State Of Karnataka vs Sri. Ponnachana K Somaiah
2022 Latest Caselaw 10657 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 12TH DAY OF JULY, 2022

                         PRESENT

          THE HON'BLE Mr. JUSTICE K. SOMASHEKAR

                           AND

 THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

            CRIMINAL APPEAL No. 877/2016

BETWEEN :
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State of Karnataka
By Madikere Rural Police Station
Kodagu District - 571 201
Rep. by S.P.P , High court of Karnataka
Bengaluru.
                                            ... Appellant

(By Smt. Rashmi Jadhav, HCGP)

AND :
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1.    Sri Ponnachana K Somaiah
      S/o late Kushalappa
      Aged about 48 years.

2.    Sri Ponnachana K Ganesha
      S/o late Kushalappa
      Aged about 63 years.
                                 2




3.   Sri H .R Raju
     S/o late Ramanna
     Aged about 54 years
     Coolie.

     All are R/o Kaggodu Village
     Madikeri Taluk - 571 201.
                                              ...Respondents

(By Sri B.S Prasad, Advocate for R-1 to R-3)

                               ---

     This Criminal Appeal is filed under Section 378(1) and
(3) Cr.P.C Praying to Grant leave to appeal against the
Judgment and order of Acquittal dated:01.02.2016 passed
in S.C.No.42/2011 by the learned Principal Sessions Judge
Kodagu, Madikeri for the offence Punishable under Sections
120B, 302, 201 read with 34 of IPC.

      This Criminal Appeal coming            on for Dictating
Judgment this day, Shivashankar              Amarannavar J,
delivered the following;

                     JUDGMENT

The State has preferred this appeal challenging the

judgment of acquittal dated 01.02.2016 passed in S.C. No.

No. 42/2011 by the learned Principal District and Sessions

Judge, Kodagu, Madikeri, registered for the offence

punishable under Sections 120-B, 302, 201 read with

Section 34 of IPC.

2. Heard Smt. Rashmi Jadhav, learned HCGP

appearing for the appellant - State and Sri. B.S. Prasad,

learned counsel for respondents - accused Nos. 1 to 3.

3. Brief facts of the case are that on 25.10.2010

around 09.55 pm in Hookadu Paisary situated at Kaggodlu

village accused Nos. 1 to 3 have conspired to kill Nachappa,

brother of accused No. 1 since there was land dispute

between accused Nos. 1 and 2 and Nachappa. In pursuance

of the said conspiracy the accused persons were waiting for

Nachappa and when he was proceeding towards his house

by walk, accused No. 1 took the gun belonging to accused

No. 2 and fired gun shot two times and when he escaped,

accused Nos. 1 and 3 chased him and accused No. 1 fired

gun shot two times and made Nachappa to fall into a pit.

The accused persons crushed the face of Nachappa with

stone and accused No. 1 fired gun shot two times at the

chest and committed his murder. In order to screen from

legal punishment, the accused persons transported the

dead body inside the estate and covered with leaves. One

Sri. P.P. Ramesh lodged a Police complaint and on the

strength of the said complaint, a case was registered in

Madikeri Rural Police Station in Crime No. 238/2010 for the

aforesaid offences and FIR was sent to the jurisdictional

Magistrate. After completion of investigation the

Investigating Officer submitted charge sheet against

accused Nos. 1 to 3. Charges came to be framed for the

offences punishable under Sections 120-B, 302, 201 read

with Section 34 of IPC. The accused Nos. 1 to 3 pleaded not

guilty of the charges and claimed to be tried. The

prosecution in order to prove its case examined in all 13

witnesses as P.W.1 to P.W.13 and got marked Ex.P.1 to

Ex.P.26 and M.O.1 to M.O.40. The statement of accused

Nos. 1 to 3 as required under Section 313 of Cr.P.C. came

to be recorded whereunder accused Nos. 1 to 3 denied all

the incriminating evidence against them. The accused did

not choose to lead any evidence but only got marked

Ex.D.1 to Ex.D.4. Learned Sessions Judge after hearing

arguments on both the sides and framing points for

consideration has passed the impugned judgment dated

01.02.2016 acquitting the accused Nos. 1 to 3 of the

charges leveled against them. The State has preferred the

present appeal challenging the said Judgment of acquittal.

4. Learned HCGP appearing for the State would

contend that the impugned judgment of acquittal passed by

the learned Sessions Judge is illegal and perverse and

evidence on record was not appreciated in proper

perspective. It is her further submission that the case of

prosecution is based on circumstantial evidence and the

trial court has not properly considered the evidence of

P.W.1 - complainant, experts P.W.11 to P.W.13 and official

witnesses P.W.9 and P.W.10 in right perspective. Recovery

of incriminating articles under mahazar has been proved

satisfactorily by the prosecution by examining the

Investigating Officer even though the panchas have turned

hostile. The trial Court has not properly considered the

recovery of incriminating articles made at the instance of

the accused based on their voluntary statement. The

learned Sessions Judge has failed to take into consideration

the fact that the accused have not explained how their

clothes seized under mahazar based on their voluntary

statement were found to be stained with `O' group blood

alleged to be the blood group of the deceased Nachappa.

The learned Sessions Judge has completely overlooked the

evidence of P.W.13. In his evidence P.W.13 has stated

about the SBBL gun recovered at the instance of accused

No. 2 on his voluntary statement and also about deformed

lead pellets sent to him for his examination and opinion.

The learned Sessions Judge has not considered properly the

evidence of P.W.12 who gave opinion as per Ex.P.18

regarding chance finger print of accused No. 1 found on

SBBL gun used in the incident and record at Ex.P.24.

Learned Sessions Judge has failed to draw proper inference

from the circumstantial material and evidence on record

and those drawn are adverse.

5. Per contra, the learned counsel appearing for the

respondents/accused Nos. 1 to 3 would contend that as the

case of the prosecution is based on circumstantial evidence

it is for the prosecution to prove motive and each of the

circumstances pointing out the guilt of the accused and the

prosecution has failed to prove the motive for the

commission of the offence by the respondents/accused Nos.

1 to 3 and the circumstances proved will not form a

complete chain so as to point out the guilt of the

respondents/accused Nos. 1 to 3 and the prosecution has

failed to prove the recovery at the instance of the

respondents/accused Nos. 1 to 3 under mahazars since

P.W.3 and P.W.6 who are panchas have not supported the

case of the prosecution and turned hostile. Those mahazars

are at Ex.P.3 to Ex.P.10. Even the prosecution has failed to

prove the drawing of inquest mahazar as per Ex.P.2 for

which the very said panchas are examined to prove the

same who have turned hostile. It is his further submission

that P.W.4 - wife of the deceased and P.W.5 - brother of

P.W.4 are residing in some other village as there was

dispute between P.W.4 - Shashikala and her husband

deceased - Nachappa and she had no contact with the

deceased - Nachappa since last 1-½ years. It is his further

submission that there is a delay in handing over the FIR to

the jurisdictional Magistrate and the delay has not been

properly explained. It is his further submission that Ex.D.1

to Ex.D.4 are records pertaining to the criminal cases

registered by the deceased - Nachappa against different

persons and the deceased - Nachappa had enemies as he is

a quarrelsome person which creates a doubt regarding the

involvement of the respondents/accused Nos. 1 to 3 in the

commission of the murder of deceased - Nachappa. The

prosecution has failed to establish that there was dispute

between accused Nos. 1 and 2 and their brother deceased -

Nachappa with regard to property which is the alleged

motive for commission of the offence. The evidence of

P.W.11 to P.W.13 who are official witnesses does not

conclusively establish the circumstances to prove the guilt

of the respondents/accused Nos. 1 to 3. Learned Sessions

Judge, on appreciation of the evidence on record, has

rightly came to the conclusion that the prosecution has

failed to prove the guilt of respondents/accused Nos. 1 to 3

beyond all reasonable doubt and rightly acquitted the

accused of the charges leveled against them. There are no

grounds for interfering with the judgment of acquittal

passed by the learned Sessions Judge. With this he prayed

to dismiss the appeal.

6. We have consciously considered the rival

contentions of the parties and perused the records.

7. The case of the prosecution is based on

circumstantial evidence. If the case of the prosecution is

based on circumstantial evidence then the prosecution has

to establish the motive for commission of the offence. In

the case on hand the alleged motive for commission of the

offence by the respondents/accused Nos. 1 to 3 is that

accused Nos. 1 and 2 being the brothers of deceased -

Nachappa had dispute with regard to property. P.W.1 being

the neighbour of the respondents/accused Nos. 1 to 3 and

the deceased - Nachappa, has not deposed anything

regarding the property dispute between the

respondents/accused Nos. 1 to 3 and the deceased -

Nachappa. P.W.4 - wife of deceased has stated that she is

staying in her mother's house along with her son since two

years prior to the death of her husband as her husband

used to give ill-treatment to her by consuming alcohol. She

has not deposed anything regarding the property dispute

between accused Nos. 1 and 2 and the deceased. In the

cross-examination she has admitted the suggestion that

when she was along with deceased, the relationship

between the accused persons and the deceased was good.

P.W.5 - brother of P.W.4 has also not stated anything

regarding the property dispute between the accused Nos. 1

and 2 and the deceased. Except these evidence there is

nothing on record to establish that there was property

dispute between the accused Nos. 1 and 2 and the

deceased.

8. P.W.10 - the Police Inspector who conducted part

investigation has admitted in his cross-examination that the

deceased - Nachappa had registered complaint against

Diwakar Rai, also against Gopala, Lokesh and Jaya. The

deceased - Nachappa had also filed PCR No. 508/2006

against M.G. Nagesh and it was referred to Madikeri Rural

Police Station. He has also admitted the suggestion that the

deceased had also filed another PCR No. 221/2008 against

Dinesh and others and it was referred to the Police for

investigation and the said four documents confronted to

P.W.10 which were admitted are at Ex.D.1 to Ex.D.4. The

said documents goes to show that the deceased had filed

criminal case against several persons they have grudge

against the deceased. The said aspect goes to create a

doubt in the case of the prosecution with regard to the

involvement the respondents/accused Nos. 1 to 3 in the

commission of murder of the deceased - Nachappa.

9. The case of the prosecution is based on

circumstantial evidence. As the case of the prosecution is

based on circumstantial evidence the prosecution has to

prove each and every circumstance so as to form a chain

only pointing out the guilt of the accused. The Apex Court in

the case of Sharad Birdhichand Sarda v. State of

Maharashtra reported in 1984 (4) SCC 116 has dealt with

the case pertaining to circumstantial evidence and has laid

down five golden principles which constitute the pancha

sheela principles in a case based on circumstantial

evidence. They are enumerated in paragraph No. 153 which

reads as under:

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is

not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra"

where the following observations were made:[SCC para 19, p.807: SCC (Cri) p.1047]

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

10. The learned Sessions Judge has referred to certain

decisions on the said point. In Sangili @ Sanganathan

Vs. State of Tamil Nadu reported in 2014 SAR (Crl.)

1205 it is held that in a case relating to circumstantial

evidence complete chain of circumstances must be

established by the prosecution pointing out to the

culpability of the accused person. Chain should be such that

no other conclusion except the guilt of the accused person

is discernible without any doubt.

11. As per the evidence of P.W.1 he has heard the

sound of firing at 09.55 pm on 25.10.2010 and he

intimated the same to the Police on the next day over

telephone on 26.10.2010 at about 08.30 am. P.W.1 in the

cross-examination has admitted that he has a telephone

connection to his house. Even though he is a handicapped

person he ought to have immediately intimated regarding

hearing of the firing sound on that night itself. On the next

day P.W.1 went along with the PSI to the spot from where

he heard the sound and after seeing the dead body he filed

a complaint as per Ex.P.1 and criminal law was set into

motion. Even though the said complaint - Ex.P.1 is filed at

12.30 pm it reached the jurisdictional Magistrate at 05.30

pm as deposed by P.W.7 - Police Constable who carried

Ex.P.13 FIR and handed over to the jurisdictional

Magistrate. There is a delay in handing over the FIR to the

jurisdictional Magistrate.

12. The inquest mahazar drawn over the dead body of

the deceased - Nachappa is at Ex.P.2. P.W.3 and P.W.6 are

panchas to the said inquest mahazar and they have not

supported the case of the prosecution with regard to the

drawing of inquest mahazar on the dead body of the

deceased person in their presence. Ex.P.3 to Ex.P.10 are

the mahazars said to have been drawn in the presence of

P.W.3 and P.W.6. The said P.W.3 and P.W.6 have also not

supported the case of the prosecution regarding drawing of

Ex.P.3 to Ex.P.10 mahazars in their presence. Ex.P.3 is

seizure mahazar of swab of accused No. 1; Ex.P.4 is cloth

seizure mahazar at the instance of accused; Ex.P.5 is the

seizure mahazar of torch and T-shirt and pant of accused

No. 1; Ex.P.6 is the seizure of kovi, 3 empty cartridges and

5 live cartridges and license of gun at the instance of

accused No. 2; Ex.P.7 is the seizure mahazar of shirt, pant

and one torch of accused No. 3 at his instance; Ex.P.8 is

scene of offence mahazar wherein M.O.15 to M.O.27 have

been seized; Ex.P.9 is seizure of spade (M.O. 28) mahazar

at the instance of accused Nos. 2 and 3 and Ex.P.10 is

seizure mahazar of gunny bag and banian of deceased -

Nahcappa. These mahazars are drawn on the basis of the

voluntary statements of accused Nos. 1 to 3 which are at

Ex.P.15 to 17 respectively. The prosecution has failed to

establish the seizure of M.O.1 to M.O.38 under Ex.P.3 to

Ex.P.10 at the instance of accused Nos. 1 to 3.

13. P.W.8 is the Doctor who conducted autopsy over

the dead body of the deceased - Nachappa and

postmortem report is at Ex.P.14 and she has opined that

the death is due to shock and hemorrhage as a result of

gun shot injuries sustained. Apart from gun shot injuries

there are other lacerations and contusions over the dead

body of the deceased as noted by P.W.8. The clothes of the

accused seized at their instance sent to FSL were found to

be not blood stained as mentioned in Ex.P.22 - report

issued by P.W.11 - Deputy Director, RFSL, Mysuru. The

other articles 1 to 3, 5, 10, 12, 13 and 15 to 19 were

stained with blood of O group of human body and those

articles were of the deceased and also other articles seized

at the spot of the incident. P.W.12 is the finger print expert

who has issued opinion as per Ex.P.19 along with covering

letter Ex.P.20 and he has opined that finger print lifted on

the SBBL gun - M.O.6 tallies with the finger print of

accused No. 1 sent by the Investigating Officer. The

Investigating Officer has not drawn any mahazar at the

time of obtaining the finger print of accused No. 1 or at the

time of lifting the finger print impression on M.O.6 - SBBL

gun which is mentioned as Q1 in Ex.P.19 - opinion issued

by P.W.12.

14. P.W.13 is the Ballistic expert and he has issued

report as per Ex.P.21 along with his reasons for opinion at

Ex.P.26 who has examined the SBBL gun, 3 spent

cartridges, 2 - 12 bore cartridges and 13 deformed led

pellets and red coloured piston wad and had opined that

SBBL gun bears signs of discharge and it was in working

condition at the time of examination and its effective range

is 40 yards and pellets and wads in article No.10 are the

components of 12 bore cartridge and the same have been

fired through the SBBL gun at article 6. Articles 7 and 9

have been fired through the SBBL gun which is at article 6.

The said evidence of P.W.13 goes to establish that 13

deformed lead pellets and one red coloured plastic piston

wad said to have been found in the body of deceased -

Nachappa were fired with the SBBL gun. The seizure of

SBBL gun at the instance of accused Nos. 1 and 2 and other

seizure of 3 spent cartridges and 2 - 12 bore cartridges

under mahazar has not been established by the

prosecution. All the above aspects goes to show that the

prosecution has not established all the circumstances.

15. The Hon'ble Apex Court in the case of Harendra

Narain Singh Vs. State of Bihar reported in AIR 1991

SC 1842 has held that if there are two views possible from

the evidence on record, one pointing to the guilt of accused

and another to the innocence of accused, then, the view,

which is favourable to the accused, is to be accepted and

benefit of doubt shall be given to the accused. The learned

Sessions Judge placing reliance on the said judgment of the

Apex Court has given benefit of doubt to the

respondents/accused Nos. 1 to 3.

16. In the case of Ramanand Yadav Vs. Prabhunat

Jha reported in 2014 (8) JT 246 (SC): (2003) 12 SCC

606 and in the case of C.K. Dase Gowda and others Vs.

State of Karnataka reported in 2014 (13) SCC 119 the

Apex Court has observed that there is no embargo on the

appellate Court reviewing the evidence upon which an order

of acquittal is based. Generally, the order of acquittal shall

not be interfered with because the presumption of

innocence of the accused is further strengthened by

acquittal. The golden thread which runs through the web of

administration of justice in criminal cases is that if two

views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused

should be adopted. The paramount consideration of the

Court is to ensure that miscarriage of justice is prevented.

A miscarriage of justice which may arise from acquittal of

the guilty is no less than from the conviction of an innocent.

17. Considering all these above aspects we are of the

considered opinion that the learned Sessions Judge has

rightly held that the prosecution has failed to prove the

guilt of the respondents/accused Nos. 1 to 3 beyond all

reasonable doubt and rightly extended the benefit of

acquittal to respondents/accused Nos. 1 to 3. We do not

find any grounds to interfere with the well reasoned

Judgment passed by the learned Sessions Judge.

In the result, the following;

ORDER

(i) Appeal is dismissed.

(ii) The judgment of acquittal passed by the

Principal District and Sessions Judge, Kodagu,

Madikeri dated 01.02.2016 in S.C. No. 42/2011

acquitting respondents/accused Nos. 1 to 3 for

the offence punishable under Sections 120-B,

302, 201 read with Section 34 of IPC is

confirmed.

Sd/-

JUDGE.

Sd/-

JUDGE.

LRS.