Halegowda @ Ravi S/O Mutthaiah vs State Of Karnataka
2022 Latest Caselaw 6000 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
           DATED THIS THE 04TH DAY OF APRIL, 2022
                         PRESENT
            THE HON'BLE MR.JUSTICE B. VEERAPPA
                            AND
            THE HON'BLE MR.JUSTICE S. RACHAIAH
               CRIMINAL APPEAL No.2181/2018
BETWEEN:
HALEGOWDA @ RAVI S/O MUTTHAIAH
AGE: 40 YEARS
R/O: KALEGOWDANAHATTI
NITTUR HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.                ... APPELLANT

(BY SRI. VENKATESH P. DALWAI, ADVOCATE)

AND:

STATE OF KARNATAKA
BY TOWN POLICE STATION, ARASIKERE
REPT. BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.                     ... RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET-ASIDE JUDGMENT AND ORDER OF
CONVICTION FOR LIFE IMPRISONMENT DATED 30.09.2015
PASSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE AT
HASSAN IN S.C.NO.151/2013, CONSEQUENTLY ACQUIT THE
APPELLANT (ACCUSED).

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
S. RACHAIAH J., DELIVERED THE FOLLOWING::-
                                  2




                         JUDGMENT

This appeal is filed by the appellant being aggrived by the

judgment of conviction and order of sentence dated 30.09.2015,

passed in S.C.No.151/2013, for the offence under section 302

IPC on the file of the learned Principal Sessions Judge at Hassan.

2. Brief facts of the case are as follows:-

The accused, the deceased and CW.8 were working in a

Tractor belonging to CW.4. The deceased was sleeping in a

newly constructed house belonging to PW.3. When there was no

work, all these three persons used to play cards and used to

meet in a Tea shop near Bastigudi Circle, at Arasikere, as such,

they are well acquinted with each other.

3. On 16.09.2012, during night hours, the accused -

Halegowda, the deceased and CW.8 consumed alcohol together

and went away. The deceased Budda @ Jayanna went to the

house of PW.3. The accused Halegowda along with CW.8 went

near the house of PW.3 where deceased - Budda @ Jayanna

used to sleep and the accused asked the deceased to repay the

amount Rs.500/- which he had given to deceased Buda @

Jayanna. The deceased Jayanna abused Halegowda and

challanged the accused that he would not give money to him.

The accused being enraged by the words of the deceased,

pushed him to the ground. In the meantime, though CW.8 tried

to pacify, he could not succeed. The accused Halegowda

assaulted CW.8 with a bottle, consequently, CW.8 sustained

injury and ran away from the spot. Thereafter, the accused

Halegowda dropped a size-stone on the head of the deceased, as

a result, the deceased died on the spot.

4. Based on the complaint (Ex.P3) lodged by PW.3 who

is the owner of under-construction house where the dead body

was found, a case came to be registered as Crime.No.201/2012

for the offence punishable under Section 302 of IPC. The police

after conducting investigation, have filed a charge-sheet. After

receipt of the charge-sheet, the learned Magistrate took

cognizance of the offence and the offence was triable by the

Sessions Court. Therefore, he has committed the case to

Sessions Court as per the provisions of section 209 of Cr.P.C.

5. On committal being made to the Sessions Court, the

Sessions Court has secured the presence of the accused and

framed charges against the accused and read-over the charges

in the language known to the accused and explained. The

accused after having understood the charges has denied the

charges and claimed to be tried.

6. In order to prove the case of the prosecution, the

prosecution examined, in all, 26 witnesses as PW.1 to PW.26,

got marked 18 material documents as Ex.P.1 to Ex.P.18 and

identified M.O.1 to M.O.14. After conclusion of evidence of the

prosecution witnesses, the statement of the accused as

contemplated under the provisions of Section 313 of Cr.P.C. was

recorded. Though he has denied the incriminating evidence

adduced by the prosecution witnesses, neither adduced any

defence evidence nor got marked any documents.

7. Based on the aforesaid pleadings, learned Sessions

Judge framed two points for consideration, which read as

under:-

1. Whether the death of Budda @ Jayanna is homicidal?

2. Whether the prosecution has proved beyond all reasonable doubt that, on 16.09.2012, during night hours, at Arasikere Town, near Kariyamma temple road, in front of newly constructing house, accused due to enmity in respect of loan amount of Rs.500/-, which was borrowed from him by the deceased Budda @ Jayanna, picked up quarrel with deceased, pushed him forcibly and when the deceased fell on the ground, accused dropped size-stone on the head of the deceased and committed his murder and thereby committed an offence punishable under Section 302 of The Indian Penal Code?

8. After considering the oral and documentary evidence

on record, the Trial Court opined that the accused has

committed an offence punishable under section 302 of IPC and

convicted him. The accused was sentenced to undergo rigorous

imprisonment for life for the offence punishable under Section

302 of IPC, without imposing any fine, which is mandatory. The

State has not preferred any appeal against non-imposition of fine

under section 302 IPC.

9. Heard Sri. Venkatesh P. Dalwai, learned counsel for

the appellant and Sri. Vijayakumar Majage, the learned Addl.

SPP for the respondent.

10. Sri. Venkatesh P. Dalwai, the learned counsel for the

appellant contended that the accused is innocent and there are

no eye-witnesses to the incident, he has been fasely implicated

in this case. The conviction is passed without any basis and

needs to be set aside.

11. The learned counsel for the appellant further

contended that all the witnesses have turned hostile, except

some of the witnesses who are not eye-witnesses to the

incident. The Trial Court has relied on the evidence of PW.3,

PW.5 and PW.6. PW.3 is the owner of the house, where the dead

body was found. PW.5 and 6 are the residents of abutting

houses of PW.3. The prosecution has considered them as

material witnesses, but they are hearsay witnesses. Hence, the

entire case rests on circumstantial evidence. The Trial Court has

not rightly appreciated the evidence of the prosecution witnesses

and the documents available on record. Hence, he sought to

allow the appeal.

12. Per contra, Sri. Vijayakumar Majage, learned Addl.

SPP argued in support of the impugned judgment of the Trial

Court. While justifying the impugned judgment of conviction

and order of sentence passed by the Trial Court, learned Addl.

SPP submitted that the Trial Court has rightly concluded that the

accused is guilty of the offence punishable under Section 302 of

IPC. Hence, it is not necessary to interfere with the impugned

judgment passed by the Trial Court.

13. The learned Addl. SPP further submits that PW.5,

and PW.6, who are residing near the house of PW.3, have

supported the case of the prosecution. Their evidence cannot be

discarded. There are no materials to discard the evidence of

P.W.6 and P.W.7. Infact, these witnesses have supported the

case of the prosecution and deposed before the Court that they

had been informed by CW.8 about the assault. The Trial court

after considering the evidence of the Doctor and Experts, opined

that the accused has committed the offence, which need not be

disturbed by this Court. Hence, the learned Addl. SPP sought to

dismiss the appeal.

14. After having heard the rival contentions of the

learned counsels for the respective parties and perused evidence

and documents available on record, the points which would arise

for our consideration are:-

a. Whether the impugned judgment of conviction and order of sentence dated 30.09.2015 passed by the Trial Court in S.C.No.151/2013 under section 302 IPC is justified.?

b. Whether the appellant has made out ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

15. This Court being the Appellate Court, in order to re-

appreciate the entire evidence and documents avaialable on

record, it is necessary to consider the evidence of all the

witnesses.

I. PW.1 - Shivashankarappa - is stated to be the witness to

inquest panchanama, but he has turned hostile.

II. PW.2 - Kalander - is the witness to Ex.P.1 - Identification

Mahazar and also witness to Ex.P.2 - Mahazar drawn near

graveyard. He has identified M.Os.No.1 to 14. He has

supported the case of the prosecution.

III. PW.3 - N. M. Shankar - is the owner of the house, where

the dead body was found. The house was under

construction. He has lodged a complaint as per Ex.P.3. He

is also a witness to Ex.P.4 - Spot Panchanama, Ex.P.5 -

Inquest Panchanama. He has supported the case of the

prosecution.

IV. PW.4 - Babu - is a witness to the identification of the dead

body. Ex.P.1 is the said Mahazar and also he is the witness

to Ex.P.2 - Mahazar which was stated to be drawn near

graveyard. He has supported the case.

V. PW.5 - Shafi - is stated to be the material witness to the

case. He stated that he heard the sound which was coming

from the house of PW.3 which was under construction. On

hearing the said sound he went inside the house where the

deceased used to sleep. There he saw Shivanna who is

CW8 in this case. He had sustained injury. The injured

told him that the accused had assaulted him and also to

the deceased and ran-away from the spot. He further

deposed that, he along with PW.6 have shifted the injured

CW8 to the Hospital for treatment.

VI. PW.6 - Rizwan - is also one of the material witness. He

has reiterated the evidence as that of PW.5. He has

supported the case of the prosecution.

VII. PW.7 - Shanmukha - is witness to the Mahazar Ex.P.4 -

pertains to scene of offence and also witness to Ex.P.5 -

Inquest Panchanama. He has supported the case of the

prosecution.

VIII. PW.8 - Shivakumar - is also witness to Ex.P.4 and Ex.P.5,

supported the case of the prosecution.

IX. PW.9 - Suresha - is the witness to the circumstances, he

has turned hostile.

X. PW.10 - Ganesh Murthy - is supposed to depose about

inquest panchanama, he has turned hostile.

XI. PW.11 - Rangappa - is supposed to be a witness to Ex.P.6

and Ex.P.7, he has turned hostile.

XII. PW.12 - Mothu - is witness to be Ex.P.10 and Ex.P.6, he

has turned hostile.

XIII. PW.13 - Basavaiah - is arraigned as a witness of scene of

offence/occurance, but he has turned hostile.

XIV. PW.14 - Kirankumar - is arraigned as a witness to

Ex.P.10, he has turned hostile.

XV. PW.15 - Rama - is the witness to Ex.P.2, he turned hostile.

XVI. PW.16 - M.N. Basavaraj - is Assistant Engineer of PWD,

Arasikere. He has prepared spot sketch as per Ex.P.11. He

has supported the case.

XVII. PW.17 - Shardamma - she is the daughter-in-law of the

deceased. She is stated to be lodged a complaint before

the Tiptur Police about the missing of father-in-law. She is

hearsay witness, supported the case of the prosecution.

XVIII. PW.18 - Dr. Shadakshari B.C - is the doctor who conducted

postmortem of the deceased and issued a report, which is

marked as Ex.P.12.

XIX. PW.19 - Rangegowda - is the Revenue Inspector on

requisition made by I.O. He has issued khata certificate

pertaining to the place of occurrence which is marked

Ex.P.13 and Ex.P.14, he supported the case.

XX. PW.20 - Manjunath H.M - he was working as police

constable of Arasikere Town Police Station. He was

deputed to look after the dead body. He was told told to

complete the formalities of postporterm and bring the

clothes of the deceased after post - mortem. He has

taken the dead body for postporterm, after getting the

work done, taken the clothes of the deceased and handed-

over to the I.O. for further compliance. He has supported

the case of the prosecution.

XXI. PW.21 - G.K. Rangegowda - is the police constable of

Arasikere Town Police Station. He stated that he has

accompanied the Engineer and assisted him to preparing

the sketch - Ex.P.11. He has supported the case of the

prosecution.

XXII. PW.22 - Neelakanta Murthy - is the police constable, he

has carried FIR and gave it to the Magistrate and obtained

endorsement thereon within time.

XXIII. PW.23 - Fakruddin - is the police constable. He stated that

as per the instruction, he has taken 10 items from the

police station and handed-over the said items to the RFSL

Mysore. After handing over the items he obtained

endorsment and handed-over the same to the I.O. and

supported the case of the prosecution.

XXIV. PW.24 - K.G. Ramakrishna - He was working as police

constable at Tiptur Police Station. On 15.01.2013 he stated

to have arrested accused and conducted part of

investigation relating to the Crime No.201/2012 and

handed-over the investigation to jurisdictional police.

XXV. PW.25 - Kumaraswamy - he was police inspector of

Arasikerer Police Station. He is the Investigating Officer of

this case and he has submitted the charge-sheet after

conducting detailed investigation and submitted the

charge-sheet against the accused.

XXVI. PW.26 - Prakash Rathod - he was working as incharge

inspector of police of Arasikere Town Police. He stated that

he has registered the case upon the complainant lodged by

PW.3 and conducted a part of investigation and handed-

over the further investigation to PW.25.

16. It is the case of the prosecution that the accused,

the deceased and CW.8 together consumed alcohol and

thereafter the deceased had gone to sleep in the under-

construction house of PW.3. The accused and CW.8 gone to the

house where the deceased was sleeping and asked him to repay

the amount of Rs.500/-. There was a rift between the accused

and the deceased. Consequently, the accused pushed down the

deceased, while CW.8 tried to pacify the matter, he was also

assulted by the accused. The CW.8 stated to have ran away from

the spot after he was assaulted. Thereafter, the accused

dropped the size-stone on the head of the deceased.

17. PW.3, who is the complainant in this case, has stated

that he saw the accused who was working along with the

deceased prior to the incident. He was informed by unknown

persons that the deceased was murdered in his house during

night hours. He immediately, rushed to the spot and saw the

dead body of the deceased. He noticed that someone had

smashed the head of the deceased with a stone. He immediately

lodged a complaint to the Police. Thereafter, the police have

registered the case and started the investigation.

18. The prosecution has relied on the evidence of PW.5

- Shafi and PW.6 - Rizwan, who are the independent witnesses.

They have stated before the Court that they heard the sound

from the house of PW.3 which was under construction. After

hearing the sound, they have entered into the house and saw

that Shivanna was suffering from the injury. When they

questioned him, he said that himself and the deceased both have

been assaulted by the accused. These witnesses have shifted

Shivanna-CW.8 to the hospital for treatment. However, this

court cannot believe their evidence for the reason that these

witnesses, though present at the spot and had seen the dead

body, they did not lodge complaint with the Police. These

witnesses should have made some efforts to inform the Police

even after shifting CW8 for treatment. The evidence of these

witnesses do not inspire confidence of this Court, as such, their

evidence has to be discarded.

19. PW.7, PW.8 and PW.13 who are the panch witnesses

to the panchanama in respect of scene of offence and also the

witnesses to the inquest panchanama have deposed in their

evidence that they do not know about the contents of the

Mahazar and the police did not issue any notice to them. Though

the prosecution treated these witnesses as hostile witnesses and

cross-examined them, nothing worthwhile has been elicited to

support the case.

20. PW.1 - Shivashankarappa, PW.9 - Suresh and PW.10

- Ganeshmurthy, who are the independent witnesses, have not

supported the prosecution case. PW.17 - Sharadamma, being

the daughter-in-law of the deceased, stated that about 02 years

back, her father-in-law was sleeping on the rock in their village,

the accused smashed the head of her father-in-law with a stone.

She came to know that the accused has committed a murder in

Arasikere. As such, she stated to have lodged a complaint

pertaining to the murder of her father-in-law, before Tiptur

Police and accused was convicted for the charges of the murder

of her father-in-law. Since, she is a hearsay witness to the

incident, her evidence was not helpful for the prosecution.

Though, other witnesses stated to have supported the case of

the proseuction, they are the official witnesses and much

credence cannot be given to their evidence.

21. Now, it is relevant to place reliance on the judgment

of the Hon'ble Supreme Court in the case of Sharad

Birdhichand Sarda vs State of Maharashtra, reported in

(1984) 4 SCC 116, wherein it is held that "while dealing with

circumstantial evidence, the onus was on the prosecution to

prove that the chain is completed and the infirmity or lacuna in

prosecution case cannot merely be cured by false plea." It is

necessary to remember that in cases where the evidence is of a

circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should be, in the first instance,

fully established and all the facts so established should consist

only with the hypothesis of the guilt of the accused. Again the

circumstances should be of a conclusive nature and tendency

and they should be such as to exclude every hypothesis, but the

one proposed to be proved. It is also well established principle

that in a case where the prosecution depends on circumstantial

evidence, the prosecution must establish its case without

missing any link.

22. On careful evaluation of the witnesses, it is no doubt

that the death is homicidal in nature. The prosecution has mainly

relied on the evidence of PW.5 and PW.6 and also CW.8. PW.5

and PW.6 are the independent witnesses, who said to have

heard the sound from the under-construction house belonging to

PW.3 and had been to the place of occurrence. Further they have

stated that Shivanna was there and he had sustained injury.

These witnesses have told that the accused had killed the

deceased - Jayanna and also assaulted CW.8 - Shivanna. These

witnesses have taken Shivanna to the Hospital for treatment.

However, the prosecution has not examined Shivanna, though

he was cited as CW.8. This is the material lacuna on the part of

the prosecution. Though, PW.7, PW.8 and PW.13 have stated

that they have identified M.O.1 to M.O.14, they have turned

hostile. On re-assessing the entire evidence on record, this Court

is of the considered opinion that, the Trial Court could not have

acted upon the bald allegations. No witnesses have inspired the

confidence of this Court in their respective evidence to justify the

conviction. Needless to say that time and again it is held by this

Court that the Trial Court should scrutinize the evidence of the

witnesses carefully before being acted upon.

23. For the reasons stated above, we answer the point

No.1 in the negative, holding that the Trial Court is not justified

in convicting the accused for the offence punishable under

Section 302 of IPC. Point No.2 is answered in the affirmative,

holding that the appellant has made out ground to interfere with

the impugned judgment of conviction passed by the Trial Court.

24. In view of the above, we pass the following;

ORDER

I. The Criminal Appeal filed by the appellant-accused is hereby allowed.

II. The impugned judgment of convinction and order of

sentence dated 30.09.2015 passed in S.C.No.151/2013 on

the file of the learned Prl. Sessions Judge, Hassan,

convicting the appellant-accused for the offence punishable

under Section 302 of IPC is set-aside.

III. The appellant-accused is hereby acquitted of the offence

under Section 302 of IPC.

IV. The concerned Jail Authority is directed to release the

appellant-accused in the above said case, if he is not

required in any other case.

V. The Registry is directed to communicate the operative

portion of the judgment forthwith for necessary

compliance.

Sd/-

JUDGE

Sd/-

JUDGE KJJ