Parasappa Raju Kalloli @ Badachi vs The State Of Karnataka
2021 Latest Caselaw 7121 Kant

          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 23RD DAY OF DECEMBER, 2021

                       PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                            AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

          CRIMINAL APPEAL NO.100030/2021
       C/W CRIMINAL APPEAL NO.100240/2020 &
          CRIMINAL APPEAL NO.100262/2020


IN CRL.A. NO.100030/2021:

BETWEEN

1.     DUNDAPPA S/O BHEEMAPPA HALAGALI
       S/O BHEEMAPPA
       AGE 23 YEARS, OCC DRIVER,
       RESIDENT OF HULYAL -587 301,
       TALUK JAMAKHANDI
       DISTRICT-BAGALKOT.

2.     SIDDAPPA S/O BHEEMAPAA HALAGALI,
       AGE 26 YEARS, OCC COOLIE,
       RESIDENT OF HULYAL 587 301,
       TALUK JAMAKHANDI
       DISTRICT BAGALKOT
                                          ...APPELLANTS
(BY SRI.K.S PATIL, ADVOCATE)

AND

THE STATE OF KARNATAKA
REP. BY CPI, JAMKHANDI 587 301,
TALUK JAMAKHANDI, DIST: BAGALKOT
                                 2


REPRESENTED BY S.P.P,
AG OFFICE, HIGH COURT BUILDING,
DHARWAD-580 001.
                                          ...RESPONDENT

(BY SRI.V.M.BANAKAR, ADDL.SPP)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 12.06.2020 IN S.C. NO.43/2018 PASSED BY I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMAKHANDI, JAMAKHANDI FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 302, 120B READ WITH SECTION 149 OF IPC AND ACQUIT THE APPELLANT NOS.1 AND 2 / ACCUSED NOS.1 AND 2 BY ALLOWING THIS APPEAL.

IN CRL.A. NO.100240/2020:

BETWEEN

1. PARASAPPA RAJU KALLOLI @ BADACHI AGE: 37 YEARS, OCC: COOLIE, R/O: HULYAL, TAL: JAMAKHANDI, DIST: BAGALKOT.

2. HANAMANT RAJU KALLOLI @ BADACHI AGE: 21 YEARS, OCC: COOLIE, R/O: HULYAL, TAL: JAMAKHANDI, DIST: BAGALKOT.

...APPELLANTS (BY SRI.VIJAY. K. NAIK, ADV.)

AND

THE STATE OF KARNATAKA THROUGH JAMAKHANDI RURAL P.S., DIST: BAGALKOT, REP. BY ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD.

...RESPONDENT (BY SRI.V.M.BANAKAR, ADDL.S.P.P.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF

CONVICTION AND SENTENCE DATED 12.06.2020 IN S.C. NO.43/2018 FOR THE OFFENCES PUNSHABLE UNDER SECTIONS 143, 120(B), 302 READ WITH SECTION 149 OF IPC, 1860, PASSED IN S.C.NO.43/2018, BY THE I-ADDL. DIST. & SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI AND ACQUIT THE APPELLANTS (ACCUSED NOS.3 & 4) OF ALL THE CHARGES.

IN CRL.A. NO.100262/2020:

BETWEEN

MANJUNATH S/O PANDITH GONGAGOL AGE: 24 YEARS, OCC: COOLIE, R/O: HULYAL-587 301, TAL: JAMAKHANDI, DIST: BAGALKOT.

...APPELLANT (BY SRI.K.S. PATIL, ADV.)

AND

THE STATE OF KARANTAKA REP. BY CPI, JAMAKHANDI-587 301, TAL: JAMAKHANDI, DIST: BAGALKOT, REP. BY S.P.P., AG OFFICE, HIGH COURT BUILDING, DHARWAD-580 003.

...RESPONDENT (BY SRI.V.M. BANAKAR, ADDL.S.P.P.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 12.06.2020 IN S.C. NO.3/2018 PASSED BY I ADDL. DIST. AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMAKHANDI, JAMAKHANDI FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 302, 120(B) READ WITH SECTION 149 OF IPC AND ACQUIT THE APPELLANT / ACCUSED NO.5, BY ALLOWING THIS APPEAL.

THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

These appeals are filed under Section 374(2) of the

Code of Criminal Procedure, 1973 (hereinafter referred to

as "Cr.P.C." for short) challenging the judgment and order

of conviction dated 12.06.2020 in S.C. No.43/2018 on the

file of the I Additional District and Sessions Judge,

Bagalakote to sit at Jamakhandi, whereby accused Nos.1

to 5 are convicted for the offences punishable under

Sections 143, 120(B), 302 read with Section 149 of the

Indian Penal Code, 1860 (hereinafter referred to as "IPC"

for short).

2. Criminal Appeal No.100240/2020 is filed by

accused Nos.3 and 4, whereas Criminal Appeal

No.100262/2020 is filed by accused No.5 and Criminal

Appeal No.100030/2021 is filed by accused Nos.1 and 2.

3. It is the case of the prosecution that PW.8

Erawwa Halagali is the sister of accused Nos.1 and 2.

Though she was married to one Yamanappa of Jamakhandi

about 3 years prior to the date of incident, she stayed in

her matrimonial home only for 1 month and came back to

her parental home. It is alleged that deceased Sadashiv

was in love with PW.8 Erawwa Halagali and it was not

appreciated by accused Nos.1 and 2. On 04.12.2017 at

08:00 p.m. near the bus stand, a quarrel took place

between deceased Sadashiva and accused persons and

they assaulted and left him by giving warning and it was

pacified by PW.5 Sunil Ghatage and PW.6 Hanamavanth

Balappagol.

4. It is alleged that in this background, accused

persons hatched a conspiracy to eliminate the deceased

Sadashiv, as he was not desisting from going after PW.8

Erawwa Halagali. Accused persons decided to eliminate the

deceased by inviting him to a drink party and accordingly

on the night of 07.12.2017, they took the deceased to the

premises of the Government Kannada School, Hulyal and

after making him drink liquor, when he slept on the ramp

of the School, accused No.1 threw a heavy stone on his

face. When deceased did not die of the said blow, accused

Nos.2 to 4 caught hold of his hands and legs and accused

No.5 threw a heavy stone on the head and chest of the

deceased and as a result of assault, deceased succumbed

to the injury and thereby accused committed the above

said offences.

5. Accused have pleaded not guilty to the charges

levelled against them and claimed trial.

6. In support of the prosecution case, 13

witnesses are examined as PWs.1 to 13 and Exs.P1 to 43

and MOs. 1 to 10 are marked.

7. During the course of their statement under

Section 313 of Cr.P.C. accused Nos.1 to 5 have denied the

incriminating evidence, led by the prosecution. They have

not chosen to lead any defence evidence on their behalf.

8. The learned counsel representing the accused

submitted that the impugned judgment is neither based

upon facts nor records and as such, it is unsustainable.

The entire prosecution case is based upon circumstantial

evidence, but none of the witness supported the

prosecution case except PW.1, who is the complainant. But

he is not an eye witness to the incident. There is

absolutely no material in the prosecution evidence to point

towards the involvement of any of the accused persons.

They would further submit that PW.8 Erawwa Halagali

who was allegedly angry with the Sadashiv for being in

love with her, PWs.5 and 6 who are allegedly pacified the

accused persons and rescued the deceased on 04.12.2017

from the accused persons, PW.9 Hanamanth Gudennavar,

who has allegedly seen the deceased being taken by the

persons on the motorbike and seen them taking egg rice

parcel, PW.10 Moulasab @ Moula Ali Bilagi, who is the

owner of the egg rice shop who saw the accused and

deceased coming together and getting the egg rice parcel

as well as PW.11 Chandrashekhar Billur, who is the owner

of the wine shop who has allegedly seen the accused No.1

with the deceased and purchased the alcohol have all

turned hostile. Similarly PW.4 in whose presence the

accused persons have shown the place of conspiracy and

the place where they have committed the offences have

also not supported the prosecution case. In the absence of

any legal evidence, the impugned judgment and order of

conviction is liable to be set aside and prays to allow the

appeals.

9. On the other hand learned Additional State

Public Prosecutor has supported the impugned judgment

and order and prays to dismiss the appeals.

10. We have heard the elaborate arguments on

both the sides and perused the records.

11. Admittedly, there are no eye witnesses to the

incident and the entire case of the prosecution is based on

circumstantial evidence. According to the prosecution, the

motive for the accused persons to commit the murder of

the deceased is that the sister of accused Nos.1 and 2,

PW.8 Erawwa Halagali had returned to her parental home

just after one month of her marriage and deceased

Sadashiv was after her and accused Nos.1 and 2 were not

happy and they were worried that this would spoil the

name of the family. Infact, accused Nos.1 and 2 along with

accused Nos.3 to 5 have warned the deceased and on

04.12.2017 they quarrelled with the deceased and

assaulted him. Only on intervention of PW.5 Sunil Ghatage

and PW.6 Hanamantha Balappagol, the deceased was

saved. However, the deceased challenged the accused

Nos.1 and 2 that come what may he is going to marry

PW.8 Erawwa Halagali and therefore accused persons

hatched a conspiracy to eliminate the deceased.

12. PW.1 Kareppa Kesaragoppa is the complainant.

He is brother of the deceased. He has no personal

knowledge about the deceased being in love with the PW.8

Erawwa Halagali nor he is a witness to the incident dated

04.12.2017 where the accused persons assaulted the

deceased and warned him not to go after PW.8. His

evidence with regard to these two aspects is hear say. His

evidence establish the fact that on 07.12.2017 on account

of Kartika, there was a Jatra festival in Hulyal and after the

dinner deceased went out of the house saying that he is

going to watch the drama which was being performed in

the Jatra. On the next day i.e., 08.12.2017 in the morning

while he was going to answer call of the nature, he found

group of the people gathered at the Government High

School premises and therefore out of curiosity he went

there and he saw the dead body of his brother on the ramp

of the school with bleeding injuries.

13. In the backdrop of the ill-will between the

accused and the deceased, he has filed complaint against

the accused persons suspecting their involvement. He is

witness to the spot cum seizer mahazar Ex.P-3 through

which 2 blood stained stones available at the spot have

been recovered by the Police. He has identified Ex.P5 as

the 2 photographs taken at the spot mahazar. He has also

deposed regarding seizure of blood stained soil, ordinary

soil and a pair of chappal of the deceased through Ex.P3. A

suggestion is made to him that the deceased was in the

habit of consuming alcohol and quarreling with people and

he was not returning to home 2-3 days at a stretch and he

has been killed by someone else and blame has been put

on the accused persons. Ofcourse PW.1 has denied these

suggestions.

14. According to the prosecution, PW.5 Sunil

Ghatage and PW.6 Hanamantha Balappagol are the

persons who pacified the accused persons and rescued the

deceased from them on 04.12.2017. However, they have

not supported the prosecution case and treated as hostile.

During the course of the cross-examination by the

prosecution, they have denied that on 04.12.2017 at

08:00 p.m., they were standing near the bus stand and

talking together. At that time, accused persons picked up

quarrel with the deceased as to why he is after PW.8

Erawwa Halagali, the sister of accused Nos.1 and 2. They

have also denied that after the quarrel was pacified,

deceased Sadashiv proclaimed that he is going to marry

PW.8 Erawwa Halagali and they can do whatever they

want and in this regard, the accused were angry with the

deceased. They have also denied that after they saw the

dead body of the deceased, they remembered the incident

dated 04.12.2017 and suspected that in all probabilities

accused Nos.1 to 5 might have committed the murder of

the deceased. Even though these two witnesses are cross-

examined at length by the prosecution, nothing worthy is

elicited which would be of any help to improve the case of

the prosecution.

15. During the course of her evidence, PW.8

Erawwa Halagali, the sister of accused Nos.1 and 2

deposed that her marriage was performed with one

Yamanappa Jamakhandi about 3 years prior to the date of

incident. She stayed in the matrimonial home for only one

month and thereafter she returned to her parental home.

She has deposed that accused Nos.3 and 4 are her

maternal uncles and she knows accused No.5. Even though

PW.8 has stated that she know the complainant, she has

expressed ignorance as to the relationship between the

complainant and the deceased Sadashiv. She has stated

that the accused persons are being prosecuted for the

murder of Sadashiv, but she has expressed ignorance as to

how Sadashiv has died. She is treated as hostile in the

cross-examination. However, during her cross-

examination, she has denied that deceased Sadashiv was

after her claiming that he was in love with her and

pestering her to marry him and he was warned by accused

Nos.1 and 2. She has denied that a quarrel took place

between the accused persons and the deceased on

04.12.2017 at the bus stand and deceased was warned by

the accused persons. She has also denied that in this

background, accused Nos.1 to 5 have murdered the

deceased at the Government School premises. So far as

the incident date 04.12.2017 and the incident during the

night of 07.12.2017 are concerned, she is not an eye

witness and therefore the suggestions with regard to those

two incidents are of not much consequence to improve the

case of the prosecution.

16. According to the prosecution, PW.9 Hanamanth

Gudennavar, PW.10 Moulasab @ Moula Ali Bilagi and

PW.11 Chandrashekhar Billur are the persons who have

last seen the deceased in the company of the accused

persons. PW.10 Moulasab @ Moula Ali Bilagiis, the owner

of the egg rice shop, where the accused allegedly

purchased the egg rice and they were seen in the company

of the deceased. PW.11 Chandrashekhar Billur is the

manager of the wine shop, where the accused persons

allegedly purchased the Rum and they were seen in the

company of the deceased. PW.9 Hanamanth Gudennavar is

also stated to be a witness who has last seen deceased in

the company of the accused person at the bus stand as

well as at the egg rice shop of PW.10 Moulasab @ Moula

Ali Bilagi. However, all these three witnesses have turned

hostile and cross-examined by the prosecution.

17. During his cross-examination, PW.9

Hanamanth Gudennavar and PWs.10 and 11 have

admitted that on 07.12.2017, on account of kartika, there

was Jatra festival in their town. However, PW.9

Hanamanth Gudennavar has denied that on that night, he

had gone to see the drama, but since there was delay in

the commencement of the drama, he was roaming around

the bus stop and he saw deceased Sadashiv. He has

denied that accused Nos.1 and 5 came there in Pulsar

motor bike and spoke to Sadashiv and took him towards

Jamakhandi. He has also denied that thereafter he went to

the egg rice shop of PW.10 Moulasab @ Moula Ali Bilagi

and while he was eating the egg rice, he saw accused

Nos.1 and 5 along with deceased Sadashiv came there and

took 2 egg rice parcel with them and all the 3 entered the

Government School compound by jumping over the

compound. He has also denied that at 02:00 a.m. of

07.12.2017, he saw accused Nos.1 to 5 sitting very near to

him and watching the drama and after some time they left

the drama by speaking to each other.

18. Though PW.10 Moulasab @ Moula Ali Bilagi has

deposed that on 07.12.2017, he had opened his egg rice

shop, he has denied that the shop was open till 11:30 p.m.

and at 10:45 p.m. accused Nos.1 and 2 along with

deceased Sadashiv came and purchased 2 parcels of egg

rice and went inside the Government School premises by

jumping into the compound. He has also denied that after

some time, accused Nos.2 to 4 also went inside the School

premises by jumping into the compound. Though he has

admitted that after 2 days, he was summoned by the

Jamakhandi Rural Police, he denied that he gave

statement before the Police of having seen the accused

persons in the company of the deceased going inside the

School premises.

19. PW.11 is the Manager of the wine shop

situated at Galagali Re-hablitation Centre. He has deposed

that he know the accused persons by their faces and they

might have came to his wine shop. He denied that on

07.12.2017 at 10:30 p.m., accused Nos.1 and 5 came

along with deceased Sadashiv. He has expressed ignorance

to the suggestion that at 10:30 p.m., accused purchased 2

quarters of Rum and went along with accused No.1 and

deceased Sadashiv on the motor bike. He has also denied

that after the murder of the deceased, the Police enquired

him and he has informed the Police that he has last seen

the deceased with accused Nos.1 and 5. Having regard to

the fact that PWs.9, 10 and 11 have turned hostile with

regard to their testimony of having last seen the deceased

in the company of accused persons, in the absence of any

other evidence to establish the said fact, their evidence is

not of much helpful to the prosecution case.

20. Admittedly, there are no eye witnesses to the

incident. Since the stone with the deceased was

bludgeoned were available at the scene of occurrence

itself, there is no recovery of the weapons used for the

committal of the murder at the instance of the accused

persons. Moreover, as the dead body of the deceased was

recovered at the scene of the occurrence on the very next

day by the public, it was not within the exclusive

knowledge of the accused persons. Therefore, the mahazar

at Ex.P8 drawn at the instance of the accused Nos.1 and

the 2 photographs at Ex.P10 captured while accused No.1

pointing out the scene of occurrence are of no help to

improve the case of the prosecution. Similarly, there are

no witnesses to the alleged conspiracy hatched by accused

Nos.1 to 5 and therefore, the mahazar at Ex.P11 allegedly

drawn at the place pointed out by accused No.1 and the

photograph at Ex.P13 allegedly captured while accused

No.1 pointed out the place where they hatched the

conspiracy have no evidentiary value or legal sanctity.

Similarly, in the absence of support from the testimony of

PWs.9 and 10 regarding the accused Nos.1 and 5 taking

the deceased with them, the recovery of the two wheeler

through the mahazar at Ex.P14 as well as Ex.P15

photograph having captured at the time of seizure of the

motorbike are also not of any help to improve the case of

the prosecution.

21. Ex.P28 is the postmortem report. It is marked

with the consent of the defence counsel and therefore, the

prosecution has not examined the Medical Officer, who

conducted the postmortem examination. Ex.P28 establish

the fact that the death of the deceased was due to shock

and hemorrhage, as a result of injury to the vital organ

such as brain and time since death was between 12 to 24

hours prior to the postmortem examination. Thus through

Ex.P28, the prosecution has proved that the death of

deceased was due to the head injury sustained by him and

it is a homicidal death.

22. Ex.P43 is the FSL report regarding the blood

stains on the two stones which were seized from the spot,

blood stained mud as well as the T-shirt, pant and baniyan

of the deceased. The FSL report establishes the fact that

blood was detected on these articles and it was "o" group

human blood. However, in the absence of accused persons

being connected to the crime, this report is also not of

much help to improve the case of the prosecution. With

this evidence, the prosecution has miserably failed to

establish the charges against the accused. Therefore, the

conclusions arrived at by the Trial Court that the charges

levelled against the accused are proved on the basis of

such evidence is perverse. Absolutely there is no legal

evidence to connect the accused persons with the crime

and therefore the appeals filed by the accused deserves to

be allowed and accordingly we proceed to pass the

following:

ORDER

Criminal Appeal Nos.100030/2021, 100240/2020,

and 100262/2020 are allowed.

The impugned judgment and order of conviction

dated 12.06.2020 in S.C. No.43/2018 on the file of I

Additional District and Sessions Judge, Bagalakote, sit at

Jamakhandi, is hereby set aside.

Consequently, accused Nos.1 to 5 are acquitted for

the offences punishable under Section 143, 120B and 302

read with Section 149 of IPC.

They are on bail. Their bail stands discharged.

Sd/-

JUDGE

Sd/-

JUDGE

Rsh / PJ