Shankara @ Ranga vs State Of Karnataka
2022 Latest Caselaw 4954 Kant

                                1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF MARCH, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                               AND

            THE HON'BLE MR. JUSTICE S. RACHAIAH

               CRIMINAL APPEAL NO.38 OF 2018

BETWEEN:

SHANKARA @ RANGA,
S/O ERAPPA,
AGED ABUOT 33 YEARS,
R/AT DANAYAKAPURA CAMP,
BHADRAVATHI TALUK - 577 302.
                                                 ... APPELLANT
(BY SRI N.R. KRISHNAPPA, ADVOCATE

AND:

STATE OF KARNATAKA,
BY HOLEHONNUR POLICE,
BHADRAVATHI - 577 301.
                                               ... RESPONDENT
(BY SRI K.S. ABHIJITH, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
21.03.2012 PASSED BY THE F.T.C. ADDITIONAL SESSIONS
JUDGED, BHADRAVATHI IN S.C.NO.78/2011- CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.

      THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, S. RACHAIAH J., DELIVERED THE FOLLOWING:
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                         JUDGMENT

This criminal appeal is filed by the appellant against the

impugned judgment of conviction dated 21.03.2012 and order

of sentence dated 24.03.2012 passed in S.C. No.78/2011 by

the Presiding Officer, Fast Track Court, Bhadravathi, for

convicting accused Nos.1 and 2 for the offence punishable

under Section 302 read with Section 34 of IPC, sentenced

them to undergo life imprisonment and pay fine of Rs.1,000/-

each.

2. Brief facts of the case is that on 08.08.2010, a

complaint came to be lodged by Smt. Dakshayanamma, PW8,

who is the elder sister of the deceased. She states in the

complaint that she is a resident of Mattighatta Village and

received a phone call from one Siddappa of Kanasinakatte

Village, with a message that, her sister was not keeping well

and she has to come immediately. The complainant went to

Kanasinakatte village and on entering the house; she found

the deceased was lying on the floor. On seeing her sister, she

tried to wake her up, but she did not wake up. Thereafter, the

complainant has confirmed came to know that the deceased

was dead. Further she noticed that, the gold 'thaali' with

karimani worth of Rs.10,000/- and ear rings (bendole) were

found missing and blood was oozing out from the ear lobe.

On enquiry, she came to know that on 07.08.2010, between

8.30 p.m., and 2.15 p.m., some unknown persons had

committed the murder of the deceased by smothering her

with a pillow. Based on the information, she lodged a

complaint and case was registered in Crime No.190/2010 of

Holehonnuru Police Station.

3. The Investigating Officer has conducted the

investigation by collecting the material objects and also

recorded the statement of the witnesses and filed a charge

sheet for the offence punishable under Sections 376, 302, 394

and 201 read with Section 34 of IPC.

4. On committal to the Sessions Court, the learned

Sessions Judge framed charges and read over and explained

the same in the language known to the accused. The accused

denied the charges and claimed to be tried.

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

prosecution has examined in all 25 witnesses i.e., PWs.1 to 25

and got marked 32 documents i.e., Exs.P1 to P32 and also

identified 20 material objections i.e., M.O.1 to M.O.20.

6. The trial court recorded the statement of the

accused under Section 313 of Cr.P.C. and explained the

incriminating materials against the accused. The accused

have neither offered any explanation nor made any efforts to

lead evidence to rebut the prosecution evidence.

7. After having considered the oral and documentary

evidence on record, the trial court convicted accused Nos.1

and 2 for the offence punishable under Sections 302 read with

34 of IPC and sentenced them to undergo life imprisonment

and to pay a fine of Rs.1,000/- each.

8. Further, the trial court acquitted the accused for

the offences punishable under Sections 376 and 201 of IPC

holding that, the prosecution has failed to prove the case

beyond all reasonable doubt.

9. Being aggrieved by the above said conviction, the

appellant herein has preferred this appeal seeking to set aside

the judgment of conviction passed as stated supra.

10. Heard the learned counsel for the parties.

11. Sri. N.R. Krishnappa, learned counsel for the

appellant contended that, the entire case is based on the

circumstantial evidence. The prosecution has failed to prove

the last seen theory. Though the prosecution alleged to have

proved the recovery of ornaments of the deceased along with

the mobile, said to have been identified by the daughter and

friends of the deceased. Mere recovery of the golden articles

at the instance of the accused persons, from PW10 - Ravi is

not sufficient to convict the accused for the offence punishable

under Section 302 of IPC.

12. Further, the learned counsel for the appellant

contended that, though the recovery made at the instance of

the accused persons, it clearly depicts that Ex.P11 - a

receipt indicate the name of Kitty (Dasappa), Upparakeri. i.e.

the Accused No.2. Such being the facts, convicting the

accused No.1 for the offence punishable under Section 302 of

IPC is not sustainable and liable to be set - aside.

13. Per contra, Sri. Abhijith, learned High Court

Government Pleader in order to justify the impugned

judgment of conviction vehemently contended that the

accused No.1 is well-known to the deceased and he was

working in the locality, as a tender coconut plucker. The

evidence of the friends of the deceased clearly states that, the

accused No.1 is well acquainted with the deceased since he

was going there often to pluck the coconut from the coconut

garden belongs to deceased. The recovery of the cutting

pliers - M.O.8, used for cutting the fencing of the house of the

deceased was recovered at his instance. Hence, the

prosecution has proved the case beyond all reasonable doubt.

14. Further, the learned HCGP contended that PW10

who is a pawn broker has clearly deposed that accused No.1

had come along with accused No.2 and pledged the golden

articles with him. Such being the facts, non-explanation of

articles which were in his possession definitely a strong

circumstance to connect accuse No.1 with the crime.

Accordingly, the trial court has justified in convicting accused

Nos.1 and 2 for the above mentioned offences. Hence, he

sought to dismiss the appeal.

15. Having heard the learned counsel for the parties

and after perusal of the evidence and material on record, the

questions arise for our considerations are:

a) Whether the Trial court is justified the conviction of the Accused No.1 for the offences under section 302 and 201 of IPC?

b) Whether the Accused No.1 made out the ground to interfere in the judgment of conviction dated

21.03.2012 and order of sentence dated 24.03.2012 passed S.C No.78/2011, for the offences U/s 302 and 201 of IPC?

16. This court being a first appellate Court in order to

re-appreciate the entire evidence on record, it is necessary to

have cursory look on the evidence of each witness for arriving

at a conclusion.

a) PW-1 and PW-2 are co-workers with the

deceased. They have narrated in their evidence

that at times they would all work together in the

neighborhood fields and would collect wages.

That the deceased was the head of about 10

women. That on 07.08.2010, after completing

their work, the deceased had to pay them wages.

She told them to wait near the house of one

gangamma and that she will to her house and

bring money. However, she did not return for

quite sometime. Therefore, they all dispersed

from the place. It is only on the next day

evening, that they came to know that the

deceased was murdered.

b) PW-3, Kumari.Hemavathi, is the daughter of the

deceased. She was a resident of Mysuru and

came to know of the death of her mother, when

she was intimated over phone. She has identified

the gold articles of the deceased at Mos.-1, as

well as the mobile phone of the deceased at Mo-7.

c) PW-4, Nagaraj and PW-, Shekarappa are panchas

to the spot mahazar at Exhibit-P2.

d) PW-6, Devamma, is the mother of the deceased.

She is a hearsay witness.

e) PW-7, Thimmappa, is the one who has purchased

the mobile phone of the deceased from Accused

No.1.

f) PW-8, Smt.Dakshayanamma, is the complainant

as well as the elder sister of the deceased.

g) PW-9, Sri.Bhairappa, is a villager, who is also a

hearsay witness.

h) PW-10, Sri.Ravi, is a Goldsmith and the Receiver

of the gold articles, who has stated in his evidence

that both accused Nos.1 and 2 came to his shop

to pledge the gold articles and the articles where

pledged by accused No.1.

i) PW-11 and PW-12 are the panchas to the

mahazar at Exhibit-P3, for recovery of the clothes

of accused No.2, Mos.-11 to 15, cutting-plier, MO-

8 and a cycle, MO-16.

j) PW-13 is also a panch to the mahazar at exhibit-

P12, for recovery of clothes of Accused No.1.

k) PW-14 is the brother of the deceased. He is the

panch for the recovery of the jewels of the

deceased from PW-10-Pawn-broker.

l) PW-15 is a witness to the inquest mahazar at

Exhibit-13.

m) PW-16 is a witness for recovery of MOs-2 and MO-

8.

n) PW-17is the Head Constable who received the

information of the offence and who lodged the

FIR.

o) PW-18 is the Head Constable who shifted the body

to the hospital for postmortem.

p) PW-19 is the constable who carried the FSL

report.

q) PW-20 is another villager who is a hearsay

witness.

r) PW-21 is the Investigating officer. He has

narrated the manner in which he arrested the

accused, conducted the spot mahazar as well as

the inquest. That he arrested accused No.1 on

13.09.2009 and accused No.2 on 16.08.2010.

s) PW-22 is the PSI who arrested accused No.2.

t) PW-23 is the PSI, C.I.D., who took up further

investigation.

u) PW-24 is the Doctor who conducted the post-

mortem examination.

v) PW-25 is the Doctor who examined accused No.2

and noted the injuries as sustained by him.

17. On careful reading of the entire evidence , it is

noticed that admittedly, the complaint was lodged against

unknown persons. The entire case is based on the

circumstantial evidence. It is well settled law that, in a case

based on the circumstantial evidence, the Court should be

more vigilant while appreciating the evidence and to base a

conviction. Before adverting to the other facts, it is relevant to

place a reliance on the judgment of the Hon'ble Court in the

case of Brajendra Singh V/s State of Madhya Pradesh

reported in AIR 2012 SC 1552, wherein the Hon'ble Court

held that, the prosecution has to satisfy certain conditions

before conviction based on circumstantial evidence can be

sustained. The circumstances from which the conclusion of

guilt is to be drawn should be fully established and should

also be consistent with only hypothesis, i.e. the guilt of the

accused. The circumstances should be conclusive and should

be proved by the prosecution. There must be a chain of

events so as to complete not to leave any substantial doubt in

the mind of the court.

18. Now, since the case on hand rests on the

circumstantial evidence in such circumstances, it is necessary

to deal with it step by step, they are:

a) Last seen theory,

b) Motive;

c) Recovery.

19. In this case, the prosecution has examined as

many as 25 witnesses out of which P.Ws.1 to 3 and P.W.8 are

the main witnesses to depose about the well acquaintance of

the accused with the deceased.

20. P.W.1 is the friend of deceased and she along with

deceased and other women have formed group to work

together in the field belongs to the villagers. She has deposed

that, she knew the accused, the accused used to go to the

house of the deceased to pluck the coconut from the garden

of the deceased.

21. Further, she deposes that she came to know

about the death of the deceased by some unknown person.

She went and saw the dead body and found that some

ornaments found missing from the dead body. She has

identified the ornaments in the court as per M.O.1 to M.O.5,

supported the case of the prosecution.

22. The prosecution has not proved the 'LAST SEEN

THEORY' by examining witnesses cited in the charge sheet.

Though the co-workers who had worked along with the

deceased stated that Shanthamma - deceased had gone to

the house of one Gangamma to bring the money for which

they have worked on that day. Thereafter, the deceased did

not return. The witnesses PWs.1, 2, 6 and 8 have not at all

seen the accused Nos.1 and 2 along with the deceased at any

point of time. Their consistent version is that they have seen

the deceased who was going to bring the money from

Gangamma's house for which they have worked on that day.

Hence, we are of the considered opinion that the prosecution

has failed to prove the 'last seen theory'.

23. As regard to 'MOTIVE AND RECOVERY' are

concerned, though the prosecution has tried to establish that

the murder has taken place for gain, in order to prove the

said 'motive' the prosecution has to establish through the

cogent evidence. In order to prove the MOTIVE for gain, the

prosecution has relied upon the evidence of PW3 and PW10.

PW3 - Hemavathy who is the daughter of the deceased

deposed that she was doing the nursing training at Mysore

and she was informed from PW8 that her mother was killed.

P.W.3 came to her native and enquired as to what has

happened and how it was happened. She came to know that,

some unknown persons have killed her mother for unlawful

gain. She has seen the dead body of her mother and found

there were injuries on cheek, lips and also on the right ear

and further identified the ornaments of the deceased mother

which are marked as M.Os.1 to 7 were found missing.

24. PW10 - Ravi was working as a pawn broker

deposed that, he was running the business of gold ornaments

at Holehonnuru since nine years. He is a resident of

Shivamogga. He deposed that on 08.10.2009, at about 9.00

a.m., accused Shankar and Krishnappa had pledged a golden

ear stud(Bendole) and also golden karimani beads containing

thaali chain. He has identified the accused persons and also

witness to the seizure mahazar, which is marked as Ex.P2 and

he has identified M.Os.1 to 4. He has supported the case of

prosecution.

25. Admittedly, the injuries in question were ante -

mortem in nature. It is natural that if a person who removes

ornaments worn by a person forcibly, in such an event, the

injuries would be caused to the ear. Here in this case, PW3,

PW10 and other witnesses have noticed that there was blood

oozing from earlobe of the deceased. It is very clear from the

scene of occurrence the intention of the accused was to

remove the ornaments from the person not to harm anything.

Even though the prosecution has filed a case against the

accused persons for the alleged offence under Section 302,

394, 376 read with Section 34 of IPC, the prosecution failed to

prove the alleged offence under Sections 376 of IPC. Such

being the fact, this Court is of the opinion that the prosecution

has made out a ground to interfere for the offence with

respect to Section 394 of IPC.

26. Now it is necessary to go through the provisions

of Section 114 of the Indian Evidence Act, which reads thus;

"Section 114 - Court may presume existence of certain facts - The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case"

27. Whether the presumption could be further

stretched to find the appellants guilty of the gravest offence of

murder is what remains to be considered, it is in this case,

nobody have seen the accused were going to the house of the

deceased. If they really had an intention to kill the deceased,

there was really no need of forcibly snatching the ear-rings

before putting an end to the life of the victim. It seems to us

that there was no premeditated plan to kill the deceased.

Thus, two possibilities confront us. When there is reasonable

scope for two possibilities and the court is not in a position to

know actual details of the occurrence, it is not safe to extend

the presumption under Section 114 of the Indian Evidence

Act. Therefore, the accused have not only committed robbery

but also causing hurt to the deceased in that process of

removing the ornaments. Hence, the accused persons have

committed robbery by causing the hurt. Hence, they are guilty

for the offences punishable under Section 394 of IPC. There

is no material to show that the accused were involved in the

gravest offences like murder. Accordingly, we set - aside the

conviction under Section 302 of IPC.

28. In the light of the above observations, the point

No.1 which arise for our consideration is answered in

'Negative' by holding that the prosecution has failed to prove

the case beyond all reasonable doubt that the accused No.1

has committed an offence under Section 302 of IPC and at the

same time, the appellant has made out the grounds to

interfere with the judgment of conviction passed by the Fast

Track Court, Bhadravathi in S.C NO. 78/2011 for the offences

under Sections 302 and 201 of IPC and the same is modified

and the accused is convicted for the offences under section

394 of IPC.

29. Accordingly, we pass the following:

ORDER

(i) The criminal appeal filed by the appellant/accused

No.1 is allowed in part.

(ii) Consequently, the impugned judgment of conviction

dated 21.03.2012 and order on sentence dated

24.03.2012 passed by the learned Presiding Officer,

Fast Track Court, Bhadravathi in S.C.No.78/2011,

convicting accused No.1 for the offence punishable

under Section 302 read with Section 34 of IPC, is

hereby set aside.

(iii) Accused No.1 is convicted for the offence punishable

under Section 394 of IPC and is sentenced to

undergo rigorous imprisonment for a period of Ten

years and to pay a fine of Rs.10,000/- (Rupees Ten

Thousand only) and in default of payment of fine, he

shall further undergo simple imprisonment for a

period of two years.

(iv) The accused No.1 is entitled for the benefit of set-off

as contemplated under the provisions of Section 428

of Cr.P.C.

(v) The jurisdictional jail authorities shall release

accused No.1 on payment of fine of Rs.10,000/-

(Rupees Ten Thousand only), if he has already

completed the punishment imposed by this court

stated supra and if he is not required in any other

case.

(vi) The Registry is directed to intimate the operative

portion of this judgment to the concerned jail

authorities, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE snc