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2011 Supreme(Kar) 599
High Court of Karnataka (Circuit Bench At Dharwad)
THE HONOURABLE MR. JUSTICE MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE V. SURI APPA RAO
Halappa Bharama Gavanale & Another
Versus
The State of Karnataka, represented by its State Public Prosecutor
Crl.A.No. 2740 of 2011
Decided on : 20-10-2011
For the Appellants:Ashok R. Kalyanashetty, Advocate.
For the Respondent: Mahesh Wodeyar, AGA.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 374 (1): [Manjula Chellur & V. Suri Appa Rao, JJ] Appeal against Conviction and Sentence - Held, When the prosecution is solely relying on the circumstantial evidence it has to establish that the circumstances proved lead to one and only conclusion towards guilt of accused, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established and the circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. - In the instant case, the circumstantial evidence adduced by the prosecution is not sufficient to connect the accused with the crime. In the absence of any independent corroborative evidence adduced by the prosecution is not sufficient to connect the accused with the crime. In the absence of any independent corroborative evidence regarding grazing of sheep in the land of PW-9 it is not safe to place any reliance on the interested testimony of PWs 9, 13 and 15. Ex. P1/ Complaint given to the Police by PW-1 immediately after the incident is silent about the grazing of sheep by the deceased and about the quarrel between the accused and the deceased in that connection. In view of the above facts and circumstances, it is held that the prosecution has failed to prove the above circumstantial evidence with regard to grazing of sheep in the land of PW-9 by the accused and also by the deceased. The prosecution has failed to prove the motive on the part of the accused to commit the crime. The evidence of PWs 5, 6 and 26 is not consistent and corroborative in material particulars about the seizure of MOs 14 to 17. Therefore even that circumstance loses its significance. Though deceased Narasappa was alive for ten days no steps have been taken to record the dying declaration of Narasappa while he was undergoing treatment in K.L.E. Hospital, Belgaum. The Investigating Officer did not choose to record his statement and there is no evidence on record to prove that the deceased Narasappa was not capable of giving any dying declaration. The Investigating Officer ought to have addressed the Medical Officer whether the deceased Narasappa was in fit state of mind to record his dying declaration.
Suri Appa Rao, J
1. This appeal is filed under section 374 (1) of the Code of Criminal Procedure against the Judgment of conviction and order of sentence dated 8th July, 2011 in S.C. No. 6/2011 on the file of the Fast Track Court-I, Chikodi, whereby the appellants who are accused Nos.1 and 2 have been convicted for the offence under Section 302 r/w section 34 of I.P.C., sentencing them to undergo imprisonment for life and to pay fine of Rs. 5,000/-each, in default of payment of fine to undergo simple imprisonment for five months.
2. The relevant facts leading to filing of this appeal are as follows:
The 1st appellant – Halappa Bharama Gavanale is the father of 2nd Appellant – Rama Halappa Gavanale. The family of the deceased No.1 Kallappa owned a land in Hulloli, but he shifted his family to Umarani about 6 years back. The accused and the deceased owned sheep and the accused were grazing their sheep in the land of Thabagouda Shivagouda Patil – PW-9. The accused were halting their sheep in the land of PW-9 for two months and they were giving one sheep every year as per the terms and conditions but that they did not comply with the said conditions. Therefore, PW-9 did not allow them to graze their sheep and permitted the deceased Kallappa to graze his sheep in the land of PW-9 with the same conditions. Therefore, the accused Halappa Bharama Gavanale and his son Rama Halappa Gavanale had enmity with the deceased Kallappa.
3. While so, on 02.08.2010 at about 8.00 A.M. the accused picked up quarrel with the deceased Kallappa and his son deceased Narasappa in front of the house of PW-15 – Devaray Mayappa Itnale at Hulloli for borewell water threatened the deceased Kallappa and deceased Narasappa for grazing the sheep in the land of Pw-9. Thereafter, at about 10.30 A.M. when the deceased Kallappa and his son deceased Narasappa were grazing their sheep in the land of PW-9 both the appellants/accused with the common intention of committing murder went to the land and picked up quarrel with them. Accused No. 1 Halappa Bharama Gavanale assaulted the deceased Kallappa with axe on his head, neck, back and accused No.2 assaulted the deceased Narasappa with axe on his head and hands, due to which both Kallappa and Narasappa suffered severe injuries. At that time PW-3 – Siddappa Shankar Itnale and PW-10 – Rayappa Balappa Jiddimani who were going to their lands on the motorcycle saw the sheep of the deceased grazing in the adjacent land and also saw the accused taking away the sheep hurriedly being afraid of the incident. They stopped the motorcycle and saw the deceased Kallappa and deceased Narasappa lying in the land of PW-9. They immediately went to Umarani and informed PW-12-Umesh Ramappa Itnale, who in turn informed the same to PW-13 – Gurusidda Mayappa Itnale who informed the same to PW-1 – Gowravva Kallappa Mayappagol, wife of the deceased Kallappa and mother of deceased Narasappa. After that PW-13 – Gurusidda Mayappa Itnale, one Halappa and PWs 10 and 11 went to the place of incident at about 2.30 P.M. and found the dead body of deceased Kallappa and Narasappa near tank with bleeding injuries. They immediately called PW-18 – Shrikant Appanna Yadrami to bring his tempo trax and took the victims to the Government Hospital, Chikodi. The deceased Kallappa died at about 4.00 P.M. while undergoing treatment. The deceased Narasappa was taken to K.L.E. Hospital, Belgaum for further treatment, but he also died after ten days while undergoing treatment on 12.08.2010 at 12.10.P.M.
4. PW-1 Gowravva and her son Shankar rushed to the Hospital and on the same day at 18.00 hours PW-1 lodged the complaint before PW-24 – Shashikant B. Kamble, PSI, Chikodi registered the same in Crime No. 299/2010. He immediately dispatched the FIR to the concerned Magistrate, visited the Hospital along with the complainant, conducted inquest over the dead body of the deceased Kallappa in the presence of PW-2 – Veerupaxi and Murgeppa and sent the dead body fo
