Back
2018 Supreme(Kar) 207
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI MALIMATH, H.B. PRABHAKARA SASTRY, JJ.
Thimma Reddy @ Porantalu Thimma Reddy S/o Narasa Reddy – Appellant
Versus
State of Karnataka by Kodigenahalli Police Station – Respondent
Criminal Appeal No. 978 of 2012
Decided On : 09-02-2018
For the Appellant : Sri. Hashmath Pasha.
For the Respondent: Sri. Vijayakumar Majage.
Headnote:INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Section 307 - Attempt to murder - Accused allegedly assaulting victim eyewitness with sickle - Injured witness deposing about sustaining injuries while attempting to save deceased - Medical evidence however suggesting presence of only lacerated wound that cannot be caused by sickle - Weapon allegedly used not having any nexus to injuries sustained - Injuries were not grave enough to take away life of victim - Held, Offence of attempt to murder not made out. Accused entitled to acquittal.
CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 154 - FIR - Delay - Offence of murder - FIR lodged at 4 a.m. in morning on date of incident - Distance between Police Station and Court found to be 21 Kms. - FIR reaching Court only at 2.30 p.m. - Availability of good conveyance - FIR should have reached Court maximum within 45 minutes - Five hours delay in registration of FIR and receipt of same by Court unexplained - Held, FIR is ante-timed creating doubt in prosecution case.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 3 - Testimony of eye-witness - Informant, injured deposing incident in detail however, unable to narrate as which of the two assailants assaulted deceased - Statement of injured before Police was bereft of any overt act specifically attributed against accused - Injured explaining significant details about incident for first time before Court, not previously stated before Police - Important details regarding incident by specifically attributing role to accused made first time before Court resulting into significant improvements over material aspects cannot be said as minor variations - Significant improvements over material aspects - Testimony of injured witness held, untrustworthy and unreliable.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 8 - Motive - Murder - Injured eye-witnesses deposing about dispute between accused and deceased with respect to business in sand - However, same not attributed as motive behind commission of crime - Another factum attributed was balance amount of Rs. 25,000/- sought to be retained by accused - Accused paid major portion of amount towards agreement and possibility that accused murdered deceased to retain meagre balance amount on same date of signing agreement, was improbable - Held, Motive not established.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 27 - Recovery - Recovery of incriminating sickle and clothes of accused - I.O. stating that, after recording statement of accused recovery of sickle and clothes took place - I.O. nowhere stated that statement given to him by accused was voluntary - Procedure followed in alleged recovery of clothes and weapon was not clear - I.O. never deposing about summoning panch witnesses and effecting recovery in their presence - Merely because panchanama signed by Panchas their presence at time of recovery, not proved - Alleged recovery of sickle and clothes of accused, found unreliable.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Section 302 - Murder - Eye-witness deposing that murder took place between 3-4 a.m. - As per father of deceased, he went to guard sand after finishing supper, previous evening at 6.30 p.m. - Post-mortem report indicating presence of partially digested food in stomach of deceased - Doctor opining that accused had food four hours prior to incident that would be around 11 p.m. - Timing of supper stated by father of deceased and Doctor, were contradictory - Discrepancy regarding time of murder - Accused held, entitled to acquittal.
1. Being aggrieved by the judgment of conviction and order on sentence dated 23.08.2012 passed by the III Addl. Sessions Judge and Spl. Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989, at Tumakuru, (hence forth for brevity referred to as the ‘Sessions Court’) in Spl. C. No. 297 of 2011, convicting him for the offences punishable under Sections 302 read with Section 34 of Indian Penal Code, Section 307 read with Section 34 of Indian Penal Code, 120-B of Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo imprisonment for a period of one year for the offence punishable under Section 302 of Indian Penal Code, and to undergo life imprisonment for the offence punishable under Section 307 of Indian Penal Code, and to undergo imprisonment for a period of six months for the offence punishable under Section 120-B of Indian Penal Code and to undergo life imprisonment and to pay fine of Rs. 15,000/- and in default of payment of fine, to undergo imprisonment for a period of one year for the offence punishable under sub-clause (v) of Clause (ii) of Section 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellant has filed this appeal.
2. In his memorandum of appeal, the appellant (henceforth for convenience referred to as ‘the accused’) has taken contention that the Court below has committed a serious error in convicting the accused under Section 302 307 read with Section 34 of Indian Penal Code. Though the guilt is said to have been proved only against present appellant/accused, the case of the prosecution is based on the direct testimony of PWs. 22 and 23, but their evidence is totally unreliable and incredible. The Court below failed to appreciate the evidence in proper perspective. The complaint at Ex.P-22 is lodged after inordinate delay and the said delay has not been properly explained. There is no mention about the source of the light at the time of alleged commission of crime to identify the accused. There was sand business rivalry between the accused and the deceased. It is because of this internal fight and previous enmity, the appellant had been suspected and falsely fixed in the place of unknown assailant. The time of alleged incident has also not been established beyond reasonable doubt. Further stating that lot of omissions and improvements have come in the evidence of PWs. 22 and 23 and the Investigating Officer and the same has not been properly appreciated by the Court below and that the complaint at Ex.P-22 has come into existence during the course of investigations and it is not a FIR, as such, it is hit by Section 162 of Code of Criminal Procedure, the appellant has prayed for allowing the appeal, by setting aside the impugned judgment of conviction and order on sentence passed by the Sessions Court.
3. The respondent is being represented by learned Addl. State Public Prosecutor.
4. Lower Court records were called for and the same are placed before us.
5. Heard the arguments from both sides. Perused the material placed before us, including the memorandum of appeal, impugned judgment and the lower Court records.
6. The summary of the case of the prosecution as could be seen in the charge sheet is that on 23.6.2011 between 3.00 a.m. and 4.00 a.m. at Survey No. 19 of Vengammanahally village, in the land belonging to CW-6, when CW-1 (PW-22) Pushpalatha, CW-2 (PW-23) Veeranna, along with the deceased-Srinivas, were sleeping after having gone there to watch the sand heaps piled there, the accused No. 1 (appellant herein), along with accused Nos. 2 and 3 (who are acquitted by the Sessions Judge), having conspired to murder said Srinivasa, who was belonging to schedule caste and due to their previous ill-will, committed his murder by assaulting the said Srinivasa with sickle on his neck and left shoulder. CWs. 1 and 2 have witnessed the alleged incident committed b
