Shravanakumar S/O. Nattamalljli Jain Vs the State of Karnataka

SHRAVANAKUMAR S/O. NATTAMALLAJLI JAIN, AGE: 47 YEARS, OCC. COOLIE, R/O. GANDHI CHOUK, DIST. JALURU, STATE: RAJASTAN, NOW R/O. SONARVADA, TQ. JOIDA, DIST. KARWAR.

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…APPELLANT

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(BY SRI.NEELENDRA D. GUNDE, AMICUS CURIAE)

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AND:

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD

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THE STATE OF KARNATAKA BY C.P.I., OF JOIDA POLICE CIRCLE, REPRESENTED BY ADDL. S.P.P., HIGH COURT OF KARNATAKA, DHARWAD-580011.

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…RESPONDENT

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(BY SRI.A.M.GUNDAWADE, ADDITIONAL SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C 1973., PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ORDER OF JUDGEMENT AND CONVICTION AND SENTENCE DATED 03.04.2021 PASSED BY 1^ST ADDL. DISTRICT AND SESSIONS JUDGE, U. K. KARWAR, SITTING AT SIRSI, ITIRNARY AT YELLAPUR IN SESSIONS CASE NO.5008/2019 REGISTERED BY JOIDA POLICE STATION FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 201, 448 OF IPC BY ALLOWING THIS APPEAL AND TO ACQUIT THE APPELLANT FOR THE SAID OFFENCES IN THE INTEREST OF JUSTICE AND EQUITY.

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CRL.A No.100606 OF 2022

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

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

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CAV JUDGMENT

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

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This appeal is directed against the judgment of conviction and order of sentence dated 03.04.2021 passed in Sessions Case No.5008/2019 by the I Addl. District and Sessions Judge, U.K., Karwar, Sitting at Sirsi (hereinafter referred to as 'the learned Sessions Judge’), whereby the learned Sessions Judge convicted the accused for the offences punishable under Sections 302, 447 and 201 of IPC and sentenced him to undergo imprisonment for life for the offence punishable under Section 302 of IPC. He further sentenced to undergo simple imprisonment for a period of three months for the offence punishable under Section 448 of IPC. The accused was also sentenced to undergo simple imprisonment for a period of three months for the offence punishable under Section 201 of IPC. It was directed that all the substantive sentence shall run concurrently.

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Briefly stated, the case of the prosecution was as

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follows:

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The deceased-Sudha was aged about 62 years and was residing alone at Joida. The accused-Shravanakumar was residing in the same locality. Since the accused was unemployed, he was bothering the deceased for food and money; hence, the deceased was providing food for him. The accused was fully aware that the deceased was a pensioner and had about ₹5,00,000/- in her bank account. On 21.12.2017 at about 12:30 noon, noticing that the deceased was coming back from the Bank, the accused by assuming that she might have brought money, unlawfully entered her house, demanded money for his expenses. When the deceased refused and warned him that she will inform her children, the accused, fearing disgrace, repeatedly struck the victim on her head with a chopper and inflicted severe injuries and fled away from the spot. Later, a neighboring resident and relative of the deceased, one Vasundra, who was returning from work, noticed that the gate of deceased’s house was opened. She went there, and saw the deceased writhing in pain and lying in a pool of blood inside her house. She called the neighbors and shifted the deceased to the Hospital at Joida and after first aid; the

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deceased was taken to Dharwad for further treatment. However, on the way to Hospital at Dharwad, the deceased succumbed to the injuries.

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Subsequently, PW.1-son of deceased lodged a complaint before the respondent-Police against accused and based on the same, the respondent-Police registered FIR in Crime No.47/2017 against accused for the offence punishable under Section 302 of IPC as per Ex.P22. Later, PW.12-Police Inspector of the respondent-Police investigated the case and laid charge-sheet against the accused for the offences punishable under Sections 302, 201 and 447 of IPC before the committal Court.

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

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In order to prove the charges leveled against the accused, the prosecution examined 12 witnesses as PW.1 to PW.12, marked 37 documents as Ex.P1 to Ex.P37 and identified 8 material objects as M.O.1 to M.O.8. The incriminating

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CRL.A No.100606 OF 2022

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evidence against the accused was read over to him and he denied the same. The accused did not examine any witness on his behalf, but marked a document as per Ex.D1.

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After assessing the oral and documentary evidence, the learned Sessions Judge convicted the appellant/accused 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.

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We have heard the learned Amicus Curiae Sri Neelendra D. Gunde f or the appellant and learned Addl. SPP Sri A.M. Gundawade for the respondent-State. We have also perused the records made available before us.

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The primary contention of the learned Amicus Curiae for the appellant is that the judgment of conviction and order of sentence passed by the learned Sessions Judge suffers from perversity and illegality. The learned Sessions Judge has grossly erred while convicting the appellant without duly appreciating the evidence and documents placed before him. He contended that the case of prosecution rested on circumstantial evidence and the prosecution failed to prove the links in the chain of circumstance by adducing cogent evidence.

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According to the learned counsel, the learned Sessions Judge while convicting the accused significantly relied on the evidence of PW.6-the neighbour of deceased who saw the deceased immediately after the incident in the deceased’s house i.e., the spot of offence and also saw the accused at about 12:30 p.m. near the gate of deceased’s house. PW.7 was the witness before whom the accused made an extrajudicial confession after 2-3 days from the date of incident. He further contended, strangely the Investigation Officer recorded the statement of these two witnesses after arrest of accused i.e., on 26.12.2017, though they were present and available to the Police at the spot of offence and in the Hospital immediately after the incident. As such, both these witnesses are planted witness to the prosecution case. He contended that PWs.4 and 5-the children of deceased are hearsay witnesses to the prosecution case. He further contended that the prosecution also failed to prove the recovery of weapon used for the commission of offence and the clothes worn by the accused at the time of incident. In such circumstance, the prosecution miserably failed to prove the charges leveled against the accused. Accordingly, he prays to allow this appeal.

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Per contra , learned Addl. SPP for the respondent-

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State contended that the 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 prosecution has proved that the deceased and accused were residing in the same locality and accused was frequently visiting the house of deceased and on the date of incident PW.6 had seen the accused near the gate of deceased’s house by hiding his both hands behind his back. Further, accused also made an extrajudicial confession to PW.7 after 2-3 days from the date of incident. The prosecution also proved the motive i.e., the accused murdered the deceased for unlawful gain. The said aspect was deposed by PWs.4 and 5-the children of deceased. The recovery of the weapon-sickle and the shirt of the accused was proved under mahazar-Ex.P13. In such circumstance, the prosecution has proved the charges leveled against the accused beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective parties and also on perusing the entire evidence on record

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including the impugned judgment, the following points arise for

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our consideration:

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

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2. Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offences punishable under Sections 302, 447 and 201 of IPC?

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In order to prove the homicidal death of the deceased-Sudha, the prosecution relied on the evidence of PW.10-Doctor who conducted the autopsy of the deceased and postmortem report as per Ex.P23. PW.10-Doctor gave his final opinion that the cause of death is due to “hemorrhage and shock probably due to injury to the vital organs leading to death of victim” as per Ex.P24. In the postmortem report it is stated that the injuries sustained by the deceased are fresh and ante-mortem in nature. The prosecution also placed inquest panchanama-Ex.P10 drawn on the body of deceased on 21.12.2017 and panch witness for the same i.e., PW.2 who stated that he noticed the injuries on the body of deceased. Hence, on a collective reading of the evidence of PW.10 and PW.2 with Exs.P10, 23 and 24, we are of the view that the

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prosecution has proved the homicidal death of deceased. Even otherwise, the defence has not seriously disputed the same.

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To connect the accused with the homicidal death of deceased, the prosecution significantly relied on the evidence of PWs.1, 3 to 7 and 12-the Investigation Officer. On a careful examination of the evidence of these witnesses, PW.1 is the son of deceased who set the criminal law into motion by lodging Ex.P1-complaint against unknown persons. He came to know about the incident through his brother-PW.5. PWs.5 and 4 are the brother and sister of PW.1 respectively. They are also hearsay witnesses to the incident. PW.6 is a star witness to the prosecution case. According to her on the date of incident when she was returning from work to have lunch at about 12:30 p.m., she saw the accused near the gate of deceased’s house and hid his both hands behind his back. Further, the accused told her that the deceased was not in the house. Later, at about 02:00 p.m., when she went near the house of deceased, she heard the painful sound from the deceased’s house and found the deceased lying in a pool of blood. Immediately, she informed the same to the other neighbors and they shifted the deceased to the Hospital. However, PW.6 did not state about the presence of accused near the gate of

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deceased’s house to anyone till 26.12.2017 i.e., till the arrest of accused, though she was present when the deceased was shifted to hospital and when conducting the inquest panchanama on the body of deceased. Hence a doubt arises in the evidence of PW.6 about her testimony. Moreover, she is the relative of deceased and was not in good terms with the accused as admitted by her in her cross examination. Further, according to the prosecution, the accused made an extrajudicial confession with PW.7 after 2-3 days from the date of incident and PW.7 informed the same immediately to the Police. However, the Police have not arrested the accused based on the said information as admitted by the Investigation Officer. Further, the statement of PW.7 was recorded on 22.12.2017 and did not whisper anything about the confession made by the accused before him. However, his further statement was recorded on 26.12.2017 i.e., after arrest of accused. On a perusal of the entire evidence on record, the prosecution or the Investigation Officer has failed to state the basis for arrest of the accused on 25.12.2017. Admittedly, none of the witness including the family members had expressed any doubt or suspicion against the accused till his arrest. In such circumstance, the arrest of accused is totally without any basis.

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Hence, it can be gathered, that the accused was implicated in the offence based on his voluntary statement. In such circumstance, as rightly contended by the learned Amicus Curiae, a doubt arises in the mind of this Court not only about the veracity of the allegations about commission of offence but also in the evidence of PWs.6 and 7. As stated supra, PWs.1, 4 and 5 are the children of deceased and hearsay witnesses to the incident. Hence, no credence can be attached to their evidence. Further, the arrest of accused itself is without any basis, the recording of voluntary statement and recovery of the weapons at the instance of accused cannot be sufficient to prove the charges leveled against the accused. Admittedly, the entire case of the prosecution rests on circumstantial evidence. The panchasheela principles held by the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 which was reiterated by the Hon’ble Apex Court in the recent judgment i.e., Shankar v. State of Maharashtra reported in 2023 SCC OnLine SC 268 held as under.

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“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or

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CRL.A No.100606 OF 2022

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should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:

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19. …“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

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(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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By applying the principles laid down by the Hon’ble

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Apex Court in the above judgment to the facts and evidence of the case on hand, in our considered view, the prosecution miserably failed to prove all the circumstances except the homicidal death of deceased. Hence, on an overall perusal of the evidence of record, we are of the view that the prosecution has not proved the charges leveled against the accused beyond all reasonable doubt. In that view of the matter, interference with the impugned judgment is warranted. Accordingly, we answer point No.1 raised above in the ‘affirmative’ and point No.2 in the ‘negative’ and proceed to pass the following.

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ORDER

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i. The appeal is allowed .

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ii. The judgment of conviction and order on sentence dated 03.04.2021 in S.C.No.5008/ 2019 passed by the I- Additional District and Sessions Judge, U.K. Karwar, Sitting at Sirsi, is hereby set-aside.

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iii. The appellant-accused is acquitted for the offences punishable under Sections 302, 448 and 201 of IPC.

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iv. Registry is directed to intimate the concerned Jail Authorities to release the appellant-accused, if he is not required in any other case.

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v. The fine amount, if any, deposited by the appellant-accused shall be refunded to him on due identification.

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vi. The Karnataka State Legal Services Authority, High Court of Karnataka, Dharwad Bench, Dharwad is directed to pay ₹20,000/- to Sri. Neelendra D Gunde, Amicus Curiae, as honorarium, for his assistance in this appeal.

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vii. Registry is directed to send back the Trial Court Records along with a copy of this judgment to the concerned Trial Court, forthwith.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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HKV

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CT:PA

Shravanakumar S/O. Nattamalljli Jain v. the State of Karnataka

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Shravanakumar S/O. Nattamalljli Jain v. the State of Karnataka

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