Basavaraja vs Lokesh and Others

Mohan M. Shantana Goudar, J.

The Judgment and Order of acquittal dated 18th June 2011 passed by the Addl. Sessions Judge-cum-Special Judge, Shimoga in Special Case No. 7/2008 is called in question in this appeal.

Case of the prosecution in brief is that the deceased Haleshappa used to complain to the Police as well as the Deputy Commissioner, Shimoga and to the Department of Mines and Geology alleging that the accused were illegally carrying on the stone quarrying work and in that regard, the accused had developed vengeance against the deceased Haleshappa. On 27.2.2008, the accused with a common intention to commit murder of the deceased, came in a Maruthi van holding iron chopper and assaulted the deceased on various parts of his body. The deceased succumbed to the injuries. In order to screen themselves from punishment, the accused threw the chopper in to Chandanakere tank and Bhadra left channel. The deceased belongs to Scheduled Caste/Scheduled Tribe community.

In order to prove its case, the prosecution in all examined 58 witnesses and got marked 85 Exhibits and 20 Material Objects. On behalf of the accused, two Exhibits were got marked. The trial Court, as aforementioned, acquitted the accused.

Learned advocates appearing on behalf of appellant and Respondent Nos. 1 and 2 as well as the learned Government Pleader for the State argued in support of their respective cases.

PWs. 1 to 3 are eye witnesses to the incident in question. They have turned hostile to the case of the prosecution.

PW.4, who was supposed to depose about extra judicial confession made by the accused has turned hostile to the case of the prosecution.

PWs. 5, 6, 7, 8, 9, 10, 12 and 13 are the witnesses who were supposed to depose about the motive for commission of the offence. All these witnesses have turned hostile.

PWs. 14, 16, 17, 20 and 23 who allegedly saw Maruthi van of the accused on the previous day, have turned hostile to the case of the prosecution.

PW.15 allegedly saw the accused talking of teaching a lesson to the deceased. He has turned hostile.

PWs. 18, 24 and 25 who were supposed to depose that they saw the accused in Maruthi van after the incident, have turned hostile.

PW.19 informed PW.10 after coming to know about the incident. He has turned hostile to the case of the prosecution.

PWs. 21 and 22 are the owner and supplier of the wine shop respectively. According to the case of the prosecution, the accused consumed liquor in the said wine shop prior to the incident. Both these witnesses have turned hostile.

PW.26 is the wife of Accused No. 1. She has turned hostile to the case of the prosecution.

PWs. 27 and 28 who were supposed to depose about helping the accused in getting the van, have turned hostile to the case of the prosecution.

PW.29 is owner of the Maruthi van. He has turned hostile.

PW.30 who was supposed to depose about the circumstance that he prepared chopper for Accused No. 1, has turned hostile.

PW.31 who was supposed to depose that the accused approached him to hire taxi to go to Bangalore after the incident, has turned hostile. However according to the case of the prosecution, PW.32 took the accused to Bangalore. He has also turned hostile.

PWs. 33, 35, 36, 37, 38, 39 40 and 44 are witnesses for various mahazars. They have also helped to search the weapons which were allegedly thrown in the tank and nala. However the weapons are not found. These witnesses have turned hostile to the case of the prosecution. PW.34 is the photographer.

PWs. 42, 43 and 56 are the witnesses for seizure of Maruthi van under Ex. P52. They have turned hostile to the case of the prosecution.

PW.45 is the witness for mahazars - Ex. P55 to P57. PW.45 who was supposed to depose about Ex. P55 to P57 has turned hostile to the case of the prosecution. These panchanamas relate to the places wherein the weapons were allegedly thrown.

PW.46 is the Engineer who drew the sketch of scene of offence as per Ex. P58.

PW.47 is the doctor who conducted post-mortem examination on the dead body of the deceased and the post-mortem report is at Ex. P60.

PW.48 is the Chief Manager of the State Bank of Mysore. He has deposed that the cheques of Accused No. 1 were passed through the said bank in clearing. There is nothing on record to show as to how the evidence of this witness is connected with the crime in question.

PW.49 is the Geologist. He has spoken about the complaint which was registered against Accused No. 1 in the year 2006 as per Ex. P62. The said complaint discloses that Accused No. 1 has committed certain illegalities in mining operations and therefore he was fined with Rs. 1,000/-.

PW.50 is the Police Constable. He carried the first information report to the jurisdictional Magistrate.

PW.51 is the Assistant Sub-Inspector of Police. He has spoken about the complaint lodged by the deceased at an earlier point of time. However the said complaint is not marked.

PWs. 52 and 55 are the Investigating Officers. PW.52 laid the charge sheet.

PWs. 53 and 54 are the witnesses for seizure of motorcycle. Both of them have turned hostile. The seizure panchanama is at Ex. P73.

PW.57 is the Police Sub-Inspector who registered the crime based on the complaint lodged by CW.1 who is not examined before the Court.

PW.58 is the Deputy Superintendent of Police who lodged additional charge sheet in respect of seizure of motorcycle belonging to PW.53.

Before proceeding further, it is relevant to note that the appellant herein viz., Basavaraja S/o. Puttappa had filed a private complaint against Respondents 1 to 3 herein and 5 others for the offences punishable under Sections 300, 302, 118, 120-A, 119 and 120-B read with Section 34 of IPC and Section 3(2)(v)(vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said private complaint was lodged after about five months of the date of incident. The said complaint alleges that on 27.7.2008 at about 10.45 a.m. Respondent Nos. 1 to 3 herein came in a car and discussed with five other persons about killing of Haleshappa and thereafter they murdered Haleshappa. The said private complaint however came to be dismissed for non-prosecution on 1.12.2009. Once again a separate complaint came to be filed under Section 200of Cr.P.C. on the same ground. The said complaint also came to be dismissed on 14.12.2009. Thereafter he preferred Criminal Revision Petition No. 174/2010 before this Court for setting aside the order of dismissal passed in PCR No. 2/2009, which came to be allowed and PCR No. 2/2009 came to be restored.

However based on the complaint lodged by One H. Prakash before Bhadravathi Rural Police Station, Crime No. 44/2008 came to be registered against Respondent Nos. 1 to 3 herein for the offence under Section 302 r/w 34 of IPC and Section-3(ii) and (v) of the Schedule Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the said matter, the complainant - H. Prakash appeared before the trial Court and made a submission that he has moved the State Government for change of Public Prosecutor. Subsequently, another application came to be filed for transfer of the case from Addl. Sessions Court to Prl. Sessions Court. Having failed in all his attempts, the original complainant - Prakash filed Criminal Petition No. 4375/2010 before this Court for transferring the case. The accused also seem to have moved Criminal Petition NO.163/2010 for grant of bail. However this Court did not interfere with the proceedings of the Court below. Ultimately, the proceedings continued in Spl. Case No. 7/2008 and the impugned judgment is passed.

Though the appellant herein is strictly not the complainant in Crime No. 44/2008 registered in Bhadravathi Rural Police Station, this Court has entertained the appeal on the ground that he is interested to prosecute the appeal.

The narration made by us in the preceding paragraphs would clearly reveal that PWs. 1 to 3 are eye witnesses to the incident in question, but none of the eye witnesses have supported the case of the prosecution. It is relevant to note that the complainant - Prakash though was given ample opportunity to depose before the Court, he has not entered the witness box before the trial Court. The three other eye witnesses have turned hostile. All the witnesses for other circumstances such as extra judicial confession, motive, seeing of accused in a Mauthi van on the previous day of the incident, accused talking of teaching a lesson to the deceased, seeing of the accused in the Maruthi van after the incident etc., have turned hostile to the case of the prosecution. So also the owner and supplier of the wine shop in which the accused allegedly consumed liquor prior to the incident have also turned hostile. In effect, all the witnesses in respect of all the circumstances have turned hostile to the case of the prosecution. None of the witnesses who were supposed to depose about the circumstances have supported the case of the prosecution.

Witnesses who have supported the case of the prosecution are photographer, Engineer, doctor and the police officials. From the evidence of the doctor, it may be said that the death of the deceased was homicidal death. The sketch of the Engineer PW.46 would disclose that the dead body was found in a particular place. The evidence of either the doctor or the Engineer or the Photographer would not connect the accused to the crime. However the prosecution has relied upon the evidence of PW.49 -Geologist who had lodged the complaint against Accused No. 1 in the year 2006 as per Ex. P62 to prove motive for commission of the offence. According to the prosecution, all the three accused were indulged in illegal quarrying and in that regard, the deceased had complained to various authorities and consequently the accused had developed ill-will against the deceased. The complaint lodged against Accused No. 1 as per Ex. P62 was in the year 2006. The said complaint ended by fining Accused No. 1 for Rs. 1,000/-. The incident in question has taken place in the year 2008. In this context, the trial Court is justified in concluding that there is remote chance of Accused NO.1 keeping grudge against the deceased for two long years. Hence circumstance of motive is not proved.

The evidence of the Police officials merely would disclose that the complaint came to be lodged and the investigation is completed in accordance with law.

The material on record does not connect the accused with the crime. No incriminating material is found against the accused. Thus we do not find any ground to interfere in the impugned Judgment and Order of acquittal passed by the Special Court in Spl. Case No. 7/2008. Hence no interference is called for.

Appeal fails and the same stands dismissed.