Karnataka High Court
The State By vs Santhosh on 6 February, 2024
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CRL.A No. 978 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.978 OF 2017
BETWEEN:
The State by
Circle Inspector Of Police,
Karkala Police Station,
Represented By
State Public Prosecutor,
High Court Building,
Bengaluru - 560 001.
...Appellant
(By Sri B.N.Jagadish, Addl. SPP)
Digitally AND:
signed by
SRIDEVI S
Location: Santhosh
HIGH COURT
OF Son Of Sundara Mogera
KARNATAKA Aged 25 Years,
R/o Kalenjida Moole,
Shanthigodu Village,
Puttur - 574 201
Dakshina Kannada District.
...Respondent
(By Sri N.R.Harish, Advocate)
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CRL.A No. 978 of 2017
This Criminal Appeal filed under Section 378(1) & (3)
Cr.P.C., praying to grant leave to appeal against the Judgment
and Order of acquittal dated 18.10.2016 passed by the Principal
Sessions Judge, Udupi District, Udupi in S.C.No.6/2014 -
acquitting the respondent/accused for the offence p/u/s 302 of
IPC and etc.
This Criminal Appeal coming on for final hearing, this
day, Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is directed against the acquittal
judgment dated 18.10.2016 in S.C.No.6/2014 on
the file of the Principal Sessions Judge, Udupi.
The accused faced trial for the offence punishable
under Section 302 of IPC on the following
allegations.
2. Name of the deceased is Prakash
Nambudari. He was working as a labourer in a
nursery situated at Kervase village, Karkala taluk.
The nursery belonged to Karnataka Cashew
Development Corporation ('KCDC' for short).
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3. One Prashanth Moolya who was working
in the same nursery informed PW2-Muralidharan
around 08.35am on 26.12.2013 that the dead body
of Prakash Nambudari was seen in front of the
shed in which Prakash Nambudari was living.
Prashanth Moolya told PW2 that probably the death
might have occurred due to attack by the wild
animals. PW2 came to spot, and seeing the
injuries he too suspected that death could be due
to attack by the wild animals. Therefore he went
to police station and laid unnatural death report
with the police as per Ex.P.7. The post mortem
examination conducted on the same day revealed
that death was as a result of ligature and manual
strangulation. Thereafter PW1-Harinarayan gave
one more report as per Ex.P1 stating that in the
afternoon of 25.12.2013, a quarrel had taken place
between Prakash Nambudari and the accused.
Since whereabouts of the accused were not
forthcoming, PW1 suspected involvement of the
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accused in the death of Prakash Nambudari. Based
on Ex.P1, FIR was registered for the offence
punishable under Section 302 of IPC.
Investigation led to filing of charge sheet against
the accused.
4. The prosecution examined 19 witnesses
and got marked the documents as per Exs.P1 to
P22 and material objects as per MOs.1 to 6 during
trial.
5. The trial court acquitted the accused of
the offence charged against him arriving at a
conclusion that though the prosecution was able to
prove four circumstances, it was not able to prove
an important circumstance of anybody having seen
accused returning to nursery around 06.30pm on
25.12.2013. Therefore having found one important
link in the chain of circumstances being not
established, the trial court acquitted the accused.
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6. We have heard the arguments of Sri
B.N.Jagadish, learned Addl. SPP for the appellant/
State and Sri Harish N R, learned counsel for the
respondent/accused.
7. Sri B.N.Jagadish argues that though it
was a fact that initially UDR was reported, the post
mortem revealed that the death was as a result of
strangulation. The reason for the incident to take
place was that the monkeys had destroyed the
cashew saplings. Accused questioned the
deceased as to why he did not drive away the
monkeys from the nursery farm and this resulted
in a quarrel between them in the afternoon of
25.12.2013. The quarrel was seen by PWs.7 and
8. On the same day, the accused went to the
nursery again and picked up quarrel with the
deceased and in that course he caused the death
of Prakash Nambudari by strangling him and also
assaulting him with a club which was recovered by
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the investigating officer at the instance of the
accused himself. Therefore PWs.7 and 8 are the
important witnesses who have spoken about
accused being seen for the last time with the
deceased. He also argues that after the incident
the accused absconded and he would join as a
labourer in the poultry farm belonging to PW4-
Mamatha Shetty. There he would suppress his real
name and give a false name as Sachin. This
conduct of the accused is very important in the
sense that if he was not involved in the incident of
causing the death of Prakash Nambudari, he should
have continued to work in the same nursery. He
also refers to the evidence of PW5 to argue that
the accused met him and asked for Rs.500/- in
order to go to his village. That means the accused
did not want to remain at that place. Since the
trial court has held that four circumstances have
been established and the only circumstance which
has not been established according to the trial
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court is quarrel between the accused and the
deceased for the last time. But PWs.7 and 8 have
given evidence very clearly to that effect.
8. He refers to the evidence of PW3 to
submit that on 28.12.2013, PW3 received a
telephone call from the accused who told him at
that time that he had committed a mistake. He
also told that since the deceased did not drive
away the monkeys, he had to quarrel with him and
during that time he assaulted him. Thereafter the
call was disconnected. This was extra judicial
confession according to Sri B.N.Jagadish, Addl. SPP
and in this view, the trial court should have
recorded conviction of the accused instead of
acquitting him. He therefore prays for allowing
the appeal and reversing the judgment of the trial
court by holding the accused guilty of the offence
charged against him.
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9. Sri Harish N R submits that if the
evidence of PWs.7 and 8 is perused, it is
impossible to hold that their evidence helps to
connect the accused with the crime. They might
have seen the quarrel in the afternoon on
25.12.2013. But the death appears to have taken
place during night of 25.12.2013. There is no
evidence indicating accused being seen with the
deceased sometime before the death. When UDR
was laid, it was clearly written that wild animals
might have attacked the deceased and even if the
nature of injuries found on the dead body is seen,
a clear conclusion can be drawn that the wild
animals might have attacked the deceased. Till
31.12.2013 no FIR was registered against the
accused even though the post mortem was
conducted on 26.12.2013 itself. Delay in
registration of FIR is not forthcoming. His further
submission is that because the accused was not
being paid wages regularly, he had to quit that
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nursery and join the poultry farm being run by
PW4. If this was the reason, no abnormality in the
situation can be suspected to connect the accused
with the crime. It was his argument that the trial
court has therefore appreciated the evidence in
right perspective to come to conclusion that the
prosecution was not able to prove its case. The
well reasoned judgment of the trial court cannot be
disturbed. He argued for dismissal of the appeal.
10. We have considered the points of
arguments and perused the entire material on
record.
11. This is a case based on circumstantial
evidence. The motive appears to be a quarrel that
took place between the accused and the deceased
as the deceased did not drive away the monkeys
which were seen destroying cashew saplings in the
nursery farm. The accused questioned the
deceased as to why he did not drive away the
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monkeys and at that time the quarrel was said to
have taken place. There is no dispute about
registration of UDR as per Ex.P1. As the dead
body was found outside the shed in which the
deceased was living, in all probability the people
might have suspected attack by wild animals. The
post mortem discloses that death was due to
strangulation manually and by use of ligature, and
it was thereafter the FIR for the offence punishable
under Section 302 of IPC was registered.
12. The prosecution relies upon the
testimonies of PWs.7 and 8. PW7-Prashanth
Moolya has stated that the deceased Prakash
Nambudari was working as a coolie in a nursery
belonging to KCDC for more than 15 years. He
was staying in a shed situated inside the nursery.
The accused was also working in the same nursery.
But he was staying in the house of PW5-Janu
Devadiga. The specific evidence of PW7 is that
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one day before he saw the dead body of Prakash
Nambudari, around 11.00am he saw accused
asking Prakash Nambudari as to why he did not
drive away the monkeys which were eating the
cashew saplings. Inturn the deceased asked the
accused that he should have driven away the
monkeys and therefore the accused scolded
Prakash Nambudari. PW7 has stated that himself
and PW8-Sadananda Poojary interfered and
pacified the situation. The accused left that place
on the afternoon after taking lunch. Even PWs.7
and 8 also left the nursery. Prakash Nambudari
was alone inside the nursery. On the next day
morning, he saw the dead body. His further
evidence is that 5 days afterwards, the police
inspector came to nursery with the accused, who
at that time showed the laterite stone pillar and
told the police that he hit the head of the deceased
to that pillar. He also showed a club hanging to a
tree. The police seized that club and wrote a
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mahazar as per Ex.P5. MO1 was the club that was
seized at that time.
13. PW7 has also stated that when he saw
the dead body he did not see the accused in the
nursery and that the accused did not turn up for
coolie work thereafter. He came to know that
accused had left the house of PW5-Janu Devadiga.
14. PW8 also says about the quarrel that took
place between the accused and the deceased
around 11.00am on 25.12.2013 and his
intervention to pacify the situation. His further
evidence is that on the same day when he was
going to a shop around 06.30pm, he saw the
accused going towards nursery and also heard
somebody talking from the shed situated in the
nursery. On the next day morning he saw the
dead body of Prakash Nambudari.
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15. The evidence of PWs.4 and 5 may also be
referred here. PW4 has stated that in the
afternoon of 26.12.2013, one Ismail Saheb brought
the accused to her poultry farm as she was in need
of a labourer to work in the poultry farm. At that
time the accused introduced himself as Sachin and
resident of Ajekaru village. She appointed him as
a labourer and made arrangements for his stay in
the shed. On 31.12.2013, Ajekaru police came to
her farm and took the accused with them and at
that time she came to know that the accused had
committed murder in the cashew nursery. She
then came to know that the real name of accused
was Santosh.
16. The accused was living in the shed of
PW5 whose evidence shows that around 06.00am
the accused asked him for Rs.500/- in order to go
to his village. He did not give money to the
accused and thereafter the accused went away by
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taking his clothes. Around 02.00pm he went to the
house where the accused was living and saw no
one inside the shed and therefore he locked the
shed. By that time he came to know about the
death of Prakash Nambudari who was working in
the cashew nursery. PW5 has stated that he came
to know subsequently that accused had killed
Prakash Nambudari by assaulting him.
17. From the evidence of PWs.4 and 5, it is
forthcoming that the accused left the nursery and
joined as a labourer in the poultry farm being run
by PW4. He was a daily wager and just because he
left the nursery farm, no unnatural conduct can be
attributed to the accused for this reason.
18. There is no need to refer to the evidence
of other witnesses.
19. If we assess the entire evidence, it is
possible to infer that because of the reason that
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the deceased did not drive away the monkeys, the
accused might have resorted to quarreling with the
deceased as has been narrated by PWs.7 and 8.
For this reason alone it is not possible to infer that
the accused went to the extent of killing the
deceased.
20. The motive projected by the prosecution
is not strong. The inference that can be drawn
from the evidence of PWs.7 and 8 is that most
probably they might have seen the quarrel going
on between the accused and the deceased around
11.00am and their evidence does not disclose that
soon before the death occurred, the accused was
seen with the deceased. Though PW8 has stated
that he saw the accused going towards the nursery
in the evening time when he was going to market,
no inference can be drawn that the accused went
inside the nursery and entangled in a quarrel with
the deceased. The evidence to this effect is not
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forthcoming. It is true that from the evidence of
PW3 it is forthcoming that accused disclosed
before him about the quarrel that had taken place
between him and the deceased and confessing to
have committed a mistake. But this evidence
cannot be the sole basis for inferring involvement
of the accused.
21. The evidence given by PW3 is in the form
of extra judicial confession and it is well
established principle that unless the evidence of a
witness before whom the confession has been
made is supported by other evidence, it is unsafe
to rely upon the evidence of a witness who speaks
about extra judicial confession. In the cross
examination of PW3 it has been elicited that the
police did not enquire him till 31.12.2013. The
natural conduct of PW3 would be soon after
receiving telephone call from the accused on
28.12.2013, he would have given information to
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the police. But PW3 kept quite. More than this
evidence, what is important to be noticed is that
the accused himself showed a club which was
hanging to a tree and said that it was the club with
which he assaulted the deceased. The club was
seized and sent to the opinion of forensic expert.
Ex.P15 is the report given by Dr. Vikram Palimar,
who adduced evidence as PW13. Seeing the
external injuries No.1 to 6, 8 and 12 to 14
mentioned in the post mortem report, PW13 gave
an opinion that though the said injuries might
occur when the club was used for assault, however
probability of the above injuries causing death was
less likely. This opinion of PW13 is a serious dent
to the case of prosecution. Added to this the club
did not contain blood stains as evinced in Ex.P21.
Further it is to be stated that the investigating
officer has not mentioned the existence of laterite
stone pillar in Ex.P6, the spot panchanama. If
really the head of the deceased had been hit to the
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laterite stone pillar, the blood mark should have
been found on that pillar. Evidence to this effect
is not available.
22. Therefore looked from any angle, it can
be said very clearly that the prosecution has not
been able to prove all the circumstances. Rightly
the trial court has recorded acquittal. We don't
find any good ground in this appeal. Therefore
appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
