IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 1Cm DAY OF DECEMBER 2011 PRESENT THE HON’BLE MRJUST1CE MOHAN SHANTANAGO UDAR AND THE HON’BLE MRJUSTICE RAVI MALI.MATH CRIMI NAL APo21j010 BETWEEN: The State of Karnataka, Through Rural Police Station, Koppal. Appellant [By Shri VMJ3anakar, AddlSPPj AND: 1. Yamanappa, 8/0. Hanumappa Hattigudda, Age: 43 years, 0cc.: Agriculture. 2. Devappa, S/c Yamanappa Hattigudda. Age: 2 1 ears, 0cc.: Agriculture, R/o. Chikkasuiikeri, Tq. ri Dist, Koal, .. Respondents )‘Y Shri K.LPatii, \dvcg This Criminal Appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure seeking to set aside the judgment and order of acquittal dated 23M2.2010 passed b the Fast Track Court I. Koppal in Sessions Case No65/2008 and consequently convict the respondent for the offences punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code. This Criminal Appeal coming on for final hearing this day, Mohan Shantanagoudar J., delivered the following: - JUDGMENT The Judgment and Order of acquittal passed by the learned Sessions Judge, Fast Track Court I in Sessions Case No65/2008 is called in question in this appeal by the State, 2. Accused No,1 is the father of accused No.2. The deceased Shankrevva is the second wife of accused No.1. Four children were born out of wedlock between the accused No. I and the first wife. Accused No.1 was pici..ing quarrel. witi. the dece.ased oftenly. He was addicted to acoholic drinks and used to assault the deceased — Shankreoa on one text or the other. Shankre’vva wa not found. since 1.7.08.2008. According case of the urosecution. sh - :3: the accused by assaulting her and throwing her (i.e. her dead body) into the well by packing the dead body in a gunny bag. Since the whereabouts of the deceased were not known, the victim’s mother (the complainant — P.W. 1) lodged missing complaint as per Ex.P-2 on 27.08.2008. Thereafter, the dead body of the deceased was recovered from the well. The second complaint is lodged on 3 1.08.2008 as per Ex.P-1 which was registered for the offence of murder. During the course of the investigation, statement of Hanamanth S/o Yamanappa Hattigudda (another son of accused No.1 from his first wife) (PW-4) was recorded on 01.09.2008 by the Police to the effect that the accused No.1 caused death of Smt Shankrevva in the hut situated in Huchhavva’s land by assaulting with the club. Thereafter, accused No.1 and 2 have packed the dead body in a gunny bag along with the stones and took it and have hidden somewhere. Thereafter, the very witness namely Hanamanth (P.W.4) appeared before the J.M.F.C., Koppal on 04.09.2008 and gave the statement vS c CD CD CD ) C) r+ E CD CD r* — CD CD frj C) CD r CD C) C) C) -i CD 0o CD ? — rn — 0 CD r C) . CD %J CD C) C) ) 0 CD . — CD C CD CD . . CC) C) 0 — :L — C) C) r, C) — CD 0 C) C) CD o o o C) Cl o CD J C) C) D) C) 0 . r+ CD C) CD r:fi Cl CD Cl CD C) Cl CD C) Cl CD C) C) — C) Z Cl C) 1 - C) C) . C) C) C) 0 C) . C) CD C) C) C) C) CD C) D Cr C) C) 0 CD CD CC) Cl C) CD C) Cl 0 CD C) r C) C) 0 r+ C) C). 0 0 CC) .Cl CD r C) CD C) 0 r CD — > ° C) C) CD CD C) rr C) CD CD 0 Cl Cl C) g4. C) CD Cl CD C). C) C) CD CD C) C) C) CD Cr CD Cl. CD . CD — CD Cl C) C) C) $ CQ Cl : C) C) 0 . a E C) C) Cr — C) Cl — Cl C) 0 C) r± — c .. - 0 CD 0 y C) P C) CD DC) CD 0 1 — Ci —. —. r+ C). C) C); C)C) C) Cl . C) C) C) 0 C) CD C) r± m 0 r+ CD r C) C) 0- 0 Cl t) CD — Cl — C) C) Cl CD Cl) CD CD C) C) 0) C) C) C). C) C) Cl CD C) C) justified in ignoring the statement of P WA recorded by J M FC. Koppal, under Section 164 of the (‘ode of Criminal Procedure While coming to th conclusion according to him, the Trial Court has misread and misunderstood the provisions of Section 164 of the Code of Criminal Procedure He further submits that the Trial Court atleast ought to have initiated the proceedings under Section 344 of the Code of Criminal Procedure against PW 4 for the offence of perjury On these grounds he prays for allo4ing the appeal S Shri K I Patil Ic rned Advocate appeanng on behalf of respondent ace ised submits that the Trial o 1 jus ified in a qu ii the a ised I at P ‘k 4 he 1kg d e t e s irnel i ha o 0 of e :6: Court below. He argues in support of the Judgment and Order of the acquittal. 6. PW-1 is the mother of the deceased who lodged the complaint-Ex.P1. PW-2 is the mahazar witness for scene of offence panchanama and for seinire of the club - M.O.6 under Ex.P3. PW-3 is another mahazar witness with regard to the panchanarna Ex.Ps.4 and 5. PW-4 is the eyewitness to the incident in question. He is the son of accused No.1 through his first wife and he turned hostile. PWs.5 and 6 are the mahazar witnesses for panchanama drawn in respect of recovery of clothes of the deceased Ex.P7. PW-7 is the person who retrieved the dead body from the well. He has turned hostile. PW-8 is the doctor who conducted the postmortem examination over the dead body. The report of postmortem is at Ex.P9. AS! (PW-9) has registered a missing complaint on 27.08.2008 and another complaint on 31.08.2008 lodged by PW- 1 as per Ex.P2 and Ex.P1 respectively. PWs.- 10 and 11 are the police constables who participated in the investigation -1 :7: at different levels. PW- 12 is the Investigating Officer who completed the investigation and laid the charge sheet. PW- 13 is learned Magistrate who has recorded the statement of PW-4 on oath under Section 164 of Cr.P.C. 7. From the material collected by the prosecution during the course of the trial, it is clear that the aspect of motive is spoken to by PW- 1 i.e. the mother of the deceased who has lodged the missing complaint at the first instance on 27.08.2008 - Ex.P2. Subsequently, she has lodged another complaint as per Ex.P1 on 31.08.2008. Based on this, Crime No.217/2008 is registered in Koppal Grameena Police Station. 8. The main witness in the matter on hand is PW-4 who is the eyewitness to the incident in question. However, he has turned hostile before the Court below. If his statement recorded under Section 164 of Cr.P.C. is ignored or is disbelieved, then, there is no case for the IA . j r rt CD Q CD E — CD < CD C) Q 1 zr CD (IQ CD CD C) C = C) i CIQ ? (C CD C CD 2) )) C (C 2 j. o r CD CD . FL C CD . C) CTQ + ) CD C) C) (C CD ‘. . 4 (C CD C) CD . — CD (C L “ CD . C) (C i CD ) (C p CD i ) CD C -“ r , CD fr_i (C ‘ r ) r* C) CD C — ci .. CD CD C Z (C CD Qq CD ,: . CD (IQ C C) CD t3 CD CD CD .. () (C ((C. (C (C C) r± . C) . (C (C e C . C) .. C C) CD CD g CD . ci r (C. D (C 0 E CD CD CD C) C) CD (C CD g r+ C C) g C) C) CD CD (C CD CD.: 1 C) (C p I (C < C) .. -‘ . CD (C (CH CC. 1 1 (C (C CD (C CD CD C) p ) C) CD (C > CD (C C C) (C FL (C C CD S C (C 0 C (C CD . C ) (C. CD . CD . C). C (C C — <. .. .... C) I CD = (1 (C (C (C . C) CD (C CD p (C (C n Q C) (C (IC i i CD (C :9: ‘I have checked the evidence ofPW4, he has given hostile evidence before this court. He denied that his father caused the death of S,nt.Shankrevua by assaulting through a club. He denied that, thereafter Al and 2 packed the dead body and took away from the spot and hide it somewhere. ft may be true that PW13 given evidence before the court stating that on 4-9-2008 this PW4 (Hanamanth) is brought before him in the custody of the police with a request of CJM, Koppal, to record his confession statement U/s 164 of the Cr.P.C The said statement recorded by PW13 is marked as EzP.22. I have read in detail contents ofEx.P.22. PW4 (Hanamanth) did not confess anything against his own self-interest On the other hand, he said to have given evidence against his father (accused No.1) stating that he caused the murder of 5mL Shankrevva. Hence, the confession statement of PW4 before PW13 is in the nature of evidence against accused no.! of this case. Admittedly, accused No.1 is not given any opportunity to cross-examine this PW4 at the time of making his statement as per Eic.P.22 before wia Therefore, an exparte :10: statement made by PW4 before PW13, in absence of accused No.), cannot be used against accused No.1. Main purpose of section 164 of CrtP.C. is to take the confession of any person against his own interesL In this case, PW4 did not make any confession against his own interest before PW13. Whatever PW13 has recorded amounts to an exparte evidence against accused No.1 of this case. Therefore, the statement recorded by PW13 is violation of principles of natural justice as against Al is concerned. Apart from that, the hostile evidence PW4 before this court gives scopefor doubt and suspect. So police use force in taking confession statement of Sri Hanamanth cannot be ruled out. Therefore, the evidence PW4, PWJ3, documents Ex.P.4 and P.22 are not sufficient materials to believe that accused No.1 caused the murder of Smt.Shankrevva hitting to her head by club and thereafter, Al and 2 hide the body in a well afterpacking it’ 10. Secondly, the Trial Court has strangely observed that no opportunity was given to the accused :11: to crossexamine PW4 before the Magistrate at the time when PW4 made a statement under Section 164 of CrPC. That is not the stage to crossexamine PW4 by the accused. Under Section 164 of CrPC, the Magistrate is expected to record a statement of witness. He may even choose to record the same after administering oath. At that stage, the accused does not have right to cross-examine the witness who gives the statement under Section 164 of Cr,PC. before the Magistrate. The Trial Judge has also fallen in error in construing the statement as a confession statement of PW-4. There cannot be confession by a witness, The person who is guilty, will confess. Based on such wrong assumptions, the Magistrate has chosen not i o rely on the evidence of PW4. In our considered opinion, there is no proper evaIuaton of material on record by the Court below inasmuch as, it has proceeded erroneously while comma to the conclusion by considering the statement math.. u.nder Section. 164 of Cr, P. C. TFie Court also could have ccnsidered as to whether it is a fit 12: case to proceed against PW-4 under Section 344 of Cr.P.C. In our considered opinion, the Trial Judge fallen in error while considering the statement made by PW-4 under Section 164 of Cr.P.C. and has completely ignored the provisions of Section 344 of Cr.P.C. 11. It was open for the Trial Court to consider as to whether action could be taken against PW-4 under the provision of Section 344 of Cr.P.C or not. It should not be misunderstood that we are specifically directing the Court below to proceed with the matter in a particular manner. The Trial Court is expected to decide the matter on merits and in accordance with law. We may add that perjury has become a way of life in law Courts. If the Trial Judge opines that the witnesses are deposing falsely before the Court, it is open for the Trial Court to proceed against such witness. In our considered opinion, if the Court below finds that the witness is telling lie and chooses to go back on his previous statement, that too, on oath made before the Judicial Magistrate, action needs to be taken against (A 13: such witness in the interest of justice. Ofcourse, it is for the Trial Court to decide as to whether action needs to be taken or not depending upon the facts and circumstances of each case. 12. Since we find that the Trial Court has completely fallen into error while considering the material on record more particularly the statement made by PW-4 under Section164 of Cr.P.C., in our considered opinion, interest of justice will be met if the matter is remanded back to the Trial Court for fresh disposal in accordance with law. By the said process, no prejudice will be caused to anybody. It is open for the defence also to lead evidence, if it so chooses. Accordingly, we pass the following: ORDER 1. The impugned judgment arid order of acquittal passed by the Fast Track Court-I, Koppal in S.C.No.65/2008 dated 23/02/2010 is set aside. :14: 2. The matter is remitted to the Trial Court for fresh disposal in accordance with law. 3. The Sessions Case No.65/2008 is restored to the file of the Court below. Since the matter is old, the Trial Court is directed to decide the matter in accordance with law and on merits as early as possible but not later than six months from the date of receipt of copy of this order. Office is directed to send back the records forthwith. Sd!’ JUDGE Sd! JUDGE Rsh/fr*