESSIONS JUDE BAGALKOT SITTING AT JAMKHANDI IN S.C.NO.07/2013 AT ANNEXURE – A MAY PLEASED BY SET-ASIDE AND THE ACCUSED/APPELLANT MAY PLEASED BY ACQUITTED TO MEET THE END OF JUSTICE AND EQUITY AND ETC.,

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THESE CRIMINAL APPEALS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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Crl.A.No.100127/2019 is filed by accused No.1 and Crl.A.No.100117/2017 is filed by accused No.2. Both accused have challenged the judgment of conviction dated 13.12.2016 passed in S.C.No.7/2013 by the I Additional District and Sessions Judge, Bagalkot to sit at Jamakhandi, wherein appellants –accused Nos.1 and 2 have been convicted for offences punishable under Section 376, 304, 201, 511 read with Section 34 of Indian Penal Code (hereinafter referred to as ”IPC” for brevity).

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The appellant –accused No. 1 has been sentenced to undergo rigorous imprisonment for a period of 07 years and pay fine of Rs.25,000/- for offence punishable under Section 376 of IPC; appellants –accused Nos.1 and 2 have been sentenced to undergo imprisonment for a period of 10 years and pay fine of Rs.10,000/- each for offence punishable under Section 304 of IPC; imprisonment for a period of 05 years and pay fine of Rs.10,000/- for offence punishable under Section 201

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read with Section 511 of IPC. The trial Court has ordered that all sentences to run concurrently.

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The factual matrix of the prosecution case is as under:

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P.W.1 – P.S.I. crime branch Jamakhandi Town P.S. has lodged a complaint with Jamakhandi Rural P. S. on 1111-2010 at 01-15 A. M. when he was on patrolling duty of Jamakhandi Town in his jeep. He went near Milan Dhaba situated on Jamakhandi- Bijapur road. At that time owner of the said Dhaba namely Basavaraj Irappa Dalawai (P.W.7) stopped the jeep and informed the complainant that one Indica car had been parked near Main entrance of Alagur Rehabilitation Centre and there are two persons in the said car and one women was lying on the back on rear

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seat of said car and her cloths were in disorder. The complainant took said Basavaraj along with him in his jeep to aforesaid main entrance where he found one white Indica car bearing No. KA- 48 -2084. There were two persons and one woman around 40 years old was lying on

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back side in rear seat. The complainant enquired said two

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persons and they have not gave proper answers. On further enquiry he came to know that said women died and her name was Alaka W/o. Manohar Raut of Jamakhandi. The said two persons were inside the car were smelling alhocal. The complainant came under impression that accused No 1 and 2 had raped her and killed her. P.W.1 –complainant seized the said car and arrested accused Nos.1 and 2 under mahazar and filed complaint as per Ex.P2. The said report has been registered in Crime No.175/2010 of Jamakhandi Rural Police Station for offences punishable under Sections 376, 302 read with Section 34 of IPC. The Investigating Officer after completing investigation has filed charge sheet for offences punishable under Sections 376, 304, 201, 511 read with Section 34 of IPC against accused Nos.1 and 2.

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The case came to be committed to the Sessions

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Court. The Sessions Court has framed charges for offences punishable under Sections 376, 304, 201, 511

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read with Section 34 of IPC. The prosecution in order to prove the charges has examined thirteen witnesses as P.W.1 to 13, got marked documents as Ex.P1 to Ex.P27 and material objects as M.O.1 to 5. Statements of accused persons came to be recorded under Section 313 of Cr.P.C. Learned Sessions Judge after hearing arguments on both sides has formulated points for consideration and passed the impugned judgment of conviction of appellants –accused Nos. 1 and 2. The said judgment of conviction has been challenged by appellants –accused Nos.1 and 2 in these two appeals.

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Heard learned counsel for appellants in both

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appeals and learned High Court Government Pleader for the respondent –State.

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Learned counsel for appellants –accused Nos.1

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and 2 would contend that the investigation has been commenced without registering case even after P.W.1 coming to know the commission of cognizable offences as reported by P.W.7. He submits that without registering

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case, the Investigating Officer has drawn mahazar, seized car and arrested appellants -accused Nos.1 and 2 and thereafter gave report/complaint as per Ex.P2 against accused persons . He submits that P.W.7 has stated in his evidence that there was dead body lying on the road and there was no cross examination by the Public Prosecutor in that regard. Even though Ex.P15 –post mortem report has

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been marked by consent. Even though opinion regarding the cause of death and commission of offence punishable under Section 376 of IPC which is at Ex.P15(b) has not

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been proved by examining the Author i.e. Doctor who conducted the post mortem examination of the dead body of the deceased. Even as per final opinion –Ex.P15 (b),

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the doctor has opined that cause of death is due to respiratory failure as a result of consumption of alcohol. The said cause of death cannot be related to accused persons and their acts. He further submits that even on perusal of Ex.P16 and 17 –FSL reports, there is no evidence regarding accused persons committed sexual assault on the deceased. Even in Ex.P15(b), the doctor

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noted absence of seminal stains on the cloths of the deceased and absence of spermatozoa in vaginal smear slide the possibility of sexual intercourse involving the deceased lady cannot be completely ruled out. In order to prove Ex.P15(b), the doctor has not been examined and Ex.P15(b) has been marked in the evidence of P.W.12. Accused persons have not given consent for marking Ex.P15(b). Even though the doctor has opined that sexual intercourse involving in deceased lady cannot be completely ruled out and that cannot be related to accused persons since nothing is found in the FSL report –Ex.P16 against accused persons. He submits that it is not case of the prosecution that accused persons forced the deceased to consume alcohol. On the point urged, learned counsel has placed reliance on the decision of the Hon’ble Apex Court in the case of Lalita Kumari Vs Government of Uttar Pradesh and ORs¹ . He also placed reliance on the decision of the Hon’ble Apex Court in the case of Ashok

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1 Reported in 2014 (2) SCC 1

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Vs State of Uttar Pradesh² , on the point that when there is no legal evidence, accused persons cannot be convicted, the Hon’ble Apex Court has reversed the judgment of conviction. On these grounds, he prays to allow the appeal, set aside the impugned judgment of conviction and acquit accused persons.

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Learned High Court Government Pleader for the respondent –State would contend that reasons assigned by the trial Court are based on the evidence on record. The circumstances established by the prosecution pointed out guilt of accused persons. Accused persons were found in the car wherein dead body of the deceased was found on the rear seat of the car. Accused persons are not explained what is cause of death of the deceased. With these, he supported reasons assigned by the trial Court and prays for dismissal of the appeal.

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Having heard learned counsels, this Court has perused the impugned judgment of conviction and trial

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2 Reported in 2024 INSC 919

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Court records. Considering the grounds urged, the following point arises for my consideration is

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“Whether the trial Court has erred in convicting appellants –accused Nos.1 and 2 for offences punishable under Sections 376, 304, 201 and 511 of IPC?”

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My answer to the above point is in the affirmative for the following reasons

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P.W.1 –PSI and his jeep driver P.W.8 were on patrolling duty on 11.11.2010 and at that time P.W.7 – owner of the Milan Dhaba has stopped them and informed about two persons in white Indica car bearing No.KA-48 - 2084 and there is woman on the rear seat and her cloths

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were in disorder. P.W.1 and 8 along with P.W.7 went to the said spot. Evidence of P.W.1, 7 and 8 indicate that they found accused Nos.1 and 2 in the Indica Car bearing No.KA-48-2084 and there was woman on the rear seat of

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the said car and her cloths were in disorder. P.W.1 has filed his report/complaint as per Ex.P2 after drawing

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mahazar, seizing car and arresting accused Nos.1 and 2. The evidence of P.W.1, 7 and 8 will establish that accused Nos.1 and 2 were in Indica Car bearing No.KA-48 -2084 and the dead body of the deceased –Alaka was lying on the rear seat of the car and her cloths were in disorder.

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It is case of the prosecution that accused Nos.1 and 2 took the deceased in their car and purchased alcohol and when they were committing sexual intercourse on her, she died due to acts of accused persons. Considering the said aspect and charge levelled against accused persons, the prosecution has to establish that accused persons have committed the said sexual intercourse on the deceased and committed culpable homicide.

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The doctor has conducted post mortem examination over the dead body of the deceased and his report is at Ex.P15. Ex.P15 has been marked by consent of accused persons. The doctor who conducted the post

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mortem examination has kept pending opinion of cause of death for want of chemical analysis report. RFSL reports

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are at EX.P16 and Ex.P17. The doctor who conducted post mortem examination on the dead body of the deceased has given his opinion as to cause of death and as to sexual intercourse and it is at Ex.P15(b). Ex.P15(b) has not been marked by consent and it is marked in the evidence of P.W.12 –Investigating Officer who received it. The author of Ex.P15(b) has not been examined. The doctor who conducted post mortem over the dead body of the deceased has opined in Ex.P15(b) as under:

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1. On the perusal of inquest report, postmortem examination and chemical analysis report the cause of death to the best of my knowledge and belief is due to respiratory failure as a result of consumption of alcohol.

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2. Even in the absence of seminal stains on the cloths of deceased and absence of spermatozoa in vaginal smear slide the possibility of sexual intercourse involving the deceased lady can not be completely ruled out.

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The said opinion is based on the RFSL reports

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which are at Ex.P16 and 17. On perusal of the said

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opinion regarding cause of death it cannot be said that death of the deceased was due to acts of accused persons since cause of death is respiratory failure as a result of consumption of alcohol. It is not the case of the prosecution that accused persons forcible made the deceased to consume alcohol to the extent that can cause the death. Therefore, the findings of the trial Court that accused persons have committed culpable homicide is not on the basis of legal evidence.

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The Doctor even in absence of seminal stains on

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the clothes of deceased and absence of spermatozoa in the vaginal smear slide, he has opined that possibility of sexual intercourse involving the deceased lady cannot be completely ruled out. On plain reading of the said opinion, the said possibility of sexual intercourse involving the deceased cannot be related to the accused persons. Since, as per examination report of the accused which are at Ex.P-19 and Ex.P-20, no external injuries were found over their bodies. Even though, in Ex.P-19 and Ex.P-20, it is

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stated that nicker of accused Nos.1 and 2 respectively, has stated to be stained, but in RFSL report-Ex.P-16, it is opined that those nickers which are at item Nos.8 and 11, they are not found the presence of seminal stains. Therefore, the opinion of possibility of sexual intercourse cannot be related to the accused persons.

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The trial Court without considering the above material aspects has swayed away by the evidence of the PWs-1, 7, 8, 9 and 10, that accused Nos.1 and 2 are found in the car with the deceased and might have committed the offences. There is no legal evidence to base conviction against the accused for offences charged against them. Therefore, the trial Court has failed to appreciate the evidence of prosecution in proper perspective and erred in convicting the accused persons. The judgment rendered by the trial Court is perverse and not based on the legal evidence. Therefore, the conviction of the

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appellants/accused Nos.1 and 2 requires to be set aside

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and they are required to be acquitted for all the charges leveled against them.

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In the result the following:

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ORDER

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i. The appeals are allowed.

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ii. The judgment of conviction and order on sentence dated 13.12.2016 passed in S.C.No.7/2013 by the I Additional District and Sessions Judge, Bagalkot to sit at Jamakhandi is set aside.

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iii. The accused Nos.1 and 2 who are appellants herein are acquitted of offences punishable under Sections 376, 304, 201, 511 read with Section 34 of IPC.

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iv. The fine if any, paid by accused Nos.1 and 2 is ordered to be refunded to them.

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v. Issue release intimation to the concerned jail authority. Accused Nos.1 and 2 are ordered to be released, if they are not required in any other case.

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vi. In view of disposal of the case, interim applications, if any, pending stands disposed off.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP para 1 to 11 RKM para 12 to end List No.: 1 Sl No.: 33

Hanamant S/O Pandurang Bhajantri v. State of Karnataka

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Hanamant S/O Pandurang Bhajantri v. State of Karnataka

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