Smt. Rajeshwari Shetty vs State Of Karnataka
2021 Latest Caselaw 1744 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF MARCH, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.1843/2020

BETWEEN:

SMT. RAJESHWARI SHETTY,
W/O K. BHASKAR SHETTY,
AGED ABOUT 54 YEARS,
R/AT "ESHWARI", HAYAGREEVANAGARA,
2ND CROSS, INDRALI SHIVALLI VILLAGE,
UDUPI TALUK, UDUPI DISTRICT-576 102.               ...
PETITIONER

              (BY SRI ARUN G., ADVOCATE FOR
               SRI K.B.K. SWAMY, ADVOCATE)

AND:

1.     STATE OF KARNATAKA,
       BY COD, BENGALURU,
       REPRESENTED BY STATE PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       BENGALURUL 560001.

2.     NAVNEETH B. SHETTY,
       S/O K. BHASKAR SHETTY,
       AGED ABOUT 25 YEARS,
       PRESETNLY AS UNDER TRAIL PRISONER
       VIDE UTP NO.11439/2017
       AT BENGALURU CENTRAL JAIL,
       PARAPPANA AGRAHARA,
       BENGALURU-560 100.

       RESIDENTIAL ADDRESS:
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     " ESHWARI", HAYAGREEVANAGARA,
     2ND CROSS, INDRALI SHIVALLI VILLAGE,
     UDUPI TALUK, UDUPI DISTRICT-576 102.
3.   NIRANJAN BHAT,
     S/O SRINIVAS BHAT,
     AGED ABOUT 30 YEARS,
     PRESENTLY AS UNDER TRAIL PRISONER
     VIDE UTP NO.11440/2017,
     AT BENGALURU CENTRAL JAIL,
     PARAPPANA AGRAHARA,
     BENGALURU-560 100

     RESIDENTIAL ADDRESS:
     YASHAWINI NADEBETU
     NANDALEKE, KARKALA-574110.

4.   SRINIVAS BHAT,
     S/O LATE NARAYAN BHAT,
     AGED ABOUT 60 YEARS,
     YASHAWINI NADEBETU,
     NANDALEKE, KARKALA-574110.

5.   RAGAVENDRA,
     S/O PARAMESHWARA,
     AGED ABOUT 30 YEARS,
     SRI MATHRU KRUPA HOUSE,
     KAERAOLI, NANDALEKE,
     KARKALA 574 110.

6.   SMT. GULABI SHEDTHI,
     W/O LATE SEENAPPA SHETTY,
     AGED ABOUT 75 YEARS,
     R/AT DEVI NIVASA,
     SARAKARI GUDDE,
     SHANKARAPURA POST,
     UDUPI-574115.
     (AMENDED VIDE COURT ORDER DATED 09.12.2020)

                                            ... RESPONDENTS

            (BY SRI THEJESH P., HCGP FOR R-1;
                                  3



           SRI JAGADEESHA B.N., ADVOCATE FOR R-6;
           NOTICE TO R-2 TO R-5 IS DISPENSED WITH
                VIDE ORDER DATED 19.11.2020)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO EXPUNGE THE INADMISSIBLE EVIDENCE
WHICH IS EXTRACTED AS ITEM NOS.1 TO 9 IN THE ABOVE
PETITION, FROM THE EVIDENCE RECORDED ON 06.07.2018
AND     16.07.2018   THROUGH     P.W.NO.2/C.W.NO.1  IN
S.C.NO.2/2017 ON THE FILE OF THE HONBLE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, UDUPI.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:


                            ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to expunge the inadmissible evidence which is

extracted as item Nos.1 to 9 from the evidence recorded on

06.07.2018 and 16.7.2018 through P.W.2 in S.C.No.2/2017 on

the file of the Principal District and Sessions Judge, Udupi.

2. The learned counsel for the petitioner has restricted

his relief only in respect of prayer (a) and he is not pressing the

petition in respect of prayer (b).

3. The factual matrix of the case is that the

accused/petitioner is facing the trial for the offences punishable

under Sections 302, 201, 120B, 204 read with Section 34 of IPC.

The petitioner herein has not pleaded guilty before the Trial

Court and claimed trial. Hence, the prosecution has commenced

the trial by examining the witnesses. The Trial Court recorded

the statement of P.W.2. During the course of recording of the

statement, the learned counsel for the accused/petitioner has

objected for recording of statement of P.W2 item Nos.1 to 8

which has been culled out in the petition as item Nos.1 to 9 as

regarding the evidence of the Investigating Officer given before

the Court that accused gave the information during the course of

investigation for the offences alleged against her.

4. The learned counsel for the petitioner would

vehemently contend that the learned Trial Judge ought not to

have recorded the said statement and further contends that the

objections raised by the learned counsel for the accused ought

not to have been rejected out rightly and even if the Court felt

that the statement of witness P.W.2 has to be recorded, the

same is subject to the admissibility and should have been

recorded subject to the objections of the accused and instead of

that out rightly rejected the request.

5. The learned counsel for the petitioner in support of

his arguments relied upon the judgment of the Apex Court in the

case of BIPIN SHANTILAL PANCHAL v. STATE OF GUJARAT

AND ANOTHER reported in (2001) 3 SCC 1, wherein with

regard to the admissibility of evidence is concerned it is held that

practice of passing detailed order allowing or rejecting the

objection and then giving time by suspending trial to enable the

parties concerned to move the higher court against such

interlocutory order are held, not proper. Instead Court should

make a notice of such objection and decide it at the last stage of

the final judgment. This procedure has to be followed except

where the objection relates to deficiency in stamp duty of a

document. Criminal trial - practice and procedure has been

summed up in the judgment.

6. The learned counsel also relied upon the unreported

judgment of this Court passed in Crl.P.No.8749/2016 dated

14.08.2018 and brought to the notice of this Court paragraph

No.16 wherein this Court discussed with regard to Section 25 of

the Evidence Act, which prohibits the confessional statement to

be proved against the accused, the extracted portion of the

evidence being a confession made to the police officer cannot be

allowed to be brought on record through the evidence of P.W.2.

7. Per contra, the learned counsel for respondent No.6

would contend that the very contention of the learned counsel

for the petitioner that the evidence ought not to have been

recorded by the Trial Court, is not proper. In support of his

contention, he relied upon the judgment of the Apex Court in the

case of ASAR MOHAMMAD AND OTHERS v. STATE OF

UTTAR PRADESH reported in (2019) 12 SCC 253 and brought

to the notice of this Court paragraph No.21 of the judgment

wherein it is held that, it is a settled legal position that the facts

need not be self-probatory and the word "fact" as contemplated

in Section 27 of the Evidence Act is not limited to "actual

physical material object". The discovery of fact arises by reason

of the fact that the information given by the accused exhibited

the knowledge or the mental awareness of the informant as to

its existence at a particular place. It includes a discovery of an

object, the place from which it is produced and the knowledge of

the accused as to its existence. The learned counsel referring

the principles laid down in the said judgment would contend that

the Trial Court has not committed any error and the admissibility

of the evidence has to be considered at the time of appreciating

the material on record on merits.

8. Having heard the learned counsel for the petitioner

and the learned counsel for respondent No.6 and also on perusal

of item Nos.1 to 9, the evidence which has been given by P.W.2

is in respect of what the Investigating Officer has gathered

during the course of investigation. No doubt, the voluntary

statement of the accused only to be marked if it is in respect of

recovery and the same is also settled law. Other than the

voluntary statement with regard to recovery under Section 27 of

the Evidence Act, the same is not admissible. In the case on

hand, having perused the deposition of P.W.2, the learned

counsel for the accused i.e., the petitioner herein pointed out

that at the time of recording the evidence, he has objected for

recording the evidence of P.W.2. It is rightly pointed out by the

learned counsel for the petitioner that the Trial Judge ought not

to have rejected the prayer out rightly and instead of admissibly

of the same would have been considered at a later stage and

ought to have recorded the evidence of P.W.2 subject to

objection and the same has to be considered at the time of

appreciating the material while dealing the matter on merits.

There is a force in the contention of the learned counsel for

respondent No.6 also. The witness who has been examined

before the Trial Court is the Investigating Officer and during the

course of investigation, he enquired the accused and she

revealed certain things which is admissible under Section 27 of

the Evidence Act. The recovery under Section 27 of the

Evidence Act is not hit under the Evidence Act and the same

would be admissible with regard to the recovery is concerned.

The objection raised is with regard to the information given by

the accused during the course of investigation. The Trial Judge

ought to have recorded the evidence subject to objections and

the same ought to have been appreciated at the time of

appreciating the matter on merits.

9. Having perused the order of the Trial Judge, the Trial

Judge uprightly rejected the objection and the same is error

apparent and ought to have recorded the evidence of P.W.2

subject to the objection raised by the accused. However, this

Court has made it clear that the same has to be appreciated at

the time of appreciating the material on merits whether the

same is admissible to consider the matter on merits and

rejecting the prayer out rightly is not correct. The Trial Court is

directed to consider the admissibility of the evidence of P.W.2

while appreciating the matter on merits.

10. With these observations, the petition is disposed of.

Sd/-

JUDGE

MD