Ningappa Yallappa
Hosamani & Ors. Vs. State of Karnataka & Ors. [2009] INSC 1003 (8 May
2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 495 OF 2006
Ningappa Yallappa Hosamani and Ors. ...Appellants Versus State of Karnataka and
Ors. ...Respondents With Criminal Appeal No. 496 OF 2006
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in these appeals is to the order passed by a Division Bench of the Karnataka
High Court. The High Court by the impugned judgment allowed the appeal and set
aside the conviction of appellants 3, 4 and 5 (accused No.3-Sri Giriyappa @
Gireppa, A-4 Sri Yallappa S/o Arujunappa Yaraddi, A-5 Sri Vithal S/o Kalakappa)
before it. The compensation of Rs.50,000/- awarded to Girijabai (PW-4) was
reduced to Rs.20,000/-. The present appeal is by A1, A6 and A7.
2.
Seven
accused persons had faced trial for alleged commission of offences punishable
under Sections 143, 148, 341, 109, 302 and Section 201 read with Section 149 of
the Indian Penal Code, 1860 (in short the `IPC').
The occurrence took
place in the intervening night of 31.1.2005 around midnight.
3.
Prosecution
version in a nutshell is as follows:
Namadev Muralidhar
Huvvannavar (the deceased) resided in Bommanabudni village along with his
wife-Girijabai (PW.1) and his five children, out of whom Panduranga (PW.5) is
one. He was in politics and due to his activities, he had incurred enmity of
many persons. He was an accused in a session case on the allegation of having
committed about ten years prior to 2005, the murder of Arjunappa Yaraddi
(father of accused No.4) having set on fire the sugarcane crop of Yallappa
Yaraddi. He was later acquitted in the said case. Due to that, he had enmity
towards accused No.4, and for certain other reasons towards other accused also.
On 30.1.2005 he left for Mudhol at about 4.00 p.m., on his CD Don motorcycle
bearing Reg.No.KA- 48/E-1688 (M.0.15). In Mudhol, he met Kallanagouda
Timmanagouda Patil of Utturu (P.W.12) at about 8.00 p.m., and told that he was
returning to Bommanabudni via Halki. Later at 9.00 p.m. he was seen at Halki by
Gyaneshwar Ramappa Manemmi (P.W.11) going on the motorcycle towards
Bommanbudni. He did not return home on that day and on the next day as well.
Therefore, Girijabai (P.W.1) and Panduranga. (P-W.5) started the search for
help. They traced the movement of Namadev till he left Halki and thereafter
they could not get any trace of Namadev. In the meantime, they learnt that
there were certain motorcycle marks in the land of Vijaya Mandandappa Sutar of
Mingapura and when they went there, they found certain tyre marks of a motor
cycle corresponding with the tyre marks of Namadev's motor cycle. Therefore
suspecting possible abduction of Namadev, P.W.1 lodged a complaint against
Yallappa Arjunappa Yaraddi (accused No.4) and Vital Kalakappa Navi (accused
No.5). That complaint was received by Sri Malakappa, P.S.I. of Lokapur Police
Station (P.W.21), who registered a case at Crime No.16/2005 and forwarded
F.I.R. (Ex.P.27) to the JMFC, Mudhol. He went to the place i.e., the land of
Vijaya Manadappa Sutar as shown by P.W.1 and conducted the spot mahazar as per
Ex.P.2. He also collected information in the neighbouring villages. He learnt
that on that night i.e., at 8.00 p.m. of 30.1.2005, P.W.10-Vishnu Tulasigeri
had seen the accused Nos.1, 2 and 4 to 7 near Bommanabudni bus stand talking to
each other and later P.W.16-Laxmappa Mullauru having seen the accused No.2 and
7 going on one motor cycle and accused Nos.1 and 6 going on another motor cycle
towards Belgaum road. He also learnt that at that time the accused No.7 was on
the motorcycle with a gunny bag and when P.W.16 had asked him about the same,
the accused No.7 had replied that it contained a jaggery block intended to be
given to his relative. The police also learnt that on the same night i.e., at
about 3.00 a.m. on 30.1.2005, the accused Nos.1, 2, 6 and 7 had been seen by
P.W.7-Hanamath Gouda Patil near the canal and two motor cycles parked on the
road. That was further confirmed by the information given by P.W.8-Bhimappa
Maleguddi.
In furtherance of the
same, the police suspected the accused Nos.1, 2 6 and 7 in the matter and
launched a search for them. The accused Nos.1 and 2 were apprehended on
3.2.2005. On interrogation by P.W.20-Basavareddi Lingadal, C.P.I. of Mudhol
circle (investigating officer), the accused Nos.1 and 2 volunteered information
to show the place where Namadev had been murdered and also the place where his
dead body had been buried. In furtherance of that information, police officer
in-charge went to the place near the land of Vijaya Manandappa Sutar and later
to a place as shown by accused Nos.1 and 2. There the place near the canal
shown by the accused Nos.1 and 2 was dug up resulting in the discovery of a
gunny bag (M.0.9), which contained a dead body. That dead body was identified
by Namadeva's wife-P.W.1-Smt.Girijabai and Namadev's son-Sri Pandurganga
(P.W.5) as that of Namadeva. In furtherance of the information furnished by the
accused Nos.1 and 2 regarding involvement of other accused, a search was
launched and accused Nos.4 and 5 were arrested on 7.2.2005. In furtherance of
the voluntary information furnished by them, sticks M.Os.11 and 12 allegedly
used by them to beat Namadev were recovered. The accused No.6 was arrested on
11.2.2005. The interrogation of accused No.6 resulted in leading them to the
river and showing the place where, according to him, they had drowned the
motorcycle (M-0.13) of Namadev after his murder. A swimmer-Lavappa Laxmappa
Nagaral (P.W.15) was sent to that place, who brought up the said motorcycle
(M.0.13). That was recovered under panchanama. Later the accused No.7 was
arrested on 26.2.2005 at Panchagavi village and in furtherance of the
information furnished by him, the pick-axe (M.0.14) allegedly used for burying
the dead body was recovered. After further investigation, a charge sheet was placed
against the accused.
The accused pleaded
not guilty and claimed to be tried. The prosecution examined 23 witnesses and
closed its case. About the deceased having been seen by the persons for the
last time, the prosecution examined the deceased's wife (PW.1), the deceased's
son (P.W.5) and P.W.s 10, 11 and 12. About the movements of the accused to
connect them with the murder of Namadev, prosecution has examined P.Ws.10, 13
and 16. Though P.W.13 has not supported the prosecution and P.W.16 only partially
supported, the evidence of these two witnesses shows the movement of the
accused Nos. 1, 2, 6 and 7. As regards the motive for murder, P.Ws 6, 17 and 18
have been examined. P.Ws. 2, 3 and 4 are panchas. P.W.14 dug up the land from
where the gunny bag containing the dead body of Namadev was recovered.
According to the prosecution, extra judicial confession had been made by the
accused before P.W.9 and the drowned motorcycle was recovered after P.W.15 went
down into the river and brought up the motorcycle. P.W.18 is the junior
engineer, who has drawn the sketch of scene of the offence. Post mortem
examination on the dead body was done by P.W.19 doctor. P.Ws. 20 to 23 are
police officers.
The trial Court on
the basis of the cumulative effect of the circumstantial evidence concluded
that the prosecution had proved that it was the accused who had committed the
murder of Namadev and had disposed of the dead body by putting it in a gunny
bag and burying it near the canal of Chickakhandi village and throwing motor
cycle in the river. In appeal, conviction of A-3 to A-5 was set aside as noted
above. A-6 and A-7 were acquitted of all charges relating to Section 302 and
109 read with Section 149 IPC. The conviction of A-1 and A-3 under Sections 302
and 109 read with Section 149 IPC was converted to Section 302 read with
Section 34 IPC. The conviction of A-1, A-2, A-6 and A-7 under Section 201 read
with Section 149 IPC was converted to under Section 201 read with Section 34
IPC while the sentence is maintained.
4.
Learned
counsel for the accused appellants submitted that the circumstances relied on
clearly established the accusations and the only case is recovery under Section
27 of Indian Evidence Act, 1872 (in short the `Evidence Act'). The present
appellants are A-1, A-6 and A-7 so far as these appeals are concerned.
5.
The
basic challenge is that on the basis of statement made under Section 27 of the
Evidence Act the conviction cannot be maintained because it cannot be said that
the circumstances have been established.
6.
Learned
counsel for the respondent-State on the other hand supported the judgment.
7.
As
regards the involvement of the other accused, the prosecution relied on the
recovery of the motorcycle in furtherance of the voluntary information furnished
by the accused No.6. The said accused was arrested on 11.2.2005 and as spoken
to by P.W.20 investigating officer, in furtherance of the voluntary information
furnished by him, they went to the river near Chickakhandi where a place in the
river was shown by the accused No.6 as the place, where motor cycle had been
drowned. P.W.15-Lavappa Laxmappa Nagaral had been taken there and he went into
the river at the place shown by the accused No.6 and brought up the motorcycle
M.0.15.
The said motorcycle
was later identified as that of Namadev. The cross- examination of P.W.15 does
not show anything to doubt his version.
8.
It
was submitted by the appellants that according to P.W.16, the accused Nos.1 and
6 were seen in the police station on 3.2.2005 and this theory of the accused
No.6 being arrested on 11.2.2005 and on his voluntary information furnished on
that day, the motor cycle having been recovered in presence of P.W.15, cannot
be believed. Of course P.W.16 in the cross- examination says that when he went
to the police station, he saw the accused Nos. 1 and 6. It was submitted by the
State that perhaps it may be a typographical mistake and it may be the accused
Nos.1 and 2 since the records show that it is the accused Nos.1 and 2, who had
been arrested on 3.2.2005. The possibility of typographical mistake is
possible. However, even then taking into consideration the contention of the
learned counsel for the appellants, at the most it may amount to an illegal
custody by the police till 11.2.2005, thereafter recovering the motorcycle on
11.2.2005. That may create some doubt regarding the claim of the police with
regard to the recovery. But considering the evidence of P.W.15, we find that
this suspicion is unfounded. It is quite possible that the police detained
accused no.6 unnecessarily from 3.2.2005 to 11.2.2005. We find no reason to
discard the alleged recovery of motorcycle in furtherance of the information
furnished by accused No.6. As regards the accused No.2, the prosecution relies
on the deposition of P.W.7 who saw the accused Nos.1, 2, 6 and 7 near the canal
at about 3 a.m. of 31.1.2005. In addition P.W.12 saw the accused Nos.1, 2, 6
and 7 near the bridge. Earlier on 30.1.2005 at about 11.00 p.m.
all those four
persons had been spotted by P.W.16. All these depositions conclusively show
that from 11.00 p.m. on 30.1.2005 till about 4.00 a.m. of 31.1.2005, the
accused Nos.1, 2, 6 and 7 were seen together. On complete perusal of the
evidence, we find that on 30.1.2005 Namadev left his house at 4.00 p.m. and
went to Mudhol on his motorcycle bearing No.KA-28/A 1688 (M.0.15). He was seen
at Inspection Bungalow, Mudhol, at 8.00 p.m. by P.W.12-Kallanagouda Patil of
Utturu village. Namdeva told P.W.12 that he was returning to Bommanabudni via
Halki. At 9.00 p.m. he was seen at Halki by Jnaneshwara (P.W.11) going on the
motorcycle towards Bommanabundi. Thereafter nobody saw him alive.
9.
The
accused Nos. l, 2 and 4 to 7 were seen by Bommanabudni bus stand at about 8.00
p.m. of 30.1.2005 by P.W.10 Vishnu Tulasigeri. The evidence of P.W.16 Laxmappa
Mullurur shows that the accused Nos.2 to 7 were seen at 11.00 p.m. on that day
on the motor cycle. That witness also saw the accused Nos. 1 and 6 on another
motorcycle along with other. His evidence further shows that the accused No.7
was riding the motorcycle along with the accused No.2 on that motorcycle and
another motorcycle was driven by the accused No.6-Hanamant Ramappa Kivudi on
which the accused No.1-Ningappa Yallappa Hosamani was sitting with a gunny bag.
When he enquired from
the accused No.1, about the gunny bag, the accused No.1 is stated to have
replied that it contained jaggery block, which was to be given to his
relative's house. It is submitted by the appellants that even if this is
accepted as true, there was nothing wrong in Ningappa Yallappa Hosamani
(accused no.1) taking a jaggery block to his relative's house and that cannot
fasten the liability of transporting the gunny bag containing dead body. The
time on which this incident is stated to have happened is at about 11 p.m. on
30.1.2005 and later the same persons were seen near the canal with both the
motorcycles. Therefore the story of gunny bag containing the jaggery block is
not believable. As held by the Courts below it must have contained the dead
body of Namadev. Taking into consideration this factor, we find that the
prosecution has conclusively proved that the accused Nos.1, 2, 6 and 7 had
disposed of the dead body of Namadev by putting it in a gunny bag and burying
it at a place near the canal, which was detected in furtherance of the
voluntary information furnished by accused No.1 and 2. It is also proved that
the motorcycle of Namadev was drowned in the river by the accused, which was
later recovered in furtherance of the voluntary information furnished by
accused No.6. As regards accused Nos.1 and 2, since the dead body of Namadev
was recovered in furtherance of the voluntary information furnished by them,
the natural presumption, in the absence of explanation by them is that it was those
two persons, who had murdered Namadev and had buried the dead body.
10.
As
regards recovery of the dead body is concerned, the High Court noted as
follows:
As regards the second
ground urged by the learned counsel for the appellants, there also what has
been stated is that a rumour had been spread that four persons had committed
the murder of Namadeva and his dead body had been buried near the canal and
later he was called on 2.3.2005 by Lokapur police. The mahazars regarding the
place of offence of murder conducted on 3.2.2005 and the place were the dead
body of Namadev was recovered were conducted in the early hours of morning of
3.2.2005 and it is not unlikely that information immediately spread in the
village and immediately Namadev's dead body had been placed near the place of
canal. Therefore, this cannot be taken as indicating the knowledge the people
about the burial of the dead body even before the dead body of Namadev was
detected in furtherance of the voluntary information furnished by the accused
Nos.1 and 2. For this reason, we do not accept the interpretation put forth by
the learned counsel for the appellants with regard to the recovery of dead body
of Namadev.
The evidence of
P.W.20-investigating officer shows that the accused Nos.1 and 2 were arrested
on 3.2.2005 at Mahalingapura and in furtherance of the interrogation, they
furnished information and police and panchas were led by the accused Nos.1 and
2 to a place near the canal.
This claim of P.W.20
has been corroborated by the evidence of P.W.14-Basappa Ramappa Pujari, who
says that he had accompanied the police and panchas to the place where the
accused Nos.1 and 2 were taken and the accused Nos.1 and 2 showed a place as a
place of burial of Namdev's body. Then, his deposition further shows that he
and C.Ws 22, 24 and 25 were asked to dig the land and when they dug the land,
they found a gunny bag. That gunny bag contained a dead body which was later
identified by PWs 1 and 5 as the body of Nadadev.
We have very
carefully gone through the evidence of PWs 14 and 20 in this regard and find no
material to disbelieve the version of PW-14 that the place was shown by A-1 and
A-2 and that when the place was dug up, they found a gunny bag containing
Namadev's dead body.
This evidence
conclusively shows that the accused Nos. 1 and 2 had buried the said gunny bag
containing the dead body of Namadev and that it was detected in furtherance of
the voluntary information furnished by them.
11.
In
State of Maharashtra vs. Suresh (2000 (1) SCC 471) it was observed as follows:
"Three
possibilities are there when an accused points out the place where dead body or
an incriminating material was concealed without setting that it was concealed
by him. One is that he himself would have concealed it. Second is that he would
have seen somebody else concealing it. And the third is that he would have been
told by another person that it was concealed there. But if the accused declines
to tell the criminal court that his knowledge about the concealment was on
account of one of the last two possibilities the criminal court can presume
that it was concealed by the accused himself. This is because the accused is
the only person who car offer the explanation as to how else he came to know of
such concealment and if he chooses to refrain from telling the court as to how
else he came to know of it, the presumption is a well- justified course to be
adopted by the criminal court that the concealment was made by him. Such an
interpretation is not inconsistent with the principle embodied in Section 27 of
the Evidence Act."
12.
Above
being the position, we find no merit in these appeals which are accordingly
dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
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