Criminal Appeal Nos. 543, 605, 612 and 801/2011. Case: B. Ganesh and Ors. Vs State of Karnataka. High Court of Karnataka (India)
| Case Number | Criminal Appeal Nos. 543, 605, 612 and 801/2011 |
| Counsel | For Appellant: Diwakar, Adv. for Diwakar Associates and For Respondents: B. Visweswaraiah, HCGP |
| Judges | Mohan M. Shantana Goudar and P. D. Waingankar, JJ. |
| Issue | Indian Evidence Act, 1872 - Section 106; Indian Penal Code 1860, (IPC) - Sections 120B, 143, 149, 201, 302, 364, 364A, 365 |
| Judgement Date | April 28, 2015 |
| Court | High Court of Karnataka (India) |
Judgment:
P. D. Waingankar, J.
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All these appeals are arising out of the judgment of conviction and order of sentence dated 20.04.2011 passed by the I Addl. Sessions Judge at Mysore in S.C. No. 18/2006, whereby all the accused Nos. 1 to 7 have been convicted for the offences punishable under Sections 143, 120-B, 364, 302, 201 r/w Section 149 of IPC and have been sentenced to undergo imprisonment for life and to pay fine.
Crl. A. No. 605/2011 is filed by accused Nos. 1 and 2, Crl. A. No. 543/2011 is filed by accused No. 3, Crl. A. No. 612/2011 is filed by accused Nos. 6 and 7 and Crl. A. No. 801/2011 is filed by accused Nos. 4 and 5 and. Since all these appeals are arising out of the same judgment, they are disposed of by this common judgment.
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The prosecution case in brief is stated as under:
On 18.09.2005 at about 10.30 p.m., Smt. Mahadevamma (P.W. 1) the mother of the deceased-Babu @ Balakrishna lodged a written complaint (Ex. P1) before Kuvempunagar Police Station, Mysore, alleging that her 4th son Babu was looking after the Cable Network business of his brother M.C. Balaram (P.W. 5); at about 10.00 p.m. on the same day, one Manjunath (P.W. 4) who was working with Balaram informed her that he alongwith her son deceased-Babu went to Das Wines as deceased had advanced money to Gangadaraiah, the proprietor of Das Wines. While they were in the Bar, at about 9.30 p.m., accused No. 1-Ganesh @ Rowdy Ganesh of Vidyaranyapuram alongwith six to seven other persons came in a Maruthi van, assaulted deceased-Babu and abducted him in a Maruthi van. She requested the police to trace her son who was abducted by accused No. 1-Ganesh @ Rowdy Ganesh and six others and to take action against them. On the strength of the complaint (Ex. P1), the police registered a case in Crime No. 82/2005 for the offences punishable under Sections 143, 365 r/w 149 of IPC against accused No. 1-Ganesh @ Rowdy Ganesh and six to seven others. Immediately, the CPI and PSI of Kuvempunagar Police Station after collecting information that the abductors have proceeded towards Srirampura in a Maruthi van, proceeded in the same direction alongwith their staff during the intervening night of 18/19-09-2005. At about 2.15 a.m., they came across a Golden Colour Maruthi van coming from Manandvadi link road towards Mysore. After seeing the Police Jeep, the Maruthi van took a turn towards Srirampura village. Immediately, the police chased the Maruthi van and at the same time, the Investigating Officer asked Garuda van, which was following the Police Jeep to come through the road leading towards left. In the meanwhile, the Maruthi van, which had proceeded further stuck in the middle of the road on account of heap of sand on the road. Immediately, the police staff surrounded the van in which there were seven persons, three of them who were armed with choppers attempted to assault the police. But in the meanwhile, Garuda van also came from the front side and thereby all the seven persons in a Maruthi van were apprehended. On interrogation, they disclosed their names. The police noticed the blood stains on the choppers which were held by accused Nos. 1 to 3 (MOs. 1 to 3). They also found blood stains on the rubber mat inside the Maruthi van and also on the clothes worn by the accused. A mahazar was drawn at that place in the presence of witnesses as per Ex. P11, whereunder three choppers which were in the possession of accused No. 1-Ganesh @ Rowdy Ganesh, Accused No. 2-Thontadaryaswamy and accused No. 3-Ravi alongwith golden colour Maruthi van bearing registration No. KA-16-M-1418 and blood stained rubber mat were seized. All the 7 accused persons were taken to Kuvempunagar Police Station for further investigation. During the course of further investigation, P.W. 30-Investigating Officer recorded the voluntary statements of accused Nos. 1 to 3 as per Exs. P39, P40 and P41. Accused Nos. 1 to 3 in their voluntary statements have stated that after abducting deceased-Babu @ Balakrishna, accused No. 1 relieved him of his gold chain, two gold rings and thereafter they killed him and cut the body into pieces and threw into Kapila river near Hommaragalli. They also volunteered that they would show the place where they had thrown the pieces of dead body, if they are taken to Hommaragalli. On the basis of voluntary statements of accused Nos. 1 to 3, the accused led the Investigating Officer and the staff near Kapila river bridge and showed the place where they had thrown the pieces of the dead body of deceased; they saw a trunk of a human body near the bank of the river. With the help of swimmers P.W. 8-Wazir Pasha and P.W. 9-Mahadevanaika, the other pieces of human body were searched and they were successful in tracing two hands, a head, a leg apart from the trunk of the human body, pant and key bunch in the pant pocket. P.Ws. 4 and 5 identified the parts of the dead body as that of deceased-Babu. An inquest panchanama was conducted as per Ex. P7 in the presence of witnesses namely P.Ws. 6, 19. The pieces of the dead body were sent for post mortem examination. The right leg could not be traced on that day. It was found floating in the river on 23.09.2005 which was removed from the river and seized under a panchanama. An inquest was drawn in the presence of pancha followed by post mortem examination. The Investigating Officer seized the blood stained clothes of accused Nos. 1 to 7 under a mahazar and sent it for Chemical examination to RFSL, Mysore alongwith other articles seized. He secured FSL report Ex. P25, post mortem reports Exs. P17 and P18 and after completing the other formalities of investigation, the charge-sheet was filed against accused Nos. 1 to 7 for the offences punishable under Sections 143, 365, 302, 201 r/w Section 149 of IPC.
The accused having denied the charges levelled against them, the prosecution in order to establish the charges examined P.Ws. 1 to 31, marked Exs. P1 to P81 apart from MOs-1 to 35. On behalf of the defence, Dr. Panduranga Shenoy, Assistant Professor, Forensic Medicine, Vinayaka Medical College, Salem, was examined as D.W. 1 to speak about the injuries found on the dead body and opinion as to cause of death. Exs. D1 to D12 were marked. The learned Sessions Judge upon hearing the submission made by the public prosecutor and the defence counsel and on appreciation of evidence, by the impugned judgment and order convicted all the accused of the charges levelled against them and sentenced them to undergo life imprisonment for the offence under Section 302 of IPC and also imposed sentence of imprisonment for other offences. Aggrieved by the judgment of conviction and order of sentence, these appeals have cropped up.
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We have heard the learned counsel appearing for the appellants/accused and learned High Court Government Pleader for the State.
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The learned counsel appearing for the appellants/accused Nos. 1 and 2 has argued before us that the Court below has not properly appreciated the evidence on record in its proper perspective, the learned Sessions Judge proceeded with a pre-occupied prejudicial mind as against accused Nos. 1 and 2. He would also submit that the motive is not proved by the prosecution. So also, the recovery of dead body at the instance of accused Nos. 1 and 2 is not proved. The so called witnesses to recovery panchanama Ex. P11 in respect of recovery of weapons from the possession of accused Nos. 1 to 3 namely P.W. 12 and P.W. 29 have turned hostile. There was no evidence to show the blood group of the deceased. For all these reasons, the learned counsel sought to set aside the conviction as against accused Nos. 1 and 2.
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Sri. Hashmath Pasha, learned counsel appearing for accused Nos. 6 and 7 taking us through the records would submit that no motive is attributed by the prosecution to accused Nos. 6 and 7, no weapon has been recovered from accused Nos. 6 and 7 nor the dead body was recovered at the instance of accused Nos. 6 and 7, that accused Nos. 6 and 7 were not at all involved in commission of the crime alongwith other accused and as such the conviction of accused Nos. 6 and 7 is not sustainable in law. Hence, learned counsel sought to set aside their conviction and to acquit them of all the charges levelled against them.
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The learned High Court Government Pleader while taking us through the entire evidence would submit that the prosecution has established the motive for the commission of the crime, last seen circumstance, recovery of dead body at the instance of accused from a river, recovery of weapons from the possession of accused and thereby all the accused have been rightly convicted by the learned Sessions Judge, there is no merit in the appeals and hence the learned High Court Government Pleader...
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