Lakshmana Naika @ Laxmana vs State Of Karnataka

Rajendra Badamikar J

This appeal is filed by Accused No.2 under Section 374(2) of Code of Criminal Procedure (hereinafter for short, referred to as 'Cr.P.C.') against

the judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Chikmagalur in SC No.148/2011 dated 29.06.2015,

whereby the appellant/accused No.2 was convicted for the offence punishable under Sections 449, 302 & 380 of Indian Penal Code (hereinafter for

short, referred to as 'IPC') by imposing sentence of imprisonment for life with fine of Rs.10,000/- for the offence punishable under Section 302 read

with 34 of IPC; Rigorous Imprisonment for a period of 10 years with fine of Rs.5,000/- for the offence punishable under Section 449 of IPC; and

Rigorous Imprisonment for a period of 7 years with fine of Rs.5,000/- for the offence punishable under Section 380 read with 34 of IPC, with default

clauses.

For the sake of convenience, the parties herein are referred to as per their rankings before the trial Court.

The brief facts of the case of the prosecution are that, Accused Nos. 1 & 2 with a common intention to commit theft and murder of Smt.

Seethamma, on 09.05.2011 between 8.05 p.m. and 8.50 p.m., have trespassed into the house of CW.7-Sri. Sundaresh, wherein the deceased was

staying, situated at Puttenahalli Village, Chikkmagaluru Taluk, in the pretext of purchasing liquor and smothered her to death by using a towel and

thereafter committed theft of gold coins chain (Kasina Sara) and ear-studs worth Rs.65,000/- in all and thereafter, the accused fled from the spot.

Subsequently, the Investigating Officer has apprehended Accused Nos. 1 & 2 and recovered the stolen articles at the instance of the accused on the

basis of their voluntary statement and then submitted the charge sheet against the accused. Thereafter, the learned Magistrate after taking

cognizance, committed the case to the Sessions Court and accordingly, the sessions Court after securing the presence of the accused, framed charges

against Accused Nos.1 & 2 for the offence punishable under Sections 449, 302 and 380 read with Section 34 of IPC, and read-over and explained the

charges to both the accused. The accused pleaded not guilty and claimed to be tried.

In order to prove the charges levelled against the accused, the prosecution has examined 20 witnesses as PW.1 to PW.20 and got marked 24

documents Exs.P1 to P24. Further 12 material objects were also marked as MOs.1 to 12.

After completion of the prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded by the learned Sessions

Judge and the accused have denied all the incriminating evidence appearing against them in the prosecution case. However, the accused did not lead

any evidence on their behalf. But, they have got marked Exs. D1 and D2 during the cross-examination of PW.13, which are the portions of statements

of PW.13 recorded by the Investigating Officer during the course of investigation under Section 161 of Cr.P.C.

After hearing the arguments, the learned Sessions Judge found both the accused guilty of the offences punishable under Sections 449, 302 & 380

read with 34 of IPC and convicted them by imposing sentence of imprisonment for life and Rigourous Imprisonment for 10 years and 7 years with

fine, with a default caluse. Being aggrieved by the same, Accused No.2 has preferred this appeal against the judgment of conviction and order of

sentence. However, Accused No.1 has not challenged the judgment of conviction and order of sentence passed against him.

We have heard the learned counsels appearing for both the parties.

Sri. Sampangi Ramaiah, Advocate appearing for the learned counsel Sri.B.Pramod, vehemently argued that the judgment of conviction and order of

sentence passed by the trial Court against the appellant/Accused No.2 is not at all sustainable in law; that judgment of conviction and order of

sentence is illegal, invalid and contrary to the facts and evidence on record; that the entire case is based on circumstantial evidence and recovery said

to have been made at the instance of the accused is on the basis of the evidence of PWs.4 to 10 relied by the trial Court is short of proof and required

to establish the charges alleged; that the evidence of PWs. 1, 2 & 3 is only suggestive and the Investigating Agency have done their job of

investigation in respect of unnatural death of Smt. Seethamma on 09.05.2011; that the evidence of PWs. 4, 5 & 6 does not assist the prosecution in

any manner and the circumstances of recovery of Material objects have not been established; that the evidence of PW.14 does not inspire confidence

of the court to base the conviction; there is no motive forthcoming and the last seen theory is also not established. The motive is not proved as against

Accused No.2 and entire recovery of gold ornaments is at the instance of Accused No.1 alone and there are no eyewitnesses to the alleged incident;

that the entire case is based on circumstantial evidence and the circumstantial evidence led by the prosecution is not sufficient to prove the guilt of the

accused; However, the Sessions Court ignoring all these aspects has convicted the appellant/Accused No.2 and hence, sought for allowing the appeal

by setting aside the impugned judgment of conviction and order of sentence passed against Accused No.2 and acquitting him of the charges levelled

against him.

Per contra, Sri. Vijay Kumar Majage, the learned Additional S.P.P. has supported the impugned judgment of conviction and order of sentence

passed by the trial Court. He contended that there is recovery at the instance of both Accused Nos.1 and 2 and at the instance of Accused No.2,

Accused No.1 was apprehended. Further, he argued that admittedly, the death is homicidal death, which is an admitted fact and that the murder was

in order to have a wrongful gain, which establishes the motive as the recovery at the instance of Accused No.2 is proved by the evidence of panch-

witnesses as well as evidence of Investigating Officer, to which accused has not given any explanation in respect of MO No.12, which was recovered

at his instance. Hence, he argued that there is sufficient material evidence to prove that they have caused death of a poor old lady for wrongful gain

and hence, contended that there is no need for interference of this Court, as the judgment of conviction and order of sentence is just and proper and it

does not call for any interference.

Upon hearing arguments of both the counsels appearing for parties, the point that would arise for our consideration is, -

Whether the judgment of conviction and order of sentence passed by the trial Court against Accused No.2/appellant for the offence

punishable under Sections 449, 302 and 380 of IPC calls for any interference?

On considering the arguments advanced by both the counsels and in order to re-appreciate the evidence, we have to assess the evidence on

record.

(1) PW.1-Vinodkumar and PW.2-P.T. Rajegowda are the panchas to Ex.P1 and both of them have supported the case of the prosecution as well as

the seizure of MO.1-Towel alleged to have been used for commission of the offence.

(2) PW.3-H.N. Shashidhar is inquest mahazar witness and he has also supported the case of the prosecution.

(3) PW.4-P.C. Shivananda is the son of the deceased and his evidence discloses that, on 09.05.2011 when they had been to the house of the deceased

at 8.45 p.m., the front door was closed and they tried to open the door, but it was bolted from inside. PW.4 with his brother-CW.7 went to back door

and the back door was open and when he entered house, he found his mother was murdered and she was lying on the floor and immediately they have

shifted her to the hospital and she was declared brought dead and then he lodged a complaint as per Ex.P3 regarding murdering his mother and

robbing her ornaments.

(4) PW.5-Sundaresha @ suresha is another younger son of the deceased Seethamma and he has also deposed as per the evidence given by PW.4.

He is also not an eye-witness to the incident.

(5) PW.6-P.C.Divakar @ Shridhar is the son of the deceased and he is also a hear-say witness to the incident.

(6) PW.7-Manjunatha Raikar is the pawn broker and he has deposed that, on 25.07.2011, accused No.1 pledged 10 gold coins and later, on

12.08.2011, the police along with Accused No.1 came and seized them and drawn a mahazar as per Ex.P4 and he has also identified the seized

material object as per MO.3. He has also produced the receipts for having pledged 10 gold coins with him.

(7) PW.8-Bharath Raikar is the son of PW.7, who is also running a Pawn Broker shop in the name and style of “Kamakshi Bankers†in Belaguru

and he has also deposed regarding the accused pledging 29 gold coins chain (Kasina Sara) and gold beads and the same have been seized on

12.08.2011 by the police and drawing a mahazar. He has also deposed regarding the documents being executed by Accused No.1 in this regard. He

has also supported the case of the prosecution.

(8) PW.9-Goparam is another Pawn Broker, who is running a Pawn Broker Shop in the name and of style of “Mahalaxmi Bankers†and he has

also deposed regarding Accused No.1 pledging gold coins and 1 pair of ear-stud and the same has been seized by the police by drawing a mahazar by

the police.

(9) PW.10-Ashoka P. is a witness to the seizer mahazar regarding gold coins under Ex.P4 and deposed Accused No.2 leading them to a form house

of Mr. M.S. Rajive Gowda and production of black beads with two Havala in his presence.

(10) PW.11-H.L. Basavaraju is an Assistant Engineer and he deposed regarding drawing a sketch of the scene of offence as perEx.P10.

(11) PW.12-B.G. Eshappa was a PDP and he deposed regarding issuing of house extract as per Ex.P.12.

(12) PW.13-Manjula is the wife of PW.5-Sundaresh and daughter-in-law of the deceased and she is a hear-say witness.

(13) PW.14-D.Ravi has deposed that he is working as a Writer in the Form House of M.S. Rajegowda and he has also deposed that both the accused

were working in the same Form House and on the date of incident he met them and they were in intoxicated state of mind and it is claimed that the

accused have disclosed before him that they found liquor bottles on the road and they have consumed the same.

(14) PW.15-K.Sathyanarayana has deposed regarding receiving the complaint and issuing FIR. He has also deposed regarding accompanying the

Investigating Officer for recovery of incriminating articles.

(15) PW.16-Ramesh Kumar, PW.17-S. Vijayaprasad and PW.20-H.N. Panchaksharappa are the Investigating Officers.

(16) PW.18-Dr.Sunil Kumar has deposed regarding conducting autopsy on the dead body of the deceased.

(17) PW.19-H. Chandru has deposed regarding apprehending the accused.

Ex.P1 is the spot mahazar while Ex.P2 is the inquest report, Ex.P3 is the complaint, Exs.P4 to P6 are seizure mahazars, while Ex.P9 is the sketch

of the scene of offence, Ex.P24 is the portion of the voluntary statement said to have been given by Accused No.2/appellant, which is said to have led

for recovery.

On perusing the entire oral and documentary evidence on record, it is evident that the case of the prosecution mainly rests on circumstantial

evidence. The prosecution is mainly relying on the following circumstances:

i) The homicidal death of the deceased

ii) Recovery of gold ornaments pledged by the accused at their instance from Pawn Broker’s house

iii) The evidence of PW.9 & PW.14

It is to be noted here that, though there is no direct evidence regarding motive, the motive can be attributed only in order to have wrongful gain by

way of theft or robbery. Since the entire case is based on circumstantial evidence, the prosecution is required to prove the chain of circumstances and

probability of involvement of the accused. In this regard, it is relevant to rely upon a decision of the Hon’ble Apex Court reported in (2019) 4

SCC 522 [Digamber Vaishnav and Another Vs. State of Chhattisgarh] ,wherein the Apex Court in Paragraph No.16 has laid down three

guidelines for completion of the chain of circumstances in case of circumstantial evidence, which reads as under:-

“16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:-

i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all

human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other

hypothesis than that of the guilt of the accused.â€​

The evidence of prosecution witnesses clearly discloses that Accused Nos.1 & 2 led the Investigating Officer and panchas to Pawn Broker’s

shops of PW.7 to PW.9, where recovery was made at the instance of Accused No.1. Further, the evidence of PW.7 to PW.9 categorically

establishes that Accused No.1 has pledged the golden articles with Pawn Broker. It is also important to note here that the accused have never

claimed that the alleged golden articles were belonging to them. No such claim is put-forward by the accused. The recovery is also proved by the

evidence of PW.10 and PW.12 and it is also supported by the evidence of the Investigating Officer. There is no need for the Panch-witnesses to give

false evidence against the accused. The main contention of the defence counsel is that, no worthy articles were recovered at the instance of Accused

No.2 and the entire recovery of golden articles were at the instance of Accused No.1. However, it is evident that MO.12 is recovered at the instance

of Accused No.2 and the manazar witness (PW.10-Ashok.P), Black Beads were recovered at the instance of Accused No.2. Accused No.2

nowhere asserted during entire trial about MO.12 is owned by him or belongs to him. No such defence is forthcoming. Even in the 313 Cr.P.C

statement of accused is silent and they have not explained anything except formal denial regarding recovery. The recovery is proved from the

evidence of PW.7 to PW.10 and PW.12, coupled with Ex.P4 to Ex.P6.

The other incriminating circumstance is that Accused No.2 was arrested first and at this instance Accused No.1 was apprehended and from

whom mahazar recovery was done. Further, the evidence of PW.14 also gains importance to show that both the accused were working under PW.14

in the Form House of M.S. Rajegowda. Further, his evidence clearly discloses that on the date of the incident, in the morning, they were found under

intoxicated state of mind. The evidence of prosecution also clearly discloses that, liquor bottles were also stolen from the house of the complainant on

the date of incident. Further, the entire prosecution records clearly disclose that though recovery and other things were at the instance of Accused

No.1, the major cross-examination was done on behalf of Accused No.2 only. The accused is not prepared to give explanation regarding recovery and

now his contention that, ‘in no way he is concerned with Accused No.1’, cannot be accepted, as at his instance only Accused No.1 was

apprehended. Hence, the evidence on record clearly establish that there is a motive for commission of the offence ie., to rob the gold ornaments of the

deceased. Further, the evidence clearly discloses that the circumstances clearly point finger for drawing an inference of guilt against the accused only.

Further, there is no other motive forthcoming for commission of the offence and the accused are incapable of explaining incriminating evidence in

respect of recovery as against them. Further, it is an undisputed fact that the death is homicidal and it is supported by the evidence of PW.18-Dr. Sunil

Kumar, who specifically opined that there were certain abrasions on the dead body of the deceased and the death is caused due to asphyxia and he

has issued post-mortem report as per Ex.P21. Though the Medical Officer and other witnesses were cross-examined at length by the defence

evidence, their evidence is not at all impeached. Therefore, under these circumstances, the evidence of the prosecution clearly establish that, it is the

accused, who alone have trespassed the house of the deceased and caused her death, and robbed gold ornaments from her. The accused No.2 never

claim that, articles (MO.12-Balck Beads and Havala) were belonging to him and he has not disputed the fact that, those articles belonged to the

deceased. Then there is no explanation from the mouth of the accused as to how they came in possession of these articles and as such, the

circumstantial evidence led by the prosecution is cogent and sufficient. The prosecution has satisfied all the three conditions referred to in the decision

of the Hon’ble Apex Court in Digamber Vaishnav’s case cited supra. Hence, the evidence on record clearly establishes that the accused, in

order to have wrongful gain, caused the death of the deceased and robbed her. Apart from that, the receipt books bear the signature of Accused

No.1, which is not disputed. Even the address mentioned on MO.5 and MO.10 is pertaining to Accused No.1 and his signatures are not at all denied.

Further, there is nothing on record to show that, as to why PW.4 and PW.10 would give false evidence as against the accused and also there is no

enmity between these witnesses and the accused.

Another argument of the learned counsel for the appellant is that, ‘the articles were new articles’ cannot be accepted, as they were in the

custody of the Pawn Broker and they can polish it at any moment and hence, the said argument also needs to be rejected. Further, PW.7 to PW.9 are

categorically deposed that, at the time of recovery, at the instance of Accused No.1, all along Accused No.2 was also present. The other argument

advanced by the defence counsel is that, initially on the date of incident itself Accused Nos. 1 & 2 were enquired by the police and they were let off.

But, that cannot be a ground, as, initially the police would have naturally enquired many number of people to have some traces or clue regarding

offenders. But, subsequently, when they get clue, then only they apprehend accused, and as such, initially the accused were only formally enquired.

Hence, the said argument does not have any relevance.

During the trial, the accused tried to take a defence that, due to some property dispute amongst the family members, some of the family members

ought to have committed the alleged offences. But, except a formal suggestion, no clinching evidence is placed and suggestion does not become the

evidence.

As observed above, the golden articles were identified by the children of the deceased and the accused have not explained the custody of these

articles and recovery at their instance. Hence, the trial Court is justified in convicting the accused for the offence punishable under Sections 449, 302

& 380 read with Section 34 of IPC. The accused in order to have unlawful gain, have caused death of an old lady only to rob her and that clearly

establish their mens rea. Hence, looking from any angle, this is not a fit case, wherein an interference by this Court is called for and the trial Court is

justified in convicting the accused for the offence punishable under Sections 449, 302 and 380 read with of IPC, and the trial Court is also imposed

adequate sentence to the accused. Apart from that, Accused No.1 did not file any appeal challenging the judgment of conviction and order of

sentence passed by the trial Court in the said case.

Considering the above facts and circumstances of the case and after analyzing the entire evidence on record, we are of the considered opinion

that the judgment of conviction and order of sentence passed by the trial Court against appellant/ Accused No.2 for the offence punishable under

Sections 449, 302 and 380 read with Section 34 of IPC does not call for any interference. Accordingly, we answer the point arose for consideration in

this appeal, in the negative and proceed to pass the following:-

ORDER

i) The appeal is dismissed.

ii) The judgment of conviction and order of sentence dated 29.06.2015 passed by the trial Court viz., II Additional Sessions Judge at Chikkamagaluru

in SC No.148/2011, convicting the appellant/Accused No.2 for the offence punishable under Sections 302, 449 and 380 read with Section 34 of IPC

and imposing sentence of imprisonment for life with fine, is confirmed.