Criminal Appeal No. 635/2007. Case: State Vs S. Devaraj and Ors.. Karnataka High Court

Case Number:Criminal Appeal No. 635/2007
Party Name:State Vs S. Devaraj and Ors.
Counsel:For Appellant: Vijayakumar Majage, Addl. S.P.P. and For Respondents: H. Mohan Kumar, Adv.
Judges:Mohan M. Shantana Goudar and Budihal R.B., JJ.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Sections 156, 162, 428; Indian Evidence Act, 1872 - Section 3; Indian Penal Code 1860, (IPC) - Sections 109, 114, 120(B), 143, 147, 148, 149, 300, 302, 34
Judgement Date:July 10, 2015
Court:Karnataka High Court
 
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Judgment:

Budihal R.B., J.

  1. This appeal is preferred by the State against the respondents-accused Nos. 1 to 7, being aggrieved by the judgment and order of acquittal dated 16.11.2006 passed by the Fast Track Court-I at Mandya in S.C. No. 87/2003. The State has also filed an application seeking leave to prefer the appeal and this Court by its order dated 11.09.2007 has not granted the leave to prefer the appeal as against respondent Nos. 3 to 7. Hence, this appeal is for consideration as against respondent Nos. 1 and 2/accused Nos. 1 and 2 only.

  2. PW-1/Shanthamma has lodged the complaint as per Ex. P-1 dated 18.01.2003. Somasundara, the brother-in-law of the complainant, married one Mayamma of Biledegulu Village and said couple having two children namely, Pallavi and Praveen, who are aged 13 years and 11 years respectively. In connection with the landed property, since ten years there was a dispute between Somasundara i.e., the deceased and accused Nos. 3 to 5. The case was decided in favour of deceased Somasundara at Mandya Court and he was cultivating the said landed property. As the case was decided in favour of the brother-in-law of the complainant, the said accused persons were having ill-will and they were conspiring to do something in the matter. On 18.01.2003 at about 9.00 a.m. Somasundara called the complainant to go to the land for cutting the crop. Accordingly, complainant, Somasundara and Mayamma, who was the wife of Somasundara, went to the land and they were cutting the paddy crop and it was about 10.00 a.m. At the same time, Devaraj/Kariya-accused No. 1 and Anand-accused No. 2 came holding machchu in their hands and asked Somasundara that why they are cutting the paddy and called them to come out of the land, otherwise they will show them a way, stating so they came in the land. Seeing them and because of the fear, the complainant, Somasundara and Mayamma came to the road side, at that time, accused No. 1 - Devaraj referring to Somasundara that he can litigate if he is alive and if he is finished off, the dispute will come to an end, stating so assaulted on the head of Somasundara with machchu. When Somasundara was struggling to avoid the blow, sustained bleeding injury to his head. Accused No. 1 again assaulted on the hands of Somasundara with machchu. Mayamma, when went to rescue of Somasundara, accused No. 2 - Anand assaulted her with machchu on the head and upper limbs and Somasundara and Mayamma collapsed on the ground. The complainant made hue and cry, at that time accused Nos. 1 and 2 ran away towards Allakere holding machchu in their hands. Immediately, the complainant rushed to the injured; Mayamma has already expired and Somasundara was still alive. She brought the water from the nala and put into the mouth of Somasundara, but he also expired. In the meanwhile, one Ningaiah came from the neighbouring land stated that they were planning since day before yesterday; accordingly, they have finished off the couple and asked the complainant to go and inform the Police over phone. Complainant went to the village and through the shop of one Bhatta, informed the Police over phone about the incident. It is also stated in the complaint that accused Nos. 3 to 7 had the criminal conspiracy with an intention to commit the murder of Somasundara and his wife, and because of that reason only, they secured accused Nos. 1 and 2 from Bengaluru and instigated them to commit the murder of the deceased, with an intention to grab the property. Hence, she has requested to take action against the accused persons. On the basis of the said complaint, case has been registered against accused Nos. 1 to 7 in Basaralu P.S. in crime No. 5/2003 for the offences punishable under Sections 143, 147, 148, 120(B), 114, 302 read with Section 149 of IPC and issued the FIR as per Ex. P-14. The Investigating Officer after completing the investigation filed the charge sheet against the said accused persons for the offences punishable under Section 143, 147, 148, 114,120(B), 302 r/w 149 of IPC. The Trial Court framed the charge against accused Nos. 1 and 2 for the offence punishable under Section 302 of IPC, against the remaining accused for the offence under Section 120B of IPC and against accused Nos. 3 to 7 for the offence punishable under Section 109 read with Section 114 of IPC.

  3. In support of its case, prosecution has examined in all 26 witnesses as PWs-1 to 26, got marked the documents as per Exs. P-1 to P-72, and materials objects as per MOs. 1 to 22 and the defence got marked documents as per Exs. D-1 to D-4.

  4. After considering the merits of the case, ultimately, the Trial Court acquitted all the accused persons from the said charges. Being aggrieved by the same, the State has come-up in appeal challenging the legality and correctness of the judgment and order of acquittal passed by the Trial Court, on the grounds as mentioned in the appeal memorandum.

  5. Heard the arguments of Sri Vijaykumar Majage, learned High Court Government Pleader and Sri Mohan Kumar, learned counsel appearing for respondent Nos. 1 and 2/accused Nos. 1 and 2.

  6. The Learned High Court Government Pleader has submitted that the entire approach of the Trial Court in appreciating the case is perverse and capricious. Though there are five eye-witnesses to the incident and their evidence is consistent, cogent and worth believable, the Trial Court has wrongly read their evidence and disbelieved the evidence of the eye-witnesses. He has also submitted that recoveries are effected; M.Os. 5 and 7 - machchu, and M.O. 6 - a pair of chappals were seized as per the voluntary statement given by the respondent-accused Nos. 1 and 2. It is also his submission that accused Nos. 1 and 2 also led the Police and panchas to their house and produced the blood stained clothes, which were seized under the mahazar Ex. P-7 and the panch witnesses to the said mahazar are PWs-10 and 14, who have supported the case of the prosecution. With regard to the said recovery of the material objects, even in the cross-examination, nothing has been elicited from the mouth of the panch witnesses to disbelieve their version and the same was not taken into consideration by the Trial Court. He has submitted that even the FSL reports and serology reports also show that the said material objects were having the blood stains, which are ascertained as human blood. So far as the blood grouping is concerned, in the report it is mentioned that as the stains are disintegrated, the grouping of the blood was not determined. He has also submitted that the evidence of PWs-3 and 9, who are the children of the deceased, have been wrongly rejected by the Trial Court by assigning wrong reasons. He has submitted that the medical evidence given by the doctors - PWs-6 and 19, and the Post Mortem reports marked in the case, are also consistent with the oral account of the prosecution witnesses. Hence, he has submitted that prosecution has established its case beyond all reasonable doubt; even then, same was disbelieved by the Court below. He also drew the attention of this Court to the photographs produced at Ex. P-26 to P-72 and lastly submitted to allow the appeal and to convict the respondents-accused Nos. 1 and 2 for the said offences.

  7. Per contra, learned counsel appearing for the respondents-accused Nos. 1 and 2 during the course of his arguments submitted that the Trial Court has properly appreciated the oral and the documentary evidence produced in the case and rightly acquitted the respondent-accused. He has submitted that though it is the case of the prosecution that the complainant PW-1 informed the Police over phone about the incident at 10.30 A.M. itself, even then, the FIR came to be registered at 12.00 noon and though the Magistrate Court is at the distance of about 25 kms the FIR was produced before the Magistrate at 9.30 p.m. Hence, there is a delay in registering the FIR and also producing the FIR before the concerned Magistrate Court, which aspect is not properly explained by the prosecution. It is also his submission that the evidence of alleged eye-witnesses i.e., PWs-1, 3, 9, 15 and 16 are contradictory to each other and not worth believable. It is also his submission that looking to the post mortem report and the oral evidence of PW-19, it show that the weapons M.Os. 5 and 7 were lying at the spot itself and they were not recovered on the voluntary information given by accused Nos. 1 and 2. Hence, he has submitted that the evidence of prosecution witnesses is not worth believable, serious doubts arises as to the case of the prosecution and the same was rightly appreciated by the Trial Court and acquitted the respondents-accused. There is no merit in the appeal preferred by the State, hence, he has submitted to dismiss the appeal.

  8. We have perused the judgment and order of acquittal passed by the trial Court, oral and documentary evidence produced by the prosecution as per P.Ws. 1 to 26 and Exs.P. 1 to P. 72 respectively and also the documents Exs.D. 1 to D. 4 got marked by the defence during the course of examination.

  9. Looking to the allegation in the complaint Ex. P. 1 that accused Nos. 1 and 2 at the instigation of accused Nos. 3 to 7 committed the murder of deceased Somasundara and his wife Mayamma, let us examine the material so as to ascertain whether the death of Somasundara and his wife Mayamma is the homicidal death or not.

  10. Perused the evidence of P.W. 6 Dr.K.S. Satish, who conducted P.M. examination over the dead body of the deceased Somasundara and the P.M. report as per Ex. P. 4. In his evidence, he has deposed that on 18.1.2003, he conducted P.M. examination over the dead body of the deceased Somasundara in between 3.30 and 5.30 p.m. He has mentioned seven external injuries, out of which injury No. 6 is scratch wound from anterior aspect of right shoulder joint to sternum and injury Nos. 1 to 5 and 7 are mentioned as incised injuries. He has further...

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