Malleshappa vs State Of Karnataka

1. The appellant along with six others was tried by the Court of Sessions for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-. He was also convicted for the offence punishable under Section 364 IPC and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo rigorous imprisonment for 3 months. Further, he was convicted for the offence punishable under Section 201 IPC and sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 1,000/- and in default of payment, to undergo rigorous imprisonment for 3 months. All sentences were directed to run concurrently. The Sessions Court acquitted accused Nos. 2, 3, 4 and 5. The appeal of the appellant was dismissed by the High Court of Karnataka by the impugned judgment, however, accused Nos. 6 and 7 were acquitted by the High Court of all the charges leveled against them. In this case we are concerned with the sole appellant (Accused No. 1).

3. In brief, the case of the prosecution is that the deceased-Yankanna Balakannavar had illicit intimacy with the wife of the appellant Smt. Hanamawwa (PW-19). Deceased was working as the driver of the tractor of the appellant during 2001. The appellant's suspicion about the deceased having illicit intimacy with his wife led to serious misunderstanding between them because of which, deceased left his job as the tractor driver. On 12.7.2001 at about 8.00 p.m., the appellant and accused Nos. 6 and 7 went in the car of the appellant to the house of the deceased. He was not at home. The appellant and accused Nos. 6 and 7 told deceased Yankanna's mother Yallawwa (PW-10) that they required the services of her son in connection with digging of a borewell in the land of the appellant. When deceased Yankanna returned home within half an hour, he was immediately taken by the appellant and accused Nos. 6 and 7 with them. On that night, deceased- Yankanna did not return home. On the next day, Yallawwa (PW-10) went in search of her son but could not find him. On questioning, the appellant informed PW-10 that he had brought back deceased Yankanna at about 11.00 p.m. on the same night and had left him in the village. Not satisfied with the answer given by the appellant, PW-10 went to accused Nos. 6 and 7 and inquired about the whereabouts of her son but they also did not give any satisfactory answer. Thereafter, PW-10 and her nephew-Kamanna Parameshwar (PW-18) went in search of the deceased Yankanna and in the process, made inquiries in nearby villages namely Dadanatti, Rugi, Chabbi etc. but could not find him.

4. On 21.7.2001, Inspector of Bilagi Police Station (PW- 29) received information that there was a dead body found floating in the Ghataprabha river. Immediately, he rushed to the place and found the dead body of a person near the pump house. The dead body was taken out from the river. It was found that the head and rest of the portion of the body had been severed. The body was highly decomposed and the bones were exposed. The legs of the dead body were found folded and tied with a rope. The body was tied by another rope at the place of neck also. Inspector of police (PW-29) lodged information with regard to the same and the same was registered as Crime No. 91/2001 of Bilagi Police Station for the offences punishable under Section 302 and 201 of the IPC. The First Information Report is exhibit P-23 dated 21.7.2001. Thereafter, PW-29 conducted inquest in the presence of PW-1 and 2 and sent for the medical officer to conduct the post mortem examination. Dr. Sabu Satihal, Medical Officer, KIMS, Hubli (PW-21) conducted the post mortem examination. The Medical Officer could not confirm as to whether the body was that of a male or female since the genital portion had been highly decomposed. However, there was underwear found on the body which was taken out and the body was preserved for two days for identification.

5. In the meanwhile, PW-10 along with PW-18 had gone to Kaladgi police station and lodged a complaint on 22.7.2001 inter alia alleging that her son was working as a tractor driver for about 3-4 years with the appellant and about 3 months back, her deceased son left the job on account of some disputes between them. She suspected that there was some dispute between her son and the appellant, accused Nos. 6 and 7 since they were frequently roaming around her house, making inquiries about her son. She made inquiries with her deceased son in that regard who did not respond. She apprehended that the appellant may cause harm to her son. It is further alleged that about 11 days back i.e. on 12.7.2001, herself, the deceased and Lacchavva-wife of the deceased (PW-11) were sitting in their house and at that time the appellant, accused Nos. 6 and 7 came to her and stated that they required her son in connection with digging of a borewell in the land of the appellant. The deceased refused to go but they took her son forcibly and the same was noticed by her neighbours. It was about 8.00 p.m. Thereafter, her son did not return to home. She made inquiries with the appellant who stated that he had dropped her son in the village at 11.00 p.m. Other accused also did not give any satisfactory explanation. She suspected that the said three persons might have killed her son. On the basis of the said information a case was registered by sub-Inspector(PW-28), Kaladgi Police Station as Crime No. 50/01 for the offence under Section 364 read with 34 IPC. Intimation of detection of dead body in Ghataprabha river was flashed to the neighbouring police stations and the same was received by Kaladgi police station and in furtherance of the same, PW-10 and PW-11 were taken to the place. PW-10 identified the body as that of her son Yankanna on the basis of the underwear found on the body. On 26.7.2001, appellant and accused Nos. 2 and 3 were arrested. In furtherance of the voluntary information given by the appellant, PW-29 could ascertain the places where the deceased had been taken by the appellant and other accused, who were involved in the incident as well as the place where the dead body of Yankanna had been thrown into river. Weapons of offence were also recovered on the basis of the voluntary information furnished by the appellant. As it was revealed that the incident occurred within Kaladgi limits, PW-29 submitted the entire papers on 8.8.2001 to Kaladgi Police Station for further investigation. Police Inspector of Bagalkot police station (PW-26) took up further investigation on 9.8.2001 and filed charge sheet against the appellant and accused Nos. 2 to 7 for offences punishable under Sections 143, 147, 148, 354, 302, 201 read with 149 of the IPC.

6. The accused pleaded not guilty of the charges and claimed to be tried. The prosecution, in order to establish the case, examined in all 30 witnesses. No witness was examined on behalf of the accused. The learned Sessions Judge found that the materials were not sufficient and no case was made out as against accused Nos. 2 to 5 and consequently, acquitted them of all the charges. The remaining accused namely appellant and Accused Nos. 6 and 7 were convicted for the offences punishable under Section 302, 364, and 201 of the IPC. On appeal, the High Court allowed the appeal of accused Nos. 6 and 7 and acquitted them. The High Court dismissed the appeal of the appellant and confirmed the conviction and sentences imposed as against the appellant.

13. In the cross-examination, she stated in categorical terms that at the time of arrival of the appellant at her house, her son Yankanna was not present at home and only half an hour later he returned home and immediately the appellant took him away. Prior to the arrival of the deceased, she and the appellant and PW-11 were present in the house. The appellant took the deceased and went away. She accepted that on receipt of information about floating of a dead body in the Ghataprabha river, she went there and identified the dead body as that of her son. She did not file any complaint to the Bilagi Police Station. Bilagi Police Station took her to Kaladgi Police Station in the police jeep where she lodged Exhibit P-6.

14. In Exhibit P-6 (FIR), it is stated by PW-10 that her deceased son Yankanna left his job about 3 months prior to the date of the incident. It is further stated in the Exhibit P-6 that on 12.7.2001 in the evening she was sitting in her house along with the deceased and his wife-Lacchavva (PW- 11) and that time the appellant, accused Nos. 6 and 7 came to her house and she invited them inside. She did not state that her son was not present when the appellant along with other accused came to her house and her son returned home only after half an hour. In exhibit P-6 there is no mention of her coming to the Ghataprabha river and anything about the identification of the dead body of her son. Had she really identified the dead body of her son on 21.7.2001 nothing prevented her from referring to it in exhibit P-6. In her evidence, she stated that she did not claim the dead body of her son nor the police told her to take away the body of the deceased. She did not attend the funeral of her son.

15. PW-11 is none other than the wife of the deceased. She stated in her evidence that about 3 years ago at 8.00 p.m., appellant with two others came to her house and took away her husband with them. Thereafter, her husband did not return home. That after 7-8 days having received the information about a dead body floating in the Ghataprabha river, PW-10 and herself went and saw the dead body and found it to be of her husband. PW-10 filed the complaint to the police. According to her, appellant suspected that her deceased husband had illicit intimacy with his wife because of that, appellant and accused No. 2 took her husband and committed the murder. Looking at M.O.1 first time in the court, she identified the same as underwear of her husband. It is admitted by her in the cross-examination while she was waiting in Bilagi police station, her mother-in-law (PW- 10) went and saw the dead body of her husband and she came and told her that it was the dead body of her husband Yankanna. On the next day, she along with PW-10 went to Kaladagi police station where PW-10 filed the complaint Exhibit P-6. She did not see the body of her husband. She did not perform the funeral. She further stated in her evidence, it is the police who told her that there was illicit relationship between deceased and Hanamawwa, wife of the appellant.

27. For all the aforesaid reasons, we hold that the prosecution did not establish the charges framed against the appellant under Sections 302, 364 and 201 IPC. The conviction and sentence awarded against the appellant is, accordingly, set aside and he is acquitted of all the charges. He is ordered to be released forthwith unless required in any other case.

28. The appeal is, accordingly, allowed.