Karnataka High Court
Ravikumar @ Kanive @ Kanekumara vs The State Of Karnataka By East Police ... on 4 February, 2025
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CRL.A No. 1728 of 2017
C/W CRL.A No. 1832 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE K. V. ARAVIND
CRIMINAL APPEAL NO. 1728 OF 2017
C/W
CRIMINAL APPEAL NO. 1832 OF 2017
In Crl.A No. 1728/2017
Between:
Kumar @ Madike Kumar
S/o. Kenchaiah,
Aged about 32 years,
R/o. C/o. Marilinganna,
4th Cross, Basavanagudi,
Guthalu Road,
Digitally signed Mandya-571 401.
by VEERENDRA ...Appellant
KUMAR K M (By Sri A.V.Ramakrishna, Advocate for
Location: HIGH Sri Amruthesh N P., Advocate)
COURT OF
KARNATAKA
And:
State of Karnataka
East Police Station,
Mandya-571 401,
Represented by S.P.P.,
High Court Complex,
Bengaluru-560001,
...Respondent
(By Sri Vijaykumar Majage, SPP-II)
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CRL.A No. 1728 of 2017
C/W CRL.A No. 1832 of 2017
This Criminal Appeal is filed u/s.374(2) Cr.P.C praying to
set aside the judgment and conviction with fine dated
08.09.2017 passed by the Principal District and Sessions Judge,
Mandya, in S.C.No.69/2013 - convicting the appellant/accused
No.1 for the offence p/u/s 143, 148, 120(B) and 302 r/w
section 149 of IPC.
In Crl.A No. 1832/2017
Between:
Ravikumar @ Kanive @ Kanekumara
S/o Karishetti,
Aged about 27 years,
R/at C/o Balu, 2nd Cross,
Basavanagudi, Mandya,
Mandya District - 571 401.
...Appellant
(By Sri Balakrishna M.R., Advocate)
And:
The State of Karnataka
By East Police Station
Mandya, Mandya District
Represented by State Public Prosecutor,
High Court Building,
Bengaluru-560 001.
...Respondent
(By Sri Vijaykumar Majage, SPP-II)
This Criminal Appeal is filed u/s.374(2) Cr.P.C praying
to set aside the judgment and conviction with fine dated
08.09.2017 passed by the Principal District and Sessions
Judge, Mandya, in S.C.No.69/2013 - convicting the
appellant/accused No.2 for the offence p/u/s 143, 148,
120(b) and 302 r/w section 149 of IPC.
Date on which the appeals were
10.01.2025
reserved for judgment
Date on which the judgment was
04.02.2025
pronounced
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CRL.A No. 1728 of 2017
C/W CRL.A No. 1832 of 2017
These Criminal Appeals, having been heard & reserved,
coming on for pronouncement this day, judgment was delivered
therein as under:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
In S.C.No.69/2013 on the file of the Principal
Sessions Judge, Mandya, totally nine (9) accused
persons faced trial for the offences punishable
under Sections 143, 148, 120B, 302 and 324 of
IPC read with Section 149 of IPC. By judgment
dated 08.09.2017, the Sessions Judge convicted
accused Nos.1 and 2 for the offences punishable
under Sections 143, 148, 120B, 302 read with
Section 149 of IPC, and accused No.4 for the
offences punishable under Sections 143, 148,
120B, 115 and Section 324 read with Section 149
of IPC. Accused Nos.3 and 5 to 9 were acquitted.
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Aggrieved by this judgment of conviction accused
No.1 has preferred Crl.A.No.1728/2017 and
accused No.2 has preferred Crl.A.No.1832/2017.
The required facts are as below:
2. On 07.09.2012 at 23.15 hours, the FIR
was registered at East Police Station, Mandya City,
at the instance of PW3-Harsha K. PW3 reported
to the police that about 09.30pm on 07.09.2012,
himself, Chidananda, the deceased, one Ashok and
some others were standing in front of
Srikanteshwara Medical Store at Mandya. Around
10.15pm, accused No.1 Madike Kumara and
accused No.2 Kanive Kumara came to that place
and picked up quarrel with Chidananda taking
objection for Chidananda having asked them to
compromise a case. Stating that they would kill
him first and then enter into compromise, both
accused attacked him. Accused No.2 held him and
accused No.1 stabbed him with a knife on the
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chest and stomach. Harsha and some others
interfered to pacify and then took Chidananda to
hospital. Initially FIR was registered for the
offence punishable under Section 307 of IPC and
after the death of Chidananda, Section 302 of IPC
was invoked in the FIR. The investigation revealed
a different reason for the offence. The charge
sheet states that when Chidananda and his friends
were coming out of Rajalakshmi Wines after having
drinks, accused were all standing near a saw mill.
Having seen Chidananda, all the accused who had
already conspired to kill him, wanted to create a
situation to pick up quarrel with Chidananda and
then accused Nos.2, 4, 5 and 6 started breaking
the beer bottles on the road. Chidananda asked
them not to cause disturbance to the public by
breaking the bottles on the road. This was
sufficient for the accused to pick up quarrel with
Chidananda and in that course, accused Nos.1 and
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the knives were brought, accused No.1 asked
accused No.2 to catch hold of Chidananda and then
accused No.1 stabbed Chidananda on his chest and
stomach. When Chidananda escaped from their
clutches and started running, accused Nos.1, 2 and
4 chased him and then again inflicted injuries.
3. Out of 32 witnesses examined by the
prosecution, PW3 to PW6, PW12 to PW15, PW18,
PW19 and PW28 are the eyewitnesses. But none of
them supported the prosecution. It is for this
reason, learned counsel for the appellants Sri
A.V.Ramakrishna, appearing on behalf of Sri
Amruthesh N.P and Sri M.R.Balakrishna argued
that the conviction recorded by the trial court is
not sustainable. They argued that the first
informant PW3 has not implicated the accused
even though he has stated about the incident. His
evidence shows that he took Chidananda to
hospital for treatment and did not disclose the
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names of accused 1 and 2 to the doctor. He may
have identified his signatures on Ex.P5 and Ex.P6,
but mere identification of signatures cannot be a
ground to hold that he was an eyewitness. They
also submitted that PW25, the father of
Chidananda was not an eyewitness, but the trial
court has held that he is an eyewitness and
believed his testimony. And referring to the
evidence given by PW17, they argued that
according to prosecution, accused No.4 inflicted an
injury to him with a broken bottle, but he has not
supported. Even with regard to recovery of
knives, PW27, the witness to mahazar has not
supported. Lastly they argued that conviction
cannot be recorded at all by placing reliance on
the testimony of PW2, the doctor who examined
Chidananda. Therefore the conviction judgment
cannot at all be allowed to remain.
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4. But Sri Vijaykumar Majage, learned SPP-
II, arguing for sustaining the conviction and the
order on sentence pointed out that the trial court
has noted the fact of all the eyewitnesses turning
hostile intentionally, PW25 may not be an
eyewitness, but he went to the spot very soon
after the incident and saw his son being injured.
He also went to hospital. The doctor-PW2 has
clearly stated that Chidananda had consciousness
and he himself gave history taking the names of
the accused. In Ex.P5, PW3 has narrated the
entire incident. PW3 admits his signature on
Ex.P5. If he disowned Ex.P5 when he was
examined in the court, it cannot be said that his
testimony has to be discarded.
4.1. Referring to recovery of knives at the
instance of accused No.1 and 2, Sri Vijaykumar
Majage argued that hostile evidence of PW27 does
not matter in as much as 'A' group human blood
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was detected in the clothes of accused 1 and 2,
and Chidananda, and also on the knives. FSL
report supports this aspect. This is how the trial
court has assessed the evidence and it cannot be
said to be erroneous. The trial court has just
referred to the evidence of PW3, but has not drawn
any inference from his evidence. As has been
argued by the appellants' counsel, the trial court
has held that PW25 is an eyewitness. Reliance is
also placed on the evidence of PW2 and FSL report
to record conviction.
5. On re-appreciation of evidence, though it
can be stated that the findings recorded by the
trial court with reference to evidence of PW25 is
incorrect, it is not possible to dislodge the
prosecution case merely for the reason that the
prominent witnesses have not supported. Reasons
are these :
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Ex.P5 is the report of incident given by PW3
to the police for registration of FIR. PW3 has not
only admitted his signature on Ex.P5 but also
stated to have given it to police while he was in
the hospital. PW30-the police inspector has stated
that PW3 came to police station at 11.15 p.m on
7.9.2012 and lodged a complaint with him as per
Ex.P5. Whether PW3 gave it to police in the police
station or in the hospital, it does not matter much.
Fact remains that Ex.P5 was given by PW3. In
Ex.P5, PW3 has clearly stated the date and time of
incident and has clearly taken the names of
accused Nos. 1 and 2 and described their overt
acts. When PW3 was examined in the court he
simply stated that, as soon coming to know about
assault on one person while he was in his mutton
shop, he went to the place of incident and having
seen Chidananda lying on the ground with injuries,
he and PW5 took him to hospital. It is clear that
PW3 changed his version when he was examined in
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the court as a witness. But it can be demonstrated
that the evidence of PW3 to the extent of not
implicating the accused is falsehood. The evidence
of PW2, who examined Chidananda when he was
alive assumes relevancy. PW2 has stated that on
7.9.2012 about 10.45 p.m when he was in
casuality department, Harsha K, i.e., PW3 brought
Chidananda and admitted him to hospital, and
gave history that Kumara @ Madike Kumara i.e.,
accused No.1 stabbed Chidananda with a knife.
That means according to PW2, it was PW3 who
gave history. It is true that PW2 also stated that
injured himself gave history. Learned counsel for
appellants emphasized this statement to be a
major discrepancy in the evidence of PW2. It is
true that it looks like a discrepancy when his two
statements are seen. But his statement that
Chidananda gave history cannot be a correct
answer, and his first statement that Harsha K gave
statement can be held to be correct with help of
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history recorded by PW2 in Ex.P4, the MLC register
extract. It is clearly recorded in Ex.P4 that Harsha
brought Chidananda to hospital and gave history
that Kumara stabbed him with a knife. Here the
pronoun 'him' refers to Chidananda. If Chidananda
himself had given history, he would have stated,
"Kumara stabbed me". Moreover in Ex.P4, it is not
written that Chidananda was having consciousness,
PW3 has stated in examination-in-chief that when
he took Chidananda to hospital, the latter had no
consciousness. Therefore it could be very well
inferred that PW3 himself gave history, and the
answer of PW2 as referred to above might be a
stray answer, as he could not have stated what is
not written in Ex.P4. Above all, one answer of
PW3 in his cross-examination reflects his conduct.
As he was treated hostile, public prosecutor cross-
examined him and gave a suggestion that
Chidananda himself gave history. To this
suggestion he could have given a definite answer
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either admitting it or denying it. As his intention
was not to support prosecution, it was quite
obvious that he would not have stated that he
gave the history taking the name of accused;
instead he gave an evasive answer, "I do not
know". This answer only shows that he wanted to
suppress something. The answer of PW2 could be
a stray answer. It is not important to assess the
evidence of PW3 and therefore whatever he stated
exculpating the accused cannot be believed to be
true and the only inference that can be drawn is
that he was an eyewitness to the incident, and he
turned hostile deliberately.
6. It is true that other eyewitnesses have
turned hostile, and the public prosecutor's efforts
to discredit them has not been successful, but it
can be demonstrated with the help of evidence of
PW3 that PW5 has not deposed the truth. PW3 has
taken the name of PW5 in his examination-in-chief
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stating that the latter was with him when
Chidananda was taken to hospital. Even in Ex.P5
it is clearly stated that PW5 was present when the
incident occurred and both of them pacified the
quarrel. Ex.P5 was the first report which appears
to be taint free containing truth.
7. PW25 is not an eyewitness. The trial court
has wrongly held that PW25 is an eyewitness. If
paras 1 and 2 of his examination-in-chief are read,
an inference can be drawn that after he came to
know the incident of assault on his son, he went to
that place. But as discussed above, a clear
inference can be drawn that Chidananda met death
due to assault made on him by accused No.1 and
accused No.2. PW2 noticed presence of prominent
injuries on the chest and abdomen, PW1 was the
doctor who conducted autopsy and also noticed
eight ante mortem injuries, same as noticed by
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PW2. The evidence of PW1 and PW2 is only
corroboratory.
8. The next corroboration is found in FSL
report, but before that seizure of knives MO1 and
MO2 is to be referred here. From the evidence of
PW31, who conducted investigation, it is found
that after the arrest of accused Nos.1 and 2, they
gave their voluntary statements and disclosed the
place where they had hidden the knives, MO1 and
MO2 and then they took him and panchas to the
house of accused No.2. The knives were kept
under a cot in the house of accused No.2 and they
produced them before PW31. He seized them
under mahazar Ex.P27. PW.27 is the independent
witness examined to prove seizure of MO1 and
MO2 under Ex.P27, but he did not support. Sri.
A.V.Ramakrishna pointed out that seizure under
Ex.P27 is unbelievable not only for the reason that
PW27 did not support, but also for another reason
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that much before Ex.P27 was drawn, both accused
1 and 2 were produced before the Magistrate who
later on remanded them to judicial custody at 2.30
pm on 9.9.2012 as becomes evident from Ex.D1
which PW31 has admitted. Therefore seizure of
MO1 and MO2 based on voluntary statements
becomes doubtful. Sri. Vijaykumar Majage replied
that mentioning of date in Ex.P27 might be a
mistake because as per the evidence of PW31 both
accused 1 and 2 were arrested on 8.9.2012 and
their voluntary statements were also recorded on
the same day. Therefore the seizures were
effected on 8.9.2012, not 9.9.2012.
9. It is true that Ex.P27 bears the date
9.9.2012 and the time of writing it is shown as in
between 4.30 p.m. and 5.30 p.m. Ex.D1 is the
remand application confronted to PW31 while cross
examining him. PW31 had to admit the remand
application, he could not have disowned it. And if
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Ex.P27 and Ex.D1 are juxtaposed, the discrepancy
as pointed out by Sri. A.V.Ramakrishna can be
noticed. If accused 1 and 2 had been remanded to
judicial custody at 2.30 p.m. on 9.9.2012,
recovery of knives becomes doubtful, but this
inference cannot be drawn because accused 1 and
2 were arrested on 8.9.2012 and their voluntary
statements leading to discovery were recorded
soon after their arrest. Their clothes were also
seized on 8.9.2012. FSL report, Ex.P21 testified
by PW16, the FSL expert, shows presence of 'A'
group human blood in the clothes of Chidananda,
the clothes of accused 1 and 2, and the knives.
PW16 was not cross examined at all and therefore
the evidence of PW16 proved presence of 'A' group
human blood not only in the clothes of Chidananda
but also in the clothes of accused 1 and 2, and the
knives. For this reason the discrepancy in
mentioning the date and time of drawing Ex.P27
when compared to time mentioned in Ex.D1 can be
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ignored and it can be held that seizures of
incriminating materials cannot be doubted.
10. Sri M.R.Balakrishna has placed reliance
on the judgment of the Supreme Court in Alauddin
and Others vs State of Assam and Another [2024
SCC Online SC 760]. It appears that this
judgment has been referred with reference to the
evidence given by PW25, the father of Chidananda
who is held by the trial court to be an eyewitness.
In para 7 of the cited judgment, meaning of
contradiction is explained. But it is to be stated
that, as discussed above PW25 is not an
eyewitness and the trial court's conclusion that he
is an eyewitness is held to be incorrect. Ignoring
the evidence of PW25, it can still be held that
prosecution case stands established. Therefore
this judgment of Supreme Court is not helpful to
the appellants.
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11. The other judgment in the case of Harbeer
Singh vs Sheeshpal and Others [(2016) 16 SCC
418] discusses the broad principles of criminal
jurisprudence relating to appreciation of evidence.
A decision whether a witness is believable or not,
depends on facts and circumstances of each case
and what is found in the cited judgment are
conclusions drawn on the facts and circumstances
therein. Therefore this judgment is of no
assistance to the appellants.
12. The above discussion only shows that the
offence under Section 302 of IPC gets established
against accused 1 and 2 beyond reasonable doubt.
Accused 1 and 2 have been convicted for the
offences punishable under Sections 143, 148, 120B
of IPC. So far as offence under Section 120B is
concerned, the prosecution has relied on the
testimony of PW26 and the trial court has held his
evidence to be sufficient to convict accused 1 and
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2 for conspiracy. If testimony of PW26 is
assessed, it may be stated that his evidence is
wholly unreliable. PW26 was working as a security
guard in a petrol bank at Ramanagara. He has
stated that one day prior to the date of incident he
and CW16-Ananda came out of a hotel and saw
accused 1, 2 and 4 standing near Siddarameshwara
Traders and talking with each other to commit
murder of Chidananda. They also saw three or
four persons standing with accused 1 and 2. His
cross-examination shows Chidananda was his
relative and he was visiting his house once in three
days. If he had heard accused 1, 2 and 4 planning
to cause the death of Chidananda he could have
alarmed him. Even after the death of Chidananda
he had been to hospital and the police were there,
he did not inform the police immediately. He has
stated that he gave statement before the police
twenty days after the incident. This makes his
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testimony wholly unreliable. Therefore charge
under Section 120B does not get establish at all.
13. The investigating officer unnecessarily
included the offences under Sections 143, 148 of
IPC without there being any material. Merely
because there were nine accused these offences
appear to have been included. The trial court
could have applied its mind while framing the
charges. Another error is when the trial court
arrived at a conclusion that accused 3, 5 to 9 were
to be acquitted, it could not have invoked Section
149 of IPC against accused 1 and 2 only in
connection with the offence under Section 302 of
IPC and accused No.4 for the offence under
Sections 115 and 324 of IPC. This is where the
trial court has gone wrong. Therefore so far as
appellants 1 and 2 are concerned conviction for the
offences under Sections 143, 148 and 120B of IPC
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cannot be sustained and the sentence imposed on
them for these offences is required to be set aside.
14. From the above discussion, we proceed to
pass the following:
ORDER
(i) Appeals are partly allowed.
(ii) Conviction recorded by the trial
court against appellants for the
offence punishable under Section
302 of IPC and sentence imposed
on them is sustained.
(iii) Appellants are acquitted of the
offences punishable under Sections
120B, 143, 148 and sentence
imposed on them for these
offences is set aside.
(iv) The appellants are entitled to set
off for the period already they
have spent in the jail only for the
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purpose of Section 432 of Cr.P.C if
the Government takes a decision
to give them the benefit of
remission.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
CKL
