Karnataka High Court
Smt Savitha vs State Of Karnataka on 25 March, 2022
Bench: B.Veerappa, S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.596/2016
C/W
CRIMINAL APPEAL No.104/2016,
CRIMINAL APPEAL No.1348/2018
IN CRIMINAL APPEAL No.596/2016
BETWEEN:
SMT. SAVITHA
W/O LATE RAGHAVENDRA
AGED ABOUT 28 YEARS
OCC: HOMEMAKER
R/O GUNDOORU MOOLE
VILLAGE BASAVAPURA TALUK
HOSANAGAR DISTRICT
SHIVAMOGGA-577 418
...APPELLANT
(BY SRI.PRAVEEN.C, ADVOCATE)
AND
STATE OF KARNATAKA
THROUGH RIPPANPETE POLICE STATION
HOSANAGAR TALUK
DISTRICT SHIVAMOGGA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
2
HIGH COURT BUILDING
BANGALORE-560 001
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT CONVICTION DATED
16.12.2015 AND ORDER OF SENTENCE DATED 18.12.2015
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE
SHIVAMOGGA SITTING AT SAGAR IN S.C.NO.167/2013 -
HOLDING THE APPELLANT/ACCUSED NO.4 GUILTY OF THE
OFFENCES P/U/S 302, 120(B) R/W 34 OF IPC AND ETC.
IN CRIMINAL APPEAL No.104/2016
BETWEEN:
PARASHURAMA S/O NAGESHAPPA
AGED ABOUT 20 YEARS
OCC. TILES WORK
R/O VILLAGE AYANOOR KOTE
TALUK AND DISTRICT
SHIVAMOGGA-577 426
...APPELLANT
(BY SRI. T.C.PRABHAKARA , ADVOCATE)
AND
STATE OF KARNATAKA
REPRESENTED BY RIPPONPETE
POLICE STATION, SAGARA
SHIVAMOGGA DISTRICT-577 426
THE REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560 001
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
3
THIS APPEAL IS FILED UNDER SECTION 374 (2) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT DATED 16.12.2015,
PASSED IN S.C.NO.167/2013, BY THE 5TH ADDITIONAL DISTRICT
AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR AND
CONSEQUENTLY ACQUIT THE ACCUSED NO.3/APPELLANT HEREIN
FROM THE CHARGES LEVELLED AGAINST HIM AND ETC.
IN CRIMINAL APPEAL No.1348/2018
BETWEEN:
SRI. CHATHRAPATHI NAIKA @ AKASH
AGED ABOUT 25 YEARS
SON OF SRI. DEVARAJA NAIKA
OCCUPATION: LABOURER
RESIDENT OF CHAKKAMATHLI DODDAMATHLI
POST: MANDAGATTA-577 202
SHIVAMOGGA TALUK AND DISTRICT
...APPELLANT
(BY SRI.H.SHASHIDHARA , ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR
RIPPONPETE POLICE STATION
HOSANAGARA CIRCLE
HOSANAGARA-577 418
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS APPEAL IS FILED UNDER SECTION 374 (2) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 16.12.2015 AND 18.12.2015 IN
S.C.NO.167/2013 ON THE FILE OF THE COURT OF V ADDITIONAL
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DISTRICT AND SESSIONS JUDGE, SHIVAMOGA, SITTING AT
SAGAR AND THEREBY ACQUIT THE APPELLANT FROM ALL THE
CHARGES FRAMED AGAINST HIM AND GRANT SUCH OTHER AND
FURTHER RELIEFS DEEMS FIT.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A.No.1348/2018 is filed by accused No.1-
Chathrapathi Naika, Crl.A.No.104/2016 is filed by accused
No.3-Parashurama and Crl.A.No.596/2016 is filed by accused
No.4-Smt.Savitha. Accused No.2- Srirama has not filed any
appeal.
2. All these three appeals are filed against the
impugned judgment of conviction and order of sentence
dated 16.12.2015 made in S.C.No.167/2013 on the file of
the V Additional District and Sessions Judge, Shivamogga,
sitting at Sagar, convicting accused Nos.1 to 4 for the
offence punishable under Sections 302 and 120B read with
Section 34 of IPC.
3. It is the case of the prosecution that complainant-
PW.1, father of the deceased lodged a complaint as per
Ex.P.6 against unknown persons and stated that he is the
resident of Basavapura Village, Hosanagar Taluka. Deceased
Raghavendra is his 3rd son who had a love with accused
No.4- Savitha of Doddlimane of Koduru and out of love, their
marriage was solemnized about 11 years back at Bengaluru
and out of the wedlock, they have two children namely Pavan
and Sahana and they were residing together at Basavapura
Village. The complainant and the deceased Raghavendra
were doing coolie and Carpenter work and was also doing
milk vending business for supplying milk to Basavapura
Dairy. Accordingly, on 01.04.2013, the deceased
Raghavendra had gone to supply milk to the dairy and not
returned on that night and he was murdered in the land
adjacent to their house. His daughter-in-law Savitha-accused
No.4 had seen the same on the next day morning at about
7.00 a.m. and informed the people. One Srinath of
Basavapura Village had informed this fact over phone to one
Halappa, who is nephew of the complainant because at that
time, the complainant had gone to his sister's house at
Mavinahole and he returned and came to know that someone
had killed his son, thereby lodged a complaint. The
jurisdictional police after investigation filed the Charge Sheet
against accused Nos.1 to 4. The learned Magistrate has taken
the cognizance of the offence and since the offences are
exclusively triable by the Sessions Court hence Magistrate
has committed the case to the Sessions Court as per Section
209 of Cr.P.C.
4. When the matter came before the learned
Sessions judge, the learned Sessions judge secured the
presence of the accused persons, framed the charge for the
offence punishable under the provisions of Sections 302 and
120B read with Section 34 of IPC and read over to the
accused persons in the language known to them i.e.,
Kannada. The accused persons have denied the charges
leveled against them, pleaded not guilty and claimed to be
tried.
5. In order to prove the case of the prosecution
about the guilt of the accused persons 1 to 4, the
prosecution examined in all 20 witnesses as Pws.1 to 20 and
marked material documents at Ex.P1 to Ex.P42 and the
material objects as Mos.1 to 21. After completion of
evidence of prosecution witnesses, the statement of accused
persons as contemplated under the provisions of Section 313
of Cr.P.C. were recorded explaining the incriminating
circumstances in the evidence of the prosecution witnesses.
The accused persons denied all the incriminating
circumstances, but did not chose to adduce any evidence on
their behalf.
6. Based on the aforesaid pleadings, the learned
Sessions judge framed two points for consideration:
a) Whether prosecution proves beyond all
reasonable doubt that on 01.04.2013 at about
7.45 p.m., to 8.00 p.m., in the land of Cw.1 at
village Basavapura coming within the limits of
Ripponpete police station, accused No.1 to 3 at
the instance of accused No.4 attacked deceased
Raghavendra with choppers with an intention to
kill him in the background of previous enmity
between accused persons and deceased
Raghavendra in respect of illicit relationship
between the wife of Raghavendra accused No.4
Savitha and accused No.1 Chathrapathi, with a
common intention while deceased Raghavendra
was returning from dairy accused No.1 assaulted
him with Chopper on his neck and accused No.2
assaulted, with Chopper on his neck and hand,
accused No.3 assaulted with Chopper on his hand
and with an intention to cause his death and
thereby caused his death amounting to murder
and thereby committed an offence punishable
U/Sec.302 r/w Sec.34 of IPC?
b) Whether prosecution proves beyond all
reasonable doubt that accused Nos.1 to 4 on the
above said date, time and place have hatched a
plan for criminal conspiracy to kill Raghavendra
and to commit an offence punishable with death
or life imprisonment and thereby committed an
offence punishable U/Sec.120(B) r/w Sec.34 of
IPC?
c) What order?
7. After considering both the oral and documentary
evidence on record, the learned Sessions judge answered the
points in the affirmative holding that, the prosecution has
proved beyond reasonable doubt. On 01.04.2013, at about
7.45 to 8.00 p.m., in the land of Pw.1-Nagendrappa
complainant at Basavapura village coming within the limits of
Ripponpete police station, accused Nos.1 to 3 at the instance
of accused No.4, attacked the deceased Raghavendra with
choppers with an intention to kill him in the background of
previous enmity between accused persons and deceased
Raghavendra in respect of the illicit relationship between
accused No.1 and accused No.4 with a common intention,
while the deceased was returning from the milk dairy,
accused No.1 assaulted with chopper on his neck, accused
No.2 with chopper on his neck and hand, accused No.3
assaulted with chopper on his hand and with an intention to
cause death thereby, committed an offence punishable under
Section 302 read with Section 34 of IPC. Further, the finding
that accused Nos.1 to 4 have hatched a plan for criminal
conspiracy to kill the deceased Raghavendra, thereby
committed an offence punishable under Section 120B read
with Section 34 of IPC.
8. Accordingly, the learned Sessions judge by the
impugned judgment of conviction convicted the accused
Nos.1 to 4 under the provisions of Section 302 of IPC and to
undergo imprisonment for life (i.e., they are to remain in
prison until their death) and imposed a fine of Rs.40,000/-
on accused No.1, Rs.25,000/- on accused Nos.2 and 3 and
Rs.50,000/- on accused No.4 with default clause and
convicted accused Nos.1 to 4 for the offence under Section
120B of IPC, rigorous imprisonment for a period of 2 years
and fine of Rs.20,000/- each with default clause. Hence, the
present three appeals are filed by accused Nos.1, 3 and 4.
Accused No.2 has not filed any appeal against the impugned
judgment and order of conviction passed against him by the
trial Court.
9. We have heard the learned counsel for the
parties.
10. Sri.Shashidhara, learned counsel for accused No.1
in Crl.A.No.1348/2018 contended with vehemence that the
entire case of the prosecution is based on the circumstantial
evidence and there is no link from the beginning till the
completion of investigation and there is no evidence with
regard to illicit relationship between accused Nos.1 and 4. He
would further contend that the investigation started only on
02.04.2013, though the incident occurred on 01.04.2013. He
would further contend that the delay in recording the
statement of the witnesses under Section 161 of Cr.P.C. has
not been explained by the prosecution. The evidence by
Pws.1 and 3 with regard to the motive cannot be relied upon
as Pw.1 is the father and Pw.3 is the sister of the deceased.
They are naturally interested witnesses and cannot be relied
upon. He would further contend that the prosecution has not
produced any material for conspiracy under Section 120B of
IPC, nor recovery is proved. In the absence of any material
or recovery at the instance of accused No.1, the impugned
order passed by the trial Court cannot be sustained.
11. He would further contend that the police have
filed charge sheet against accused under the provisions of
Section 302 and 115 read with Section 34 of IPC. However,
without discussing about altering the charge under Section
115 to 120B IPC and without assigning any reasons, the
charge was altered by the trial Court. Thereby the
punishment imposed by the trial Court for the offence
punishable under Section 120B of IPC cannot be sustained.
He further contended that the prosecution has not produced
any call details to show that accused Nos.1 and 4 have any
contact either before the incident or after the incident. Even
though the investigation also not stated about the same, the
fact remains that the prosecution have not produced any
Certificate as contemplated under Section 65B of the Indian
Evidence Act. Thereby, the impugned judgment of conviction
passed by the trial Court against accused No.1 cannot be
sustained and thereby, he is entitled for acquittal in the
present criminal appeal.
12. In support of his contention, learned counsel has
relied upon the dictum of the Hon'ble Supreme Court in the
cases of
(i) Surendar Kumar vs. State of Uttar
Pradesh reported in AIR online 2021 SC 238 in
paragraphs 16 and 22
(ii) State of Uttar Pradesh vs. Sunil
reported in 2017(4) ALJ 99 in paragraphs 14 and
15.
(iii) Md.Younus Ali Tarafdar vs. State of
West Bengal reported in AIR online 2020 SC
1057 in paragraphs 13 to 15.
13. Sri.Praveen.C, learned counsel appearing for
accused No.4 in Crl.A.No.596/2016 contended that the
conviction against accused No.4 is only on the basis hearsay
evidence of Pw.1. With regard to motive, none of the
witnesses whispered against accused No.4. He would further
contend that Pw.3 evidence suspects conduct of accused
No.4 and evidence of Pw.9 recovery at the instance of
accused No.1. Pw.15 the owner of the jewellary shop was
also examined. None of the witnesses have whispered
anything about accused No.4. He would further contend that
in the absence of any material both oral and documentary
evidence, the conviction against accused No.4 under Sections
120B and 302 read with Section 34 of IPC cannot be
sustained. Ex.P18 and Ex.P19 the seizure mahazar recorded
on 26.04.2013 at the instance of accused No.1 reveals that
the ornaments are pledged by accused No.1. Pw.15 is the
owner of the jewellary shop who stated that Ex.P16 and
Ex.P17 belongs to his shop and accused No.1 had come to
his shop to pledge the ear studs. The ornaments were
pledged on 31.03.2013 and the incident was occurred on
01.04.2013, thereby there is nothing against accused No.4
as alleged. He would further contend that Pw.15- a goldsmith
has deposed only against accused No.1. Pw.9 who is witness
to the seizure mahazar deposed about recovery of MO.18-
mobile of accused No.4. Pw.7- mahazar witness who deposed
about recovery Mo.7. Ex.P19 shows that admittedly accused
Nos.1, 2 and 4 were arrested on 26.04.2013. Accused No.3
was arrested on 29.04.2013. Exs.P1 to 24 were marked on
26.04.2013. Therefore, he submits that the very conviction
order passed by the trial Court against accused No.4 cannot
be sustained.
14. In support of his contention, he relied upon the
dictum of the Hon'ble Supreme Court in the case of Surinder
Kumar Khanna vs. Intelligence Officer Directorate of
Revenue Intelligence reported in AIR 2018 SC 3574 at
paragraphs 6 and 14 and in the case of R.Vijaykumar vs.
State by Mahadevapura Police, Bangalore reported in
ILR 1994 KAR 491 in paragraph 6 to the effect that
particularly with regard to most of material circumstances of
the accused giving information under Section 27 of the
Evidence Act leading to the discovery of fact practically no
evidence was given in this behalf by the investigating officer
cannot be relied upon. In the case of Basheera Begam vs.
Mohammed Ibrahim reported in 2020 11 SCC 174,
paragraphs 189 and 195 to the effect that on circumstantial
evidence.
15. Sri.T.C.Prabhakara learned counsel for accused
No.3 in Crl.A.No.104/2016 contends that the impugned
judgment of conviction and order of sentence passed by the
trial Court convicting accused No.3 for the offence punishable
under Sections 302 and 120B read with Section 34 of IPC is
erroneous, contrary to law and cannot be sustained. He
would further contend that according to the prosecution, the
incident was occurred on 01.04.2013, whereas accused No.3
was arrested only on 29.04.2013, there is inordinate delay in
recording the statement. He would further contend that
Pw.10, Pw.11 and Pw.18 were turned hostile and have not
supported the case of the prosecution. He would further
contend that Ex.P24-seizure mahazar where recovery of
Mo.19-chopper, Mo.20-shirt and Mo.21-half pant and blood
stained clothes of accused No.3 is not proved. On the basis
of voluntary statement of accused No.3, the trial Court
proceeded to convict the accused No.3 which is
impermissible. He would further contend that the prosecution
has not produced any material document to prove the
conspiracy between accused Nos.1 to 4 to eliminate the
deceased. In the absence of any material document to prove
the involvement of accused No.3 in homicidal death of the
deceased, the impugned judgment of conviction and order of
sentence passed by the trial Court against accused No.3
cannot be sustained. Accordingly, he sought to allow the
appeal.
16. Per contra, Sri.Vijayakumar Majage, learned Addl.
SPP while justifying the impugned judgment of conviction
and order of sentence passed by the trial Court in all these
appeals contended that motive with regard to the illicit
relationship between accused Nos.1 and 4 spoken to by
Pw.1-father of the deceased and Pw.3 who is the sister of the
deceased. He would further contend that Mo.7 belongs to
accused No.4 which was pledged by accused No.1 in the
shop of Pw.15. Pw.15 and Pw.1 identified the same and
Pw.15-owner of the shop examined as per the said fact. He
would further contend that the recovery of the weapons
Mo.13-chopper and blood stained clothes of the accused
No.1, Mo's 10 and 11 at the instance of accused No.1 as per
Ex.P18-seizure mahazar. The witnesses of seizure mahazar
Pws.17 to 19 supported the case. He further contended that
though recovery of Mo.14-chopper from accused No.2 and
blood stained clothes from accused No.2, the accused No.2
has not filed any appeal against the impugned judgment of
conviction.
17. He further contended that recovery of Mo.19-
chopper and blood stained clothes of accused No.3 and
Ex.P24-seizure mahazar tallies with the blood stained clothes
of deceased i.e., Mos.5 and 6. The evidence of Pw.20-FSL
Officer clearly depicts that the accused persons involved in
the homicidal death of the deceased. Pw.8-sister of accused
No.1 admitted in her evidence that the two SIM cards are
belonging to her and are not belonging to accused No.4.
Ex.P18 shows the mobile/SIM belonging to accused No.1.
Ex.P22 SIM card belongs to accused No.4 was seized from
the possession of the accused. The same was spoken to by
Pw.7 and Pw.9. The same was spoken to by Pw.14-
Investigating Officer. He would further contend that there is
conspiracy between accused Nos.1 to 4 to eliminate the
deceased. Mere non-production of Certificate under Section
65-B of the evidence Act, is a mistake on the part of the
Investigating Officer and cannot be a fatal to the case of the
prosecution. He would further contend that the learned
Sessions judge considering the entire oral and documentary
evidence has come to a definite conclusion that the homicidal
death has proved and the involvement of accused Nos.1 to 4
under homicidal death of the deceased has been proved,
thereby, he sought to dismiss the appeals.
18. In view of the aforesaid rival contentions urged by
the learned counsel for the parties, the points that would
arise for our consideration in the present appeals are:
(a) Whether the Appellants/accused have made
out a case to interfere with the impugned
judgment of conviction and order of sentence
convicting accused Nos.1 to 4 under the
provisions of Section 302 of IPC?
(b) Whether the accused persons have made out
a case to interfere with the impugned judgment of
conviction order passed by the trial Court under
the provisions of Section 120B of IPC in the facts
and circumstances of the case?
19. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties
and perused the entire oral and documentary evidence
including the original records carefully.
20. The gist of the complaint by Pw.1-Nagendrappa as
per Ex.P6 is that, the deceased Raghavendra is his 3rd son.
The accused No.4 and his son were in love. Thereafter, their
marriage was solemnized about 11 years back at Bengaluru
and out of the wedlock, they have 2 children by name Pavan
and Sahana. The complainant, deceased Ragavendra,
Accused No.4 and two children were residing together and
they were doing coolie. Deceased Raghavendra and Pw.1
were doing coolie and carpenter work and also doing milk
vending business. On 01.04.2013 at about 7.00 p.m.,
Raghavendra had gone to supply milk to the diary and not
returned. Thereafter, on the information given by one
Halappa, nephew of complainant because at that time
complainant had gone to his sister's house at Mavinahole and
came to know somebody has killed his son, thereby, he
lodged a complaint on 02.04.2013 at about 11.45 a.m., The
same was registered in Cr.No.76/2013 for the offence
punishable under Section 302 of IPC. It is also not in dispute
that after investigation, the jurisdictional police filed charge
sheet against accused Nos.1 to 4.
21. This Court being the Appellate Court, in order to
re-appreciate the entire oral and documentary evidence on
record, it is relevant to consider the evidence of prosecution
witnesses and the documents relied upon.
(i) Pw.1-Nagendrappa is the father of the deceased
and the complainant who lodged the complaint as per -Ex.P6,
reiterating the averments made in complaint, he deposed
that accused No.4 Savitha asked him to go to Brahmeshwara
village, where his elder sister Nagamma stays. Hence, he
had gone there and in his absence his son Raghavendra had
gone to supply milk to the dairy in the evening. On the next
day, his sister had received a phone call from someone about
murder of the deceased. Thus, he went to the spot and found
injuries on the neck, cheek, hand and other parts of the body
of the deceased. He further stated that his son was harassing
and beating Savitha accused No.4 as he had come to know
that she was having illicit relationship with accused No.1-
Chathrapathi Naika. He further stated that accused No.4
Savitha with an intention to marry accused No.1 instigated
accused Nos.2 to 4 to kill her husband, deceased
Ragavendra, and she gave them details for the purpose
identification; Mo.1-milk can, Mo.2-mobile, Mos.8 and 9 two
milk dairy cards and Mo.3-slippers, Mo.4-hand bag, Mo.5-Ash
colour pant, Mo.6-Black colour T-shirt, Mo.7-ear studs. In the
cross examination, he has stated that after 15 days of the
murder, police called him to the police station. Again after 15
days when first visited police station he has not known as to
who has committed murder. Second time when he visited to
the police station, his daughter-in-law Savitha-accused No.4
was in custody. During the said two times he had not told to
the police that accused No.4 had relationship with accused
No.1. Witnesses did not know and he came to know about
the same, only from the police. He supported the case of the
prosecution.
(ii) Pw.2 Kum.Veena who is a close relative of
accused No.4 and the daughter of Pw.1 and sister of the
deceased has given all the information and she has scribed
the complaint and read over the contents of the complaint to
PW-1. She further stated that she has identified the said
complaint-Ex.P6 as well as her handwriting. She has signed
the complaint as per Ex.P6(b) after the signature of PW-1 as
per Ex-P6(a). She has identified the milk can, slippers of
Raghavendra and she did not go near the dead body out of
fear. Thereby, she cannot say how the clothes was on the
dead body. She identified the slippers-Mo.3, milk can-Mo.1
and mobile-Mo.2. She deposed that police has not called her
in time after 2013 and she was not aware of the cause of
murder of deceased Raghavendra. There is no cross
examination of Pw.2.
(iii) Pw.3-Janaki is the co-sister of accused No.4
Savitha who deposed that herself and her husband residing
separately beside the house of deceased Raghavendra. The
said Raghvendra was doing coolie and supplying milk to the
dairy and there was a quarrel between him and his wife -
accused No.4. She further deposed that when they were
living together both Savitha and Raghavendra were cordial
but thereafter when they were separated, they started to
quarrel and fight among them. She further deposed that on
01.04.2013, the deceased Raghavendra had gone to supply
milk to the dairy. Upon returning and at that time Pw.1 had
gone to Brahmeswara to the house of elder sister. On the
date of the incident, accused No.4 Savitha came to her house
and told her that her husband had not returned and she had
no currency in her cell phone and asked her to make a call.
Accordingly, her husband had called to deceased
Raghavendra, but his phone was switched off. Then, accused
No.4 came along with children to stay and when she insisted
she came to her house. Accused No.4 said that they will stay
night there itself and accordingly, slept there. She would
further deposed that on the next day morning, when they
woke up, accused No.4 did not go to her home and Pw.3
went to start electric motor by the side of the wetland to
fetch water. At that time, accused No.4 followed her and
after switching on the motor, they sat near a small plant
then, they came back. Accused No.4 asked her to accompany
her to open the door of her house as she was scared. Then,
they went there and accused No.4 opened the door of her
house and started cleaning the front yard. Though she could
see the dead body from the said place she questioned her as
to whether the milk cattle visible in the land belonging to her
family or not so that she could see the place of murder.
Before she could see the said milk can, accused No.4 started
telling that her husband was murdered by somebody in the
said land. Then she went to the said land found injuries on
his body. She further deposed that she came to know
accused was murdered Raghavendra. She also stated that
accused Nos.1 and 3 were use to visit the house of
Raghavendra many times. She does not know the reason for
quarrel between them. In the cross examination, she
deposed that she had told the police that when she returned
to home, after Savitha opened the doors of her house, she
had sent her son to call her and her husband. When they
went and asked her, she told that when she was cleaning her
cattle shed she remembered the milk can as well as her
husband, went further to see the direction in which her
husband had gone and found a milk can in the land and
hence, she called her. The said portion of the statement is
marked as Ex.D1. In the cross examination she further
deposed that she has stated before the police that accused
Nos.1 to 3 were visiting the house of the Raghavendra in his
absence. Nothing has been elicited to disbelieve her
statement. Accordingly, she supported the case of the
prosecution.
(iv) Pw.4-Nagaraja was a worker in the dairy of the
Basavapura has stated regarding the said deceased
Raghavendra had supplied milk to dairy on that day and
relevant entry in the registry. Ex.P8 and Ex.P9 belongs to the
deceased Raghavendra and accused No.4-Savitha and
supported the case of the prosecution.
(v) Pw.5-Nagalingappa deposed that he know
deceased Raghavendra, he died about 6 or 7 months ago
being murdered in his land. He had seen the dead body who
was injured on the left face, neck and left hand. Ex.P1 to 5
are the photographs of the dead body. After 15 days of the
murder police had brought the accused persons stating that
they had committed the murder of Raghavendra. Firstly the
police have arrested the accused No.1 and then they have
arrested the accused Nos. 2 and 3 and they have brought
them to the place of the incident. He identified Ex.P1 to P5
which are the photographs of the dead body of the deceased
Raghavendra and accordingly, he supported the case of the
prosecution.
(vi) Pw.6-Ganapathi Krishna Naik stated that deceased
Raghavendra was murdered on 01.04.2013 at his land. Police
had recorded inquest on the dead body as well recorded
mahazar at the place of murder. He has signed the same and
he has identified the signature on Ex.P11-mahazar. He
identified the signature on inquest and the same is marked
as Ex.P14 and signature as Ex.P14(a). He would further
depose that Puttappa and Lokesh had signed the mahazar.
Police had taken the photographs of the dead body which
were marked as Exs.P1 to P5. There was milk can, a mobile,
slipper, a bag which were seized by the police and he
identified the same which were marked at Mos.1 to 4. The
learned public prosecutor is permitted to open the seal of the
two containers after finding the same intact with seal. He
identified the container with blood stained soil which is
marked as Mo.8. He identified the container with ordinary
soil, which is marked as Mo.9. In the cross examination, it is
stated that there were no weapons at the place of the
incident, and he has supported the case of the prosecution.
(vii) Pw.7-Puttappa is resident of Kadegadde village
who deposed that he know Gunduru mole which is 2 kms
away from his house and he had seen the dead body of
Ragavendra who was murdered on 01.04.2013 and the same
was came to his notice on 02.04.2013 and the deceased was
murdered in his land only. He went to the place of murder
after hearing the news. Police had visited the place and taken
photographs in his presence which were marked at Ex.P1 to
P5. Police had recorded the mahazar at the said place and
seized the steel milk can, mobile, slipper, yellow colour bag,
soil with blood stains and sample dry soil and two dairy
cards. He identified the same and were marked as Exs.P8
and P9 and Mos1 to 4, 8 and 9. Police had taken my
signature on the paper slips to affix the same to the articles
seized and he has identified his signature on Ex.P10, which
supported the case of the prosecution. In paragraph No.5 it
is specifically stated that accused No.1 from his house had
taken him to Ayanur stating that he had pledged the ear
studs of accused No.4-Savitha at a jewellary shop at Ayanur
and stated that they were given to him by accused No.4-
Savitha. He had taken Pws.6 and 7 to Sri.Krishna Jewellers
at Ayanur. The owner of the shop had got the said ear studs
which he had kept at a different place and handed over the
same to the police. The owner of the shop had told that he
has paid money to the accused No.1 for the said ear studs
but the police told him that it was irrelevant and he should
hand over the same. Police had recorded the mahazar and
taken his signature. He can identify the same which were
marked as Ex.P.19 and Ex.P19(a). He identified the ear studs
which were marked as Mo.7. He further deposed that
accused No.1 had shown the chopper at the cattle shed,
handed over the same to the police which were marked as
Mo.13. From there, accused Nos.1 and 2 had taken them to
a village called 'Kote' stating that they have kept choppers
which were used for committing the offence. When they went
there, there were no such choppers, it was in somebody's
house. Then, they all went to that house and accused Nos.1
and 2 handed over the chopper which was kept on the top of
the toilet. Police seized the same and marked as Mo.14. He
further deposed that he has identified the night pant and T-
shirt which were marked as Mos.15 and 16, he has turned
hostile to the case of the prosecution. But in the cross-
examination by prosecution he stated that accused No.2 had
told them that he would hand over the clothes which he was
wearing at the time of offence. He would further depose that
accused No.2 had handed over Mos.15 and 16 to the police
and police seized the same in his presence which contained
blood marks. He further told that the clothes produced by
accused No.1 were stained with blood. He also handed over
his mobile phone with SIM card to the police. He also
admitted that he himself and another pancha namely
Raghupathi had gone to the police station and accused No.1
had taken them to the place of murder first, then, to his
house and later, to Sri.Krishna jewelers shop at Ayanur.
Police have videographed the said events. Looking to the
lengthy cross examination made by the prosecution he has
not given any evidence to disbelieve his presence during the
spot seizure mahazar stated supra. Thereby, he strongly
supported the case of the prosecution.
(viii) Pw.8-Latha who is none other than the sister of
the accused. She has not supported the case of the
prosecution. She has stated in the cross examination that
she has two SIM cards of Airtel company and stated that she
had not given SIM card to accused No.1, he only had taken
her mobile. Police had taken the SIM card from her. Further
she admitted that it is the duty to protect and save her
brother accused No.1 and she is prepared to protect him at
any case.
(ix) Pw.9-Devaraj who is one of the pancha who
deposed to the police that he and CW.18-Noorulla had come
on 26.04.2013 for recording the mahazar to the Ripponpete
police station in committing murder of husband of accused
No.4 by accused Nos.1 to 3. At that time, accused No.4-
Savitha was in police custody who narrated the murder of
her husband. Police have seized Mo.18 and SIM card. She
supported the case of the prosecution.
(x) Pw.10-Suresh who is also pancha to the spot
mahazar who deposed that on 29.04.2013, police called him
along with Cw.19 to the police station. At that time, accused
Nos.1 to 3 were in police custody and enquired to show the
spot, accordingly, they went in jeep. As per the decision of
accused No.3 went to the spot which is near the house of
accused No.4-the land belonged to deceased Raghavendra.
From there, they went to the house of father-in-law of
accused No.3 at Thyajavlli, wherein, accused No.3 had
produced Mo.19-chopper from the new toilet. Police seized
the same which had blood marks on it. He would further
depose that he had identified the mahazar with his signature
as per Ex.P24. He identified the T-shirt produced by accused
No.3 which was marked as Mo.20 and it bears the signature.
He also deposed that Mo.20-T-shirt was stained with blood
and half pant produced by accused No.3 is marked as Mo.21.
He further deposed that Mos.20 and 21 were sealed covers
and opened after the seal was found intact. He further
deposed that there were 2-3 persons in the police station. In
the cross examination he had denied that it is not true to
suggest that he signed the mahazars at the police station,
Basavapura is 15 to 20 kms from Tyajavalli. Arasanala is
about 30 kms from Tyajavalli. Only accused No.3 was
handcuffed at the police station by the police. Accused No.3
had taken them with the police. The other accused had not
come with them. He told that accused No.1 had shown the
place of murder on the previous day to the police. Further he
stated that there were two stones slabs made to use as
toilet. When the chopper was removed from below the said
stone slabs, the police had taken assistance of three persons
to remove each of the stones. The pit was half full with nigh
soil. Mo.19 was in the middle of the night soil and straight.
He further denied that it is not true to suggest that Mo.19
was kept by the side of the septic pit. It is true to suggest
that in the mahazar it is scribed as standing to the wall of the
septic pit. He further deposed that they had gone inside the
house but only accused No.3 and police went inside. There
was only a girl at the house. When police enquired the said
girl, she said that she did not know anything. If suggested
that accused No.3 had neither shown any place or weapon or
clothes but the police had planted them and recovered. She
further denied that it is not true to suggest that she had
signed the mahazar at police station. Thereby, she supported
the case of the prosecution.
(xi) Pw.11 who is the owner of the house, who
deposed that accused No.3-Parashuram had hidden chopper
in the lavatory outside his house. He also deposed that police
have seized seizure mahazar as per Ex.P24. In lavatory of his
house, accused No.3 produced chopper from the lavatory
before the police. Police seized the same. He identified Mo.19
shown to him which is the said weapon. In the cross
examination, he deposed that the stone with which he had
closed the lavatory weighted about 25 to 30 kgs. Police had
already removed the stone slabs before he went to the place.
The entire waste water of my house was being stocked in the
said lavatory pit and even the rain water was stocked in the
said pit. It is not true to suggest that though he know
nothing he is deposing falsely at the instance of police. He
further denied that it is not true to suggest that neither the
police had come to lavatory nor Chatrapathi had shown
Mo.19. Thereby he supported the case of the prosecution.
Nothing worthy has been elicited from the mouth of the
witnesses during the course of cross examination to
disbelieve their evidence.
(xii) Pw.12-Jayanaika is a person who had sold bike-
Mo.12 to one Girish for Rs.8,000/- but he had paid only
Rs.4,000/- and had agreed to pay Rs.4,000/- at the time of
transferring the bike. Hence, RC was not transferred to the
name of Girish. Girish told him that he had handed over the
bike to one Chatrapathi i.e., accused No.1. In the cross
examination he has stated that he has not stated this fact
before the police. He had not seen accused No.1 earlier and
seeing him for the first time in the Court, thereby, supported
the case of the prosecution.
(xiii) Pw.13-PSI Shashikanth, Pw.14-Police Inspector
Ramachandra Naik, Pw.17-Police Inspector Ganapathi
deposed regarding their part in the investigation and
thereby, supported the case of the prosecution and they
identified Exs.P6 and P7. Pw.13 was not cross examined.
Nothing has been elicited by Pw.14 who disbelieved his
statement.
(xiv) Pw.15-Prashanth, owner of the Sri.Krishna
Jewellary shop at Ayanur. He deposed that he know accused
No.1 before the Court who is Chatrapathi. He had come to
him to prepare the jewellary for his sister and therefore, he
know him since about 3-4 years. Exs.P16 and P17 are
pledged chits containing signature of Pw.7 belonging to
them. Accused No.1-Chatrapathi had come to him on
31.03.2013 and handed over a pair of Lakshmi ear studs to
pledge the same. He had paid Rs.7,000/- to him. After some
time, police had come along with accused No.1-Chatrapathi
and enquired him whether accused No.1 had pledged the
jewellary to him. He accepted and handed over the pair of
ear studs pledged by accused No.1 to the police and police
seized the same. Mo.7 is the said ear studs. Police recorded
the mahazar to which he had affixed his signature which is
identified and marked as Ex.P19-seizure mahazar. In the
cross examination he has specifically stated that accused
No.1 had received Rs.2,000/- and later, Rs.5,000/- on two
different dates. The police had not seized the original book of
Ex.P16 which contains the carbon copy of the original. In the
cross examination he has denied the suggestion that 'it is not
true to suggest that accused No.1 had not come to his shop
and pledged Mo.7'. Further denied that 'it is not true to
suggest that neither the police came nor he had handed over
Mo.7 to the police'. Further denied that it is not true to
suggest that he had signed the mahazar at police station and
deposing falsely at the instance of police out of fear.
Thereby, he stood his defence. Nothing has been elicited in
the cross examination of Pw.15.
(xv) Pw.16-Dr.Anilkumar would depose that on the
request made by Ripponpete police on 02.04.2013 to conduct
the autopsy of deceased Raghavendra, aged about 30 years
in Cr.No.76/2013, he noted five major injuries on the dead
body in Ex.P36-post mortem report wherein, he found
cutting of spinal cord in the base of the skull. Other parts
were intact. He has collected the clothes on the body to be
sent to FSL. He opined that cause of death is due to shock
and hemorrhage as a result of injuries to the vital organs.
The time from death to the post mortem was approximately
24 hours. Accordingly, issued Ex.P36. He identified Exs.P1 to
P5 belonging to the dead body. He also seen the choppers
sent to him which were marked as Mos.13, 14 and 19. He
opined that the assault with the said weapons could cause
injuries on the person. He identified his signature on the
opinion at Ex.P40. The same is marked as Ex.P40(a). In the
cross examination, he had denied the suggestion that he had
not examined any weapons but he had obliged the
investigating officer in issuing Ex.P40.
(xvi) Pw.17-Ganapathi, CPI of Hosanagar Circle who
was working between November 2011 to July 2013 would
depose that on 02.04.2013, he took up further investigation
from one Shashikantha Naik-Pw.13, PSI, visited the place of
incident, secured the panchas conducted part of investigation
to draw mahazar-Ex.P11 and found a pair of red colour hawai
slipper, a mobile of red colour belonging to G-Five company,
a yellow colour cotton bag, a milk steel can, two cards issued
by Basavapura milk produces society and identified Mos.1 to
4, 8 and 9 and also Exs.P8 and P10. He further deposed that
in the presence of panchas, he recorded inquest as per
Ex.P14. He recorded the statements of the Subramanya,
Umesh, Suvarna, Nagaraja and he had gone to the place of
the incident photographed and videographed. The photos
were marked as per Exs.P1 to P5 and videograph is at
Ex.P41. He prepared hand sketch of place of incident-Ex.P42.
He directed the PC 889 to take the dead body to the hospital.
Accordingly, he arrested the accused. He recorded the
statements of Ashok, Srinivas, Raghavendra, Rajendra,
Harish and Santhosh. Thereafter, he has transferred
investigation to PSI, Hosanagar. Nothing has been elicited in
the cross examination of Pw.17 to disbelieve the statements
made in the examination in chief.
(xvii) Pw.18 the villager of Thyajavalli, deposed that
Shivappa Bisetappa is the father in law of accused No.3-
Parashurama. About 2 years back police have brought
accused No.3-Parashurama near the house of the said
Shivappa and took his signature-Ex.P24. He doesn't know
what are the contents. In the cross examination, he has
admitted that house of Shivappa and one Chandrappa are
adjacent to each other and said Chandrappa had dig a pit for
toilet and accused-Parashuram took the police there but he
has denied the accused persons produced chopper from the
said pit. He further stated that Parashurama have produced
his blood stained clothes from the house of Shivappa. He
further stated that the Parashuram is the son-in-law of the
Thyajavalli village. He has not committed any mistake and
therefore, he has not signed any false documents and
Shivappa is good at him. He further stated that when the
police came to the village, about 25-30 people had gathered.
By the time he reached, everything was over and he just
signed the mahazar and supported the case of the
prosecution.
(xviii) Pw.19-Raghupathi is also one of the seizure
pancha who deposed that on 26.04.2013 police have called
him as pancha to accused-Chatrapathi house and he was
with the police at about 1.45 p.m., and produced bike, SIM
card, chopper and one receipt and his blood stained clothes
before the police in his presence. Accordingly the police
seized the same under the mahazar Ex.P18. He further
deposed that they came to the village of Ayanur. At that
time, accused Nos.1 and 2 were there and accused No.1
showed the jewellary shop wherein he has pledged the ear
studs. Police have seized before him under seizure mahazar
Ex.P19. Accused No.2 took them to his house and produced
blood stained clothes and chopper kept on the toilet is also
seized by the police and same is marked as Ex.P20. Nothing
has been elicited in the evidence of Pw.19, who supported
the case of the prosecution.
(xix) Pw.20-Dr.Lingegowda would depose that on
28.04.2013, Ripponpet Police in Cr.No.76/2013 seen 14
items in sealed cover and on medical examination of Mo.5-
Ash colour pant, Mo.6-Black colour T-shirt, Mo.8-blood
stained mud, Mo.9-plane mud, Mo.10-pant, Mo.11-shirt,
Mo.14-chopper, Mo.15-night pant, Mo.16-shirt, Mo.19-
chopper, Mo.21-half pant and after considering the
examination, he has issued report Ex.P39A. Except item No.2
and item No.8, all the other items were blood stained and he
identified Mos.5, 6, 8 to 16, 19 to 21. No cross examination
was made.
22. The oral and documentary evidence of aforesaid
witnesses and voluntary statement of accused Nos.1 to 4,
recovery of chopper used for the commission of offence at
their instance. It is necessary that prosecution has to prove
the case to establish the motive for commission of the
offence. According to the prosecution, motive for the offence
is illicit relationship between accused Nos.1 and 4 and ill-
treatment to accused No.4 by her husband deceased-
Raghavendra knowing their illicit-relationship. The
prosecution witnesses in categorical terms deposed about the
illicit relationship between accused Nos.1 and 4. Pws.1 and 3
have specifically stated and deposed about the way in which
the accused No.4 conducted herself on the date of incident.
Though there is no independent evidence produced by the
prosecution to prove the alleged illicit relationship, the
records and call details of accused Nos.1 and 4. There is no
certificate with regard to whether the following numbers i.e.,
8971050539, 7760067892 were used by the accused No.1
and accused No.4 respectively and there were exchange of
many calls before the incident occurred. The learned
Sessions judge after appreciation of the materials on record,
has come to a conclusion that conspiracy between accused
Nos.1 to 4 to eliminate the deceased is proved. But the fact
remains neither the call record details as per Ex.P30 nor the
evidence of call details clearly depose there was conspiracy
between accused Nos.1 to 4 to eliminate the deceased.
23. The fact remains that in view of the mandate of
the provisions of Section 65B(4) of the Indian Evidence Act,
1872, in any proceedings where it is mandatory to produce a
certificate to give an evidence in the form of Electronic
Record. But in the present case, no certificate is produced as
held by the Hon'ble Supreme Court in the case of Anvar.P.V.
vs. P.K.Basheer and Others reported in (2014) 10 SCC
473, paragraphs 16 and 24 held as under:
"16. It is further clarified that the person
need only to state in the certificate that the same is
to the best of his knowledge and belief. Most
importantly, such a certificate must accompany the
electronic record like computer printout, Compact
Disc (CD), Video Compact Disc (VCD), pen drive,
etc., pertaining to which a statement is sought to be
given in evidence, when the same is produced in
evidence. All these safeguards are taken to ensure
the source and authenticity, which are the two
hallmarks pertaining to electronic record sought to
be used as evidence. Electronic records being more
susceptible to tampering, alteration, transposition,
excision, etc. without such safeguards, the whole
trial based on proof of electronic records can lead to
travesty of justice.
24. The situation would have been different
had the appellant adduced primary evidence, by
making available in evidence, the CDs used for
announcement and songs. Had those CDs used for
objectionable songs or announcements been duly got
seized through the police or Election Commission and
had the same been used as primary evidence, the
High Court could have played the same in court to
see whether the allegations were true. That is not
the situation in this case. The speeches, songs and
announcements were recorded using other
instruments and by feeding them into a computer,
CDs were made therefrom which were produced in
court, without due certification. Those CDs cannot be
admitted in evidence since the mandatory
requirements of Section 65B of the Evidence Act are
not satisfied. It is clarified that notwithstanding what
we have stated herein in the preceding paragraphs
on the secondary evidence on electronic record with
reference to Section 59, 65A and 65B of the
Evidence Act, if an electronic record as such is used
as primary evidence under Section 62 of the
Evidence Act, the same is admissible in evidence,
without compliance of the conditions in Section 65B
of the Evidence Act."
24. Admittedly, the prosecution has not examined the
authorized person who has issued call details and no such
Certificate is produced which is required under the provisions
of Section 65B(4) of the Evidence Act. In the absence of
same, the said material Ex.P30 cannot be accepted. Our view
is fortified by the dictum of the Hon'ble Supreme Court in the
case of Arjun Panditrao Khotkar vs. Kailash Kushanrao
Gorantyal reported in (2020) 7 SCC 1, wherein, the
Hon'ble Supreme Court at paragraphs 51 ,52, 73.1, 73.2 and
73.3 has held as under:
"51. On an application of the aforesaid
maxims to the present case, it is clear that though
Section 65B(4) is mandatory, yet, on the facts of
this case, the Respondents, having done everything
possible to obtain the necessary certificate, which
was to be given by a third-party over whom the
Respondents had no control, must be relieved of
the mandatory obligation contained in the said sub-
section.
52. We may hasten to add that Section 65B
does not speak of the stage at which such
certificate must be furnished to the Court. In Anvar
P.V. (supra), this Court did observe that such
certificate must accompany the electronic record
when the same is produced in evidence. We may
only add that this is so in cases where such
certificate could be procured by the person seeking
to rely upon an electronic record. However, in cases
where either a defective certificate is given, or in
cases where such certificate has been demanded
and is not given by the concerned person, the
Judge conducting the trial must summon the
person/persons referred to in Section 65B(4) of the
Evidence Act, and require that such certificate be
given by such person/persons. This, the trial Judge
ought to do when the electronic record is produced
in evidence before him without the requisite
certificate in the circumstances aforementioned.
This is, of course, subject to discretion being
exercised in civil cases in accordance with law, and
in accordance with the requirements of justice on
the facts of each case. When it comes to criminal
trials, it is important to keep in mind the general
principle that the accused must be supplied all
documents that the prosecution seeks to rely upon
before commencement of the trial, under the
relevant sections of the CrPC.
73. The reference is thus answered by stating
that:
73.1. Anvar P.V., as clarified by us
hereinabove, is the law declared by this Court on
Section 65B of the Evidence Act. The judgment in
Tomaso Bruno (supra), being per incuriam, does
not lay down the law correctly. Also, the judgment
in Shafhi Mohammad and the judgment dated
03.04.2018 reported as Shafhi Mohd. V.State of
H.P., do not lay down the law correctly and are
therefore overruled.
73.2. The clarification referred to above is
that the required certificate under Section 65B(4) is
unnecessary if the original document itself is
produced. This can be done by the owner of a
laptop computer, computer tablet or even a mobile
phone, by stepping into the witness box and
proving that the concerned device, on which the
original information is first stored, is owned and/or
operated by him. In cases where the "computer"
happens to be a part of a "computer system" or
"computer network" and it becomes impossible to
physically bring such system or network to the
Court, then the only means of providing information
contained in such electronic record can be in
accordance with Section 65B(1), together with the
requisite certificate under Section 65B(4). The last
sentence in Anvar P.V. which reads as "...if an
electronic record as such is used as primary
evidence under Section 62 of the Evidence Act..." is
thus clarified; it is to be read without the words
"under Section 62 of the Evidence Act,..." With this
clarification, the law stated in paragraph 24 of
Anvar P.V. does not need to be revisited.
73.3. The general directions issued in
paragraph 62 (supra) shall hereafter be followed by
courts that deal with electronic evidence, to ensure
their preservation, and production of certificate at
the appropriate stage. These directions shall apply
in all proceedings, till rules and directions under
Section 67C of the Information Technology Act and
data retention conditions are formulated for
compliance by telecom and internet service
providers."
25. Thereby, in the absence of Certificate, the
conviction passed on the CDR could lead to injustice.
Thereby, though the prosecution pleaded to prove conspiracy
of non compliance of mandate provisions of Section 65B(4)
of the Act, conspiracy alleged cannot be accepted.
26. As already stated supra, the motive is illicit
relationship between accused Nos.1 and 4. The same was
spoken by Pw.1-father of the deceased and Pw.2-sister of the
deceased. Mo.7-ear stud belongs to accused No.4 was
pledged by accused No.1 in the shop of Pw.15. Mo.7 was
identified by Pw.1. The evidence of Pw.15-Prashanth clearly
depicts that he is the owner of the Sri.Krishna Jewellary
shop, at Ayanur and he knows accused No.1-Chathrapathi,
who was present before the Court. He further stated that he
knows the accused since 4 years. Exs.P16 and 17 pledged
chit and a chit containing signature of Pw.7 belonging to
shop. He had issued the same to accused No.1-Chathrapathi,
who had come to him on 31.03.2013 i.e., one day prior to
the incident and handed over a pair of Lakshmi ear studs to
pledge the same. Accordingly, he paid Rs.7,000/- to him and
thereafter, the police came along with accused No.1 enquired
him about the pledge by accused No.1. He accepted and
handed over the pair of ear studs pledged by accused No.1
to the police, who seized the same as Mo.7. Police recorded
the mahazar where he signed as per Ex.P19. In the cross
examination he has categorically stated on oath that accused
No.1 has received Rs.2,000/- and later Rs.5,000/- on
different dates. Police have not received the original of
Ex.P16, but received the carbon copy of the original. He
specifically denied the suggestion that accused No.1 had not
come to the shop to pledge Mo.7. It is not true to suggest
that neither the police came nor he has not handed over
Mo.7 to the police. He further denied the suggestion that it is
not true to suggest that he had signed the mahazar at the
police station and deposing false at the instance of the police
swearing them. The evidence of Pw.15 clearly deposes that
Mo.7 belongs to accused No.4 pledged by accused No.1 in
the shop. It is also not disputed that the investigating officer
recovered the weapons Mo.13-chopper and blood stained
clothes, Mo.10-pant, Mo.11-shirt from accused No.1 as per
Ex.P18-seizure mahazar. The seizure mahazar witnesses
Pws.7 and 9 in categorical terms deposed that accused No.1-
Chatrapathi from his house has taken to Ayanur stating that
he had pledged ear studs of accused No.4-Savitha at
Sri.Krishna Jewellary shop at Ayanur and stated that he shall
give to him by accused No.4-Savitha. He had taken to
Sri.Krishna Jewellary at Ayanur. The owner of the shop had
kept them in a different place and handed over the same to
the police. The owner of the shop had told that he had paid
money for the said ear studs, but the police told him that it is
irrelevant and he should hand over the ear studs. Hence, he
handed over the same to the police.
27. He further deposed that police had taken accused
Nos.1 and 2 to a village called Kote stating that they have
kept choppers which were used for committing the offence.
When they went there, there were no such choppers; it was
in somebody's house. Then they all went to that house and
accused Nos.1 and 2 handed over the chopper, which was
kept on the top of the toilet. Police seized the same and
marked as Mo.14. They told that they had washed the
chopper at the water tank of the village and had kept the
same over the toilet. He identified the said mahazar and
marked as Ex.P20 and P20(a). He further deposed that after
opening the seal, there were night pant and T-shirt. Police
had packed the Mos and he had signed on the slips. The said
night pant and T-shirt were marked as Mos.15 and 16. He
further admitted in the cross examination that it is true to
suggest that accused No.2-Sriram had told them that he
would hand over the clothes he was wearing at the time of
offence and he would show the same. Accused No.2 handed
over Mos.15 and 16 to the police and they were seized in his
presence which contained blood marks. He also admitted that
it is true to suggest that accused No.1-Chatrapathi was
stained with blood. He further admitted that it is true to
suggest that he had handed over his mobile phone with SIM
card to the police. It is true to suggest that he had signed
the slip which he kept in the said phone. Police told them
that they had located the accused as offenders on the basis
of the mobile calls. He further admitted that it is true to
suggest that immediately he and another pancha Raghupathi
had gone to the police station. It is true to suggest that
accused took them to his house. It is true to suggest that
then he took them to Sri.Krishna jewelers at Ayanur. It is
also admitted that it is true to suggest that police had
videographed the said events. Pw.9-police deposed that
police called him and Noorulla-Cw.18 for recording the
mahazar on 26.04.2013 to Ripponpete police station. It was
about murder of husband of accused No.4-Savitha by
Chatrapathi and others. Savitha-accused No.4 was in police
custody. She had a mobile with her and she narrated about
the murder of her husband. Police had seized the said mobile
and marked as Mo.18. There was an Airtel SIM in the said
phone. He further deposed that it is not true to suggest that
no mahazar was drawn in his presence by the police but he
had signed at the instance of police and deposing falsely. He
further deposed that it is not true to suggest that accused
No.4 was not at all in the police station.
28. The material on record clearly depicts recovery of
Mo.14-chopper from the accused No.4 and blood stained
clothes of accused No.2. Admittedly, accused No.2 has not
filed any appeal against the conviction. Recovery of blood
stained clothes of accused No.3 and Ex.P24 blood stained
clothes of deceased Mos.5 and 6. The FSL officer-PW.20
deposed about the same. It is also relevant to note that
Pw.8-sister of the accused would depose that she is ready to
give explanation to protect her brother. Ex.P18 seized from
accused No.1. Ex.P22 seized from accused No.4, the same
position was spoken to by Pws.7 and 9 stated supra. The
recovery of the choppers from the accused Nos.1, 2 and 3 as
per mahazar Exs.P18, 20 and 24, Mos.13, 14 and 19 chopper
recovered at the instance of accused Nos.1, 2 and 3 spoken
by the mahazar witnesses and specifically stated by the
investigating officer. The prosecution is discharged from
burden about the involvement of the accused Nos.1 to 3 in
the homicidal death of the deceased, it is accused persons
who have to explain how their clothes were blood stained
apart from recovery of choppers from them stated supra.
29. In section 313 of Cr.P.C. statement, all accused
have denied in toto not offered an explanation. In the
absence of same, adverse inference has to come against
accused Nos.1 to 3 as held by the Hon'ble Supreme Court in
the case of Prahlad vs. State of Rajasthan reported in
(2019) 14 SCC 438, in paragraphs 11 held as under:
"No explanation is forthcoming from
the statement of the accused under Section
313 Cr.P.C. as to when he parted the
company of the victim. Also, no explanation is
there as to what happened after getting the
chocolates for the victim. The silence on the part
of the accused, in such a matter wherein he is
expected to come out with an explanation, leads to
an adverse inference against the accused."
30. It is well settled that on recovery of the blood
stained clothes from the accused, the accused has to explain
how their clothes were stained with blood. Our view is
fortified by the dictum of Hon'ble Supreme Court in the case
of Nana Keshav Lagad vs. State of Maharashtra reported
in (2013) 12 SCC 721, paragraph 27 held as under:
"27. The other submission made on behalf of
the appellants was with reference to the human
blood found in the clothes worn by A1 and A4. It
was contended that the prosecution failed to
satisfactorily establish through any independent
evidence about the bloodstains found in the clothes
of A1, as well as the appellant in Crl.A.No.1010 of
2008. In that respect instead of reiterating the
details, it will be sufficient to refer to the conclusion
reached by the Trial Court, while dealing with the
said contention, which are found in paragraph 63.
The relevant part of it reads as under:
"63. In the present case, the evidence of
API Padwal in this respect is not seriously
challenged or shattered. After all the accused are
arrested under Panchanama and at the time of
arrest panchanama of accused Nana blood stained
clothes were seized. It is not in any way contended
or for that matter even whispered that I.O.API
Padwal was having any rancor against the accused
or he was motivated or interested in one sided
investigation with the sole object of implicating the
accused. As a matter of fact, the investigation in
this case appears to be totally impartial. When it
was transpired that two accused by name Sandeep
and Ganesh, the juvenile delinquent have not taken
part in the assault, their names were deleted from
the prosecution case by filing report U/s 169 of
Cr.P.C. Therefore, here the investigation as
proceeded impartially and it is also not even for the
sake of it, is suggested to API Padwal that, no such
blood stained clothes were recovered from the
accused Nana, moreover, as per the settled
position of law, there is no presumption in law that
a Police Officer acts dishonestly and his evidence
cannot be acted upon. Therefore, here the evidence
of API Padwal is sufficient to prove the recovery of
the blood stained clothes of the accused. His
evidence also goes to prove that, all these articles
blood stained clothes etc., were sent to C.A. and as
per the C.A. report Exh.61 the blood was detected
on the clothes of the accused and deceased and
this blood was human blood.....In the present case,
though the C.A. report, Exh.61 shows that, the said
human blood was of group "B", C.A. report Exh.62
about the blood sample of the accused states that,
the blood group could not be ascertained as the
results were inconclusive, moreover, there is no
C.A. of the blood sample of the deceased to prove
that, he was having blood group "B". However, the
fact remains that, the stains of human blood were
found on the clothes of accused Nana and he has
not explained how this blood stains were on his
clothes and therefore, as observed in this authority,
it becomes one more highly incriminating
circumstance against the accused."
In fact, as rightly noted by the Trial Court, it
was for the appellants to have explained as to how
the clothes worn by them contained human blood.
In Section 313 questioning, no explanation was
forthcoming from the appellants. In these
circumstances, the said contention also does not
merit any consideration.
31. The materials on record clearly depict that the
case of the prosecution is that there was illicit relationship
between accused Nos.1 and 4 and thereby accused No.4 has
given her ear studs to accused No.1, in turn accused Nos.2
and 3 and hatched a plan to eliminate the deceased so that
he could continue his relationship with accused No.4. The
same was spoken to by the prosecution witnesses in
mahazar witnesses. The medical evidence of Dr.Anil Kumar
clearly depicts the homicidal death of the deceased. He
further stated that he had noticed five major injuries on the
deceased and further stated that inner parts of the body,
after dissecting it, found cutting of spinal chord in the base of
the skull. Other parts were intact. He had collected the
clothes on the body to be sent for FSL. The cause of death is
due to shock and hemorrhage of injuries to the vital organs.
The time since death to the post mortem was approximately
24 hours. Accordingly, issued Ex.P36-post mortem report.
Nothing has been elicited in the cross examination of Pw.16-
Doctor.
32. The involvement of the accused Nos.1 to 3 in
homicidal death of the deceased apart from the evidence of
Pws.1, 3, 7 and 9 and accordingly, recovery of the material
objects Mos.13, 14 and 19-chopper as per seizure mahazar,
Exs.P18, 19, 20 and 24, the accused persons have given
voluntary statement. It is true that based on the voluntary
statement, conviction cannot be imposed on the recovery
made. Apart from the medical evidence, the other
corroborated evidence also proved the involvement of the
accused persons in homicidal death of the deceased. EX.P36-
post mortem report clearly depicts that there were 5 injuries
on the deceased which reads as under:
Injuries:-
1. Deep chop wound on the (R) side of the
neck, below the skull. It was sharp and tailing
absent. The skin tissues, muscles including the
vertebrae was cut. The Jugular vein and the
carotid artery was cut. Blood seen drenched both
sides of the neck and shoulders. The
measurement was 15cm in length, 3 cm in width
and 5 cm in depth. The wound was bony deep.
There was slight abrasions and brusing at the
edges. There was mass distraction of the
underlying structures of the neck. The depth of
the wound was same throughout the wound. The
cranium base was depressed and his neck seen
almost separated.
2. Injuries: Deep gash injuries incised of same
degree extending from the (R) eye to the base of
the neck in oblique manner was measuring 28
cm in length 6 cm in width and 4 cm in depth.
Wound was gaping and bony deep and
underlying structure visible. Edges was sharp,
tailing absent. All the tissue, facial muscles,
facial artery, vein, nerve was cut. Face was
drenched with blood and blackened in colour.
3. Injuries: Incomplete amputation of the (L)
hand between middle 1/3 and lower 1/3. There
was fracture of both the ulna and radius bone.
Chop wound measures 2.1/2" x 1" x 1.1/2".
4. Lacerated wound between 2nd and 3rd finger
extrintic with abrasions surround nail crushed.
5. Deep cut in the post side of the hand (L)
side measuring 3" x 1.1/2" x 1"
- The blood stained cloths sent to FSL,
Davanagere for the want of interpretation and
reconstruct details of the crime.
33. The FSL officer who was examined as Pw.20
specifically deposed that on 28.05.2013, Ripponpet police
station in Cr.No.76/2013 sent 14 items in a sealed cover and
he examined the same. Except item Nos.2 and 8, all other
items were blood stained accordingly, issued Ex.P39-FSL
report. The report clearly depicts that item No.1-mud, item
No.3-one pant, item No.4-one T-shirt, item Nos.5 and 6 one
innerwear (kacha) and one kathi, item No.7-one T-shirt, item
No.9-one kathi, item No.10-one T-shirt, item No.11-one
night pant, item No.12-one kathi, item No.13-T-shirt, item
No.14-one chaddi stained with human blood. Item
Nos.1,3,4,5,6,7,9,10,11,12,13,and 14 were stained with
blood.
34. Apart from the evidence of prosecution witnesses,
there is voluminous medical evidence. Recovery of the
choppers at the instance of accused No.1 along with blood
stained clothes of accused Nos.1 to 3 which clearly depicts
that they have involved in the homicidal death of the
deceased.
35. Though the prosecution proved the conspiracy
between accused Nos.1 to 4 to eliminate the deceased
supported by evidence of Pws.1,3 and 14-investigating
officer and call details records-Ex.P30, the fact remains as
already stated that for want of certificate under Section
65B(4) of the Act as mandated, the conspiracy cannot be
proved. The fact remains the accused Nos.1 to 3 involved in
homicidal death of the deceased has been proved beyond
reasonable doubt. The entire recovery proceedings and
mahazar drawn no way in all the witnesses neither the
statement deposed voluntary statement deposed the
involvement of accused No.4 in the homicidal death of the
deceased except she has conspired, thereby the imposition of
accused No.4 under provisions of 302 of IPC cannot be
sustained. The material on record clearly depicts that though
the prosecution failed to prove the conspiracy for want of
production of certificate under Section 65B(4) of the
Evidence Act otherwise documents placed on record depicts
there was conspiracy. Unfortunately, the investigation officer
has not obtained Certificate nor examined the author to issue
Ex.P30-call details. Thereby it is the mistake on the part of
the investigating officer to facilitate the accused Nos.1 to 4 to
escape from offence under the provisions of 120B of IPC.
36. Further, it is the case only charge of conspiracy
under Section 120B of IPC. It was necessary to establish that
there was agreement between the parties for doing unlawful
act and it is very difficult to establish direct evidence at all
for the same time in the absence of any evidence to show
meeting made between conspirator for concealing the
committed act, it is not possible to hold any person guilty for
the offence under Section 120B. But in the present case
charge was not only 120B, but also Section 302 read with
Section 34 of IPC against the accused persons. Though the
conspiracy not be proved based on the alleged confession
statement of the accused or in the absence of certificate
under Section 65B(4) of the Act, even though the
prosecution proved the conspiracy between parties by the
oral and documentary evidence, in view of the mandate of
Section 65B of the Act, they are technically escaping from
the clutches of the law to the case on 120B of IPC. The other
evidence on record clearly depicts that they are involved in
the homicidal death of the deceased under the provisions of
Section 302 of IPC.
37. For the reasons stated above under Section 302 of
IPC by the appellant in the present appeal has to be
answered affirmative holding that trial Court was justified in
convicting the accused Nos.1 to 3 under the provisions of
302 of IPC as accused No.2 admittedly has not filed any
appeal against the impugned conviction order passed by the
trial Court. The second point raised in the present appeal is
answered in negative holding that though the prosecution
has proved conspiracy in view of the evidence of prosecution
witnesses both oral and documentary, the fact remains that
they have not produced the Certificate mandate under
Section 65B(4) of the Evidence Act, thereby it is not safe to
convict the accused persons under the provisions of 120B of
IPC. It is also relevant to consider at this stage that, while
convicting accused Nos.1 to 4 the learned Sessions judge
proceeded to sentenced them to undergo imprisonment for
life i.e., they should remain in prison until their death. But
that is impermissible in view of the provisions of Section 302
of IPC. Accordingly the sentence to that extent has to be
modified.
38. In view of the above, we pass the following:
ORDER
(i) Crl.A.No.1348/2018 filed by accused No.1 and
Crl.A.No.104/2018 filed by accused No.3 are
hereby allowed in part.
(ii) The impugned judgment of conviction and
order of sentence passed by the trial Court
convicting the accused Nos.1 and 3 for the
offence punishable under Section 302 of IPC
and sentencing them to undergo
imprisonment for life with fine of Rs.40,000/-
and Rs.25,000/- respectively is hereby
confirmed.
(iii) The impugned judgment of conviction
convicting the accused Nos.1 and 3 for the
offence punishable under Section 120B of IPC
and sentencing them to undergo rigorous
imprisonment for 2 years and to pay fine of
Rs.25,000/- each is hereby set aside for want
of Certificate under Section 65B(4) of the
Evidence Act.
(iv) Accused Nos.1 and 3 are hereby acquitted
for the offence punishable under Section 120B
of IPC.
(v) Crl.A.No.596/2016 filed by accused No.4 is
hereby allowed.
(vi) The impugned judgment of conviction
convicting accused No.4 for the offence
punishable under Section 302 of the IPC and
sentencing her to undergo imprisonment for
life with fine of Rs.50,000/- is hereby set
aside.
(vii) Accused No.4 is acquitted for the offence
punishable under Section 302 of the IPC.
(viii) The impugned judgment of conviction
convicting accused No.4 for the offence
punishable under Section 120B of IPC and
sentencing her to undergo rigorous
imprisonment for 2 years and to pay fine of
Rs.25,000/- is hereby set aside for want of
Certificate under Section 65B(4) of the
Evidence Act.
(ix) Accused No.4 is hereby acquitted for the
offence under section 120B of IPC.
(x) Accused No.4 shall be released forthwith, if
not required in any other case.
(xi) It is made clear that the impugned judgment
of conviction under Section 302 of IPC is only
imprisonment for life with fine imposed by the
trial Court.
(xii) The bail bonds, if any, in respect of accused
No.4 shall stand cancelled.
Sd/-
JUDGE
Sd/-
JUDGE
NS
