1 IN THE HIGH COURT OF KARNATAKA R KALABURAGI BENCH DATED THIS THE27H DAY OF JULY, 2020 PRESENT THE HON’BLE MR.JUSTICE B. A. PATIL AND THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR CRIMINAL APPEAL No.3576/2012 Between: Timmappa S/o Buddayya Age:
51. Years, Occ: Hotel Business R/o Chintalakunta (AP) now residing at Linganakhandoddi ... Appellant (By Sri B.C.Jaka, Advocate) And: The State of Karnataka Through CPI, Yeragera P.S. Raichur ... Respondent (By Sri Prakash Yeli, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment and sentence dated 09.03.2012 passed by the Fast Track Court-I at 2 Raichur in S.C.No.119/2011 and acquit the appellant in the said case. This appeal coming on for final hearing this day, B.A.Patil J., delivered the following:- JUDGMENT
Appellant – accused No.1 is before this Court challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Fast Track Court-I, Raichur in S.C.No.119/2011 dated 09.03.2012.
2. We have heard the learned counsel Sri B.C. Jaka for appellant – accused No.1 and the learned Additional State Public Prosecutor.
3. It is the case of the prosecution that the wife of accused No.1 had illicit relationship with deceased and by concealing they used to meet now and then in the land of one Kurbar Anjaneya which was taken on lease by them. Being enraged by the attitude of the 3 deceased, animosity developed and on 24.01.2011 at about 12.30 p.m., when deceased and the wife of accused No.1 had gone to very same land to meet and to satisfy their lust, after coming to know the said fact accused with an intention to do away with the life of the deceased Dodda Somayya went to the land at about 1.30 p.m. by taking cart peg and a sickle. It is further alleged that by going there to the land they saw the deceased was laying down under a palm tree and accused No.1 attacked on Dodda Somayya with cart peg. By seeing accused No.1, the deceased tried to flee away. Accused No.2 being frightened by the scene, threw away sickle there itself and ran away. Again accused No.1 thinking that deceased was teasing him as ‘Guddod’, he took the sickle thrown away by accused No.2 and pierced into the right eye of the deceased and caused grievous bleeding injuries and he died on the spot. The wife of the deceased filed complaint against unknown person. A case was registered in Crime 4 No.8/2011. Thereafter, after investigation, the charge sheet came to be filed. The learned Magistrate took the cognizance and committed the case after following the formalities. On committal, the learned Sessions Judge took the cognizance and after securing the presence of the accused, after hearing both the parties, framed the charges. Accused pleaded not guilty and they claimed to be tried and as such the trial was commenced.
4. The prosecution in order to establish its case, got examined 11 witnesses and got marked 14 documents, so also 7 material objects. Thereafter, statement of the accused were recorded by putting incriminating materials as against them. The accused denied the same. Accused have not chosen to lead any defence evidence and have not got marked any document. After hearing the arguments, the trial Judge acquitted accused No.2 holding that there is no evidence as against him and convicted accused No.1 for 5 the offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter for brevity referred to as ‘IPC’). Challenging the legality and correctness of the same, the accused No.1 is before this Court.
5. The main grounds urged by the learned counsel for the appellant – accused No.1 are that the judgment of conviction and order of sentence passed by the trial Court is contrary to material placed on record and the same is liable to be set aside. It is his contention that to prove the case of the prosecution, the prosecution got examined PW-9 as an eyewitness to the alleged incident but the conduct of PW-9 itself creates a doubt that she is the eyewitness and she has witnessed the said incident. It is his further submission that initially the complaint has been registered against unknown person. Though the alleged incident has been taken place on 24.01.2011, the eyewitness statement has been recorded only on 07.03.2011 and prior to the 6 said dates she has not disclosed of having seen the incident of the act of the accused to any other person including the members of the family. Under such circumstances, the evidence of this witness is not cogent and acceptable.
6. It is his further submission that the alleged incident has taken place on 24.01.2011 and the witnesses of circumstance has been recorded only on 05.03.2011. If really the said witness has seen the accused and the deceased in a tea shop and subsequently they came by holding the weapons, definitely when the death of the deceased has been wide spread, they could have suspected and intimated the same to the police. It is his further submission that the trial Court, without looking into the truthfulness of the case, has wrongly convicted the accused. It is his further submission that no independent witnesses have been examined by the prosecution or the witnesses who 7 have been examined before the Court are interested and related witnesses. It is his further submission that there is only suspicion and on the basis of suspicion the trial Court has convicted the accused. On these grounds he prayed to allow the appeal and set aside the impugned judgment and acquit the accused.
7. Per contra, learned Additional State Public Prosecutor vehemently argued that PW-9 is an eyewitness to the alleged incident. She has seen the accused assaulting with cart peg and subsequently with the sickle on the eyes of the deceased. It is his further submission that she had gone to see the dead body along with the people and due to fear she has not disclosed the said fact to anybody. The said evidence appears to be natural and probable and the trial Court, by appreciating the said evidence has come to a right conclusion that it is accused No.1 who has assaulted 8 with cart peg and sickle and caused the death of the deceased.
8. It is his further submission alternatively that even if the said evidence is not accepted, there is evidence to show that there was some animosity between the accused No.1 and the deceased, as the wife of the accused No.1 used to secretly meet the deceased to satisfy their illicit relationship. It is his further submission that other witnesses have also substantiated the said fact. He further submitted that the accused has not explained about the said aspect during the course of trial. Looking from any angle the evidences produced clearly indicate that it is accused who has committed the alleged offence. On these grounds he prayed that the appellant has not made out any good ground so as to interfere with the judgment of the trial court. The judgment deserves to be confirmed. 9
9. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records.
10. It is the case of the prosecution that the wife of accused No.1 had illicit relationship with the deceased and in that light the accused being enraged developed animosity, on 24.01.2011 at about 12.30 p.m. assaulted the deceased with cart peg and subsequently when accused No.2 ran away by throwing the sickle, he used the same sickle and assaulted on the eyes of the deceased and caused grievous bleeding injuries and he died. To prove this case, the prosecution has relied upon the evidence of PW-9 who is said to be an eyewitness and a star witness in this case. On perusal of the evidence of PW-9 which shows that she has deposed before the Court that she knows the accused and she has also spoken with regard to the 10 illicit relationship with the wife of accused No.1. She has deposed that she had landed property and on the day of the alleged incident at about 12.00 noon she has gone to her land and there she saw the deceased Dodda Somayya sitting under palm tree in the land cultivated by the accused and there was tobacco crop. She has further deposed that when she was plucking the leaf of tobacco in her land, she saw the wife of accused No.1 coming over to the land cultivated by her husband to the place where the deceased was sitting. She has further deposed that she could see them from her land. She has further deposed that half an hour thereafter the wife of accused No.1 went back towards the village. After that the deceased laid down on the ground and thereafter these two accused came from hillock side to their land and accused No.1 Timmappa was holding cart peg in his hand and accused No.2 Jagannath was holding sickle and after coming over there, accused No.1 assaulted the deceased Dodda Somayya with cart peg 11 four to five times, on seeing Timmappa accused No.1 assaulting, accused No.2 Jagannath threw away the sickle and ran away from the spot and accused No.1 took that sickle and pierced into the right eye of Dodda Somayya and thereafter he went towards the hillock side. During the course of cross-examination, she has admitted that PW-4 Bheemanagouda has also come to the Court on that day. She has further admitted that for the first time she is deposing before the Court itself and that she has not stated these facts before anybody. She has further admitted that towards the southern side of her land, land of Bheemanagouda and that of Hussainappa are situated. She has also deposed that she has not stated about this incident before any elders of the village or before the family members of the deceased on that day or any other day. She has further deposed that she had gone to see the body immediately after coming to know and due to fear she did not disclose the said act of the accused. 12
11. A perusal of evidence of this witness does not repose any confidence. It is well settled proposition of law that while appreciating the evidence, the Court has to look into the conduct of the witnesses as per Section 8 of the Evidence Act. In that light, if the evidence of PW-9 is looked into, when she saw the accused assaulting the deceased with cart peg, neither she makes any hue and cry or she goes and try to pacify or rescue the deceased. In this regard the conduct of this witness appears to be unnatural and not probable.
12. Be that as it may, even during the course of cross-examination, she has deposed that she has not stated about the said incident before any elders of the village or before the family members of the deceased on that day or any other day. If any person in a natural course witnesses a person committing murder brutally by assaulting four to five times with cart peg and subsequently with the sickle, definitely the said incident 13 which has been noticed could have been disclosed either to the villagers or to the family members or even to the kith and kin of the deceased.
13. PW-9 has admitted that she had gone to see the dead body after coming to know about his death along with the villagers. When she is so dare enough to go and see the dead body, under such circumstances, the contention of the learned Addl. SPP that due to fear she has not disclosed the said fact to either of the family members of the deceased or to the elders of the village does not appear to be acceptable and does not have any force. For this proposition of law, we would like to rely upon the decision of the Hon’ble Apex Court in the case of Lahu Kamlakar Patil and another vs. State of Maharashtra reported in (2013) 6 SCC417wherein at paragraph nos.21, 26 and 27 it has been held as under: “21. The attack is based on the grounds, namely, that the said witness ran away from the spot; that he did not intimate the police about the 14 incident but, on the contrary, hid himself behind the pipes near a canal till early morning of the next day; that though he claimed to be eye witness, yet he did not come to the spot when the police arrived and was there for more than three hours; that contrary to normal human behaviour he went to Pune without informing about the incident to his wife and stayed for one day; that though the police station was hardly one furlong away yet he did not approach the police; that he chose not even to inform the police on the telephone though he arrived at home; that after he came from Pune and learnt from his wife that the police had come on 21.2.1988, he went to the police station; and that in the backdrop of such conduct, his version does not inspire confidence and deserves to be ignored in toto.
26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start 15 wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded.
27. Keeping in mind the aforesaid, we shall proceed to scrutinize the evidence of PW-2. As is evincible from his deposition, on seeing the assault he got scared, ran away from the hotel and hid himself behind the pipes till early morning. He went home, changed his clothes and rushed to Pune. He did not mention about the incident to his family members. He left for Pune and the reason for the same was also not stated to his family members. He did not try to contact the police from his residence which he could have. After his arrival at Pune, he did not mention about the incident in his sister-in-law’s house. After coming back from Pune, on the third day of 16 the occurrence, his wife informed that the police had come and that Bhau, who had accompanied him, was dead. It is interesting to note that in the statement under Section 161 of the Code, PW-2 had not stated that he was hiding himself out of fear or he was scared of the police. In the said statement, the fact that he was informed by his wife that Bhau was dead was also not mentioned. One thing is clear from his testimony that seeing the incident, he was scared and frightened and ran away from the hotel. He was frightened and hid himself behind the pipes throughout the night and left for home the next morning. But his conduct not to inform his wife or any family member and leaving for Pune and not telling anyone there defies normal human behaviour. He has also not stated anywhere that he was so scared that even after he reached home, he did not go to the police station which was hardly at any distance from his house. There is nothing in his testimony that he was under any kind of fear or shock when he arrived at his house. It is also surprising that he had not told his family members and he went to Pune without disclosing the reason and after he arrived from Pune and on being informed by his wife that his companion Bhau had died, he went to the police 17 station. We are not oblivious of the fact that certain witnesses in certain circumstances may be frightened and behave in a different manner and due to that, they may make themselves available to the police belatedly and their examination gets delayed. But in the case at hand, regard being had to the evidence brought on record and, especially, non-mentioning of any kind of explanation for rushing away to Pune, the said factors make the veracity of his version doubtful. His evidence cannot be treated as so trustworthy and unimpeachable to record a conviction against the appellants. The learned trial court as well as the High Court has made an endeavour to connect the links and inject theories like fear, behavioural pattern, tallying of injuries inflicted on the deceased with the Post Mortem report and convicted the appellants. In the absence of any kind of clinching evidence to connect the appellants with the crime, we are disposed to think that it would not be appropriate to sustain the conviction.” Further, the Hon’ble Apex Court in the case of Kuna alias Sanjaya Behera vs. State of Odisha reported 18 in (2018) 1 SCC296at paragraph No.20 has held as under: “20. It is intriguing that though PW1claimed that the duration of the incident was about one hour and that the appellant first did assault the deceased from behind twice, on which he fell down, whereafter the appellant sat on his chest and throttled him and that co- accused (aunt of appellant and PW1 covered the mouth of deceased to facilitate his suffocation to death, he did not utter a sound or make a shriek or raise any alarm either to prevent the occurrence or to muster assistance from the inhabitants in the locality. It is more so, as he admitted that there were about 150 to 200 inhabitants, lodging nearby apart from the fact that the houses of his relatives as well of the deceased were almost in the same campus. His plea that he did not disclose the incident to others immediately as he had been threatened by the appellant, does not explain or justify in any manner whatsoever his inexplicable silence or indifference during the time of commission of occurrence.” 19 14. The evidence of PW-9 indicates that during the alleged incident she was there in her land wherein tobacco crop has been grown and she was plucking the leaf of tobacco in her land. When a person is working and plucking the tobacco leaves, he/she will be having concentration on the plucking of the tobacco leaves because each leaf has to be separately identified and plucked and it has to be put into the basket. The narration of the incident which has been stated itself appears to be very strange and unnatural. She says that she could see from her land that wife of accused No.1 coming over there and after half an hour she went back towards the village and that the deceased laid back on the ground and thereafter accused came from hillock side towards the deceased and assaulted him with cart peg and thereafter by seeing the same accused No.2 threw away the sickle and picking up that particular sickle accused No.1 assaulted on the eyes of 20 the deceased. This appears to be unnatural and not probable.
15. Be that as it may, even the records indicate that the statement of the witnesses have been recorded on 05.03.2011. One of the circumstances on which the prosecution has relied upon is that the accused who was running hotel wherein wife of the accused No.1 and the deceased also came there and they have ordered for tea and special tea has been given to the deceased at the request of the wife of accused No.1. So in that light when on 05.03.2011 itself the suspicious statement has been recorded by the Investigating Agency, then thereafter they have not apprehended the accused and only on 07.03.2011 the accused has been apprehended and the statement of PW-9 i.e., this material witness has been recorded. That itself indicates the fact that subsequently the said witness has been planted only to suit the case of the prosecution and to convict the 21 accused. Admittedly, the said witness has not told the said fact to anybody and all of a sudden from where she had gathered the courage to go and tell before the police has also not been elicited from the mouth of this witness. Under such facts and circumstances which has been relied upon by the prosecution to substantiate the case of the prosecution does not stand and the same is liable to be rejected.
16. Even the evidence of PW-10 discloses that the accused has made a confession that the deceased Dodda Somayya is causing lot of headache to him and he would kill Dodda Somayya one or the other day and the said fact has been told to him about 11 months back. He has further deposed that one day when he had gone out to attend the nature call he saw accused No.1 sitting under a tree and he enquired him as to whether he had his dinner, he told him that some problem is confronting his mind and he is not feeling 22 like taking any food. Accused No.1 further told him that he would tell him one thing if he repose confidence on him that he would not disclose it before anybody. Then PW-10 told him that he will repose confidence. Then the accused No.1 told him that on that day he saw deceased Dodda Somayya going to the land and thereafter his wife also following Dodda Somayya to the land and after having seen them going to the land, he along with accused No.2 also gone towards the hillock side and after the wife of accused No.1 left the land, he confirmed that the deceased alone was sitting under a tree and that he assaulted Dodda Somayya with cart peg and Jagannath had accompanied him and was standing there and thereafter Jagannath threw away sickle and ran away and further told him that by using the same sickle he again assaulted and pierced the said sickle on the right eye of Dodda Somayya. 23
17. The evidence of this witness creates a doubt. As per this evidence though he has disclosed the said fact, he might have stated the same within a short span of the incident and till 43 days he has neither suspected him nor he has informed the police about the said incident and confession of accused No.1. If really the accused No.1 has confessed, in that event when already the village people were knowing that the murder has been taken place, then under such circumstance definitely he could have informed either to the relatives of the deceased or to the police. In that light his evidence appears to be not acceptable.
18. Be that as it may, even assuming that the accused has made a confession, the confession is usually made with a person either to the elderly person in the village or with whom he is having some close affinity or conviction, but how the accused reposed confidence to confess the said offence before PW-10 is a 24 suspicious circumstance. Be that as it may, in the confession the entire incident has been narrated by the accused. He is intending to confess that what he has done is wrong but he could not state I have done something wrong incident and that he narrates entire story that too when he is going to attend nature call and by sitting somewhere. Under such circumstances, this witness also appears to be a planted witness to suit the case of the prosecution. It is well settled proposition of law that if there is a delay in recording the statement of the witnesses then the benefit of doubt should go to the accused.
19. Looking from any angle the evidences which has been produced does not repose the confidence of this Court to hold that it is the accused who has committed the alleged murder of the deceased. We are conscious of the fact that how so strong may be the suspicion, the prosecution has to prove the case beyond 25 all reasonable doubt. If any slightest doubt arises in the case of the prosecution, then the benefit of doubt has to be given to the accused and the accused is entitled to be acquitted. We feel that when the main evidence itself is lacking and the evidence of eyewitness has not reposed any confidence to accept the same, then the other circumstances on which the prosecution is relying upon also appears to be not acceptable.
20. Though the learned Addl. SPP by relying upon the evidence of PW-3 for recovery of M.O.7 cart peg and M.O.8 sickle as per Ex.P-5 contended that the recovery evidence is also there, but on perusal of the evidence of PW-3, he has deposed before the Court that CPI came to their village to the land of Kurubar Anjaneya, himself and CW-7 were summoned to the said land and police and accused were there and they asked as to whether they know the accused, they told that they know the accused and accused removed the 26 cart peg kept beneath the palm tree and handed over the same to the police saying that with that cart peg he had assaulted Dodda Somayya. At a distance of 3 to 4 feet from that place, he went and picked up one sickle and handed over the same to the police stating that with that he had pierced on the eye of the deceased. During the course of cross-examination he has deposed that by the time they went to the land, except police and accused there were no other people in the land. That itself indicates that the said evidence is not satisfying the ingredients of Section 27 of the Evidence Act. The discovery of the fact which is within the exclusive knowledge of the accused has to be established by the prosecution that the accused has to make a voluntary statement before the Investigating Officer and in pursuance of the said voluntary statement the accused has to lead the police and the panch witnesses then thereafter he has to produce the incriminating article which has been used for the purpose of commission of 27 the alleged offence. So none of the ingredients of Section 27 of the Evidence Act as stated have been satisfied by the prosecution. In that light, we are of the considered opinion that the contention of the learned Addl. SPP regarding recovery of incriminating materials at the instance of the accused is liable to be rejected.
21. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court though acquitted accused No.2, without there being any cogent and acceptable evidence has come to a wrong conclusion and has wrongly convicted accused No.1. The same requires to be interfered with in the hands of this Court.
22. In that light, the appeal is allowed. The judgment of conviction and order of sentence passed by Fast Track Court-I, Raichur in S.C.No.119/2011 dated 09.03.2011 is set aside and accused No.1 – appellant 28 herein is acquitted of all the charges levelled against him. His bail bond and surety bond stand cancelled.
23. The learned District Judge is hereby directed to refund the fine amount, if any, paid by the appellant – accused No.1 on proper identification and acknowledgement. Send back the trial Court records forthwith. Sd/- JUDGE Sd/- JUDGE swk