Karnataka High Court
Hitlar Alias Pittu Ruzaria Fernandes vs State Of Karnataka on 25 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100367 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH 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.100367 OF 2023
BETWEEN:
HITLAR @ PITTU RUZARIA FERNANDES
AGE: 56 YEARS, OCC: NILL,
R/O. CENTRAL PRISON, BELGAVI.
...APPELLANT
(BY SMT. CHETANA S. BIRAJ, ADVOCATE)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHARWAD
THROUGH C.P.I. JOIDA
UTTARA KANNADA DISTRICT
Digitally signed
by YASHAVANT
...RESPONDENT
NARAYANKAR
Location: HIGH
COURT OF (BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
KARNATAKA
DHARWAD
BENCH
Date: 2024.07.27
11:37:55 +0530 THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS OF THE CASE PERTAINING TO
S.C.NO.70/2001, ON THE FILE OF THE SESSIONS JUDGE, UTTARA
KANNADA KARWAR AND ALLOW THE APPEAL SETTING ASIDE
JUDGMENT OF CONVICTION DATED 11.10.2004 AND ORDER OF
SENTENCE DATED 12.10.2004 PASSED IN SESSIONS CASE
NO.70/2001 BY SESSIONS JUDGE, U.K. FOR OFFENCE PUNISHABLE
U/S 302, 201 R/W SECTION 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION, THIS
DAY, MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING:
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CRL.A No. 100367 of 2023
JUDGMENT
Accused No.1 in Sessions case No.70/2001 on the file
of the Court of the Sessions Judge, Uttara Kannada has
challenged the judgment and order dated 11/12.10.2004,
whereby he has been convicted along with accused Nos.2
and 3.
2. Learned Sessions Judge vide impugned judgment has
convicted accused No.1 for the offences punishable under
Sections 302 and 201 R/W 34 of IPC and accused Nos.2
and 3 for the offence punishable under Section 201 R/W 34
of IPC.
3. Initially, accused Nos.1 to 3 preferred Crl.A.
No.100193/2019 before this Court, challenging their
conviction and sentence passed by the trial Court. During
the pendency of the said appeal, accused Nos.2 and 3 died.
Further, accused No.1 filed a memo seeking withdrawal of
his appeal intending to seek remission from the State for a
pre-mature release on good conduct. The Division Bench,
vide judgment dated 22.09.2020 placing reliance on the
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order passed by a co-ordinate bench of this Court in
Crl.A.No.100200/2015 disposed on 21.03.2017 dismissed
the appeal preferred by accused No.1 as withdrawn. The
appeal against accused Nos.2 and 3 stood abated.
4. Accused No.1 has once again approached this Court
in Crl.A.No.100367/2023 praying to set aside the judgment
and order of conviction and sentence passed against him
by the trial court. There is a delay of 6714 days in
preferring the appeal. IA No.2/2024 is filed for condoning
the said delay.
5. It is submitted by the learned counsel Smt.Chetana
S. Biraj, appearing for the appellant that after disposal of
Crl.A.No.100193/2019, since the State Government did not
consider the request of accused No.1 for pre-mature
release on good conduct, he was constrained to file the
present appeal as he has been sentenced to life
imprisonment. She has filed IA No.1/2024 for recalling the
order dated 22.09.2020 passed in Crl.A.No.100193/2019.
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6. We are well aware of the fact that earlier appeal i.e.
Crl.A.No.100397/2024 was not considered on merits. Said
appeal was dismissed as withdrawn on a request made by
accused No.1, who with a hope of getting a pre-mature
release, filed the memo seeking withdrawal of the appeal.
Considering that the appellant has been sentenced to life
imprisonment and he is in custody, we deem it fit to hear
the appeal on merits. Hence, in the interest of justice, the
delay in preferring the appeal is condoned and IA
No.2/2024 is allowed.
7. We have heard the learned counsel Smt.Chetana S.
Biraj appearing for appellant/accused No.1 and learned
Addl. SPP for the respondent-State and perused the entire
evidence and material on record.
8. In brief, case of the prosecution is that on
14.03.2001, at about 4 p.m. at Bharamkod village,
accused Nos.1 to 3 with a common intention tress passed
into the house of the deceased Nirmala and assaulted on
her head by means of a stick and committed her murder.
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Thereafter, to cause disappearance of the evidence, they
attempted to shift the dead body in a gunny bag to the
nearby forest and thereby committed the offence
punishable under Section 448, 302 and 201 r/w 34 of IPC.
9. The learned Sessions Judge after appreciating the
oral and documentary evidence on record, proceeded to
convict accused No.1 for the offence punishable under
Section 302 and 201 r/w Section 34 of IPC and accused
Nos.2 and 3 for the offence punishable under section 201
r/w 34 of IPC.
10. This appeal is confined to the conviction and sentence
passed against accused No.1 for the offence punishable
under Sections 302, 201 r/w 34 of IPC.
11. The law was set into motion by the daughter of the
deceased examined as PW.1. The complaint is marked as
Ex.P1. As per the complaint averments, deceased along
with her three daughters i.e. PW1, PW7 and one Vandhana
were living at Bharalkod village. Her husband was no
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more. Two of her daughters were married and living
separately. She had about 15 acres of land and in the said
land, she was living along with her three daughters in a
house. Accused No.2, mother of accused Nos.1 and 3 was
selling fish to them and she was thus acquainted with the
deceased. Since, she had requested the deceased to give
some place to live; deceased had permitted her to put up a
hut near her house. Accused No.2 and her daughter
accused No.3 were selling fish and her son accused No.1
was doing carpentry work.
12. It is further stated in Ex.P1 that the character of
accused No.1 was not good and he used to make advances
to the complainant but she was not responding. On
12.03.2001, under the influence of alcohol, he abused
them. On 13.03.2001 at about 3 p.m. once again accused
No.1 came to their house and tried to molest the
complainant by pulling her maxi. At that time, her mother
reprimanded him and even the complainant shouted at
him. When he started quarreling with them, complainant
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went and informed the matter to one Khatal-PW.13 and
brought him to their house and seeing him, accused No.1
fled away. Thereafter, they dismantled the hut belonging
to the accused as he was causing nuisance. Again on
14.03.2001 at about 12 noon when the complainant and
her sister were returning to their house for lunch, they saw
accused persons quarreling with complainant's mother
taking objection for destroying their hut. Thereafter, the
complainant and her sister went back to work and when
they returned to their house in the evening at 5 p.m., they
saw all the three accused carrying a gunny bag and on
seeing them, the accused left the gunny bag at the spot
and ran away. They saw the dead body of their mother
inside the gunny bag with bleeding injuries on the head.
Immediately, they informed the matter to the villagers
namely, Shankar, Sadananda, Narayana, Khathal and
Meenappa who came to their house and noticed blood
stains inside the house and a blood stained stick.
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13. PW.1 went to the police station and lodged the
complaint. Oral complaint of PW.1 was reduced into
writing; a case was registered by PW.17-PSI against
accused Nos.1 to 3. He forwarded the FIR-Ex.P18 to the
jurisdictional Court and thereafter went to the spot and
conducted inquest panchanama; he seized M.O.1-gunny
bag and also seized blood stains from the place where the
gunny bag with dead body was found as well from inside
the house. Further, he seized blood stained stick-M.O.2.
Further, at a distance of 200 feet away from the place
where the dead body was found, he seized a blood stained
shirt-M.O.7 under Ex.P7. Postmortem was conducted. The
blood stained clothes of the deceased were also collected.
The seized articles were sent for FSL examination.
Thereafter, PW.17 handed over the investigation to PW.18,
who continued the investigation and arrested the accused
persons. On completion of investigation, he filed the
charge sheet.
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14. The learned counsel appearing for the appellant
would contend that there are no eye witness to the
incident. The entire case is based on circumstantial
evidence. Prosecution has not proved all the circumstances
which it has relied and the circumstance on which the
prosecution has relied does not form a complete chain.
She contended that there are material discrepancies in the
evidence of PWs.1 and 7. The alleged blood stained shirt-
M.O.7 was not recovered at the instance of the accused
and further, blood stained stick-M.O.2 was also not
recovered at his instance. She contended that the incident
as narrated by PW.1 implicating the accused is doubtful
and according to her she along with her sister-PW.7 was
going to manganese work at a place which is situated one
kilometer away from the house. Both PWs.1 and 7 have
admitted that they leave their house at 6 a.m. and return
home at 5.30 p.m. in the evening. Therefore, the evidence
of the said witnesses that they have seen the accused
persons carrying the dead body of their mother in a gunny
bag at 5 p.m. cannot be believed. She further contended
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that according to PW.1, when the accused quarreled with
them on 13.03.2001, she informed the matter to one
Khatala i.e. PW.13. Whereas, on the next day when they
saw accused quarreling with their mother, she has not
complained or informed the same to anyone. Hence,
contended that the presence of PW.1 and PW.7 on
14.03.2001 at 12:00 noon is doubtful. She contended that
the claim of PWs.1 and 7 that they returned to the house
on 14.03.2001 at 12 noon and saw the accused persons
quarreling with her mother and at 5:00 pm saw them
carrying the dead body of their mother in a gunny bag
cannot be believed.
15. The learned counsel for the appellant has further
contended that there is variation in the timing mentioned
by PW.1 and PW.7. PW.1 says, accused came to the house
and tried to misbehave with her at about 3:00pm whereas
PW.7 has stated that he came at 11:00am. Further, PWs.1
and 7 being the daughters of the deceased did not stay
back at home when they saw the accused quarreling with
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their mother, on the other hand, they have gone back to
work without informing the matter to anyone. Hence, she
contended that the conduct of both the witnesses is
unnatural and therefore, their evidence cannot be believed.
16. The learned counsel has further contended that the
trial Court has not properly appreciated the above aspects
and with an erroneous consideration and appreciation of
the evidence adduced by the prosecution has convicted the
appellant. She therefore sought to allow the appeal and
acquit the accused.
17. Per contra, learned Additional State Public Prosecutor
has contended that in Ex.P-1 itself, PW.1 has clearly
narrated the entire incident including the quarrel which
took place a day prior to the date of incident. He
contended that appellant/accused No.1 was in the habit of
teasing PW.1 and on the previous day, he tried to molest
her by pulling her maxi and therefore, the hut where the
accused were staying was demolished by the deceased,
PWs.1 and 7. Hence, the accused were nursing an ill-will
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against them. He contended that with that motive and
with an intention to takeaway her life, accused persons
came to the house of the deceased when no one was
present and committed the murder by assaulting on her
head with a wooden stick and then tried to shift the dead
body in a gunny bag to the nearby forest and in the
meantime, both the daughters-PWs.1 and 7 saw them. On
seeing them, they left the gunny bag and fled away.
18. The learned Additional State Public Prosecutor
contended that both PWs.1 and 7 are natural witnesses
since they had returned to their house after the work and
they have immediately informed the matter to the villagers
namely PWs.8 to 12. He contended that the said witnesses
have supported the case of prosecution and corroborated
the version of PWs.1 and 7. He further contended that
though the wooden stick and shirt were not seized at the
instance of the accused, but both the articles were stained
with blood which matched the blood group found on the
clothes of the deceased. He contended that PW.1 has
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identified the shirt as the shirt of the accused, since
accused No.1 was known to her, who was living nearby.
He would further contend that minor discrepancy if any in
the evidence of PWs.1 and 7 will not erode the evidence of
PWs.1 and 7. He therefore contended that the trial court
has properly appreciated the evidence on record and
rightly convicted the appellant for the charged offences.
19. We have perused the evidence of PWs.1 and 7, the
material witnesses in this case. PW.1 has corroborated the
averments in the complaint-Ex.P-1. She has narrated the
incident which occurred a day prior to the murder of her
mother, wherein she has stated that the accused came to
her house at about 3:00pm and misbehaved wither by
pulling her maxi, for which her mother scolded him and
since accused No.1 started quarreling, she went and called
one Khatal(PW.13) and brought him to the house. On
seeing him accused No.1 ran away. Thereafter herself and
her mother demolished the hut belonging to the accused,
so that they will not come again and trouble them. On
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14.03.2001, she went for manganese work with her sister
at 6:00am and at that time her mother was alone in her
house. When they returned for lunch at 12:00 noon, they
saw all the accused quarrelling with her mother for
demolishing their hut. Thereafter, they went back to their
work. When they returned to their house after the work
at 5:00pm they saw the accused persons carrying a gunny
bag and on seeing them, they left the gunny bag and ran
away. When they opened the gunny bag, saw the face of
their mother. Her mother was dead and they also saw
blood stains inside their house and also found a blood
stained stick.
20. The said part of the evidence of PW.1 has remained
intact and demolished by the defence in the cross-
examination. PW.1 has stated that the place of her work is
about 1½ kilometer from her house and she used to work
at the said place from 6:00am to 1:00pm and she require
30 to 35 minutes to cover the distance. She has stated
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that in the afternoon she would go for work at 2:00 or
3:00pm and the work usually gets over by 5:00pm.
21. Relying on the evidence of PW.7, another daughter of
the deceased who has corroborated the evidence of PW.1
with regard to the two incidents which took place on
13.03.2001 and 14.03.2001, the counsel for the appellant
has tried to contend that insofar as the incident which took
place on 13.03.2001, wherein accused No.1 is alleged to
have pulled the maxi and tried to outrage the modesty of
PW.1 is concerned, there is discrepancy in mentioning the
timing. She contended that the said incident took place at
3:00pm according to PW.1, whereas PW.7 has stated that
the said incident took place at 11:00am. We do find that
there is some discrepancy in mentioning the time insofar
as the incident which took place on 13.03.2001. However,
both the said witnesses have categorically stated that the
said incident has occurred and they went and informed the
matter to one Khatal and brought him to the house and on
seeing him, the accused ran away. Both PWs.1 and 7 have
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stated that after the said incident, they pulled down the
hut in which the accused were staying. The said evidence
of PWs.1 and 7 has not been disputed or denied in the
cross-examination by the defence. Hence, from the
evidence of PWs.1 and 7, it is clear that a day prior to the
commission of the murder, accused No.1 had tried to
misbehave with PW.1, for which PW.1 as well as her
deceased mother had objected and then complained the
same to one Khatal. After the said incident, they
demolished the hut of the accused. Hence, the prosecution
has proved the motive for the accused to commit the
offence.
22. The defence taken by the accused is that the house of
the deceased had steps and therefore, the possibility of
deceased falling down while climbing the steps and
sustaining injuries on her head is not ruled out. Both PWs.1
and 7 have denied that their mother died due to fall. It is
pertinent to mention that the blood stains were found, as
per the spot mahazar, inside the house and no blood stains
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were noticed on the steps of the house. The learned
counsel for the appellant contends that after falling from
the steps, the deceased dashed against the barrel and
sustained injuries.
23. We have perused the cross-examination of the doctor
who conducted postmortem examination. He has denied
that said injuries could be caused by dashing against the
barrel.
24. We have noticed the external injures sustained by the
deceased as mentioned in the postmortem report which
are as under:
1. Rt ear lobe is cut at its middle obliquely extending
from above down wards, cut into two pieces
bleeding present.
2. Lacerated wound over the back of Rt ear at
mastoid region measuring 3X2 cms.
3. Abrassion over the lP maxillary are measuring
5X3 cms.
4. Abrasion over the Lt temporal region measuring
3X2 cms.
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5. Abrasion over the Rt sided buttock measuring
22X12 cms. Both dermis and epidermis is
abrased.
6. Abrasion over the back of Rt leg measuring 5X3
cms at calf region.
7. Another abrasion over the Rt scapula measuring
10X8 cms
8. contused swelling of Rt eye.
Further, deceased has sustained
1. Fracture of Rt patella
2. Fracture of mandible at its neck of Rt
side and at its middle of chin level.
Mandibular bone is cut into three pieces.
25. Firstly, the deceased would not have sustained so
many injuries including fractures if she had fallen from the
steps and dashed against the barrel. Secondly, the dead
body was not found anywhere near the steps or barrel on
the other hand, the dead body was inside a gunny bag,
which was about 100 feet away from the house. Both
PWs.1 and 7 have categorically stated that the accused
were trying to dispose of the dead body by shifting it in a
gunny bag to a nearby forest and on seeing them, they ran
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away. Hence, after committing the murder, the accused
were trying to cause disappearance of the evidence by
dumping the dead body in a gunny bag and attempting to
shift it to the nearby forest. However, in the meantime, on
seeing both PWs.1 and 7, they have left the gunny bag at
the spot, which was 100 feet away from the house and
fled away.
26. After conducting the inquest and spot mahazar, the
police while searching near the place of dead body, found a
blood stained shirt M.O.7 which was seized under Ex.P-7.
The learned counsel for the appellant has pointed out from
the cross-examination of PW.1 that according to her after
the blood stained shirt was found, she took it to her house.
Hence, it is contended that the claim of the prosecution
that the police have seized the said shirt from the said spot
under Ex.P-7 cannot be believed.
27. In this case, the prosecution is not claiming that the
blood stained shirt was recovered at the instance of the
accused. PW.1 has sated that when they went in search of
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the accused along with the villagers, noticed the blood
stained shirt in the forest and she brought it back.
Whereas, PW.17-PSI has stated that after conducting the
inquest mahazar and the spot mahazar, he conducted a
search with panchas and at a distance of 200 feet from the
dead body, he found one blood stained shirt near Salakki
tree. If the evidence of PW.1 is to be believed that even
before lodging the complaint she found the blood stained
shirt and took it to her house, then the evidence of PW.17
that the said blood stained shirt was seized at the spot
which was about 200 feet away from the place where the
dead body was found, cannot be believed. However, the
fact remains that the blood stained shirt was not recovered
at the instance of the accused and therefore the said
discrepancy is not fatal to he prosecution.
28. Accused No.1 is a known person to PW.1. In fact she
has identified the said shirt-M.O.7 as belonging to accused
No.1. As per FSL report, the blood stains found on the
wooden stick-M.O.2, shirt-M.O.7 and the clothes of the
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deceased were all stained with human blood of 'A' group
origin.
29. Postmortem report-Ex.P-17 and the evidence of the
Doctor-PW-14 clearly establishes that the deceased died a
homicidal death. PWs.1 and 7 have clearly deposed about
the incident which took place a day prior to the commission
of murder and also spoken about accused quarrelling with
their mother in the afternoon of the date of incident. Both
the said witnesses have stated that they would come back
to the house for lunch and go back to their work and return
to their house at 5:00pm. Their evidence that they saw
the accused carrying the gunny bag in which the dead
body was found, is believable and there is no reason for
discarding the said evidence. The said circumstance is a
very strong circumstance against the accused persons to
hold that the deceased was murdered inside the house by
means of M.O.2-Wooden stick and thereafter, the accused
tried to cause disappearance of the evidence by shifting
the dead body to a nearby forest.
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30. We also find corroboration to the evidence of PWs.1
and 7 from the evidence of PWs.8 to 12. All the said
witnesses have stated that PWs.1 and 7 informed them
about the incident at 5:30pm itself and on coming to know
about the same, they all came near the spot where the
dead body was found. Their evidence that PWs.1 and 7
informed about the incident soon thereafter, assumes
importance.
31. It is relevant to extract paras 49 and 50 of the
judgment of the Hon'ble Apex Court in Balu Sudam
Khalde and another v. State of Maharashtra (AIR 2023
Supreme Court 1736)
"49. The rule embodied in Section 6 is usually known as
the rule of res gestae. What it means is that a fact which,
though not in issue, is so connected with the fact in issue "as
to form part of the same transaction" becomes relevant by
itself. To form particular statement as part of the same
transaction utterances must be simultaneous with the
incident or substantial contemporaneous that is made either
during or immediately before or after its occurrence.
50. Section 6 and 7 resply of the Act 1872 in the facts
and circumstances of the case, in so far as, the admissibility
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of a statement of the PW 3 Nasir Rajjak Khan coming to
know about incident, immediately from the PW 1 Asgar
Shaikh that Abbas Baig had been seriously assaulted and
that Asgar Sheikh had also suffered injuries and admitted by
the PW 1 Asgar Shaikh in his evidence would be attracted
with all its rigour."
32. Even in the present case, immediately on seeing the
accused persons carrying the gunny bag and running away
after seeing PWs.1 and 7 and noticing the dead body of
their mother in the gunny bag, PWs.1 and 7 went and
informed the matter to PWs.8 to 12. The said witnesses
have stated that at about 5:30pm itself, both PWs.1 and 7
came and informed them and they spontaneously rushed
to the spot and saw a gunny bag in which the dead body of
the deceased was found. The said evidence of PWs.8 to 12
is so connected with the fact in issue as to form part of the
same transaction and relevant by itself.
33. The contention of the learned counsel for the
appellant that if PWs.1 and 7 have actually seen accused
No.1 quarrelling with the deceased on the date of the
incident at 12:00 noon they would have complained the
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same to the villagers as they have done on the previous
day and therefore they were not present and seen the
accused quarreling with the deceased etc, cannot be
accepted.
34. Insofar as the incident which took place on the
previous day is concerned, accused No.1 pulled the maxi of
PW.1 and tried to misbehave with her and therefore they
went and complained to one Khatal-(PW.13). However, as
per PWs.1 and 7, on the date of incident the accused were
quarrelling with their mother for dismantling their hut.
However, since they had to return to their work, after
lunch they have gone back for work. Both the witnesses
have stated that since the quarrel was routine, they did not
complain about the same to the villagers. Probably, both
PWs.1 and 7 did not expect that the matter would have
become serious and accused would have ventured to
commit the murder of their mother, otherwise they would
have certainly informed the matter to the villagers.
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35. Having re-appreciated the entire evidence on record,
we find that the prosecution has established the guilt of the
appellant/accused No.1 for the charges leveled against him
under Section 302 of IPC and 201 read with Section 34 of
IPC.
36. We have noticed that though charge was also framed
under Section 448 of IPC and the trial Court formed point
for consideration and answered the said point in the
affirmative, did not convict or pass any sentence for the
said offence. Since the accused has been sentenced to
undergo life imprisonment for a major offence, even if he
was convicted and sentenced for the offence punishable
under Section 448 of IPC, the sentence imposed for the
said offence would merge with the life imprisonment.
37. For the foregoing reasons, we pass the following
ORDER
Appeal is dismissed. Consequently, I.A.1/2024 filed
in Criminal Appeal 100193/2019 is dismissed.
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The trial court has ordered that both the sentences
imposed against the accused shall run concurrently and
also given the benefit of set off under Section 428 of
Cr.P.C. The same is not disturbed.
Sd/-
JUDGE
Sd/-
JUDGE
HMB-upto para-13
KMV- para 14 to end
