Sri Lakshmana Naika @ Laxmana vs State Of Karnataka
2021 Latest Caselaw 1898 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF APRIL, 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL APPEAL No.880 OF 2016(C)

BETWEEN:

SRI. LAKSHMANA NAIKA @ LAXMANA
S/O. MURTHY NAIKA
AGED ABOUT 29 YEARS
OCC: COOLIE, R/O TANDAGA THANDY
SRIRAMPURA HOBLI
HOSADURGA TALUK
CHITRADURGA DISTRICT-577 522
                                            ....APPELLANT

(BY SRI. SAMPANGIRAMAIAH, ADVOCATE FOR
    SRI. B. PRAMOD, ADVOCATE)

AND:

STATE OF KARNATAKA
BY RURAL POLICE
CHIKKAMAGALURU
REP. BY THE SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001
                                          .... RESPONDENT
(BY SRI. VIJAY KUMAR MAJAGE, ADDL. SPP)

                         *****
                                2


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 29.06.2015 PASSED BY THE II ADDL. S.J.,
CHIKKAMAGALURU IN S.C.NO.148/2011-CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 302,449
AND 380 READ WITH 34 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 31.03.2021, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, RAJENDRA
BADAMIKAR J. DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by Accused No.2 under Section 374(2)

of Code of Criminal Procedure (hereinafter for short, referred to

as 'Cr.P.C.') against the judgment of conviction and order of

sentence passed by the II Additional Sessions Judge,

Chikmagalur in SC No.148/2011 dated 29.06.2015, whereby the

appellant/accused No.2 was convicted for the offence punishable

under Sections 449, 302 & 380 of Indian Penal Code (hereinafter

for short, referred to as 'IPC') by imposing sentence of

imprisonment for life with fine of Rs.10,000/- for the offence

punishable under Section 302 read with 34 of IPC; Rigorous

Imprisonment for a period of 10 years with fine of Rs.5,000/- for

the offence punishable under Section 449 of IPC; and Rigorous

Imprisonment for a period of 7 years with fine of Rs.5,000/- for

the offence punishable under Section 380 read with 34 of IPC,

with default clauses.

2. For the sake of convenience, the parties herein are

referred to as per their rankings before the trial Court.

3. The brief facts of the case of the prosecution are

that, Accused Nos. 1 & 2 with a common intention to commit

theft and murder of Smt. Seethamma, on 09.05.2011 between

8.05 p.m. and 8.50 p.m., have trespassed into the house of

CW.7-Sri. Sundaresh, wherein the deceased was staying,

situated at Puttenahalli Village, Chikkmagaluru Taluk, in the

pretext of purchasing liquor and smothered her to death by

using a towel and thereafter committed theft of gold coins chain

(Kasina Sara) and ear-studs worth Rs.65,000/- in all and

thereafter, the accused fled from the spot. Subsequently, the

Investigating Officer has apprehended Accused Nos. 1 & 2 and

recovered the stolen articles at the instance of the accused on

the basis of their voluntary statement and then submitted the

charge sheet against the accused. Thereafter, the learned

Magistrate after taking cognizance, committed the case to the

Sessions Court and accordingly, the sessions Court after securing

the presence of the accused, framed charges against Accused

Nos.1 & 2 for the offence punishable under Sections 449, 302

and 380 read with Section 34 of IPC, and read-over and

explained the charges to both the accused. The accused pleaded

not guilty and claimed to be tried.

4. In order to prove the charges levelled against the

accused, the prosecution has examined 20 witnesses as PW.1 to

PW.20 and got marked 24 documents Exs.P1 to P24. Further 12

material objects were also marked as MOs.1 to 12.

5. After completion of the prosecution evidence, the

statement of the accused under Section 313 of Cr.P.C. was

recorded by the learned Sessions Judge and the accused have

denied all the incriminating evidence appearing against them in

the prosecution case. However, the accused did not lead any

evidence on their behalf. But, they have got marked Exs. D1 and

D2 during the cross-examination of PW.13, which are the

portions of statements of PW.13 recorded by the Investigating

Officer during the course of investigation under Section 161 of

Cr.P.C.

6. After hearing the arguments, the learned Sessions

Judge found both the accused guilty of the offences punishable

under Sections 449, 302 & 380 read with 34 of IPC and convicted

them by imposing sentence of imprisonment for life and

Rigourous Imprisonment for 10 years and 7 years with fine, with

a default caluse. Being aggrieved by the same, Accused No.2

has preferred this appeal against the judgment of conviction and

order of sentence. However, Accused No.1 has not challenged

the judgment of conviction and order of sentence passed against

him.

7. We have heard the learned counsels appearing for

both the parties.

8. Sri. Sampangi Ramaiah, Advocate appearing for the

learned counsel Sri.B.Pramod, vehemently argued that the

judgment of conviction and order of sentence passed by the trial

Court against the appellant/Accused No.2 is not at all sustainable

in law; that judgment of conviction and order of sentence is

illegal, invalid and contrary to the facts and evidence on record;

that the entire case is based on circumstantial evidence and

recovery said to have been made at the instance of the accused

is on the basis of the evidence of PWs.4 to 10 relied by the trial

Court is short of proof and required to establish the charges

alleged; that the evidence of PWs. 1, 2 & 3 is only suggestive

and the Investigating Agency have done their job of investigation

in respect of unnatural death of Smt. Seethamma on

09.05.2011; that the evidence of PWs. 4, 5 & 6 does not assist

the prosecution in any manner and the circumstances of

recovery of Material objects have not been established; that the

evidence of PW.14 does not inspire confidence of the court to

base the conviction; there is no motive forthcoming and the last

seen theory is also not established. The motive is not proved as

against Accused No.2 and entire recovery of gold ornaments is at

the instance of Accused No.1 alone and there are no

eyewitnesses to the alleged incident; that the entire case is

based on circumstantial evidence and the circumstantial evidence

led by the prosecution is not sufficient to prove the guilt of the

accused; However, the Sessions Court ignoring all these aspects

has convicted the appellant/Accused No.2 and hence, sought for

allowing the appeal by setting aside the impugned judgment of

conviction and order of sentence passed against Accused No.2

and acquitting him of the charges levelled against him.

9. Per contra, Sri. Vijay Kumar Majage, the learned

Additional S.P.P. has supported the impugned judgment of

conviction and order of sentence passed by the trial Court. He

contended that there is recovery at the instance of both Accused

Nos.1 and 2 and at the instance of Accused No.2, Accused No.1

was apprehended. Further, he argued that admittedly, the death

is homicidal death, which is an admitted fact and that the murder

was in order to have a wrongful gain, which establishes the

motive as the recovery at the instance of Accused No.2 is

proved by the evidence of panch-witnesses as well as evidence

of Investigating Officer, to which accused has not given any

explanation in respect of MO No.12, which was recovered at his

instance. Hence, he argued that there is sufficient material

evidence to prove that they have caused death of a poor old

lady for wrongful gain and hence, contended that there is no

need for interference of this Court, as the judgment of conviction

and order of sentence is just and proper and it does not call for

any interference.

10. Upon hearing arguments of both the counsels

appearing for parties, the point that would arise for our

consideration is, -

"Whether the judgment of conviction and order of sentence passed by the trial Court against Accused No.2/appellant for the offence punishable under Sections 449, 302 and 380 of IPC calls for any interference?"

11. On considering the arguments advanced by both the

counsels and in order to re-appreciate the evidence, we have to

assess the evidence on record.

(1) PW.1-Vinodkumar and PW.2-P.T. Rajegowda are the

panchas to Ex.P1 and both of them have supported the

case of the prosecution as well as the seizure of MO.1-

Towel alleged to have been used for commission of the

offence.

(2) PW.3-H.N. Shashidhar is inquest mahazar witness and he

has also supported the case of the prosecution.

(3) PW.4-P.C. Shivananda is the son of the deceased and his

evidence discloses that, on 09.05.2011 when they had

been to the house of the deceased at 8.45 p.m., the front

door was closed and they tried to open the door, but it was

bolted from inside. PW.4 with his brother-CW.7 went to

back door and the back door was open and when he

entered house, he found his mother was murdered and she

was lying on the floor and immediately they have shifted

her to the hospital and she was declared brought dead and

then he lodged a complaint as per Ex.P3 regarding

murdering his mother and robbing her ornaments.

(4) PW.5-Sundaresha @ suresha is another younger son of the

deceased Seethamma and he has also deposed as per the

evidence given by PW.4. He is also not an eye-witness to

the incident.

(5) PW.6-P.C.Divakar @ Shridhar is the son of the deceased

and he is also a hear-say witness to the incident.

(6) PW.7-Manjunatha Raikar is the pawn broker and he has

deposed that, on 25.07.2011, accused No.1 pledged 10

gold coins and later, on 12.08.2011, the police along with

Accused No.1 came and seized them and drawn a mahazar

as per Ex.P4 and he has also identified the seized material

object as per MO.3. He has also produced the receipts for

having pledged 10 gold coins with him.

(7) PW.8-Bharath Raikar is the son of PW.7, who is also

running a Pawn Broker shop in the name and style of

"Kamakshi Bankers" in Belaguru and he has also deposed

regarding the accused pledging 29 gold coins chain

(Kasina Sara) and gold beads and the same have been

seized on 12.08.2011 by the police and drawing a

mahazar. He has also deposed regarding the documents

being executed by Accused No.1 in this regard. He has

also supported the case of the prosecution.

(8) PW.9-Goparam is another Pawn Broker, who is running a

Pawn Broker Shop in the name and of style of "Mahalaxmi

Bankers" and he has also deposed regarding Accused No.1

pledging gold coins and 1 pair of ear-stud and the same

has been seized by the police by drawing a mahazar by

the police.

(9) PW.10-Ashoka P. is a witness to the seizer mahazar

regarding gold coins under Ex.P4 and deposed Accused

No.2 leading them to a form house of Mr. M.S. Rajive

Gowda and production of black beads with two Havala in

his presence.

(10) PW.11-H.L. Basavaraju is an Assistant Engineer and he

deposed regarding drawing a sketch of the scene of offence

as perEx.P10.

(11) PW.12-B.G. Eshappa was a PDP and he deposed regarding

issuing of house extract as per Ex.P.12.

(12) PW.13-Manjula is the wife of PW.5-Sundaresh and

daughter-in-law of the deceased and she is a hear-say

witness.

(13) PW.14-D.Ravi has deposed that he is working as a Writer

in the Form House of M.S. Rajegowda and he has also

deposed that both the accused were working in the same

Form House and on the date of incident he met them and

they were in intoxicated state of mind and it is claimed that

the accused have disclosed before him that they found

liquor bottles on the road and they have consumed the

same.

(14) PW.15-K.Sathyanarayana has deposed regarding receiving

the complaint and issuing FIR. He has also deposed

regarding accompanying the Investigating Officer for

recovery of incriminating articles.

(15) PW.16-Ramesh Kumar, PW.17-S. Vijayaprasad and

PW.20-H.N. Panchaksharappa are the Investigating

Officers.

(16) PW.18-Dr.Sunil Kumar has deposed regarding conducting

autopsy on the dead body of the deceased.

(17) PW.19-H. Chandru has deposed regarding apprehending

the accused.

12. Ex.P1 is the spot mahazar while Ex.P2 is the inquest

report, Ex.P3 is the complaint, Exs.P4 to P6 are seizure

mahazars, while Ex.P9 is the sketch of the scene of offence,

Ex.P24 is the portion of the voluntary statement said to have

been given by Accused No.2/appellant, which is said to have led

for recovery.

13. On perusing the entire oral and documentary

evidence on record, it is evident that the case of the prosecution

mainly rests on circumstantial evidence. The prosecution is

mainly relying on the following circumstances:

   i)       The homicidal death of the deceased

   ii)      Recovery of gold ornaments pledged by the

accused at their instance from Pawn Broker's house

iii) The evidence of PW.9 & PW.14

14. It is to be noted here that, though there is no direct

evidence regarding motive, the motive can be attributed only in

order to have wrongful gain by way of theft or robbery. Since

the entire case is based on circumstantial evidence, the

prosecution is required to prove the chain of circumstances and

probability of involvement of the accused. In this regard, it is

relevant to rely upon a decision of the Hon'ble Apex Court

reported in (2019) 4 SCC 522 [Digamber Vaishnav and

Another Vs. State of Chhattisgarh], wherein the Apex Court

in Paragraph No.16 has laid down three guidelines for completion

of the chain of circumstances in case of circumstantial evidence,

which reads as under:-

"16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:-

i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

iii) 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 and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."

15. The evidence of prosecution witnesses clearly

discloses that Accused Nos.1 & 2 led the Investigating Officer

and panchas to Pawn Broker's shops of PW.7 to PW.9, where

recovery was made at the instance of Accused No.1. Further,

the evidence of PW.7 to PW.9 categorically establishes that

Accused No.1 has pledged the golden articles with Pawn Broker.

It is also important to note here that the accused have never

claimed that the alleged golden articles were belonging to them.

No such claim is put-forward by the accused. The recovery is

also proved by the evidence of PW.10 and PW.12 and it is also

supported by the evidence of the Investigating Officer. There is

no need for the Panch-witnesses to give false evidence against

the accused. The main contention of the defence counsel is that,

no worthy articles were recovered at the instance of Accused

No.2 and the entire recovery of golden articles were at the

instance of Accused No.1. However, it is evident that MO.12 is

recovered at the instance of Accused No.2 and the manazar

witness (PW.10-Ashok.P), Black Beads were recovered at the

instance of Accused No.2. Accused No.2 nowhere asserted

during entire trial about MO.12 is owned by him or belongs to

him. No such defence is forthcoming. Even in the 313 Cr.P.C

statement of accused is silent and they have not explained

anything except formal denial regarding recovery. The recovery

is proved from the evidence of PW.7 to PW.10 and PW.12,

coupled with Ex.P4 to Ex.P6.

16. The other incriminating circumstance is that Accused

No.2 was arrested first and at this instance Accused No.1 was

apprehended and from whom mahazar recovery was done.

Further, the evidence of PW.14 also gains importance to show

that both the accused were working under PW.14 in the Form

House of M.S. Rajegowda. Further, his evidence clearly discloses

that on the date of the incident, in the morning, they were found

under intoxicated state of mind. The evidence of prosecution

also clearly discloses that, liquor bottles were also stolen from

the house of the complainant on the date of incident. Further,

the entire prosecution records clearly disclose that though

recovery and other things were at the instance of Accused No.1,

the major cross-examination was done on behalf of Accused No.2

only. The accused is not prepared to give explanation regarding

recovery and now his contention that, 'in no way he is concerned

with Accused No.1', cannot be accepted, as at his instance only

Accused No.1 was apprehended. Hence, the evidence on record

clearly establish that there is a motive for commission of the

offence ie., to rob the gold ornaments of the deceased. Further,

the evidence clearly discloses that the circumstances clearly

point finger for drawing an inference of guilt against the accused

only. Further, there is no other motive forthcoming for

commission of the offence and the accused are incapable of

explaining incriminating evidence in respect of recovery as

against them. Further, it is an undisputed fact that the death is

homicidal and it is supported by the evidence of PW.18-Dr. Sunil

Kumar, who specifically opined that there were certain abrasions

on the dead body of the deceased and the death is caused due to

asphyxia and he has issued post-mortem report as per Ex.P21.

Though the Medical Officer and other witnesses were cross-

examined at length by the defence evidence, their evidence is

not at all impeached. Therefore, under these circumstances, the

evidence of the prosecution clearly establish that, it is the

accused, who alone have trespassed the house of the deceased

and caused her death, and robbed gold ornaments from her.

The accused No.2 never claim that, articles (MO.12-Balck Beads

and Havala) were belonging to him and he has not disputed the

fact that, those articles belonged to the deceased. Then there is

no explanation from the mouth of the accused as to how they

came in possession of these articles and as such, the

circumstantial evidence led by the prosecution is cogent and

sufficient. The prosecution has satisfied all the three conditions

referred to in the decision of the Hon'ble Apex Court in

Digamber Vaishnav's case cited supra. Hence, the evidence

on record clearly establishes that the accused, in order to have

wrongful gain, caused the death of the deceased and robbed

her. Apart from that, the receipt books bear the signature of

Accused No.1, which is not disputed. Even the address

mentioned on MO.5 and MO.10 is pertaining to Accused No.1

and his signatures are not at all denied. Further, there is nothing

on record to show that, as to why PW.4 and PW.10 would give

false evidence as against the accused and also there is no enmity

between these witnesses and the accused.

17. Another argument of the learned counsel for the

appellant is that, 'the articles were new articles' cannot be

accepted, as they were in the custody of the Pawn Broker and

they can polish it at any moment and hence, the said argument

also needs to be rejected. Further, PW.7 to PW.9 are

categorically deposed that, at the time of recovery, at the

instance of Accused No.1, all along Accused No.2 was also

present. The other argument advanced by the defence counsel

is that, initially on the date of incident itself Accused Nos. 1 & 2

were enquired by the police and they were let off. But, that

cannot be a ground, as, initially the police would have naturally

enquired many number of people to have some traces or clue

regarding offenders. But, subsequently, when they get clue,

then only they apprehend accused, and as such, initially the

accused were only formally enquired. Hence, the said argument

does not have any relevance.

18. During the trial, the accused tried to take a defence

that, due to some property dispute amongst the family

members, some of the family members ought to have committed

the alleged offences. But, except a formal suggestion, no

clinching evidence is placed and suggestion does not become the

evidence.

19. As observed above, the golden articles were

identified by the children of the deceased and the accused have

not explained the custody of these articles and recovery at their

instance. Hence, the trial Court is justified in convicting the

accused for the offence punishable under Sections 449, 302 &

380 read with Section 34 of IPC. The accused in order to have

unlawful gain, have caused death of an old lady only to rob her

and that clearly establish their mens rea. Hence, looking from

any angle, this is not a fit case, wherein an interference by this

Court is called for and the trial Court is justified in convicting the

accused for the offence punishable under Sections 449, 302 and

380 read with of IPC, and the trial Court is also imposed

adequate sentence to the accused. Apart from that, Accused

No.1 did not file any appeal challenging the judgment of

conviction and order of sentence passed by the trial Court in the

said case.

20. Considering the above facts and circumstances of the

case and after analyzing the entire evidence on record, we are

of the considered opinion that the judgment of conviction and

order of sentence passed by the trial Court against

appellant/Accused No.2 for the offence punishable under

Sections 449, 302 and 380 read with Section 34 of IPC does not

call for any interference. Accordingly, we answer the point arose

for consideration in this appeal, in the negative and proceed to

pass the following:-

ORDER

i) The appeal is dismissed.

ii) The judgment of conviction and order of sentence dated 29.06.2015 passed by the trial Court viz., II Additional Sessions Judge at Chikkamagaluru in SC No.148/2011, convicting the appellant/Accused No.2 for the offence punishable under Sections 302, 449 and 380 read with Section 34 of IPC and imposing sentence of imprisonment for life with fine, is confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

KGR*