Karnataka High Court
Smt.K. Sridevi W/O K. Neelakanta vs The State Of Karnataka on 3 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100309 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100309 OF 2019 (C)
BETWEEN:
1. SMT. K. SRIDEVI
W/O. K. NEELAKANTA,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: DURGA COLONY,
PATEL NAGAR, BALLARI.
2. SMT. K. PADMAVATHI
W/O. K. VEERESH
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: DURGA COLONY,
PATEL NAGAR, BALLARI.
Digitally
signed by
GIRIJA A 3 SANTOSH @ ROHIT
BYAHATTI
Location: S/O. K. NEELAKANTA
HIGH COURT
OF
KARNATAKA AGE: 21 YEARS, OCC: WORKING IN JINDAL,
R/O: DURGA COLONY,
PATEL NAGAR, BALLARI.
4. ROSHAN
S/O. K. NEELAKANTA
AGE: 20 YEARS, OCC: STUDENT,
R/O: DURGA COLONY,
PATEL NAGAR, BALLARI.
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CRL.A No. 100309 of 2019
5. SURESH
S/O. K. VEERESH
AGE: 20 YEARS, OCC: STUDENT,
R/O: DURGA COLONY,
PATEL NAGAR, BALLARI.
6. KUM. MAMATHA
D/O. K. VEERESH
AGE: 19 YEARS, OCC: STUDENT,
R/O: DURGA COLONY,
PATEL NAGAR, BALLARI.
...APPELLANTS
(BY SRI. B. ANWAR BASHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
(THROUGH GANDHI NAGAR POLICE STATION),
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER OF CONVICTION DATED 11.07.2019 AND SENTENCE
DATED 18.07.2019 PASSED IN S.C.NO.56/2012 PASSED BY
THE II-ADDL. DISTRICT & SESSIONS JUDGE, BALLARI AND TO
ACQUIT THE APPELLANTS/ACCUSED NOS.3 TO 8 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 143, 147, 148, 448,
302 & 201 R/W SEC. 149 OF IPC INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100309 of 2019
JUDGMENT
This appeal is preferred by accused Nos. 3 to 8,
challenging their conviction and sentence passed by the
Court of II Addl. District and Sessions Judge at Ballari
(hereinafter referred to as 'the Trial Court', for short), in
S.C.No.56/2012.
2. Vide impugned judgment, the learned Sessions
Judge has convicted accused Nos.1 to 8 for offences
punishable under Sections 143, 147, 148, 448, 302 and
201 read with Section 149 of IPC.
3. Accused Nos.1 and 2 have not challenged the
judgment of conviction and sentence passed against them
by the Trial Court.
4. We have heard the learned counsel appearing
for the appellants and learned Addl. SPP for the
respondent/State and perused the evidence and material
on record.
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5. It is the case of prosecution that, on
14.12.2011 at about 4.15 p.m., near the house of
deceased Smt.K. Bhavani and K. Naveen Kumar, situated
at Patel Nagar, Ballari, on account of previous ill will
regarding performance of Pooja at Sanna Durgamma
temple and also with regard to dispute of the ancestral
property bearing survey No.869/B, accused Nos.1 to 8
formed an unlawful assembly with a common object of
committing the murder of Smt.K.Bhavani and her son K.
Naveen Kumar and trespassed into their property holding
deadly weapons like axe and sticks and committed rioting.
They assaulted both the deceased with the weapons they
were carrying and committed double murder. Thereafter,
to screen themselves from legal punishment and in order
to destroy the evidence, burnt the wooden sticks. Further,
accused No.2 took away the ornaments which were on the
dead bodies.
6. Law was set into motion by PW.1, son of
deceased Smt.K.Bhavani and brother of deceased K.
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Naveen Kumar. On the basis of his statement-Ex.P1
recorded at the spot, initially a case was registered against
15 accused and investigation was taken up. Spot mahazar
and inquest mahazars were conducted. The dead bodies
were subjected to postmortem examination. The accused
were arrested and incriminating articles were recovered
from accused Nos.1 and 2. The blood stained weapons,
clothes of the deceased as well as accused Nos.1 and 2
were sent for DNA examination.
7. On completion of the investigation, charge
sheet was filed against accused Nos.1 to 8. Names of
other accused persons mentioned in the FIR were
dropped, while filing the charge sheet.
8. Charges were framed against accused Nos.1 to
8 for offences punishable under Sections 143, 147, 148,
448, 302 and 201 r/w Section 149 of IPC.
9. In order to establish the charges, prosecution in
all examined 28 witnesses and got marked 37 documents
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and 34 material objects. The defence got examined one
witness as DW1 and got marked Ex.D1 to D5.
10. The learned Sessions Judge vide impugned
judgment convicted accused Nos.1 to 8 for the charged
offences as noted supra.
11. The arguments of learned counsel for the
appellants are as under:
The appellants are falsely implicated by the
complainant in view of the admitted property dispute as
well as the dispute regarding performance of pooja at
Sanna Durgamma temple.
The complainant is not an eye witness to the
incident. He named the entire family members to wreak
vengeance against them, in view of the previous ill will.
The names of alleged eye witnesses namely PWs.4
and 5 are not mentioned in the FIR. Their, statements are
recorded belatedly after two months from the date of
incident. Hence, their evidence can not be believed.
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Admittedly, PWs.4 and 5 are the labourers of the
complainant, who have close affinity with him. They have
been working in the land of one Saraswathamma, mother-
in-law of PW.1 for the last 12 years, hence, they are
interested and partisan witnesses.
There is no recovery of weapons at the instance of
accused Nos.3 to 8. Hence, allegations that the appellants
have assaulted the deceased with wooden sticks are false.
Investigating officer has not seized the blood stained
cloths of the appellants and as per DNA report, no blood
stains are found on the weapons alleged to have been
used by the appellants.
12. The learned counsel has further contended that
the defence has got examined DW1, Senior Manager of
one JSW Steels, wherein, accused No.5 was working at the
relevant point of time. By examining the said witness and
marking documents Ex.D1 to D5, the defence has
established that accused No.5 was on duty having his
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general shift from 9 a.m. to 6 p.m. and therefore, he was
not at all present at the place of incident. He contended
that the Trial Court has not taken into consideration the
above aspects and by accepting the evidence of PWs.4 and
5 has mechanically passed the impugned judgment
convicting the appellants for a serious charge of murder.
Therefore, he sought to set aside the impugned judgment
and acquit the appellants.
13. Per contra, learned Addl. SPP has contended as
under:
All the accused formed an unlawful assembly and
came near the house of deceased with a common object
holding deadly weapons like axe and sticks. Accused Nos.1
to 4 picked up quarrel with the deceased, accused Nos.5
to 8 supplied weapons and both the deceased were
mercilessly assaulted.
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Both the deceased have sustained multiple injuries,
which shows that they were assaulted not only by accused
Nos.1 and 2, but also by the appellants.
Death is homicidal in nature and cause of death is on
account of shock and hemorrhage as a result of head
injuries.
PWs.4 and 5 are the eye witnesses to the incident and
they have spoken about the presence and participation of
all the accused persons. They have no enmity against the
accused to falsely implicate them.
The weapons are seized at the instance of accused
Nos.1 and 2. Further, ornaments of the deceased are also
recovered at the instance of accused No.2.
Doctor has furnished his opinion saying that injuries
found on the dead bodies are possible with the weapons
which were sent for examination.
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As per DNA report-Ex.P32, the articles which were
sent for examination were found to be stained with blood,
which further corroborates the evidence of eye witnesses.
The learned Addl. SPP has therefore, contended that
the Trial Court having appreciated the entire evidence and
material on record has rightly convicted accused Nos.1 to
8 for the charged offences. Accordingly, sought for
dismissal of the appeal.
14. According to prosecution, on account of the
property dispute and enmity with regard to performance of
pooja at Sanna Durgamma Temple, all the accused formed
an unlawful assembly on 14.12.2011 at about 4.15 pm,
with a common object to commit the murder of Smt. K.
Bhavani and her son K. Naveen Kumar. They trespassed
into their property holding deadly weapons and committed
double murder by assaulting them with the weapons they
were carrying and then took the valuables belonging to
them, which they were wearing and threw the axe and
club at the spot and took away the wooden sticks and the
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valuables and then burnt the wooden sticks, so as to
destroy the evidence.
15. The first informant-PW1 is the son of deceased
Smt.K.Bhavani and brother of deceased K.Naveen Kumar.
Accused Nos.1 and 2 are brothers, accused No.3 is the
wife of accused No.2, accused No.4 is the wife of accused
No.1, accused Nos.5 and 6 are the children of accused
No.2 and accused Nos.7 and 8 are the children of accused
No.1.
16. In Ex.P1-complaint lodged by PW1, it is stated
that his grand father owned a land measuring 7 acres 26
cents. After the death of his grand father and his father,
his grand mother and his uncle K.Veeresh i.e. accused
No.1, executed a power of attorney in the name of his
mother and in the name of another uncle Neelakanta i.e.
accused No.2. In the said property, his uncles formed plots
and sold them without the knowledge of his mother. About
three years prior, they questioned their uncles about the
same and in this regard his uncles had quarreled with
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them. Hence, they filed a case before the Civil Court and
the same is pending. In this regard, their uncles were
nurturing ill will against them. Further, his uncles namely
accused Nos.1 and 2 were looking after the management
of Sanna Durgamma temple since twenty years. About
three years back, they told them that even they will
manage the said temple. Hence, there was a quarrel. A
panchayath was held wherein, it was decided that both of
them have to perform pooja at the temple for every three
years. Hence, since Februrary-2009, his mother, his
brother and himself were looking after the management of
Sanna Durgamma temple and performing the pooja. The
said period would come to an end in the month of
February-2012.
17. First informant who is examined as PW1 has
reiterated the above averments made in Ex.P1.
18. The prosecution has got examined PWs.13 and
16 with regard to motive aspect. Though, both have been
treated hostile by the prosecution, they have deposed that
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they conducted a panchayath in respect of performing
pooja to Sanna Durgamma temple and an agreement was
executed, as per which both the parties were to perform
pooja every three years. Their evidence shows that as per
the agreement, from 2009 for a period of three years,
pooja was to be performed by deceased Smt.K.Bhavani.
The agreement is marked as Ex.P.17 through PW.16. He
has admitted his signature in Ex.P.17. The said agreement
was executed between accused Nos.1 and 2 and deceased
Smt.K.Bhavani. The said aspect has not been denied by
the defence in the cross examination.
19. PW.1 has deposed about the civil case filed
before the Court of II Addl. Civil Judge, Ballari in OS
No.39/2009. The said suit was filed against accused Nos.1
and 2. Ex.P8 is the record pertaining to the said suit,
which was pending as on the date of incident. The suit
schedule pertains to the plots carved out of survey
No.869/2001 measuring 7.26 acres. Hence, the
prosecution has established that there was a property
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dispute between the complainant's family and accused
Nos.1 and 2.
20. The incident took place on 14.12.2011 at about
4.15 p.m. Admittedly, the complainant was not present
and he is not an eye witness to the incident. As per Ex.P1,
while he was working in Axis bank, Parvathi nagar branch,
Ballari, he was informed by his friend Veeresh and one
Sathish over phone that his mother and brother have been
assaulted by his uncles and others. Immediately, he
rushed to the spot and saw several persons gathered in
front of his house and also saw his mother and brother
lying dead in a pool of blood.
21. PW.24-Police Inspector, working at Gandhi
Nagar Police station, Ballari while on duty, received the
information over phone at 5 p.m. that some quarrel has
taken place near Sanna Durgamma temple. He
immediately proceeded to the spot along with his staff and
noticed two dead bodies lying at the spot. He recorded
the statement of PW.1 as per Ex.P1 and forwarded it to
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the Police station. PW.26, SHO, registered the case and
sent the FIR to the jurisdictional Court.
22. Initially, PW.1 named 15 persons as accused,
on the basis of which FIR was registered against accused
Nos.1 to 15. However, charge sheet was filed against
accused Nos.1 to 8 deleting the names of rest of the
accused.
23. In Ex.P1, it is stated that one Veeresh and
Sathish informed the complainant over phone about the
incident. They are examined as PW.9 and PW.11. We have
perused their evidence. We find that both the witnesses
are hearsay witnesses as they have not witnessed the
actual incident of assault. PW.9 has stated that at about
4.15 p.m. on 14.12.2011 when he was proceeding to his
house, he saw people gathered near Sanna Durgamma
temple and they were talking that accused Nos.1 and 2
and others were assaulting the deceased persons. Both
the witnesses have deposed that they informed the matter
to the complainant over phone. A perusal of their evidence
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clearly show that they are not eye witnesses to the actual
incident of assault. However, the claim of the complainant
that he was informed over phone by them is
substantiated.
24. According to the prosecution, PWs.4 and 5 are
the eye witnesses. It is the contention of the learned
counsel for the appellants that names of both the eye
witnesses are not in the FIR and even after the occurrence
of such a gruesome incident, they have neither reported
the matter to PW.1 nor to the police immediately. He has
therefore contended that PW.4 and PW.5 are got up
witnesses since their statements are recorded belatedly,
after two months.
25. PW.1 has deposed that he had asked
Hanumantha, Anand and Paramesh to clean the bushes
and the fence on 13.12.2011. When they had come for
cleaning purpose at about 4.15 p.m. on 14.12.2011, they
saw the incident and then informed him that his mother
and brother were murdered by accused Nos.1 to 8 by
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assaulting them with weapons like axe and sticks. He has
stated that the said persons informed him about the
incident on 17.02.2012 and on the next day police
recorded their statements. Paramesh is examined as
PW.4. Hanumanth is examined as PW.5. Anand (CW.25)
has not been examined.
26. Both PWs.4 and 5 have deposed about
witnessing the incident when they had gone to clean the
bushes and fence, as requested by the complainant on
14.12.2011 at 4.15 p.m. They have stated that they
informed the matter to PW.1 on 17.02.2012 when he once
again called them for cleaning purpose. They have stated
that police recorded their statements on 20.02.2012.
27. In this case, the homicidal death of
complainant's mother and brother is not seriously
disputed. From the postmortem examination report
marked as Exs.P21 and P.22 issued by the doctor-PW.19,
we find that cause of death of both the deceased is due to
head injury. Deceased Smt.K.Bhavani has sustained four
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injuries and deceased K.Naveen Kumar has sustained ten
injuries. The question is as to whether, PWs.4 and 5 have
witnessed the incident and whether the appellants are
involved in the commission of the offence and whether
they came to the spot with a common object of
committing the murder of the two deceased, along with
accused Nos.1 and 2.
28. It is well settled that merely because there is
delay in recording the statements of eye witnesses that
itself is not a ground to discard their evidence in toto.
When there are multiple accused, Court has to caution
itself and see as to whether all the accused are involved in
the commission of the offence. The evidence of such
witnesses has to be appreciated by separating grain from
the chaff, not as a rule of law, but as a rule of caution.
29. PW.4 has deposed that when he, Anand (PW.5)
and Hanumanth were near the house of deceased
Smt.K.Bhavani, accused Nos.1 to 4 were seen quarreling
with her and K.Naveen kumar. Accused Nos.5 to 8 brought
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axe and sticks and handed the axe to accused No.2 and
club to accused No.1. Accused No.2 assaulted deceased
Bhavani with the axe on her head, accused No.1 assaulted
deceased Naveen kumar on his face, accused Nos.3 and 4
assaulted both the deceased with sticks and accused Nos.5
to 8 surrounded them holding sticks.
30. PW.5 has also deposed that, accused Nos.1 to 4
were quarreling with the deceased, accused Nos.5 to 8
brought the axe and sticks and handed over to accused
Nos.1 and 2. Accused No.1 assaulted deceased Naveen
Kumar with the club and accused No.2 assaulted deceased
Bhavani with the axe on her head. He has stated that
accused Nos.3, 4 and 7 have assaulted the deceased.
31. Omnibus allegations are made against accused
Nos.3 to 8, without mentioning specific overt acts. Further,
the assault made by accused No.7 has not been spoken by
PW.4. Allegation against accused Nos.5 to 8, as per PW.4
is that, they surrounded the deceased. The specific overt
acts of assaulting the deceased with axe and club are
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against accused Nos.1 and 2. Allegation against A5 to A8,
as per PW4 is that, they surrounded the deceased.
32. It is the specific case of prosecution that after
assaulting the two deceased, accused Nos.1 and 2 threw
the weapons at the spot and other accused carried the
weapons with them. At the time of conducting spot
mahazar-Ex.P-2, an axe and a club marked as M.O.3 and
M.O.-4, used by accused Nos.1 and 2 were seized. The
panch witness to spot mahazar-Ex.P-2 has deposed about
the seizure of the said weapons from the spot. Both the
said weapons were bloodstained. After the arrest of
accused Nos.1 and 2, their voluntary statements were
recorded. Under a panchana-Ex.P-9, 9 sticks marked as
M.Os.-5 to 14 were recovered and at the instance of
accused No.2, M.Os.15 to 20 namely, the valuables taken
away from the body of the deceased, were recovered. The
clothes worn by accused Nos.1 and 2 were found to be
bloodstained. The same were seized under Ex.P-20. The
cloths are marked as M.Os.31 to 34. PW-18 has spoken
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about the seizure of bloodstained T-shirts and pants from
accused Nos.1 and 2.
33. The bloodstained weapons seized from the spot,
the sticks seized at the instance of accused No.1 as well as
the bloodstained cloths of the deceased and accused Nos.
1 and 2 (M.Os.31 to 34) were sent for DNA examination.
The prosecution has got examined PW-27, the Scientific
Officer, FSL, Bengaluru. His report is marked as Ex.P-32.
His report shows that the articles namely M.O.3-axe and
M.O.4-club and the cloths of the deceased and accused
Nos.1 and 2 were bloodstained. As per the report, the
deceased individual Smt. Bhavani from whom the blood
sample was collected on bandage cloth is being the
contributor of the bloodstains detected at dried blood
sample i.e., T-shirts and pants sent as well as her cloths.
Similarly, the deceased individual K. Naveen Kumar from
whom the blood sample was collected on bandage cloth is
being the contributor of the biological stains detected on
the cloths of the deceased and bloodstains detected on the
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dried blood sample found in Kodli (M.O.3) and wooden
stick (M.O.4) as well as Kadaga and ring, pant and shirt.
34. Ex.P-32-DNA report does not indicate detection
of bloodstains on M.Os.5 to 14, the sticks which are
alleged to have been used by the appellants. Admittedly,
the wooden sticks marked as M.Os.5 to 14 were not seized
at the instance of the appellants namely accused Nos.3 to
8. According to PW-4 and PW-5, M.O.3-axe was used by
accused No.2 and M.O.4-club was used by accused No.1.
After assaulting the deceased, the said weapons were
thrown at the spot and they were found bloodstained. The
DNA examination confirms that the bloodstains found on
the said weapons, the bloodstains found on the cloths of
accused Nos.1 and 2 and the bloodstains found on the
cloths of the deceased were matching. However, the
wooden sticks alleged to have been used by other accused
are not bloodstained and more importantly, the said sticks
are not recovered at the instance of accused Nos.3 to 8,
on the other hand, the same were recovered at the
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instance of accused No.1. If we trust the evidence of
PW-4 and PW-5, who have stated that the wooden sticks
were carried by other accused persons after the incident
and if really the said sticks were used to assault the
deceased who sustained multiple bleeding injuries, then
the sticks would have been stained with blood. Hence, the
participation of accused Nos.3 to 8 as alleged by the
prosecution appears to be doubtful.
35. The defence has got examined one witness as
DW-1, Senior Manager of one JSW company. He has
stated that accused No.5-Rohit was working in their
department as a Trainee and he joined the duty on
07.11.2011. The confirmation letter and salary slip of
accused No.5 has been got marked through the said
witness as Exs.D-2 and D-3. Further, the attendance
register extract is marked as Ex.D-4. The said witness has
stated that accused No.5 was on duty on 14.12.2011
between 9.00 a.m. to 6.00 pm. as he was working in a
general shift. He has stated that nobody can go out of
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JSW premises without permission from him and accused
No.5 was in the premises between 9.00 a.m. to 6.00 p.m.
on 14.12.2011. Ex.D-4(a) is the signature of accused
No.5 in the register. In the cross-examination conducted
by the Public Prosecutor, it is elicited that the distance
between Ballari and Toranagallu, where the company
situated, is about 34 km and at least 40 minutes is
required to cover the said distance. There is nothing
elicited in the cross-examination of DW-1 to show that
accused No.5 was not working as Trainee in the company
where he was a Senior Manager and that on 14.12.2011,
accused No.5 left the premises of the company before
6.00 p.m.
36. According to the prosecution, incident took
place at 4.15 p.m. on 14.12.2011. By examining DW-1
and marking relevant documents, defence has established
that accused No.5 was present in the company premises,
where he was working as Trainee, between 9.00 a.m. to
6.00 p.m. Hence, the evidence of eyewitnesses namely
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PW-4 and PW-5, who have deposed about the presence of
accused No.5 at the scene of occurrence is highly doubtful
and that also raises a doubt in the mind of the Court
regarding their credence, insofar as the involvement of
accused Nos.3 to 8 in the crime.
37. In Ex.P-1, the complainant has stated that he
was informed by PW-9 and PW-11 that his uncles and
others are assaulting his mother and brother. PW-9 and
PW-11 in their evidence have stated that the people who
had gathered were talking that accused No.1 and others
have assaulted the deceased persons. The said witnesses
have not specifically named the presence or participation
of accused Nos.3 to 8. In the said facts and
circumstances, the evidence of PW-4 and PW-5 regarding
the involvement of accused Nos.3 to 8 cannot be believed
particularly in view of the delay in recording their
statements. At the cost of repetition, it is relevant to
mention that in the FIR, PW-1 has named as many as 15
persons as accused, whereas, in the charge sheet, accused
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Nos.9 to 15 named in the FIR have been dropped. The
possibility of implicating accused Nos.3 to 8, who are the
family members of accused Nos.1 and 2, in view of the
admitted ill-will between the parties, cannot be ruled out.
Hence, the findings recorded by the trial Court to convict
the appellants namely accused Nos.3 to 8 on the basis of
the evidence of PW-4 and PW-5 is not sustainable.
Further, there is no evidence adduced by the prosecution
to show that accused Nos.3 to 8 have burnt the wooden
sticks, to destroy evidence. The burnt sticks are also not
recovered from them. Hence, the trial Court was not
proper in convicting them. The reasons assigned for
convicting them are not in accordance with law. The said
accused are entitled to benefit of doubt.
38. For the foregoing reasons, the appeal deserves
to be allowed. Accordingly, the following:
ORDER
(i) Appeal is allowed.
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(ii) The judgment and order dated 11.07.2019 and
18.07.2019 passed by the II Addl. District and
Sessions Judge, Ballari, in S.C.No.56/2012 insofar
as convicting and sentencing the appellants/
accused Nos.3 to 8 for the offences punishable
under Sections 143, 147, 148, 448, 302 and 201
read with Section 149 of IPC is hereby set aside.
(iii) Appellant/accused Nos.3 to 8 are acquitted of the
charged offences.
(iv) Accused Nos.3 and 4 shall be released from custody
forthwith, if not required in any other case.
(v) Bail bonds executed by accused Nos.5 to 8 stand
cancelled.
The operative portion of the order shall be
communicated to the concerned jail authority.
Sd/-
JUDGE
Sd/-
JUDGE
gab - upto to para 4 and 14
HMB - para 5 to 13 and 15 to 31
Naa - para 32 to end
