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IN THE HIGH COURT OF KARNATAKA AT BANGA1,.().iI§}'3}_V
.lZ)z_a_t.e::c1_ this 1;11t:: 9th day of April, 2008 __ T T
J PRESENT T A
THE I-ION'BLE MR.JUsT1cE?v GSABHAHIT T 7
THE I~'ION'BLE MR.JUSTI(.'.E'«--L_ NARAYA.NA'.SWgxMVY
CRIMINAL APPEAL NoT[s54e:;k£ 200145)
"'TA'"E BY D J HALL1
(BY SR1 ANAND 1<_ ~
AND:
NAGA B'§1"u'SHAI~I' (2135 ABBODA
s/0 N.M.NAIDU f ,\ ..
AGE: 21 YRS, NQ.4.'_+A,~_ ' ~
OLD ;'I(';E, B RCJAD " V '
- _ KAVRJ EBYRASANDRA... ~
'BAN'GALQRE»._
5.4
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saryaia @'SAPv1I
S; O'"PACHAiPPER
AGE: 2
_ KAYUMTGARDEN
DODANNA NAGAR
V. KAVAL BYRASANDRA
' -.BAN_.G'rALORE RESPONDENTS
‘7(I3′.?lTGTE§ RAGHAVENDRA REDDY –A[)VOCA’I’E)
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STATE PRAIING THAT THIS I-iOI’«”BLE COL’;-.1 MAY BE PLEASED TO
CRL.A. FIELD U/’S. 3’78(1]&(3) CR.P.C
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GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT mu
27.1.2001 PASSED BY THE IV ADDL. (2.0. 8:. S.J.,.’..’MiAYkOHALL.
BANGALORE IN SC N00 .42 199 BCQU j
RE’SPONUENTSiAC”USED FOR THE oaaaaoa o,!Sfi.oo~.3.;<.3p R,"3!"3.
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find
‘In.
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149+»; _C15’§3¥.% C.§§i1p'”3€= Sessions J1_1_d_ge, Mayo Hall,
Bangalore, acquiitir1gVre5po_’*dei’ts 1 8:. 2 “f t.h” offences punishable
jander 392 Wseotion 34 IPC.
The icaaeV..a1of the prosecution to be stated in brief is as
adiieoi«tf9110Ws=
‘ house of the complainant. Nag
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Sami questioned the husband of the complainant
why he gave complaint to police against them. The husband of the
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complainant told them that it was Rajeshwari who gave
to police. Therealter, Naga and Sarni tool: Jayaran; to ;an’o;pen5 :*.a1’4l
-1″‘ v” f”‘
followed them, three others were also present thel: Ely l
the time those persons went near.»’the ho1ise°of those;
persons present in the open yard asllietl 1\TVagallte..lassa1il:t Jayaram
as he has given complaint to police; Sami caught hold
run away and those persons ran away.
Naga also Eran __ knife. The husband of the
complainant diedlat *~..,rf1ei*eafter the complainant went to
the Police ‘Station Prabhavathi and gave complaint at 9-
3lil’.p.l1iu.A i1sici12§is199s,
PW’-24 AP I recorded the complaint as per Ex.P1 and
l casein Crime No.565/ 98 for the ofi’enoe under Section
34 IPC and submitted F I R. He visited the spot in
_ p-re-sence of witnesses conducted inquest over the dead body at
SD.
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‘*,under R
investigation to Inspector. Sine e er
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photographer to the spot. Photos of the dead body were
the sp_t. No ‘__om”,tion could be gathered by usingthe 7d_.og’s
He recorded the statement of the Witrieeees; handed’ ever ”
further investigation to PW-25.
PW-25 conducted “On 20/ 12/ 1998 H C
2049 samitig Sherifl; mt ~;e.e;aini;&eappa, PC 2011
the Court. On A~3, he recovered the
property jeese and on 24/12/1998 he
produced before A-1 had surrendered before
the Magietrme. it itobtained him to police custody from
,1 A-1 volunteered information as per
. . fihusnm
A 1
.I”l.’1. .16 w J.VJ- Lj
VVAMCieaners””whe’re shopkeeper produced the shirt MO-4 that was
eehe”d..under”«Ex.P14. On 3/ 1/ 1999 A-1 led him and witnesses to
pietyground within D J I~«IaJ1iiP s limits and from a bush he
to’_ok»v«out a knife and produced before him. I-Ie seized the same
The e fie he hnnded over further
VI an-a.
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traced, the charge sheet came to be ffled only against Accused 1. 8:.
3 by PW-12.
3. The Trial Court framed charge for’ the ‘ ; T
against the respondents. The respondents
,I;.n’111gd 1;_ be frjfidi
\lA.IJ|. us .- van.
4. The prosecution to PW;25 and got
marked Ex.P1 to P20 and Statement of
-13 (mi was recorded on bent-.1. of
4-1″ A v_y_ :’
L416 ?_CC’t1S6u flfiiizfif .Sf3L:§.1GI1 3
the respondents i1o1Je_ were’ exarrS,ined’T’a1i’g:i no documents were aiso
got marked. {The defer1cen3oif’ tlieaccused is one of total denial.
5. The’v’!’ria1’Ceurt”after considering the materials on record
concliisioniithat the prosecution has failed to prove
+1-.. ’14-2 1′-‘”4-1-‘.’« it .~ _ ‘ ‘ ‘
L116 “fl1u;.0; …:.ie,.’»;-tee used and acccrdinrfly acquitted. them. Being
Vx”aggrieved;««._the__vpresent appeal is f”ed.
it ‘e-We have heard the learned High Court Government
ii’.F”l:e’ade1*: and the learned counsel for the respondents. The learned
Court Government Pleader took us through the deposition of
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that the evidence on record clearly proves the guilt of the Vaeoused
and the trial Court has committed an error in acquittir1g’th’e_::z’1;:._i’1′ _
that there are no eyewitnesses to the ii;cide11t.f; ‘°Recovery”visV riot;
proved in accordance with law. There___ is amateriai»’ii1eo;1sis_i;eI1cy° ;
in the evidence of PW -1 and PW-2 the ‘iirithesses are
either police Witnesses or doctor.”a.nd~tir1e’ circumstances,
it is not a case for i11terfere11ce…1§y. this, the appeal is
1:….1.1… 4… 1…. .1.’…….’……d:”
U]. IJG Kllallllflflc 1-‘
“7. On the of iiitheabove. contentions, the points that
arise for our deterrfiinatioriih. “afipeal are:
(ii, Whether the 3u.dgI_11e11t pas._¢=d_ b, the T111 _.o__rt. cal…
.I’..”..i.,…..4.,.i….4′.§’.~…-s……. ….. +1.. . n n n n …-.
JUL 1|. t, .l.l.’~’3.1.T J. G Ll]. L.l..Lli5 flyyfifllf
i _(ii) A”‘««Wh{it order?
i aiiewer to the above points is as follows:
‘ * Point No.1 ~ In the negative. and
– oi_.t No 2 – . -5 per t..e ..rI….1 o-d.er
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8. P’W–1 is wife of the deceased and she is a complainant in
the case. She has deposed Lat CW–2 Puel ha :’¥.__mr.riu
er .- _ ‘.’V
are 11 1 dacrm, KJVV”
are the sisters and CW-5 is the h5L1S?f?*3rI1ii:’ haet. -:
reiterated the complaint avermer1’te.__i11 11VerV_depositj.on.v.ih1
examination she has admitted thateheu has”giyen statemeiit that
she does not know the eo.nt3nta _She has stated that
_ dyon .’t””.»3)’V1’s”.’-i’9E’s there was no street
light and from her-ifipouse to. the place of occurrence there is no tar
road. Theiiplacex 1000 ft., away from her house.
The place of ‘occL1rren.ce”~i:s _1iet_”visib1e from her house. Four or five
personséihadp accompanied. A-1. It is further admitted that her
also .ad’1ni’ti:eéi~« ‘went to the place of occurrence only after
VVVheari11g’~.the.__”crieie of her husband and when she reached the spot
.. , iggeused No.’-1.85 3 ran away the moment they saw her.
PW–2 is the daughter of PW–1. She is not an eyewitness.
‘-‘J. . . + A +
«. She has deposed that on the date of 11’lC1d611-., accuse… came LG
their house and took her father to open yard. She heard the cries
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of the deceased father and she stated she has seen the accused
assaulting the deceased and accused Naga (A-1)
H’ e c” the a'”‘ men and Jameer M-3} eaug…_.he1r!. er fa e
m Jul K-AI-J. Illa! .I..I.\.rI. I
Her father fell down. ‘She has further deiposeddtjhat «mesememe
ran to the spot those persons ran away and” they we;”e’- t11eji_-;*e’.” ;
her cross-examination PW-2 has stated’ she was
informed by her neighbour the »oi’«her father she went
to the spot. She hasAVfi1rther..admittedL i3i”vthe’jVVei*oss–exa1ni11ation
mat at me time of thereiwas nc._st.teet”light in the area and
she answered to the qluielstiorti *I\To.’d_incident at all took place between
A-1 and deceased’ A’ the«.Veffect… that incident might have taken
place, I do not know’. ‘
………£-. ..,.e.. ‘ _ F.ri.t .a………….1 1…. t… ‘. …,..’.1′
ycwlhicee.’ 2 ‘ T10, v!.’.li1b ucyuacu ti. t us is: 1 aluifl” at
xKVava1abyrasar;d1’a;.3″ His house is at a distance of 5-6 houses away
JtheVLhouse of PW-1. He does not know who assaulted the
after he heard’ the shouts of deceased. he went to the
_ and found the deceased lying with injuries and at this
“a.Air.+.:g_., at the _equest of the Pthhc Prosecutor this witness was
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treated as hostile. Nothing is elicited in his cross–exarniri§ition in
11. PW-4 is a tenant in the houseiof 55. isV.a..rj2§itness
to me inquest Mahazar. Both hostiie
and nothing is elicited in their evidence to fthejcase of the
prosecution. A i it it
12. W6 is Iviéiiia:V’am”.5\’\Fv*’t’ie”s_.’ 1*’*s’ deposed to the euect
that about 8 or urhen he was going in the
bus Police his signature stating that
there was was also treated as hostile
and nothing is of the prosecution case.
Sui-esh N G*o max’, Se’ * S L. He
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deposed_”thneti on 27/ 1/ 1999 he received 7 sealed articles
‘4 to case and after examination he issued report Ex.P4.
‘ PW-8 is the police constable of D J Halli P S who took
Wv._s’n”bmitted’c_ha;fge .s.i1eet on 20/3/19?
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15. PW–10 is the Associate Professor of Dr.Ambe:iitar
.. _ _._I j._,__.___. __ -__ __;,_’
Una lnjurics at me
Ex.P6. The doctor has opined that tl1e4_’deat1’i_iiVas diieits = ~’
haemorhage as a result of stab He that the
injuries mentioned at 1 to 4 weabon like M0-
5 knife. i i i M 11-
16. 1″”-11 is Poiiee’ i.ns~f)_eetor of; R’ T Hagar Police Station
he stated that as io1i1_–vt11e3v.Vdate”~«of incident he was in additional
charge ofD J Ham P 4642 to F s L for the report.
is P I J Halli P S. He has deposed that he
took fa}-1-liate._iv1ea*’1eS31’1nnfinI1 and n’Fl”
can
A -13 is the Head Constable of D J Halli Police Station
u keot watch over the body and he shifted the body to
‘—i):1*;2¢£n1bedkar Medical College. PW-14 is the photographer who has
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19. PW-15 is a Head Constable of Shivajinagefir’ _
apprehended A=3. P’.’.’=15 is one Nareyare ‘”ho—.If'”.1s”–Laa1I1dfi«* ..
shop. He has deposed that about 2 years ago’AA-ii1.,hsd’–given_.V
for washing said shirt had bloodstains, virere ;
vanished and thereafter A-1 collected 2-3 days
thereafter police enquired and that accused had
given shirt with bloodstains. id t;”_e as M04 be.o_e
+1…. . ..4 .- 4.1…. _ 3;; . 1&7 1 ii i it
.. .. .. -4′ .. . …:I .. 1 “$1..-..’ -.._-‘ -._…__ __ _.
L11 Cuun. so u tux atguurcg 1jIu.1..,_ 11 pl W ‘tin as b i’.t.l3U
hostiie as he has not ease the prosecution.
20. PW isa, Govern.mentV”Sewant who has deposed that he
had gone to’t1′:e shop give his clothes for washing. At
V’y,x§Vss _present when gave his clothes. He stated yes. He has
i nowiahazar is prepared in his presence. This witness
else ‘treated as hostile and nothing is elicited in his cross-
in support of the case of the prosecution.
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21. PW-18 is a Junior Engineer who drew the sketchiof the
spot. PW -19 is a police constable who apprehended A5’3′-aiongxiiith
22. PW-20 is another constableéiwfho wash’
apprehend A-2 but he could not apprehend report is
marked as Ex.P16. A it i it it
no 1:mr_n1 ‘ .
tau. 1. iv -42; IS .01’l€a::ru;u..
house beionging lsiieiiiiasiistdeiposed’ that on 18/’ 12/’ 1993 at
about 9 ofperson. The moment she
reached the spot; was lying in a pool of blood,
accused ran awe; she’ has not seen the accused persons
aet.uaIiy, asa’n_f1tingp_ the deceased. Hearing the cries of the
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use-eased, ;-y¢».1,-,1-«J.-2; 1- w’-3 :1 Id CW-4 came to the spot. She has
deposed that of the deceased brought kerosene lamp and
i it lightiiinjiired/deceased was witnessed._ She has deposed in
«_her cross»-efiramizlation that the distance between the house and the
it a two minutes walk.
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24. PW–22 is one Veerappa a relative of the deceeiused;e..V He
went to the hwtwse of deceased on the next day. _;’He not
S’I.i§_’fJOI””d tn” case of th” proseeutien and *”fieaee_c?=,as.V:hesfile… ”
Nothing could be eiicited 111 his cross-exa3n:ii11atizciri’i.n’: the
case of the prosecution.
25. PW»-23 is a it not supported the
‘:13.
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26. PW-24e_psnd’PW;.§7’5 Investigation Ofiicers whose
depositionéfis ‘al1feady”s.t_sted stating the facts.
‘-‘r_4_. ‘A:__ _i.;’____,;___ _I
41 p1 , xC?I~C1’£)IG, C1
vv’.j-VAA£V1vfiOI1 t11e”‘depositie’n of PW-1, PW-2 and PW–21 to bring home the
the eeeused. None of them were the eyewitnesses to the
imcieeee. Though PW–1 has stated in her examination in chief that
V _ followed her husband to the open yard keeping a distance of 30 ‘
it gbecause oi”~.tIfis’I’eason her statement cannot be beiieved. The last
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has totally disowned the complaint itself stating that she ‘not
know what is all written in the complaint.
‘:11 1nat- rl-rIr\n¢ifin.’:rt:|1’rI1’1’|r1’I’:r\1’1 4′ Cr!’ aha 111A-71+ +l”2n 4i1.1\nI’
a.\aI.l’L.lLl-J\.l\oI. 1.1.1. 1191 ‘IL \}I:’|’.’ \Jl\Cl.Iul.In.l.1l.C1lnl.\Jl.l h.I..lQ-lo 9.1.13.1 VV\.v’.lJ.|.– Vb’ ‘-if BHU3 C13-LXI]. ~.
hearing the cries of her husband and whenshe the’ ‘spot
accused Nos.1 8r. 3 ran away the m’cn_1ent”the’y
material contradictions in the depositionyy ofia renders her
testimony untrustworthy. of In one
breath she states thatyshe assaulting the
abdomen and J her father. But in the
cross–examination_A _~ by the time she ran to
the spot, those ‘persons’tanhaiyaytyand they were not there. She has
further aclrnitted _ was informed by her neighbour
her she went to the spot, There is ag__in
‘ it Witness.yoVn which reliance is placed by the prosecution is one PW-
E_§11e’is -also not an eyewitness. She only went to the spot after
cries. The admission of HIV-1 8:. PW-2 that they went to
“spot after hearing the cries is shpported by the deposition of
,—5-\
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prosecution mainly relies upon are not the eyewitnessvesi.._to_V the
incident.
28. PW-21 has stated in her depopsitioniz ‘ls brought
Kerosene lamp with which they couid.___see ith,e’deceasezl;. a
clearly admitted in her deposition tliatitiiere were streeflights on
the said date. PW–2 has the time of incident
there we
e no streetlights. :t11ereiii{ei_o’iear doubt as to
admittedly taken 8.1″ is not proved as all
the Mahazaii: witnessesV_ and PW-23 have turned
hotile. The wit11esses’PW§3–, sweat PW-11, PW-12, PW-13, PW–15,
pw_19, pwigg? l”W-25 are police witnesses. The
V’1-.isupported’~–.the__'”oase of the prosecution. Therefore. with the above
i on record it is not possible to hold that the prosecution
eprotzedeitlie guilt of the respondents beyond reasonable doubt.
/-53.5
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prosecution has failed to bring home the guilt of t11eWaic_cused
beyond reasonable doubt. In the circumstances, t.- ;;’;I.”
acquittal passed by th” ‘I’ri”‘ Court, doLn t ea
answer the point No. 1 accordingly.
30. In view of our finding on Poiriffiio. 1′, wepsissljthei following
order:
onfifinifi
The \,r*i;u*”ir;a’z1_,%’7′;ppi*::aa’u’V is’ .dismissed.’ “‘i”*e judgment dated
27/1/2001 in s c No.4«.mo o£1*iiis1e; _’fileVi:ofVithe IV Addl. City Civil
and Sessions Judge; A’MayoViliiaihdfiangaiore is hereby confirmed.