Hanumant S/O Gurudappa and Ors. Vs the State through Cpi Maski

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO, SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE PRESIDING OFFICER, FTC-I AT RAICHUR, IN S.C.NO.129/2011 DATED:19.03.2013 AND ACQUIT THE APPELLANT NO. 1 TO 3 I.E., ACCUSED NO.2 TO A- 4 BEFORE THE TRIAL COURT FROM THE CHARGES FRAMED UNDER SECTION 302, 201 R/W SEC. 34 OF IPC AND APPELLANT NO.4 FOR CHARGES FRAMED UNDER 302 R/W 109 OF IPC.

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IN CRIMINAL APPEAL NO.3569 OF 2013

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BETWEEN:

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LALSAB @ LALAPPA S/O. KIDIYAPPA, AGED ABOUT: 30 YEARS, OCC: AGRICULTURE, R/O: BAILAGUDDA VILLAGE, TQ:LINGASUGUR, DIST: RAICHUR.

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…APPELLANT

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(BY SRI. SHIVAKUMAR KALLOR, ADVOCATE & SRI. BASAVARAJ NADAGOUDA, ADVOCATE)

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…RESPONDENT

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AND:

THE STATE OF KARNATAKA THROUGH C.P.I MASKI, TQ:LINGASUGUR, DIST:RAICHUR, REPRESENTED BY ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA.

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(BY SRI. SIDDALING P. PATIL, ADDL.SPP FOR STATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO ALLOW THE ABOVE CRIMINAL APPEAL AND SETASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED:19.03.2013 PASSED BY THE FAST TRACK COURT-I AT RAICHUR IN S.C.NO:129/2011 CONVICTING THE APPELLANT FOR THE OFFENCE UNDER SECTION 302 OF I.P.C AND 201 OF READ WITH SEC. 34 OF I.P.C AND ACQUIT THE APPEALLANT FOR ALL THE OFFENCES CONVICTED BY THE TRIAL COURT.

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THESE APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ AND HON'BLE Mrs JUSTICE K S HEMALEKHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

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These two appeals arise out of judgment and

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order dated 19.03.2013 passed by FTC-I at Raichur in S.C.No.129/2011, wherein, the learned Sessions Judge has found accused Nos.1 to 3 guilty of the offence punishable under Sections 302 and 201 of IPC read with Section 34 of IPC and accused No.4 for the offence punishable under Sections 302 and 109 of IPC.

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2.(i) The trial Court vide impugned judgment has sentenced accused Nos.1 to 3 to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 302 read with

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Section 34 of IPC, in default of payment of fine, to undergo simple imprisonment for a period of three months.

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(ii) Sentenced accused Nos.1 to 3 to undergo

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rigorous imprisonment for a period of three years for the offence punishable under Section 201 read with Section 34 of IPC and to pay fine of Rs.2,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of one month.

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(iii) Sentenced accused No.4 to undergo rigorous life imprisonment for the offence punishable under Sections 302 and 109 of IPC and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three months.

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Crl.A.No.3569/2013 is preferred by accused

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No.1 and Crl.A.No.3555/2013 is preferred by accused Nos.2 to 4.

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We have heard the learned counsel for appellants in the respective appeals and learned Additional SPP for the State and perused the evidence and material on record.

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It is the case of the prosecution that deceased

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Kanakappa had illicit relationship with the wife of accused No.4, hence, accused No.4 abetted accused Nos.1 to 3 to commit his murder. On 07.05.2011 at about 21:30 hours, with a common intention of committing the murder of Kanakappa, accused No.2 took him under the guise of having a party, near the bridge situated at Bailagudda village, wherein accused Nos.1 and 3 were also present. The said accused assaulted the deceased with sickle and machhu on his forehead, chin, neck and left hand palm and after committing his murder, dumped the dead body in a ditch situated near the bridge, to cause disappearance of the evidence and thereby committed the charged offences.

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The law was set into motion by the wife of deceased. In Ex.P1-complaint, she has stated that she along with her deceased husband and children attended a marriage function on 07.05.2011 and after the function, at about 6:00 p.m., her husband sent her and children to the

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house telling that he will go to “Kuri hatti”. However, even

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in the late night he did not return to the house. In the morning at about 7:00 a.m., one Manjappa(PW.8) came and enquired about her husband and she informed him that her husband has gone to Kuri hatti and not returned. Later, she enquired with her Uncle-Garudappa(PW.3), who informed her that on the previous night at about 8:00 p.m., he saw her husband and thereafter, he has not seen him. She enquired about her husband with other villagers and at about 4:00 p.m., while searching, she found the chappals and towel of her husband near the bridge. Thereafter, while she was searching for her husband, along with Garudappa, Mallappa, Yenkappa, Basanagouda, Amaregouda and Gurunathappa, noticed his dead body lying by the side of the road near Basavanna Gudi, in a ditch with head injuries. Suspecting that he was murdered by accused No.1, she lodged the complaint against the said accused.

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PW.17-PSI has deposed that on 08.05.2011 at

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about 6:00 p.m., he received a phone call from one Sharabanna of Bailagudda village regarding the murder and immediately informed the CPI and proceeded to the spot along with other Police officials. He recorded the statement of PW.1 as per Ex.P1 and handed over the same to PC-220 (PW.5).

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PW.15-ASI, on receiving the complaint forwarded by the PSI, registered a case in Crime No.110/2011 against accused No.1 under Sections 302 and 201 of IPC and forwarded the FIR to the jurisdictional

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Court. Investigation was taken over from PW.15 by PW.16-CPI, who went to the spot and conducted the inquest panchanama over the dead body. The postmortem examination was conducted by PW.14. PW.16-CPI recorded the statements of witnesses and arrested accused Nos.1 to 4. He recorded their voluntary statements and effected recovery of mobile phones, weapons used for the commission of the offence and sent

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the seized articles to FSL for examination. On receipt of

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the FSL report, PW.18-CPI filed the charge-sheet.

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In order to bring home the guilt of the accused, prosecution in all examined 18 witnesses and got marked 51 documents and MO.1 to MO.16. Ex.D1 was got marked by the defence. Though the accused denied the prosecution case, did not lead any evidence on their behalf.

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The trial Court, appreciating the oral and documentary evidence on record, convicted and sentenced accused Nos.1 to 4 as noted supra.

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Assailing the impugned judgment, learned counsel appearing for the accused contended that, appreciation of evidence by the trial Court is not in the proper perspective, the trial Court failed to see that the circumstances relied upon by the prosecution are not proved beyond reasonable doubt. It is contended that according to the prosecution, accused No.4 had a motive

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to eliminate the deceased as he was suspecting that the

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deceased had illicit relationship with his wife and therefore, along with other accused persons he committed the murder, whereas, none of the witnesses have stated about the said motive, on the other hand different versions regarding motive are given. It is contended that the recovery alleged to have been effected at the instance of accused Nos.1 to 3 is under suspicious circumstances and therefore, recovery cannot be believed. It is further contended that the trial Court has recorded conviction on

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the basis of assumption and presumption, relying on the phone call record details, holding that the mobile-MO.11 which was seized from accused No.1 was used by accused No.2 and it was given to the deceased by the said accused and therefore, the possession of MO.11 with accused No.1 and its recovery from him leads to a conclusion that it was

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picked by accused No.1 from the crime spot. It is contended that reasons assigned by the learned Sessions Judge for convicting the accused has resulted in

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miscarriage of justice and accordingly, the learned counsel sought to allow the appeals and acquit the accused of all the charged offences.

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Per contra, learned Additional SPP contended that the prosecution has placed sufficient materials and led cogent evidence, which unerringly prove that the crime was committed by accused Nos.1 to 4. He contended that though there are no eye witnesses to the incident, the circumstantial evidence relied upon by the prosecution forms a chain pointing the guilt towards the accused. He further contended that MO.13 to MO.16 are recovered at

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the instance of accused Nos.1 to 3 and they are the weapons used to commit the offence. The I.O. has sent MO.13 and MO.14 for chemical examination and the FSL report-Ex.P50 would show that the said material objects contained ‘A’ group human blood. He contended that the trial Court has rightly appreciated the phone call record details marked as Ex.P45 to Ex.P47, which shows that there was frequent calls made between accused No.1 and

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accused No.2 during the relevant point of time. He contended that the trial Court after assigning justifiable reasons has convicted accused No.1 to 4 and sought to dismiss the appeals.

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Admittedly, there are no eyewitnesses to the incident. The case of the prosecution is entirely based on circumstantial evidence. The circumstances relied upon by the prosecution are as under:

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a) Homicidal death.

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b) Motive.

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c) Recovery of MO.13 to MO.16.

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d) Last seen theory i.e., deceased seen in the

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company of the accused prior to his murder.

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e) The FSL report-Ex.P50.

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f) Recovery of MO.11-Mobile Phone and the call record details-Ex.P45 to Ex.P47.

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A) HOMICIDAL DEATH:

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The prosecution has relied on the evidence of Doctor-PW.14, who conducted the postmortem examination over the dead body, to prove the homicidal death. The postmortem examination report is marked as Ex.P33. As per the said report and the evidence of PW.14, the following injuries were noticed:

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“1. Chop wounds measuring 4 X 2 cms on the right side of the skull.

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Chop wound 2 X 1 cm on left jaw, fracture of mandible present.

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Abrasion 2 X 2 cms on both sides of the neck.

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Stab wound over the right second intercostal space measuring 3 X 1 cms.

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2 X 1 cms deep incised wound on the left side of the neck.

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Deep incised wound measuring 9 X 1 cms on the neck extending from the left to the right neck, direction transverse, it runs cutting trachea, oesophagus, juglar veins carotid vessels on both sides.

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Laceration measuring 2 X 1 ms on the left side of the occipital region.

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Abrasion measuring 3 X 1 cms on the right knee.”

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PW.14 has stated that the cause of the death is

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due to shock and hemorrhage, hypovolumia as a result of

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cutting of major vessel of the neck (carotid and juglar).

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PW.16-CPI, who on receiving the information regarding the incident, went to the spot and conducted the inquest mahazar-Ex.P6 over the dead body. PW.2 is the panch witness.

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From the postmortem report-Ex.P33 and the evidence of PW.14 as well as the evidence of PW.2 and 16, the prosecution has proved that the death of Kanakappa is homicidal in nature. In fact the defence has not seriously disputed the homicidal death of Kanakappa.

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B) MOTIVE :

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It is the specific case of the prosecution that deceased Kanakapa was having illicit relationship with the wife of accused No.4 and therefore, the said accused was

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nursing an ill-will against the deceased. According to the prosecution, accused No.4 abetted accused Nos.1 to 3 and

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in furtherance of their common intention, accused No.2

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took the deceased under the guise of having a party, near the bridge situated at Bailagudda village, wherein accused Nos.1 to 3 were also present and all the accused committed the murder by assaulting him with sickle and machhu.

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Ex.P1 is the complaint lodged by PW.1, wife of deceased on noticing the dead body of her husband lying in a pool of blood, in a ditch by the side of road situated near Basavanna Gudi. She suspected accused No.1 as the one who committed the murder of her husband. In Ex.P1, she has stated that accused No.1 and her husband used to consume alcohol together and the said accused used to leave her husband at the house, in the late night. It appears that in that notion, she suspected accused No.1 as the one who committed the murder of her husband. Based on her statement, initially, case was registered against accused No.1 alone.

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In Ex.P1, PW.1 has neither suspected accused No.4 nor stated about the illicit relationship between her husband and the wife of accused No.4. It is relevant to appreciate her evidence, to see as to whether the prosecution has established the motive for the accused to commit the murder of her husband.

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PW.1 has nowhere, in her deposition stated that her deceased husband had illicit relationship with the wife of accused No.4, on the other hand, in the crossexamination conducted by the Public Prosecutor after she was treated hostile, she has categorically denied having given any such statement to the police to the effect that her husband had illicit relationship with the wife of accused No.4. She has further denied the suggestion made to her by the prosecution that accused No.4 had instigated accused Nos.1 to 3 to commit the murder of her husband. In fact she has clearly stated in her evidence that accused Hanumant, Balappa and Rachanagouda i.e., accused Nos.2 to 4 have not done anything to her husband.

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Appreciation of the evidence of PW.1 goes to show that, as accused No.1 used to be with her husband and both of them used to take drinks together and sometimes accused No.1 used to bring her husband to the house in drunken condition, she suspected that the said accused might have committed the murder of her husband. She has not suspected any other accused or stated the motive for them to commit the murder of her husband.

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PW.1 has deposed in her evidence that a week prior to the incident accused No.1 had gone to assault one Lachama, driver of accused No.4, and in that regard a panchayat was held in the village. In the said panchayat her brother-in-law-Garudappa(PW.3) and her husband scolded accused No.1. She has therefore suspected that accused No.1 might have murdered her husband.

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PW.3 is the elder brother of the deceased. Even the said witness has nowhere stated about the illicit

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relationship between the deceased and the wife of accused No.4. He has stated, prior to the incident, accused No.1 had picked up quarrel with the driver of accused No.4 and in the panchayat, his brother i.e., deceased Kanakappa had scolded accused No.1.

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From the above evidence adduced by the prosecution, it cannot be held that prosecution has established the motive that because of the illicit relationship between the deceased and the wife of accused No.4, the said accused was nursing ill-will against the deceased and he abetted other accused persons to commit the murder.

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As per the evidence of PW.1 and PW.3, about a week prior to the incident, accused No.1 tried to assault the driver of accused No.4 and in that connection there was a panchayat convened. In the said panchayat the deceased and his brother PW.3 had scolded accused No.1. However, it is not the case of prosecution that due to the

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said incident accused No.1 was nursing ill-will against the deceased and therefore, Kanakappa was murdered. The specific charge is that on account of ill-will between accused No.4 and the deceased, as the deceased had illicit relationship with the wife of accused No.4, he abetted other accused persons and all the accused committed the murder. During trial, witnesses have come up with a different story regarding motive and not corroborated with the story projected by the prosecution. Therefore, the prosecution has failed to establish the motive for the accused to commit the murder of deceased Kanakappa.

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C) RECOVERY OF MO.13 TO MO.16:

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MO.14 to MO.16 are one axe and two pickaxes.

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MO.13 is the handle of the axe. It is the case of the prosecution that after the arrest of the accused, voluntary statements of accused Nos.1 to 3 were recorded as per Ex.P38 to Ex.P40, respectively. Under a mahazar-Ex.P22, MO.13 and MO.14 were recovered at the instance of

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accused No.1. Under Ex.P29 and Ex.P31, MO.15 and MO.16 were recovered at the instance of accused Nos.2 and 3 respectively.

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PW16-I.O. in his evidence has deposed that all the seized items were sent to FSL, Gulbarga. FSL report, marked as Ex.P50 was received by PW.18-CPI.

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Evidence of PW.16 goes to show that, after the arrest of accused No.1, the said accused led the police and panchas to the spot where the handle of the axe-MO.13 was recovered under a mahazar-Ex.P22. Thereafter, he led them to his house from where an axe without the handle was recovered, the said axe is marked as MO.14. It is stated that both MO.13 and MO.14 were stained with blood.

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Further, after the arrest of accused No.2, he led the police and panchas to the spot where he threw the axe-MO.14 and the same was recovered under a mahazar-

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Ex.P29. As per the said mahazar, the said axe was stained with blood.

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Further M.O.15 – axe was recovered at the instance of accused No.3 under a mahazar at Ex.P.31. The said mahazar at Ex.P.31 does not indicate that the axe which was recovered at his instance was stained with blood.

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PW.16 - CPI has specifically stated that he sent all the seized articles to FSL for examination, whereas Ex.P.50 – FSL report goes to show that articles No.8 and 9 are one Kavu and one Kudugolu, obviously recovered at the instance of accused No.1. There is no mention in Ex.P.50 regarding other weapons.

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As per Ex.P.22 – panchanama, the handle of the axe seized at the instance of accused No.1 was stained with blood, whereas the axe without the handle seized from his house was not stained with blood, as it was washed by the accused. Further, as per Ex.P.29 -

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panchanama, axe which was seized at the instance of

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accused No.2 was stained with blood.

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It is contended by the learned Addl. SPP that

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the handle of axe seized at the instance of accused No.1 and the axe seized at the instance of accused No.2 were stained with blood and as per FSL report, they were stained with human blood of ‘A’ group and therefore, the recovery of the weapons at the instance of the said accused, has been proved by the prosecution. It is also contended that, as per the opinion of the doctor, the said weapons could cause injuries noticed on the deceased.

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The prosecution has examined PW.13 as the panch witness, for the recovery of weapons. He has deposed that accused No.1 showed the place where he throw the handle of the axe and the same was recovered. Thereafter, he led the police to his house, from where an

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axe was recovered. However, he has specifically stated that the said axe seized from his house was with handle. If

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that is so, then the case of prosecution that, after committing the murder, accused No.1 threw the blood stained handle of the axe and it was separately recovered at his instance appears to be doubtful.

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Insofar as the seizure of axe from accused Nos.2 and 3 is concerned, PW.13 has not specifically stated that the said accused led the police or that he accompanied them to the place from where the weapons were seized. The prosecution has tried to contend that the said witness has identified the photographs in which accused No.2 was seen handing over the sickle. The said evidence of PW.13 to prove the recovery of weapons from accused Nos.1 to 3 is shrouded with suspicion.

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Firstly, according to the prosecution, accused

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No.1 led the police and panch witness to the place where he threw the handle of the axe and thereafter, he led the

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police to his house, from where the axe without the handle was recovered. It is the case of prosecution that after

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committing the murder, accused No.1 threw the handle of

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the axe and thereafter, he carried the axe without handle and concealed the same in his house. As per PW.13 -

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panch witness to the recovery of mahazar, the axe with handle was seized from the house of accused No.1. The recovery of weapons seized at the instance of accused Nos.1 and 2, as projected by the prosecution, is doubtful and therefore, it cannot be held that the prosecution has proved the recovery of weapons from the accused, beyond reasonable doubt.

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D) LAST SEEN THEORY :-

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According to the prosecution, prior to the incident, at about 07.00 p.m., the deceased was seen in the company of the accused. The prosecution got examined PW.11 to establish the said fact. However, the said witness has turned hostile and not supported the case of prosecution. PW.11 has denied the suggestion put by

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the learned public prosecutor that he saw Hanumant (accused No.2) and the deceased – Kanakappa talking together near his hotel and that he saw them together going towards the village. Further, PW.11 has denied having seen Lalsab @ Lalappa (accused No.1) with accused No.2 – Hanumant and both of them proceeding towards Mudgal on a motorbike. Thus, there is no evidence to show that, prior to the incident, the deceased was seen with the accused. Further, the prosecution has also failed to show that the accused were together at the time of incident.

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E) FSL REPORT :-

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As per prosecution, the weapons sent for chemical examination i.e., one sickle and handle of axe, were stained with human blood of ‘A’ group. However, we have held that the recovery of weapons at the instance of accused Nos.1 and 2 is doubtful. Therefore, question of

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accepting the FSL report – Ex.P.50 to connect the accused with the crime will not arise.

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F) RECOVERY OF MOBILE PHONES AND THE

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CALL DETAIL RECORDS :-

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It is the case of prosecution that, accused No.2 had handed-over his mobile phone to the deceased. The said mobile phone was recovered at the instance of accused No.1. According to prosecution, under Ex.P.13 – mobile seizure mahazar, the said mobile phone was recovered from accused No.1. The learned Addl. SPP. has contended that accused No.1 picked the said mobile phone from the spot after committing the murder, and later it was recovered at his instance. The prosecution has examined PW.6 – panch witness to Ex.P.13. He has deposed that CW.15 – Durugappa and himself were called by the police and in their presence, they seized a mobile phone from accused – Lalsab @ Lalappa i.e., accused No.1.

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The trial Court, from the call detail records of SIM number of the said mobile phone and also the SIM card belonging to accused No.1 has come to the

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conclusion that Lalsab @ Lalappa – accused No.1 and Hanumanta – accused No.2 were not together at one place, but were under the same tower, during the period of calls, but they were in contact with each other. A doubt was raised by the trial Court as to why frequent calls were made.

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Admittedly, there were no calls made by accused No.1 to the mobile phone of accused No.2, which was with the deceased. There is no evidence led by the prosecution to show that the mobile phone which was seized from the possession of accused No.1 was in fact, in the name of said accused or that the said mobile phone

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was handed-over by accused No.2 to the deceased.

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We have examined the evidence of PW.1 –

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Parvathamma, wherein she has stated that accused No.2 informed her that he had given his mobile phone to her

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husband. As per PW.1, after her husband went missing, on the next day at about 07.00 a.m., accused No.2 came and enquired about her husband and also told her that he had

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given his mobile phone to her husband. However, in Ex.P.1 – complaint, PW.1 has not at all stated about

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accused No.2 visiting her house and enquiring about her husband and informing her about giving his mobile phone to her husband. For the first time, before the Court, PW.1

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has deposed so. Her evidence therefore does not inspire confidence of the Court to hold that the mobile phone of accused No.2 was with her deceased husband, at the time of incident. Hence, the prosecution has not established beyond all reasonable doubt that the mobile phone of

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accused No.2 which was seized at the instance of accused No.1 was in fact given by accused No.2 to the deceased

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prior to the incident. Even if recovery of the said mobile

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phone from accused No.1 under Ex.P.13 is to be believed, it cannot be said that the said mobile phone was with the

¶230

deceased at the time of incident and accused No.1 picked the said mobile phone from the spot after committing the

¶231

murder and kept it with him.

¶232

The learned Addl. SPP. would contend that the

¶233

accused have shown the place where they committed the

¶234

murder and dumped the dead body. The said contention of

¶235

learned Addl. SPP. to connect the accused with the incident cannot be accepted. Admittedly, the dead body

¶236

was seen by PW.1 and other villagers prior to the arrest of

¶237

the accused and thereafter, they informed the police. It is not the case of prosecution that after the accused were arrested, the dead body was discovered or that they led

¶238

the police to the spot and showed the dead body.

¶239

30 - NC: 2025:KHC-K:2847-DB CRL.A No. 3555 of 2013 C/W CRL.A No. 3569 of 2013

¶240

HC-KAR

¶241

It is well settled that, the cardinal principle in a

¶242

case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused.

¶243

Having re-appreciated the entire evidence and

¶244

materials on record and considering the totality of facts and evidence, in our view, the circumstances relied upon by the prosecution are not established beyond reasonable doubt, as they do not form a complete chain unerringly pointing the guilt towards the accused.

¶245

For the aforesaid reasons, appeals deserve to

¶246

be allowed. Accordingly, the following;

¶247

31 - NC: 2025:KHC-K:2847-DB CRL.A No. 3555 of 2013 C/W CRL.A No. 3569 of 2013

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HC-KAR

¶249

O R D E R

¶250

I. Both the appeals are allowed.

¶251

II. The judgment and order dated 19.03.2013 passed by the learned Presiding Officer, FTC-I, at Raichur in S.C.No.129/2011, convicting and sentencing accused Nos.1 to 3 for the offence punishable under Sections 302 and 201 read with Section 34 of IPC and accused No.4 for the offence punishable under Sections 302 and 109 of IPC, is set-aside.

¶252

III. The appellants Accused Nos.1 to 4 are acquitted of the charges leveled against them.

¶253

IV. Their bail bonds shall stand cancelled.

¶254

Sd/(MOHAMMAD NAWAZ) JUDGE

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Sd/(K S HEMALEKHA) JUDGE

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AT/KJJ List No.: 1 Sl No.: 32 CT:NI

Hanumant S/O Gurudappa and Ors. v. the State through Cpi Maski

Case brief

What is this about?

What did the court decide?

Hanumant S/O Gurudappa and Ors. v. the State through Cpi Maski

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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