Shankar S/O Ramachandra Rathod ... vs The State
2022 Latest Caselaw 10361 Kant

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             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

           DATED THIS THE 6TH DAY OF JULY 2022

                            PRESENT

     THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                               AND

           THE HON'BLE MR.JUSTICE S. RACHAIAH

             CRIMINAL APPEAL No.200136/2016

Between:

1.     Shankar S/o Ramachandra Rathod
       Age: 50 Years, Occ: Agriculture
       R/o Korekal Thanda, Tq. Aurad-B
       Dist. Bidar

2.     Gopal S/o Shankar Pawar
       Age: 43 Years, Occ: Sugarcane cutting
       R/o Mahadongaon Thanda, Tq. Aurad-B

                                                      ...Appellants
(By Sri Nandkishore Boob, Advocate)


And:

The State, Kamalnagar Police Station
Bidar, Now Addl. SPP
Advocate General Office, Kalaburagi
                                                    ...Respondent

(By Sri Prakash Yeli, Addl. SPP)

      This Criminal Appeal is filed under Section 374(2) of Cr.P.C.,
praying to set aside the judgment of conviction and order of
sentence and fine imposed on the appellant/accused Nos.1 and 2
by the learned Prl. Sessions Judge at Bidar in S.C.No.98/2014
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dated 23.07.2016 and 27.07.2016, for the offences punishable
under Sections 460, 392 and 302 read with Section 34 of IPC.

      This Criminal Appeal having been heard and reserved on
17.06.2022,   coming    on   for    pronouncement this   day,
S. RACHAIAH J., delivered the following:

                          JUDGMENT

This appeal is filed by the accused, being aggrieved by

the judgment dated 23.07.2016 and order of sentence dated

27.07.2016 in S.C.No.98/2014 for the offences punishable

under Sections 460, 302 and 392 read with Section 34 of IPC

on the file of the Principal District and Sessions Judge, Bidar.

2. Brief facts of the case are as under:

The deceased Ganapat Rao owned a dairy farm in his

land situated at Kamalnagar Shivar. Usually he used to sleep

in his farm from taking care of the cattle. On 15.09.2013 at

about 5-30 p.m., when he was in his dairy farm and had his

dinner at about 9-00 p.m., and slept as usual. His servants

had been to his house which was situated nearby place to

have dinner. Between 9 p.m. to 10:30 p.m. he was

murdered by the accused. The accused after committing

murder took money and mobile ran away from the spot.

3. The servants of the deceased namely, Nagesh

and Abhishek after having dinner in the house of the

deceased, came to the farm house and saw the situation and

got scared. The deceased was lying in the pool of blood.

Immediately, they rushed to the house and informed the

incident to the family members. The family members rushed

to the spot and made some arrangements to shift the

deceased to the hospital. However, the doctor declared that

the deceased was brought dead.

4. A complaint has been lodged by one of his sons

namely, Pradeep, to Kamalnagar P.S. The police registered

the case in Crime No.196/2013 for the offence under Section

302 of IPC. After investigation, they submitted the charge-

sheet against the accused for the offences punishable under

Sections 460, 302 and 392 read with Section 34 of IPC.

5. The Magistrate committed the matter to the

Sessions Court in view of the provision under Section 209 of

Cr.P.C. The Sessions Court framed the charge against the

accused persons, read over and explained in a language

known to them. The accuse pleaded not guilty and claimed to

be tried.

6. The prosecution in order to prove the case, in all

examined 37 witnesses and got marked the documents i.e.,

Ex.P.1 to Ex.P.64 and identified the material objects M.O.1

to M.O.27. On the other hand, the defence got examined

D.W.1 to D.W.4.

7. The Trial Court after appreciating the oral and

documentary evidence on record, convicted accused Nos.1

and 2 for the above said offences. Being aggrieved by the

judgment and order of conviction, the appellants are before

this Court seeking to set aside the judgment of the trial

Court.

8. Heard Sri Nandkishore Boob, learned counsel for

the appellants and Sri Prakash Yeli, Additional State Public

Prosecutor for the respondent.

9. Sri Nandkishore Boob, the learned counsel for the

appellants submits that the judgment of the Trial Court is

contrary to the law, on the facts and material on record,

hence, it requires to be set aside.

10. Further, the learned counsel for the appellants

submits, that the entire case is based on the circumstantial

evidence. There are no incriminating circumstances against

the accused to convict them for the above said offences. The

FIR has been lodged against the unknown persons.

Thereafter, during the course of investigation, the police

arrested the accused persons on 18.01.2014. The

prosecution mainly relied upon the evidence of P.W.8,

P.W.19 and P.W.20 who are considered as material witnesses

to the incident. These witnesses though said to have

supported the case of the prosecution, the trial Court has

failed to appreciate their evidence in its entirety. Hence, the

learned counsel has sought indulgence of this Court to re-

appreciate the evidence in accordance with law.

11. The learned counsel for the appellants further

submits that, the trial Court ought to have appreciated the

evidence in the context of circumstances. The evidence of

P.W.8, the owner of the shop from where the torch was

purchased and P.W.19 who had identified the accused by

saying that, the accused persons had been to his bar and

restaurant to consume alcohol. The evidence of P.W.20

shows that he is witness to spot-cum-seizure mahazar which

is marked as Ex.P.11 under this mahazar stones M.O.18 to

M.O.20 have been recovered at the instance of the accused,

in his presence. Further, the Prosecutor treated him hostile

and cross - examined him. In the cross - examination he

admitted, some clothes have been seized in his presence.

The veracity of this witness is doubtful and the trial Court

could not have acted upon it. P.W.36 who is a DYSP has

stated that he has recovered the material objects at the

instance of the accused in the presence of P.W.20. The trial

Court ought not to have acted upon the evidence of P.W.36

as it is hit by Section 24 and 25 of the Evidence Act. Further,

the learned counsel for the appellants submits that

M.O.No.18 to 20 the stones said to have seized at the spot of

occurrence and sent those stones to the FSL, the FSL report

discloses that grouping of the blood cannot be possible. As

such, the learned counsel for the appellants prays to allow

the appeal.

12. On the contrary, Sri Prakash Yeli, learned

Additional State Public Prosecutor for the respondent

justifying the judgment of the trial Court and submits that

though the entire case rests on the circumstantial evidence,

the recovery of incriminating materials at the instances of the

accused cannot be lost sight of it. The accused have failed to

explain as to how they had in possession of the material

objects which were belonging to the deceased. One of the

strong circumstances is that the bloodstained cloth of the

accused. The FSL report discloses that, the clothes of

accused No.1 contain human blood. Once it is proved that,

the clothes of the accused contains human blood, he ought to

have explained as to how the human bloodstain was found in

his cloth, the accused has failed to explain how his cloth

contains human blood. The Trial Court in circumstances could

draw the adverse inference that, the accused has committed

murder. The Trial Court rightly considered it. Further, the

learned Additional. SPP submits that, the prosecution has

proved the case by placing the reliance on P.W.8, P.W.19,

P.W.20 and P.W.36 who are material witnesses to the

incident. Hence, he prays to dismiss the appeal.

13. After having heard both the learned counsel for

the respective parties and after perusing the oral and

documentary evidence on record, we deem, it is necessary

to re-assess the entire evidence on record. Hence, we

proceed further to re- assess the evidence both oral and

documentary.

14. On careful perusal of the entire records, both oral

and document evidence, it appears that, the Trial Court

relied on the evidence of P.W.8 - who is the owner of the

general store, where the accused said to have purchased the

torch and P.W.19 - Bar manager, where these accused have

consumed alcohol. P.W.20 who is the witness to Ex.P.11,

under which, the stones, and clothes of the accused were

seized. On perusal of the records, it appears that, the entire

case rests on the circumstantial evidence. Before going to

deal with the evidence on record, it is relevant to place

reliance on the judgment of the Hon'ble

Supreme Court in the case of Padala Veera Reddy vs.

State of Andhra Pradesh and Others reported in 1989

Supp (2) SCC 706. The Hon'ble Supreme Court laid down

certain guidelines as to how the Court should deal with the

circumstantial evidence in a murder case. Such evidence

must satisfy the following tests:

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

b) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

c) The circumstances, taken cumulatively, should form a chain so as to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

d) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the

guilt of the accused but should be inconsistent with his innocence.

15. Now, it is relevant to discuss on these points to

conclude whether, the trial Court has arrived at conclusion

correctly or committed any error in appreciating the same.

1. Whether the death of the deceased is

culpable homicide?

2. Whether on 15.09.2013, accused Nos.1 and

2 were present in and around Kamalnagar village?

3. Whether the recovery of the mobile phone,

suitcase, purse, stones and bloodstained cloths at the

instance of the accused is proved?

16. So far as the homicidal death is concerned,

P.W.33, the doctor who conducted post mortem and issued

report as per Ex.P.14 has opined that the death is due to

shock as a result of hemorrhage due to injuries on the face.

It is unequivocally proved that, the death of the deceased is

due to the injuries on the vital part of the body assaulted

with hard object. Hence, it is proved that it is the homicidal

death.

17. As regards the accused were present in and

around the village is concerned, the prosecution has mainly

relied on the evidence of P.W.8 and P.W.19. P.W.8 who was

running Sangameshwar General Store, he has stated that, on

15.09.2013 when he was in his shop, the accused had gone

to his shop and purchased a small torch. In the Examination

- in - chief, he identified the torch. However, in cross-

examination he admitted that there were no particular marks

found on the battery so as to say that it was purchased from

his shop. Further, he admitted that he had not issued any

receipts to show that these accused persons had purchased

battery from his shop. Hence, the evidence of this witness is

little bit shaky and Court ought not to have acted upon such

witness to base conviction. The Trial Court committed error

in appreciating this evidence. As regards P.W.19 evidence

is concerned, he is said to be the Manager of Dhanaraj Bar

situated in Kamalnagar. He deposed that these accused

persons had gone to his bar and consumed alcohol on the

day when the Ganesha idol was being discharged. Though he

identified the accused, in the cross- examination he has

admitted that, he did not know the Kannada language and he

was not aware, what the police had written. Further, he

admitted that, he could not say as to what type of dress that

accused had worn on that day when they had been to his Bar

to consume alcohol. On reading of evidence in its entirety, it

is hard to believe his evidence regarding last seen theory.

The trial Court has committed an error in appreciating the

evidence of this witness. Hence, we decline to accept the

appreciation made by the Trial Court about this witness and

his evidence.

18. As regards the evidence of P.W.20 is concerned,

he is a witness to Ex.P.11-siezure mahazar. He stated that

on request made by the investigating officer, he had

accompanied them to be a witness to Ex.P.11- which is

seizure Mahazar. Under this Mahazar, M.O.18 to M.O.20 and

M.O.21 to M.O.27 said to have been seized at the instance of

the accused. After seizure of M.O.18 to M.O.20 at the

instance of the accused, it appears from the evidence that,

he along with Police have returned to Police Station.

However, this witness was treated hostile and cross -

examined him by the Prosecutor, there he admitted that the

clothes M.O.21 to M.O.26 have also been seized at the

instance of the accused and identified. In the cross-

examination he admitted that, he affixed his signature on the

white paper, and he did not say what was written in the said

paper by the police. Further, he stated that, he had affixed

his signature in the Police Station. Hence, the seizure of

material objects in his presence is doubtful. But, the Trial

Court after taking into consideration the evidence of P.W.36

has opined that, seizure of material objects is proved. It is

unjustifiable and not accepted. Even assuming for the sake

of moment, accepted that, the stones have been recovered

at the instance of the accused, the FSL only said, the stones

contain human blood and could not identify the group of the

blood. However, the prosecution has not made any efforts to

tally this blood stain with the blood group of the deceased. In

such circumstances, it is unsafe to rely on such evidence to

base conviction.

19. Though, the accused have laid defence evidence

by examining themselves as D.W.1 and D.W.2 and their

wives as D.W.3 and D.W.4, their evidence ought not to be

relevant to consider for disposal of the case.

20. Viewed from any angle the evidence of P.W.8,

P.W.19, P.W.20 and P.W.36 do not inspire confidence to

believe and accept their evidence to base conviction. The

prosecution failed to prove the case beyond all reasonable

doubt. Hence, the accused are entitled for acquittal.

21. In view of the observations made above, we

answer point No.1 in the Affirmative and point Nos.2 and 3 in

the Negative.

22. Hence, we pass the following:

ORDER

(i) The appeal filed by the appellants is allowed.

(ii) The judgment dated 23.07.2016 and order of sentence dated 27.07.2016 in S.C.No.98/2014 passed by the Principal District and Sessions Judge, Bidar is hereby set aside.

(iii) Directed the jail Authority to release accused Nos.1 and 2 forthwith, if they are not required in any other case.

(iv) Registry is directed to send the copy of this judgment to the concerned Jail Authority forthwith.

(v) Bail bonds, if any, executed by the accused shall stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

RSP