Karnataka High Court
Sri Kannan @ Kannappa @ Kannaiah vs State Of Karnataka on 31 October, 2023
Bench: Sreenivas Harish Kumar, Venkatesh Naik T
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CRL.A No. 1715 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 1715 OF 2017
Between:
1. Sri Kannan @ Kannappa @ Kannaiah
S/o. Late Krishnappa
Aged about 39 years,
R/o. Beemaganahalli
Robertsonpet Hobli
Bangarpet Taluk
Kolar District-563114.
2. Smt. Chandramma
W/o. Venkatesh
Aged about 45 years,
R/o Animiganahalli,
Digitally signed Kuppam Taluk,
by VEERENDRA Andhra Pradesh,
KUMAR K M
Now R/at M Kothur Village,
Location: HIGH
COURT OF Bangarpet Taluk
KARNATAKA Kolar District-563114.
...Appellants
(By Sri. G.M.Srinivasa Reddy, Advocate)
And:
1. State of Karnataka
By Andersonpet Police
R/by Public Prosecutor
High Court Building,
Bengaluru-560001.
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2. Sri A.S.Kumar,
S/o. Andanappa,
Aged about 36 years,
Occ: Business,
R/o. Kothanuru Village,
Marikuppam Panchayath,
Bangarpet, Kolar District.
(Amended carried out as per
Court order dated 19.09.2022)
...Respondents
(By Sri. Vijay Kumar Majage, SPP-II for R1;
R2 - served. unrepresented)
This Criminal Appeal is filed under section 374(2) Cr.P.C
praying to set aside the judgment and order of conviction dated
16.08.2017 passed by the II Additional Sessions Judge, Kolar in
Spl.S.C.No.04/2014 - convicting the appellant/accused No.1
and 2 for the offence p/u/s 120(B), 302, 201 r/w 34 of IPC and
appellant/accused No.1 for the offence p/u/s 3(2)(v) of SC/ST
(Prevetion of Atrocities) Act.
This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
Accused No.1 and 2 have preferred this appeal
challenging the judgment dated 16.08.2017 in
Spl.S.C.No.4/2014 on the file of the II Additional
District and Sessions Judge, Kolar.
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2. Three accused faced trial for the offences
punishable under Sections 120B, 302 and 201 of
IPC and Section 3(2)(v) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act,
1989 read with Section 34 of IPC. The trial court
acquitted accused No.3 of the offences, but
convicted accused No.1 and 2 and hence this
appeal.
3. The name of the deceased is
Damodarappa, uncle of PW2. The case of the
prosecution is that the deceased was living in a
hut put up by him in his agricultural land. One
Rathnamma was his first wife and because of some
differences between the two, she left the company
of the deceased, went to Mulbagal with her
children and started living there. Thereafter the
deceased brought the second accused Chandramma
from a village in Andhra Pradesh and started living
with her. In the course of time, it appears that
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accused No.2 developed contact with accused No.1
Kannan @ Kannappa @ Kannaiah. The deceased
used to object the relationship between accused
No.1 and 2 and this resulted in frequent quarrels
between them. This being the background, on
06.05.2014, at about 06.00am, when PW2 was
getting ready to go to Bengaluru, PW1 Annappa
went to the house of PW2 and informed him that
the dead body of Damodarappa was seen by the
side of Gonamakanahalli road. Immediately, PW2
went to that place and saw dead body. He also
saw the bleeding injuries on the head and neck.
When he removed the clothes of the deceased, he
saw the private part of Damodarappa having lost
its natural colour. Suspecting that somebody had
killed Damodarappa, PW2 went to the hut where
the latter was living and saw blood stains and also
some marks on the floor. Accused No.2 was not
seen there and therefore he suspected involvement
of accused No.1 and 2 in the killing of
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Damodarappa. Around 09.30am, he went to the
police station and gave report to the police. This
led to registration of FIR and investigation.
4. The prosecution in all examined 14
witnesses as per PW1 to PW14 and relied on
documents as per Ex.P1 to P21 and the material
objects as per MO1 to MO7. Assessing the entire
evidence, the trial court arrived at a conclusion
which are found in para 34 of its judgment.
5. The main reasons given by the trial court
for convicting accused No.1 and 2 are that the
case is based on circumstantial evidence and that
the prosecution has been able to prove all the
chain of circumstances. The relationship between
the deceased and second accused was proved. The
illicit contact between accused No.1 and 2 was also
proved. The prosecution was able to prove that
the marks found in the hut indicated resistance
offered by the deceased at the time when he was
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attacked. This is a strong circumstance behind
commission of offence. The injuries on the dead
body especially on the private part of the deceased
would show the nature of the incident. As the
deceased was residing both in the village and in
the hut in his land, there might be chances of
seeing accused No.1 and 2 together and probably
this might have led to the incident. In this vie w
there was no occasion for any person other than
the accused to commit the act. It was not possible
to cause such an injury by second accused alone
and therefore accused No.1 and 2 might have
joined together. It is also observed that one of
the witnesses has stated that he saw the accused
and the deceased together for the last time. With
these observations the trial court has held that all
the circumstances have been proved.
6. Assailing the findings of the trial court Sri
G.M.Srinivasareddy, learned counsel for the
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accused/appellants argues that the trial court has
committed an error in drawing conclusion that the
prosecution has been able to prove the chain of
circumstances. Elaborating his argument he
submitted that the evidence of PWs.3, 7 and 8
would not establish the relationship between
accused No.1 and 2. Actually their evidence
discloses their suspicion about the relationship
between them. It is elicited from PW2 that the
first wife of the deceased, namely, Rathnamma
was not in cordial terms with the deceased. It has
also come in evidence that after Rathnamma
deserted the deceased, the latter married another
woman, namely, Chinnamma and she too left his
company. The first wife and her children were all
against the deceased. This being the situation,
there were chances that anybody could have killed
the deceased. Therefore the case of the
prosecution that accused No.1 and 2 conspired or
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joined together to eliminate the deceased cannot
be believed.
7. PW8 and PW9 are the witnesses to the
mahazar drawn as per Ex.P.7. Though it is the
evidence of the investigating officer that accused
No.1 and 2 gave voluntary statements and on the
basis of the disclosure made by them, he was able
to seize a motorcycle said to be belonging to
accused No.1, it is the clear evidence of PW9 that
when the motorcycle was seized, accused No.1 was
not present. That means, the very recovery of
motorcycle cannot be held to be a good ground for
involvement of accused No.1.
8. Though the evidence given by PW11 the
doctor who conducted post mortem examination
indicates that there were multiple injuries, for the
reason that the prosecution has not been able to
provide acceptable evidence indicating involvement
of accused No.1 and 2 in the commission of crime,
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the trial court should not have recorded conviction
against them. Looked from any angle, the findings
are incorrect and hence appeal deserves to be
allowed.
9. Sri Vijayakumar Majage, learned SPP-II
argues that the evidence given by PW2, PW3, PW7
and PW8 clearly indicates that the deceased was
living with accused No.2 in a hut in his agricultural
land. Their evidence also proves that in the course
of time, accused No.1 and 2 became closer and
had intimate contact. It was a fact that accused
No.1 and 2 were living in a hut. Blood stains were
found in the hut. That means the deceased was
done to death at that time and later on the dead
body was shifted to some other place. If accused
No.1 and 2 showed the very same place to the
police during investigation, it means they could not
have shown the place unless they were involved in
the incident. The investigating officer has stated
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that he conducted mahazar in the hut, the place
where the dead body was found and in the house
of accused No.1. The evidence of investigating
officer to this effect finds corroboration from the
testimony of PW9. Therefore recovery is also
proved. The post mortem report indicates multiple
injuries on the dead body. These are the facts
that the trial court has considered to hold that the
circumstances have stood proved. In this view,
there are no reasons to interfere with the
judgment of the trial court.
10. We have considered the arguments and
perused the entire evidence both oral and
documentary. If we take glimpse of the entire
evidence, PW2 received information in the morning
of 06.05.2014 from PW1 Annappa that the dead
body of Damodarappa was lying on
Gonamakanahalli road. Immediately he went to
that place and saw injuries on the dead body.
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Therefore he went to the police station and gave a
report as per Ex.P.2.
11. In the examination-in-chief as also in
Ex.P.2, he has stated about deceased having illicit
contact with accused No.2. The cross-examination
of PW2 is directed towards the marital relationship
of the deceased with is first wife. Though a
suggestion was given to him that somebody
enemical towards the deceased had killed him, he
refuted the suggestion stating that it was an
impossibility as according to him accused No.1 and
2 killed Damodarappa.
12. PW1 has given evidence that about 2
years ago, Govindaraju made a call to him and told
that Damodarappa was found dead and requested
to pass on the information to his relatives in the
village and accordingly, he made a call to PW2 and
informed the same.
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13. PW3 is the son of the deceased. His
evidence also shows that his father Damodarappa
was living with accused No.2 in a hut. After
receiving telephone call from PW2, he came to the
village and saw the dead body of his father. He
observed the injuries especially on the private part
of the deceased. He also says that after accused
No.1 started visiting the agricultural land of the
deceased, there developed intimacy between
accused No.1 and 2.
14. PW4, PW5 and PW6 are the witnesses to
the inquest drawn as per Ex.P.6.
15. PW7 has stated that when deceased was
living in the hut with accused No.2, accused No.1
used to visit that place. His evidence is that
accused No.1 and 2 killed the deceased.
16. PW9 speaks about mahazar drawn as per
Ex.P.7 at three places, namely, in the hut of the
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deceased, at the place where the dead body was
found and lastly in the house of accused No.1,
where a motorcycle was seized. Ex.P.7 is the
mahazar. PW9 is also a witness to Ex.P.7. In the
examination-in-chief itself, PW9 has stated that
accused No.1 was not present at the time when
motorcycle was seized, however seeing the
photographs taken at the time mahazar was
drawn, he admits the presence of accused No.1.
17. PW10 is the Junior Engineer of PWD
department, who drew up sketch of the scene of
occurrence. PW11 is the doctor who conducted
post mortem examination.
18. PW12 speaks about the investigation
conducted by him. His evidence clearly shows that
after the arrest of accused no.1 and 2, he obtained
voluntary statements from them. As they
disclosed that they would show the place where
the incident occurred and the place where the dead
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body was shifted, he took them to those places
and drew up mahazars. He also speaks about
seizure of motorcycle produced by accused No.1.
19. PW13 registered FIR based on Ex.P2.
PW14 was the photographer who took photographs
of the scene of occurrence.
20. Now if the entire evidence is assessed,
what we find is, though an inference can be drawn
that accused No.1 and 2 had relationship between
them, it is not possible to arrive at a conclusion
about their involvement in the commission of
crime. The mahazar may indicate some struggle
marks found in the hut and probably that could be
the place where the deceased might have done to
death and the dead body might have been shifted
to another place on Gonamakanahalli road.
21. Merely for the reason that accused No.2
was living with the deceased, no inference can be
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drawn about her involvement in the commission of
crime joining hands with accused No.1. There is
no evidence indicating the visit of accused No.1 to
the hut of deceased either on the night previous to
the incident.
22. Though PW7 has stated accused No.1 and
2 killed the deceased by inflicting injuries, his
evidence is of least consequence because he was
not an eye witness. Then comes into picture the
recovery of a motorcycle. Mere seizure of the
motorcycle said to be belonging to accused No.1,
does not lead to draw any inference about
involvement of accused No.1. No blood stain was
found on the motorcycle. Moreover if the evidence
of PW9 is considered, at the time motorcycle was
seized, according to him accused No.1 was not
present. The photograph taken at the time of
drawing Ex.P.3 show the presence of accused No.1.
PW12 has stated that accused No.1 was very much
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present at the time of seizure of motorcycle, but
no inference can be drawn merely from the fact of
seizure of motorcycle about the involvement of
accused No.1 and 2. It may be a fact that the
death of the deceased occurred due to multiple
injuries that he suffered, but evidence brought on
record by the prosecution is insufficient to hold
that the deceased met the death. The findings of
the trial court Judge appear to be based on the
suspicion that she entertained. It is a well
established principle that any amount of suspicion
is not a substitute for the legal evidence required
for holding the accused guilty of the offence. In
our opinion the trial court should not have
convicted accused No.1 and 2. Hence this appeal
deserves to be allowed. Accordingly the following:
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ORDER
The appeal is allowed.
The judgment of the trial court dated
16.08.2017 in Spl.S.C.No.4/2014 on the
file of the II Additional District and
Sessions Judge, Kolar, is set-aside.
Appellants/accused No.1 and 2 are
acquitted of the offences charged against
them. Their bail bonds stand cancelled.
The fine amount, if any, deposited by
the accused, shall be refunded to them.
Since the trial court has not passed
any order with regard to disposal of
material objects marked during trial, it is
hereby directed that the trial court shall
pass an order with regard to disposal of
the material objects.
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Send back the trial court records with
a copy of this judgment, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
