Ballashetty vs The State of Karnataka

This appeal by the victim is directed against the judgment and order dated 23.11.2010 in S.C. No. 31/2009 passed by the Fast Track Court, Kollegal, sitting at Chamarajanagar, whereby all accused Nos. 1 to 6 are acquitted of the offences under Sections 302, 201 r/w Section 34 of IPC.

The facts which gave rise to this appeal are stated as under:

"The deceased-Somanna was working as a coolie in the land of one Kamashetty of Honnur Village in Yelandur Taluk, Chamarajanagara District. A civil suit was pending between the children of Kamashetty and the accused and children of Dasashetty. The deceased was to give evidence in the aforesaid suit in favour of children of Kamashetty and against the accused. After coming to know of the same, accused had threatened of dire consequences to the life of deceased-Somanna. Deceased-Somanna brought it to the notice of elders, who advised him to go ahead and to speak truth before the Court and assured him that if accused were to create any problem, a panchayath would be convened. In the meanwhile, at the instance of children of Kamashetty, witness summons was issued to deceased-Somanna. Enraged by the issuance of witness summons in order to get rid of deceased-Somanna, while he was alone in his house, in the intervening night of 30.10.2008 and 31.10.2008 at about 1 O''clock, all the accused with their common intention to commit murder of deceased, assaulted him with clubs, caused his death and in order to cause disappearance of evidence, threw the dead body into a garbage pit of accused No. 1 and thereby all the accused committed offences punishable under Sections 302, 201 r/w Section 34 of IPC. The first information was lodged by brother of deceased. During the course of investigation, all the accused were arrested and charge-sheet came to be filed against them for the aforesaid offences."

To prove the charges, prosecution in all examined 13 witnesses as PW-1 to PW-13, marked Exs. P-1 to P-6 apart from M.Os. 1 to 3. The learned Sessions Judge on appreciation of evidence acquitted the accused for offences under Sections 302, 201 r/w Section 34 of IPC by the impugned judgment.

We have heard learned Government Pleader for the State and learned counsel for respondents/accused. We have gone through evidence and the impugned judgment.

Before proceeding to appreciate the evidence, it would be relevant to state that accused Nos. 1 to 4 are direct brothers. Accused No. 5 is the son of accused No. 3 and accused No. 6 is the son of accused No. 2.

P.W. 1-Ballashetty (first informant) is the brother of deceased-Somanna, P.W. 2-Uma is the wife of deceased, P.W. 3- Nanjashetty is the neighbour of accused and deceased, P.W.5- Kempagamashetty is the son of Kamashetty, in whose land deceased was working as coolie, P.W. 8- Nagendramurthy is the Doctor who conducted Post Mortem examination on the dead body of deceased, P.W. 13-S.N. Suresh Babu, CPI, Yelandur, is the Investigating Officer who filed charge-sheet.

P.W. 1-Ballashetty would depose that there was a civil dispute between the children of Kamashetty and the children of Dasashetty. In the said suit, deceased-Somanna was to give evidence in favour of children of Kamashetty and therefore, he was given life threat by accused. When deceased brought it to the notice of CW.6-Gurusiddashetty and CW.7-Nanjundaswamy, they advised him to speak truth assuring him to convene panchayath, if accused were to create any problem. His further evidence would go to show that while he was in Narayana Hrudayalaya, Bangalore for heart operation of his daughter, he received a message over telephone from his son informing that Somanna had been murdered and his dead body was lying in a garbage pit in front of house of accused No. 1-Rangashetty. P.W. 1 came from Bangalore to Honnur village late in the night and saw the dead body of his brother (deceased-Somanna) and on 03.11.2008, he lodged a complaint as per Ex. P-1.

In cross-examination, he admits that deceased-Somanna was working as a coolie in the land of Kamashetty. He has also admitted that after seeing the dead body, he discussed with P.W. 4- Gurusiddashetty and elders of village and decided against whom first information has to be lodged and thereafter, he lodged first information (Ex. P-1) against accused with Yelandur Police Station. He further deposed that P.W. 3-Nanjashetty had not informed him anything about the murder of deceased-Somanna.

P.W. 2-Uma is the wife of deceased-Somanna. P.W. 2 has deposed that her husband was working as a coolie in the land of Kamashetty, accused were known to her, a civil dispute was pending in the Court of Yelandur between children of Dasashetty and children of Kamashetty. She has also spoken that she was told by her husband that he was to depose as witness in favour of children of Kamashetty, he was given life threat by accused, even then, he was inclined to speak truth and give evidence. Further, she has deposed that when she had been to her parents house along with her children for Deepavali festival, she received information that her husband was murdered and dead body was thrown into garbage pit in front of house of accused No. 1-Rangashetty. She returned to Honnur village along with her daughter and saw the dead body of her husband with injuries on face. She has admitted in the cross-examination that P.W. 1 and panchayathidars discussed and decided as to the manner in which she should give her statement.

P.W. 3-Nanjashetty has deposed that he was aware of the civil dispute between children of Dasashetty and children of Kamashetty. The deceased was to depose on behalf of children of Kamashetty in the said suit and in that regard, there was a quarrel between accused and deceased. He has deposed that on 30.10.2008, there was Deepavali festival, wife and children of deceased had gone to her parents house, P.W. 3 and deceased after bursting crackers went to their houses to sleep and at about 1 O''clock (midnight), P.W. 3 came out of his house for urination, he heard noise from the house of deceased, out of curiosity, he waited for about 10 minutes and he was hiding. After 10 minutes, accused brought deceased-Somanna from the house in a street light, he noticed bleeding injuries on his face and a cloth that was stuffed into his mouth. He was taken towards garbage pit of accused No. 1, out of fear of accused, he returned to his house and locked door. P.W. 3 has deposed that since P.W. 1, the elder brother of deceased had been to Bangalore, he did not disclose the incident to anybody else and on 02.11.2008, at about 12.00 noon, he came to know that dead body of deceased was lying in the garbage pit of accused No. 1-Rangashetty, he saw the dead body with injuries on face, P.W. 1 who was informed by his son over telephone came from Bangalore and lodged first information.

During cross-examination, P.W. 3 has admitted that 10 days after the recovery of dead body, his statement came to be recorded and till such time, he did not disclose the incident of taking the dead body of deceased by the accused towards garbage pit to anyone else. His evidence in the cross-examination would further reveal that while deceased used to be alone in his house, he used to sleep without putting latch of the door and on that night when P.W. 3 came out for urination, the door of the house of deceased was open.

P.W. 4-Gurusiddashetty has deposed regarding the civil dispute pending between children of Dasashetty and children of Kamashetty and that deceased was to give evidence in favour of children of Kamashetty and that deceased was given life threat by the accused. Further, he has deposed that while deceased was talking to P.W. 4-Gurusiddashetty and CW.7-Nanjundaswamy, P.W. 4 told him that a panchayath would be convened and the deceased was advised to give evidence and to speak truth. He has further deposed that on 02.11.2008 at about 11.30 a.m., dead body of deceased-Somanna was traced in the garbage pit of accused No. 1 with injuries all over the face and at that time, P.W. 4 realized that he had been killed by accused.

P.W. 5-Kempagamashetty, son of Kamashetty has deposed that he knew accused and deceased-Somanna, that there was a civil dispute with regard to Sy. No. 599/01 measuring 1 acre and 4 guntas of land in Yelandur Court between the children of Kamashetty and accused children of Dasashetty, that he had requested deceased to give evidence on their behalf in the Court since he was working as coolie in their land, he had agreed to give evidence, after coming to know of the same, the accused had quarreled with deceased-Somanna and had given life threat to deceased to prevent from deposing on behalf of the children of Kamashetty and when the deceased brought to the notice of elders, he was advised to give evidence and speak truth and if some problem is created by the accused, they would convene a panchayath. P.W. 5 has deposed that after 4-5 days, dead body of deceased was lying in the garbage pit of accused No. 1. During cross-examination, he has admitted that it is only after deceased gave evidence before the Court, enemity between accused and the deceased developed. He admits his presence during inquest and he had attested inquest report.

P.W. 6-Kemapraju is another pancha to the inquest panchanama Ex. P-3 and Ex. P-4-siezure panchanama, under which nicker and shirt of deceased (M.Os-1 and 2) were seized.

P.W. 7-Chikkaswamy is the pancha to seizure panchanama Ex. P-5 under which a club (M.O-3) was recovered from the house of accused No. 2, on the basis of his voluntary statement. During cross-examination, he has deposed that his signature to Ex. P-5 was taken in the police station by showing the club which was kept on the table of Sub-inspector.

P.W. 8-Nagendramurthy is the Doctor who conducted Post Mortem Examination on the dead body of deceased-Somanna and issued Post Mortem Report as per Ex. P-6. During post-mortem examination, he had noticed following injuries on the dead body:-

"i) Lacerated wound present over the left frontal area of the scalp 2 x 1 cm, injury is ante-mortem in nature.

ii) Lacerated wound present over the right angle of mouth extending upto neck of mandible 4 x 2.5 cm, (mandible exposed), injury is ante-mortem in nature.

iii) Small lacerated injuries 3 in No. 0.3 x 0.2 cm present over the left ear. Injury is post mortem in nature."

He opined that the cause of death is due to shock as a result of complications of the injuries sustained. He further opined that the death might have been caused within 72 to 96 hours before the commencement of post-mortem examination. He has also spoken for having given further opinion (Ex. P-7) as to the cause of death of the deceased. The suggestion made to him during the cross-examination that all the injuries were post mortem in nature has been denied by him. The accused have not denied that the death was homicidal. P.W. 8 was subjected to lengthy cross-examination on injuries found on the dead body.

P.W. 9-Raju is another pancha to Ex. P-5 in respect of seizure of MO-3 at the instance of accused No. 2 from the house of deceased and that he identified his signature as per Ex. P-5(b). During cross-examination, he has admitted that no disclosure statement was made by accused No. 2 before him while he was in the police custody. He further deposed that the police took out a club from the house of deceased and was sealed in a white cloth. Though his evidence is not clear, but if we read his evidence as a whole, it appears that MO-3 was seized at the instance of accused No. 2 from the house of deceased, but not on the basis of voluntary statement made by accused No. 2.

P.W. 10-Y.M. Shankarashetty was panchayath secretary of Honnur village panchayath, who issued house assessment extract of the house of P.W. 1-Ballashetty, elder brother of deceased as per Ex. P-8 at the request of Yelandur police dated 13.01.2009.

P.W. 11-G. Rajashekar, Junior Engineer who prepared spot sketch as per Ex. P-11 of the spot where the dead body was thrown, spot of the house of deceased where the deceased was murdered as per Ex. P-12. He admits in the cross-examination that he prepared sketch as per information given to him by the police.

P.W. 12-Puttananjaiah is the PSI of Yelandur Police Station who had partly investigated the case. He has deposed about the information received by him at about 4.10 p.m., on 02.11.2008 over telephone from unknown person informing him to go and see the dead body of male person in a garbage pit at Upparashetty Road and accordingly he went there along with his staff and saw the dead body of deceased-Somanna. He has deposed that since nobody was ready to lodge first information, he deputed police constable to keep watch over the dead body and returned back to the police station and on 03.11.2008, P.W. 1-Ballashetty lodged first information on the basis of which he registered a case in Crime No. 111/2008 for offences punishable under Sections 302, 201 r/w Section 34 of IPC.

P.W. 13-S.N. Suresh Babu was the Circle Inspector of Yelandur Police Station. He conducted further investigation and filed charge-sheet against accused Nos. 1 to 6 for offences punishable under Sections 302, 201 r/w Section 34 of IPC.

In order to bring home the guilt of the accused, the prosecution has to establish at the first instance that the deceased died a homicidal death. To prove the same, the prosecution has examined P.W. 8-Nagendramurthy, Doctor, who conducted post mortem examination on the dead body of deceased-Somanna. His evidence would reveal that on 03.11.2008, at about 3.30 p.m. he conducted post mortem examination on the dead body of deceased-Somanna and noticed the following injuries:

"i) Injury on the forehead measuring 2 x 1 cm;

ii) Fracture of Mandible and injury over the face measuring 4 x 2.5 cm

iii) Injury of left ear measuring 0.3 x 0.2 cm."

According to P.W. 8, injuries at Sl. Nos. 1 and 2 were ante-mortem in nature and injury No. 3 was post mortem in nature. He gave opinion that the cause of death was due to shock as a result of complications of the injuries sustained and accordingly, he issued post mortem report as per Ex. P-6. Though P.W. 8 has been cross-examined at length on the injuries found on the dead body, the homicidal death of deceased has not been controverted. The defence has come out with any other theory as to the cause of death. Thus, the prosecution has proved that deceased died a homicidal death.

The motive for the commission of murder is that deceased-Somanna was to give his evidence on behalf of children of Kamashetty in a suit pending between the children of Kamashetty and the children of Dasashetty before the Civil Court at Yelandur. After coming to know of the same, deceased was given life threat by the accused, which deceased had brought to the notice of elders, who advised him to give evidence and speak truth and that if the accused were to create problem, they would convene a panchayath. This has been spoken by P.W. 1-Ballashetty, elder brother of deceased, P.W. 2-Uma, wife of deceased, P.W. 5-Kempagamashetty, son of Kamashetty. Though these witnesses were cross-examined by the defence, nothing has come out of the cross-examination so as to disbelieve their testimony with regard to motive put forth by the prosecution. From the evidence of the above witnesses, the prosecution has proved the motive for commission of murder of the deceased.

Having established that the deceased died a homicidal death and the motive for the commission of murder, the prosecution has to further establish that it is accused who had caused death of deceased. The learned Sessions Judge on appreciation of evidence has arrived at a conclusion that prosecution has failed to prove that the death of Somanna was caused by the accused. To find out whether the conclusion reached by the Sessions Judge is sustainable, it is incumbent on our part to reappreciate the evidence. P.W. 3-Nanjashetty seems to be solitary eye witness to the incident. P.W. 3 has spoken that on the date of incident i.e., 30.10.2008 being Deepavali festival, wife and children of deceased had gone to house of in-laws of deceased and that P.W. 3 and deceased after bursting crackers at about 10.00 p.m., went to their houses and when P.W. 3 came out of his house for urination late in the night at about 1 O'' clock, he heard some noise from the house of deceased and out of curiosity, he waited for about 10 minutes outside the house. He was hiding. He saw accused bringing the deceased from his house. There were injuries on the face of deceased and a cloth had been stuffed into his mouth and they took the deceased towards the garbage pit of accused No. 1, P.W. 3 out of fear went inside his house. But, the interesting part of his evidence is that though deceased was his neighbour and he is alleged to have seen the accused taking him towards the garbage pit of accused No. 1 during night hours at about 1 O''clock, he did not go to inform the police or relatives of deceased or anybody of his village. If P.W. 3 had really seen the incident, in the natural course, he ought to have informed the incident to close relatives of deceased or to the police immediately after the incident either personally or over telephone. He did not inform about the incident to anyone else for 3 days. It is only when on 02.11.2008, after the dead body was traced in the garbage pit of accused No. 1, the relatives and the people of the locality came to know about the murder of deceased. It is needless to state that conduct of P.W. 3 in not informing the incident to anyone else for more than 3 days itself speaks that he was not an eye witness to the incident and he was a planted witness by the prosecution. The learned Sessions Judge has not accepted his testimony. The other witnesses examined by the prosecution namely P.W. 1-Ballashetty (complainant), P.W. 2-Uma (wife of deceased), P.W. 3-Nanjashetty, P.W. 4-Gurusiddashetty, P.W. 5-Kempagamashetty are all hearsay witnesses in the sense that after the dead body of the deceased was found, all these witnesses went and saw the dead body. Their evidence is of no avail to the prosecution to connect the accused with the murder of deceased. Even, if we go by the evidence of P.W. 9-Raju one of the panchas to Ex. P-5 in respect of seizure of MO-3 (club) at the instance of accused No. 2, his evidence is not sufficient to connect accused No. 2 with the murder of deceased-Somanna on the basis of recovery of MO-3 (club). Moreover, another pancha to Ex. P-5 P.W. 7 has deposed that his signature was taken on Ex. P-5 by showing a club which was on the table of Police Inspector. Therefore, evidence adduced by the prosecution to prove recovery of M.O-3 at the instance of accused No. 2 is doubtful and in any event will not come to the help of the prosecution to connect accused No. 2 or any other accused with the murder of deceased. There was inordinate delay in lodging the first information report. The case of prosecution is that murder had taken place at 1 O''clock during the intervening night of 30.10.2008 and 31.10.2008. The first information report was lodged on 03.11.2008. The police station is at a distance of 8 km from the spot of incident. The delay has not been explained. The unexplained delay of 3 days in lodging first information report is fatal to the prosecution case. On re-appreciation of evidence, we do not find any reasons to interfere with the impugned judgment of acquittal. The appeal is dismissed.