Karnataka High Court
Rajesh @ Rathish @ Raja vs The State Of Karnataka on 21 February, 2022
Bench: B.Veerappa, M G Uma
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL NO.120/2018
BETWEEN:
RAJESH @ RATHISH @ RAJA
SON OF LATE ASHOKA POOJARY
NOW AGED 30 YEARS
R/AT LEELA COMPOUND
DEVINAGAR, KUNJATHBAIL
MANGALORE
PRESENTLY R/AT H. NO.4-36
KAMALA NANDANAPURA
AKASHBHAVANA KAVOOR
MANGALORE
DAKSHINA KANNADA DISTRICT - 575 001
... APPELLANT
(BY SRI: P.D. SUBRAMANYA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
MANGALORE SOUTH POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING
BENGALURU - 560 001
... RESPONDENT
(BY SRI: VIJAYKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
2
DATED 06.01.2015 AND ORDER OF SENTENCE DATED 09.01.2015
PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
D.K., MANGALURU IN S.C.NO.78/2012 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 377, 302, 404 AND 201 OF IPC; THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR A PERIOD OF 5 YEARS AND TO PAY FINE OF
RS.2,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO
FURTHER SIMPLE IMPRISONMENT FOR 6 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 377 OF IPC; FURTHER,
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS LIFE IMPRISONMENT AND TO PAY FINE OF RS.10,000/-
IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO FURTHER
SIMPLE IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC; FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR A PERIOD OF 1 YEAR AND TO PAY FINE OF
RS.1,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO
FURTHER SIMPLE IMPRISONMENT FOR 3 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 404 OF IPC; FURTHER,
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF 2 YEARS AND TO
PAY FINE OF RS.2,000/- IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 4 MONTHS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC; ALL
THE SENTENCES SHALL RUN CONCURRENTLY AND THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, M.G.UMA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-accused is before this Court impugning
the judgment of conviction dated 06.01.2015 and the order of
sentence dated 09.01.2015 passed in SC No.78 of 2012 on
the file of the I Additional District and Sessions Judge, DK,
Mangaluru (hereinafter referred to as 'the Trial Court' for
brevity), convicting the accused for the offences punishable
under Sections 377, 302, 404 and 201 of Indian Penal Code
(for short 'the IPC'), and sentencing him to undergo rigorous
imprisonment for a period of 5 years and to pay a fine of
Rs.2,000/- and in default of payment of fine, to undergo
simple imprisonment for a period of 6 months for the offence
punishable under Section 377 of IPC, sentenced to undergo
rigorous life imprisonment and to pay a fine of Rs.10,000/-
and in default of payment of fine, to undergo simple
imprisonment for a period of one year for the offence
punishable under Section 302 of IPC, sentenced to undergo
rigorous imprisonment for a period of one year and to pay a
fine of Rs.1,000/- and in default of payment of fine, to
undergo simple imprisonment for a period of three months for
the offence punishable under Section 404 of IPC and
sentenced to undergo rigorous imprisonment for a period of
two years and to pay a fine of Rs.2,000/- and in default of
payment of fine, to undergo simple imprisonment for a period
of 4 months for the offence punishable under Section 201 of
IPC.
2. Brief facts of the case as made out by the
prosecution is that, the accused - Rajesh @ Rathish @ Raja
and the deceased - Sundara Poojary have had the unnatural
sex (sodomy) on 20.01.2012 at about 11.15 a.m. near
Dhobighat situated in Government land bearing Sy.No.125 of
Attavara Village by the side of Railway track near Old Kent
road, Pandeshwara and thereafter, the accused demanded an
amount of Rs.100/- and the deceased refused to pay. The
accused assaulted the deceased with his hands, pushed him
on the ground and tied his neck with a banian which was lying
nearby and thereby compressed his neck which has resulted
in his death. The accused snatched the mobile phone, ladies
watch and Rs.20/- cash which were found on the person of
the deceased and misappropriated the same. The accused
had thrown the dead body of the deceased into a well with an
intention to cause disappearance of the evidence of
committing the crime and thereby committed the offences
punishable under Sections 377, 302, 404 and 201 of IPC.
3. After committal of the matter by the learned
Magistrate, the Trial Court secured the presence of the
accused and framed charges for the above said offences and
read over the same to the accused in the language known to
him. The accused pleaded not guilty and claimed to be tried.
The prosecution examined PWs.1 to 26 and got marked
Exs.P1 to P28 and identified Mos.1 to 10 in support of its
contention. The accused denied all the incriminating
materials available on record in his statement recorded under
Section 313 of Cr.P.C. but has not chosen to lead any
evidence in support of his defence. The Trial Court after
taking into consideration all these materials on record, came
to the conclusion that the prosecution is successful in proving
the guilt of the accused for the above said offences beyond
reasonable doubt and accordingly, passed the impugned
judgment of conviction and order of sentence against the
accused as stated above. Being aggrieved by the same, the
accused is before this Court seeking to set aside the
impugned judgment of conviction and order of sentence and
to acquit him in the interest of justice.
4. We have heard the learned counsel for the
parties.
5. Sri.P D Subramanya, learned counsel for the
appellant challenging the impugned judgment of conviction
and order of sentence passed by the Trial Court contended
that the Trial Court has committed an error in convicting the
accused without there being any material to prove the guilt of
the accused beyond reasonable doubt. There are no eye
witness to the incident and the prosecution relies on the
circumstantial evidence. The motive for commission of the
offence is not proved. The circumstances of the deceased last
seen in the company of the accused and the recovery of
incriminating materials at the instance of the accused are also
not proved by the prosecution. The material witnesses i.e.,
PWs.2, 5, 7 and 10 have turned hostile and have not
supported the case of prosecution. PWs.1, 4, 7 and 8 are the
relatives of the deceased and the conviction cannot be based
on the interested version of these witnesses. Even though it
is contended that the accused and the deceased were last
seen together by PWs.11 and 14, their evidence is not helpful
to the prosecution to prove the said circumstance. None of
the witnesses have identified the accused as the person who
accompanied the deceased. Recovery of incriminating
materials i.e., MO8 - mobile and MO9 - wrist watch is also not
proved by the prosecution. The dead body of the deceased
was highly decomposed and therefore, the cause of death as
spoken to by PW21 - the doctor who conducted post mortem
examination cannot be believed. The call details record relied
on by the Investigating Officer for the purpose of recovering
MO8 - mobile hand set is not placed before the Court. There
is no explanation by the Investigating Officer about the same.
Even though PWs.1, 4 and 7 have identified the dead body of
the deceased, there are no materials to prove that the death
was a homicidal one. The unnatural sex between the
deceased and the accused is not proved. The
misappropriation of MOs.8 and 9 is not proved by the
prosecution. Even though the prosecution relies on several
circumstances to prove the guilt of the accused, none of the
circumstances were proved beyond reasonable doubt. There
is no complete chain of circumstances to record conviction of
the accused. Under such circumstances, the Trial Court could
not have proceeded to convict the accused.
6. Alternatively, the learned counsel submits that the
accused may at the most be punishable under Section 304
Part I of IPC and not under Section 302 of IPC, as the accused
have assaulted the deceased in a sudden provocation when
the deceased refused to pay the agreed amount of Rs.100/-
and in the scuffle, he has compressed his neck with the
banian. Hence, he prays to allow the appeal and to acquit the
accused for the above said offences.
7. Per contra, Sri.Vijaykumar Majage, learned
Additional State Public Prosecutor supporting the impugned
judgment of conviction and order of sentence contended that
the deceased was found missing on 20.01.2012.
Immediately, the first information as per Ex.P23 - missing
complaint was lodged with Mangaluru North Police Station.
However, on 28.01.2012 the dead body of the deceased was
found in the well. The same was lifted and the family
members of the deceased identified the dead body.
Accordingly, PW1 lodged the first information as per Ex.P1
against an unknown person for the offences punishable under
Sections 302 and 201 of IPC. The inquest and post mortem
examination of the dead body was held and as per the opinion
expressed by PW21 who conducted the postmortem
examination, the death was due to compression of neck due
to ligature cannot be ruled out. All these facts and
circumstances clearly establishes that the deceased died a
homicidal death. This fact is not disputed by the accused
while cross examining the prosecution witnesses.
8. Learned Additional State Public Prosecutor further
submitted that PW13 is the material witness who spoke about
recovery of MO8 - mobile and MO9 - wrist watch at the
instance of the accused under mahazar Ex.P7. PWs.11 and 14
have specifically stated that they had seen the deceased in
the company of the accused on 20.01.2012, from which date,
the deceased found missing. The Investigating Officer spoke
about the investigation undertaken and the voluntary
statement given by the accused which led to the recovery of
incriminating materials. PWs.1 and 4 have identified MOs.8
and 9 as belonging to the deceased. PW9 is an independent
witness who also identified MO9 - wrist watch and deposed
before the Court that the deceased had taken the said watch
from him on the date of incident. The accused has not offered
any explanation about these incriminating materials. Thus,
the prosecution is successful in proving the guilt of the
accused beyond reasonable doubt. The Trial Court rightly
convicted the accused as stated above. The accused has not
made out any ground to interfere with the impugned
judgment of conviction and order of sentence. Accordingly,
he prays for dismissal of the appeal as devoid of merits.
9. In view of the rival contentions urged by learned
counsel for the parties, the only point that would arise for our
consideration in this appeal is:
"Whether the appellant-accused has
made out a case to interfere with the
impugned judgment of conviction and order of
sentence passed by the Trial Court in
convicting and sentencing the accused for the
offence punishable under Sections 377, 302,
404 and 201 of IPC, in the facts and
circumstances of the case?"
10. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties
and perused the entire material on record and the Trial Court
records carefully.
11. This Court being the Appellate Court, in order to
re-appreciate the entire materials on record, it is relevant to
consider the evidence of the prosecution witnesses and the
documents relied upon.
(i) PW1 - Umesh is the nephew of the deceased, who
lodged the missing complaint on 21.01.2012 as
per Ex.P23 with Mangaluru North Police and FIR
came to be registered in Crime No.17 of 2012,
which is as per Ex.P24. Witness deposed that
about 9 days thereafter, he was informed by the
police about the dead body found in the well.
Immediately, he went to the mortuary of Wenlock
Hospital and identified the dead body as that of
the deceased Sundara Poojary. Witness stated
that a banian was tied to the neck of the
deceased. Witness also stated that he lodged the
complaint as per Ex.P1 with Mangaluru South
Police against unknown person and the FIR in
Crime No.23 of 2012 was registered for the
offences punishable under Sections 302 and 201
of IPC. Witness spoke about the drawing of spot
mahazar as per Ex.P2 and identified MOs.1 to 9
and the photo Ex.P3 and CD as per Ex.P4. This
witness was cross examined at length, but nothing
incriminating is elicited from him to disbelieve his
version.
(ii) PW2 - Shailendra is the inquest mahazar witness
who deposed before the Court that he is a
member of Someshwara Gram panchayat. He had
identified the dead body of the deceased Sundara
poojary in the mortuary at Wenlock hospital. The
inquest mahazar as per Ex.P5 was drawn in his
presence and the clothes and other articles found
on the dead body were seized under a separate
seizure mahazar which is as per Ex.P6. He
identified the articles seized in his presence as per
MOs.1 to 7.
Witness also stated that on 05.02.2012 he
was again summoned by the Investigating Officer
to Pandeshwara Police Station. The accused was
in the police custody and he took all of them
including the police to a house in Akash Bhavan. A
mobile and a wrist watch, which was identified by
the witness as MOs.8 and 9 were found in the
house and the same was produced before the
police. However, witness stated that the accused
has not produced those material objects, but an
old lady produced the same. Witness also stated
that he was standing outside the house when the
mahazars were drawn as per Ex.P7. Therefore,
the witness was treated partially hostile and the
learned Public Prosecutor cross examined the
witness during such cross examination, witness
admitted the suggestion that the accused led the
police and the witnesses to his house and he
himself produced MOs.8 and 9 before the
Investigating Officer, which was kept in Godrej
and the mahazar Ex.P7 was also drawn in his
presence.
During cross examination by the learned
counsel for the accused, witness denied the
suggestion that no articles were seized in his
presence. Witness categorically stated that he
had seen MOs.8 and 9 for the first time in the
house of accused in Akash Bhavan and the same
was produced by him and denied the suggestion
that he is deposing falsely at the instance of the
accused.
(iii) PW3 - Vasantha is the another inquest mahazar
witness to Ex.P5, whereunder MOs.1 to 7 were
seized. This witness has fully supported the case
of the prosecution.
(iv) PW4 - Akshatha is the daughter of the deceased.
Witness stated that on 20.01.2012 at about 9.00
a.m., her father was about to go to Central Market
to purchase some articles. She had given watch
to her father to get it repaired. But he never
returned to the house. Even when she called him
over phone, the same was switched off. The
efforts made to trace her father was in vain.
Therefore, a missing complaint was filed by PW1.
Witness further stated on 20.01.2012, the police
informed about the dead body kept in the
mortuary in Wenlock Hospital. Accordingly, she
along with family members went to the hospital
and identified the dead body as that of her father.
A banian was tied to the neck and she felt that her
father died a homicidal death. Witness further
stated that she was summoned to the Police
Station and the police have shown the mobile and
a watch which is as per MOs.8 and 9. She
identified the mobile belonged to her father and
the watch belonged to her which were given for
the deceased to get it repaired. This witness was
also subjected to cross examination, but nothing
has been elicited from her to discredit her
evidence.
(v) PW5 - Shivaji Karkera is the vegetable shop
owner. Witness stated that he knows the
deceased and on 20.01.2012, in the morning
hours the deceased had came to his shop and
purchased the vegetable worth Rs.750/-. He gave
only Rs.400/- and promised to pay the balance
amount later. However, the deceased kept the
vegetables in the shop informing that he will come
back again. Witness stated that the deceased was
not accompanied by any person. He also stated
that on the same day, he tried to contact the
deceased, but the phone was switched off.
Witness stated that he has not seen the accused
before and he is seeing him for the first time
before the Court. Therefore, he was treated
partially hostile. The learned Public Prosecutor
cross examined him and the witness denied the
suggestion that he had given the statement
before the Investigating Officer as per Ex.P9. He
also denied the suggestion that deliberately he is
deposing falsely in order to help the accused.
(vi) PW6 - Pushaparaj Shetty is the businessman.
Witness stated that the deceased had came to his
shop on 20.01.2012 and had purchased nasya.
Later he came to know that Sundara Poojary is
found missing. Witness was not cross examined
by the accused.
(vii) PW7 - Yadav Poojary is a Contractor. He is the
brother of the deceased. Witness stated that his
brother had been to Central market, Mangaluru on
20.01.2012 but had not returned. Subsequently,
his dead body was found. This witness was
treated hostile and the learned Public Prosecutor
cross examined him. Witness denied the
suggestion that he had been to mortuary at
Wenlock hospital and has identified the dead body
of this brother. He also denied that Ex.P10 is the
statement given by him before the Investigating
Officer.
(viii) PW8 - Miss Deeksitha is the daughter of the
deceased. This witness has stated on par with the
statement of PW4 and stated that on 20.01.2012
her father had gone to Central Market, Mangaluru
and PW4 had given her watch to get it repair, but
the deceased had not returned to the house. On
23.01.2012, when she called the National Watch
Repair shop, she came to know that her father
had collected the watch after repair on
20.01.2012 itself. This witness was also not cross
examined by the learned Public Prosecutor.
(ix) PW9 - Balakrishna is the worker in National Watch
Repair Company. Witness deposed that he know
the deceased who was visiting the shop to get the
watch repaired. Witness stated that on
17.01.2012, the deceased had came to the shop
at 9.30 a.m. and had given a ladies wrist watch
for repair and he had given the receipt for having
received the watch. Witness also stated that on
20.01.2012 at 9.30 a.m. the deceased had came
to the shop, collected the wrist watch and paid
Rs.100/- and he has affixed the seal on the
receipt for having delivered the watch. This
witness was not cross examined by the learned
counsel for the accused.
(x) PW10 - Ibrahim a worker working in a beef stall,
Mangaluru Central market. Witness stated that he
had not seen the accused before. Witness has not
supported the case of prosecution. He denied the
suggestion that the accused had given him
samsung mobile phone and received Rs.100/-. He
also denied the suggestion that he had identified
the accused in the Police Station and had given
statement as per Ex.P11 and additional statement
as per Ex.P12 and that he had informed the police
on 05.02.2012 about the accused passing in front
of his shop.
(xi) PW11 - Santosh was working in wine shop. He
has deposed before the Court that on 05.02.2012,
the Investigating Officer summoned him to the
Police Station along with Eshwar Naik. The
accused was in the Police Station. Witness stated
that he identified the accused and stated that he
had visited his shop and had purchased 180 ml
whiskey on 20.01.2012 at 10.30 a.m. He had
consumed the whiskey in his shop and went away.
The accused was accompanied by another person
who was aged 50 years, later both of them went
together. During cross examination, witness
stated that there was no CCTV in his shop. About
100 to 200 customers visit his shop and he cannot
give details of all such persons. But denied the
suggestion that he is deposing falsely at the
instance of the police.
(xii) PW12 - Harish Saliyan is the witness to the spot
mahazar - Ex.P2. Witness stated that he was
summoned by the police to the scene of
occurrence where the dead body of the deceased
was found. The mahazar was drawn in his
presence and MO1 was seized under the mahazar.
During cross examination by the learned counsel
for the accused, it is stated that he was
summoned to the Police Station orally and no
written notice was issued. He denied the
suggestion that no mahazar was drawn in his
presence. Nothing has been seized as stated by
him.
(xiii) PW13 - Naveen is another mahazar witness to the
recovery mahazar. Witness stated that on
05.02.2012 at 5.00 p.m., he was summoned to
the Police Station. Another panch witness was also
there. The accused took the Investigating Officer
and the witnesses to his house at Akash Bhavan
and took out a samsung mobile and ladies watch
and produced before the Investigating Officer.
Witness stated that Ex.P7 was drawn in his
presence and he identified the material objects as
MOs.8 and 9. During cross examination, witness
admitted that he is the relative of the deceased
Sundara Poojary, but denied the suggestion that
he is deposing falsely against the accused.
(xiv) PW14 - Papachchan was working in Railway
Department. Witness stated that he stays along
with his family in the railway quarters at
Mangaluru and he undertakes railway contract.
On 20.01.2012 at 11.00 a.m. when he was near
railway track in front of his house, deceased
Sundara Poojary and another person were
proceeding. Sundara Poojary talked with him and
thereafter both of them crossed the railway track
and went towards forest area. About half an hour
thereafter, he found the person who accompanied
Sundara Poojary returning back, but Sundara
Poojary did not accompanied him. Witness also
stated that there is un-used well near his house
by the side of the footpath and on 28.01.2012,
some children informed him that a dead body is
floating in the well. Immediately, he informed the
fact to the police over phone. Accordingly, the
police have came to the spot. Witness stated that
about a week thereafter, he was summoned to the
Police Station. The accused was in the Police
Station and he identified the accused as the
person who had accompanied the deceased.
During cross examination by the learned counsel
for the accused, witness denied the suggestion
that he never seen the accused accompanying the
deceased and that he is deposing falsely.
(xv) PW15 - Tirumalesh is the Police Constable who
took the accused to District Wenlock hospital for
examination and thereafter brought him back to
the Police Station. This witness was not cross
examined by the accused.
(xvi) PW16 - Niranjan is the Police Constable who
escorted the dead body for post mortem
examination. Witness stated that after post
mortem examination, the Medical Officer handed
over MOS.2 to 7, which were produced before the
Investigating Officer and the same were seized
under the seizure mahazar - Ex.P6. Witness also
stated that the viscera and other articles handed
over by the Investigating Officer were carried to
RFSL, Mangaluru on 29.02.2012. On 09.03.2012,
he collected those materials and produced before
the Investigating Officer.
(xvii) PW17 - Balakrishna is the Head Constable who
carried FIR which is as per Ex.P13 and submitted
before the learned Magistrate. Witness also stated
that on 05.02.2012 he along with other Police
Constables was appointed to trace the accused.
On the same day at about 2.15 p.m., they
received information that the accused is near
Central market. Immediately, they went to the
spot, found the accused and produced him before
the Investigating Officer. During cross
examination, the witness denied that he is
deposing falsely.
(xviii) PW18 - Narasimha is the Assistant Sub Inspector
of Police, Mangaluru South Police Station.
Witness stated that as per the direction of the
Investigating Officer, he collected the opinion of
Medical Officer, who conducted post mortem
examination and produced before the
Investigating Officer. He also collected the banian
which was found tied to the neck of the deceased
and produced before the Investigating Officer.
(xix) PW19 - Dr.Ramesh is the Forensic Expert and
Medical Officer in Government Wenlock Hospital,
Mangaluru. Witness stated that on 06.02.2012,
the accused was produced before him for medical
examination. Accordingly, he examined the
accused and found that the accused is
accustomed to Sodomy. Accordingly, he has
given his report as per Ex.P14. During cross
examination by the learned counsel for the
accused, witness denied the suggestion that he
has given false report at the instance of the
police.
(xx) PW20 - Dr.Geetha lakshmi is the Scientific Officer,
RFSL, Mangaluru. Witness stated that on
25.02.2012, she had received 8 sealed packets in
Crime No.23 of 2012 of Mangaluru South Police
Station and subjected all those materials for
examination. She issued report as per Ex.P15.
Witness identified MOs.1 to 7 and 10 as the
materials objects examined by her. Witness
stated that MOs.1 to 7 were subjected to
serological test and the report was issued as per
Ex.P17.
(xxi) PW21 - Dr.Suresh Kumar Shetty conducted the
post mortem examination of the deceased.
Witness stated that on 30.12.2012 from 07.00
a.m. to 8.00 a.m., he conducted post mortem
examination and noticed that the dead body was
decomposed and also noticed multiple injuries as
mentioned in the report. He has issued post
mortem report as per Ex.P18. He is of the opinion
that the time since death was 5 to 10 days prior
to the examination. He is of the further opinion
that the chances of the deceased dying due to
compression of neck structure due to ligature
cannot be ruled out. Witness stated that he
examined MO2 - banian and given his opinion as
per Ex.P19. During cross examination, witness
denied the suggestion that he has given false
report at the instance of the police.
(xxii) PW22 - Jayanth is the Assistant Sub Inspector of
Mangaluru South Police Station. Witness stated
that on 28.01.2012 at about 6.00 p.m., he
received information that a dead body was found
in the Well situated near Dhobighat by the side of
the railway track. Immediately, he went to the
spot along with his staff and found the dead body
and the banian tied to his neck. He informed this
fact to the higher officer, got the ambulance and
lifted the dead body, which was highly
decomposed, and forwarded it to Wenlock
hospital. The family members of the deceased
identified the dead body. The Police Inspector
conducted the spot mahazar as per Ex.P2 and
seized MO1. The photo is as per Ex.P3 and CD is
as per Ex.P4. During cross examination, witness
pleaded his ignorance about the person who
informed him about the dead body. Witness
denied the suggestion that the mahazar was
drawn and nothing was seized from the spot.
(xxiii) PW23 - Narayan is the Assistant Director of RFSL,
Belagavi. Witness stated that on 25.02.2012, the
Investigating Officer has forwarded three sealed
articles for examination. He subjected those
articles for chemical examination and found that
no poison was found in it. Accordingly, he issued
the report as per Ex.P20.
(xxiv) PW24 - Chandrashekaraiah is the Assistant
Engineer, PWD who drew spot sketch as per
Ex.P21. Witness denied the suggestion that he
never visited the spot and had drawn Ex.P21 in
his office.
(xxv)PW25 - Harishchandra is the Assistant Sub
Inspector of Mangaluru North Police Station.
Witness stated that on 21.01.2012, PW1 had
lodged a missing complaint as per Ex.P23. He
registered FIR as per Ex.P24 in Crime No.17 of
2012.
(xxvi)PW26 - Tilakchandra is the Assistant Commissioner
of Police, Mangaluru who conducted investigation
and deposed in detail about the investigation
undertaken by him. He identified the accused,
material objects and the mahazars drawn at his
instance. Witness stated that during
investigation, the accused has given his voluntary
statement as per Ex.P26 and accordingly, the
accused took him and the mahazar witnesses to
his house at Akash Bhavan and produced MOs.8
and 9 from the Godrej almirah kept therein. The
mahazar as per Ex.P7 was drawn and seized the
material objects. Witness stated that PW14
papachchan identified the accused and he
recorded his statement. He also recorded the
statement of other witnesses and collected the
post mortem report, opinion of the doctor, RFSL
report and after completing the investigation, filed
charge sheet. During cross examination, witness
denied the suggestion that he never conducted
any investigation and he is deposing falsely.
Based on the aforesaid materials on record, the Trial
Court proceeded to convict the accused for the offence
punishable under Sections 377, 302, 404 and 201 of IPC and
sentenced him as stated above.
12. The prosecution is relying on various
circumstantial evidence to prove its contention and the guilt of
the accused. It relies on the evidence of PW1 - Umesh, the
nephew of the deceased who lodged first information as per
Ex.P23 on 20.01.2012 regarding missing of the deceased.
This witness spoke about the finding of the dead body of the
deceased about 8 days thereafter i.e., on 28.01.2012 and the
condition of the dead body. The body was in decomposed
condition and MO2 - banian was tied to his neck portion.
PWs.2 and 3 are the witnesses to inquest mahazar - Ex.P5
and recovery of MOs.1 to 7. PWs.4, 7 and 8 are the relatives
of the deceased who have supported the case of prosecution.
PW21 is the Medical Officer who conducted post mortem
examination of the deceased and issued the report as per
Ex.P18. 5 external injuries were found on the dead body and
as per the opinion of the Medical Officer, the death of the
deceased was due to compression of neck structure due to
ligature. Admittedly, the dead body of the deceased was
found in a well which was in an abandoned place, near railway
track at Pandeshwara, Mangaluru district. The evidence of all
these material witnesses including Investigating Officer
disclose that the dead body of the deceased was found in a
decomposed condition, floating in the well with MO2 - banian
tied to the neck and all the witnesses invariably stated that
the appearance of the dead body gave an impression that it
was a homicidal death. Such prima facie impression was
supported by the post mortem report and the opinion of the
Medical Officer that compression of neck with MO2 could not
be ruled out. There are no other opinion that can be formed
which can be the cause for the death of the deceased. Even
the accused has not disputed the fact that the deceased died
a homicidal death. Under such circumstances, we do not
have any hesitation to hold that it was a homicidal death.
13. Now the question arises as to whether the
prosecution is successful in placing materials to connect the
accused to the offence in question. Admittedly, there are no
eye witnesses to the incident and the prosecution is relying on
the circumstances such as the deceased last seen in the
company of the accused, just before he gone missing and the
recovery of MOs.8 and 9 i.e., mobile and wrist watch
belonging to the deceased at the instance of the accused.
14. PW14 - Papachchan is the material witness to the
prosecution. He is an independent witness who was familiar
with the deceased. This witness categorically stated that on
20.01.2012 at 11.00 a.m. when he was near railway track
supervising the contract work, he found the deceased and
another person proceeding in that way. Even he had spoken
to with the deceased. Witness specifically stated that both of
them went towards the forest area and about half an hour
thereafter, the person who was with the deceased alone came
back, but the deceased was nowhere seen thereafter. This
witness identified the accused before the Court and
specifically stated that he was the person who accompanied
the deceased on that fateful day. Even though this witness
was cross examined by the learned counsel for the accused,
nothing was elicited from him to disbelieve his version. No
motive is alleged against the witness to contend that he was
deposing falsely. There are no reasons to discard the
evidence of this witness who deposed naturally before the
Trial Court. There was no reason for the witness to depose
regarding the deceased going towards the forest area on the
day when he found missing along with the accused and the
accused alone returning back.
15. The prosecution is relying on the evidence of
PW11 - Santhosh to prove the circumstance who deposed
that the accused had visited his shop, had purchased and
consumed wine on the fateful day i.e., 20.01.2012 at 10.30
a.m. along with another person who presumably was the
deceased. This witness was also cross examined by the
learned counsel for the accused. But the creditworthiness of
the witness is not shaken during cross examination.
Therefore, the evidence of this witness regarding he seeing
the deceased in the company of the accused just before he
found missing stands proved by the prosecution.
16. The next circumstances relied on by the
prosecution is recovery of incriminating materials i.e., MO8 -
mobile and MO9 - wrist watch at the instance of the accused.
PW4 - Akshitha is the daughter of the deceased who
specifically stated that MO9 - wrist watch belongs to her and
she had given it to her father to get it repaired. On the
fateful day i.e., 20.01.2012 the deceased had gone to collect
the wrist watch from the watch repairer, but he never
returned back. This witness identified the said watch as MO9
and also the mobile hand set of the deceased as MO8.
17. PW8 - Deekshitha is the daughter of the deceased
who also corroborated the evidence of PW4 and stated that on
20.01.2012 her father had been to Central market at
Mangaluru to collect the watch that was given for repair with
National Watch Repair shop, but he had not returned to the
house. This witness also stated that when the deceased has
not returned to the house, she had called the National Watch
Repair shop and enquired about her father on 23.01.2012, but
the shop keeper informed that the deceased had came to his
shop of 20.02.2012 itself and had collected the wrist watch.
This witness also stated that MO8 - is the mobile hand set of
the deceased.
18. PW9 - Balakrishna is the watch repairer working
in National Watch Repair shop, Mangaluru who also supported
the case of prosecution stating that MO9 - wrist watch was
brought by the deceased and given it for repair on 17.01.2012
at 9.30 a.m. for which, he had issued a receipt. On
20.01.2012 at about 9.30 a.m. the deceased had came and
collected the watch by paying the repair charges of Rs.110/-.
Accordingly, he had put a seal on the receipt for having
delivered the watch. This witness also stated that about a
day thereafter, the family members of the deceased have
called him and enquired about the deceased. This witness was
never cross examined by the learned counsel for the accused,
therefore, his evidence remains unchallenged.
19. It is the contention of the prosecution that the
accused has given voluntary statement before the
Investigating Officer and volunteered to take the Investigating
Officer and the mahazar witnesses to produce the MOs.8 and
9. Accordingly, the accused took the Investigating Officer and
the mahazar witnesses to his house situated at Nandanapura
Akash Bhavan and took out MOs.8 and 9 from the almirah in
his house. It is the further contention of prosecution that
MOs.8 and 9 produced by the accused was seized under
Ex.P7. The prosecution relies on the evidence of PW13 -
Naveen, one of the mahazar witness to Ex.P7. This witness
categorically stated about accused leading him and the other
witnesses along with PW26 - Tilakchandra, the Police
Inspector to his house and producing MOs.8 and 9 and also
about drawing of Ex.P7 in his presence. Even though, this
witness is cross examined by the learned counsel for the
accused, nothing has been elicited from him to disbelieve his
evidence. No motive or ill-will is suggested against the
witness either to support the case of prosecution or to depose
against the accused.
20. PW26 - Tilakchandra, the Investigating Officer
specifically stated that the accused had given his voluntary
statement as per Ex.P26 and had led him and the mahazar
witnesses to his house to produce MOs.8 and 9 where Ex.P7
was drawn for seizing the incriminating materials. Nothing
has been elicited from this witness during cross examination
to discredit his version. Identification of MOs.8 and 9 as
belonging to the deceased was never disputed by the
accused.
21. It is pertinent to note that there is no explanation
by him about his possession of these incriminating materials.
Even though there is bald denial of all these incriminating
circumstances, the accused has not taken any specific defence
nor probablised the same. No dent is caused to the case of
prosecution, which relies on these two strong circumstances.
Under such circumstances, we are of the opinion that the
prosecution is successful in proving both these circumstances
i.e., the deceased last seen in the company of the accused on
the day when he found missing and the recovery of MOs.8
and 9 at the instance of the accused. Thereby, the
prosecution established the link between the accused and the
homicidal death of the deceased. Thus, it is to be concluded
that the accused is the author of the crime and responsible for
the homicidal death of the deceased.
22. Admittedly, the dead body of the deceased was
found in an abandoned well situated in an isolated place about
9 days after he was found missing. Incriminating materials
were seized by the police after lifting the dead body from the
Well and neck of the deceased was found tied with MO2 -
banian. Therefore, it is clear that the accused caused the
death of the deceased by compressing the neck by tying the
banian, pushed the dead body in the well to cause
disappearance of the evidence of the commission of the
offence. Thereby, the prosecution is successful in proving the
guilt of the accused for the offence punishable under Section
201 of IPC.
23. Now the question arises as to whether the
prosecution is successful in proving the guilt of the accused
for the offence punishable under Section 302 of IPC. Even
though the accused has not taken any specific defence, the
case made out by the prosecution itself disclose that the
accused had demanded Rs.100/- from the deceased and when
the deceased refused to pay the same, the accused lost self
control due to the sudden provocation and caused the death
of the deceased. The prosecution has not suggested any
other motive for the accused to cause the death of the
deceased. When such specific contention is taken by the
prosecution as to the motive for causing the death, the case
squarely falls under Exception 1 to Section 300 of IPC. None
of the proviso to Exception 1 of Section 300 of IPC could be
made applicable against the accused and therefore, the
offence squarely falls under Exception 1 of Section 300 of IPC.
24. When an offence is committed under any of the
Exception under Section 300 of IPC, it may either be
punishable under Part I or Part II of Section 304 of IPC. In
the present case, the material placed before the Court
disclose that the accused was having intention to cause the
death of the deceased and therefore, it squarely falls under
Part I of Section 304 of IPC. Thus, we are of the opinion that
the accused who demanded Rs.100/- from the deceased lost
self control as the deceased refused to pay the same and on
the other hand slapped the accused and due to such
provocation he tied MO2 - banian to the neck of the deceased
which has resulted in his death due to compression of the
neck. Since it squarely falls under Exception1 of Section 300
of IPC and since the accused was having the intention to
cause the death of the deceased, he is punishable under
Section 304 Part I of IPC, but not under Section 302 of IPC.
The Trial Court has not considered this aspect of the matter
while convicting the accused. Even though it is the contention
of the prosecution that the accused is punishable under
Sections 377 and 404 of IPC, there are no material to
substantiate the same. A half hearted attempt was made by
the prosecution to prove these offences. Since there are no
clinching materials to constitute these offences, we are of the
opinion that the accused is entitled for the benefit of doubt
and is to be acquitted.
25. For the reasons stated above, the points raised in
the present appeal has to be answered in Partly Affirmative
holding that the Trial Court was right in holding that the
prosecution is successful in proving the homicidal death of the
deceased and the accused is the author of the crime, but it
has failed to take into consideration the contention of the
prosecution regarding motive for causing the death as the act
falls under Section 304 Part I of IPC and not under Section
302 of IPC. The Trial Court has rightly convicted the accused
for the offence punishable under Section 201 of IPC, but
committed an error in convicting the accused for the offence
punishable under Sections 377 and 404 of IPC. Hence, the
impugned judgment of conviction and order of sentence calls
for interference.
26. In view of the above, we pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment of conviction dated
06.01.2015 and the order of sentence dated 09.01.2015
passed in SC No.78 of 2012 on the file of the learned I
Additional District and Sessions Judge, DK, Mangaluru
convicting the accused for the offences punishable under
Sections 377 and 404 of IPC, is set aside and the accused is
acquitted for the said offences.
(iii) The impugned judgment referred to above
convicting the accused for the offence punishable under
Section 302 of IPC is modified and the accused is convicted
for the offence punishable under Section 304 Part I of IPC and
he is sentenced to undergo imprisonment for a period of 10
years and to pay a fine of Rs.20,000/- and in default to pay,
to undergo imprisonment for two years.
(iv) The impugned judgment of conviction and order of
sentence referred to above convicting and sentencing the
accused for the offence punishable under Section 201 of IPC,
is confirmed.
(v) The substantive sentences shall run concurrently.
(vi) The accused is entitled for set off under Section
428 of Cr.P.C.
Registry is directed to send back the Trial Court records,
with a copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
*bgn/-
