High Court Karnataka High Court

Dhanraj vs The State Of Karnataka By The … on 5 January, 2010

Karnataka High Court
Dhanraj vs The State Of Karnataka By The … on 5 January, 2010
Author: K.Sreedhar Rao B.Adi
 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 57" DAY OF' JANUARY, 2010

PRESENT

THE HONBLE MRJUSTICE K.sREEDHAR;RAo;;     _

AND

THE HON'BLE MR.JUsT1cI;.sUB1~a1As:¥1§;A:>;   

CRIMINAL APPEAL No;157"oz/2oo5V_o  - = V' "
CRIMINAL ApPEAL1.o.1~io.:322--{2oo5: 

BETWEEN:

IN CRL.A. 1570/ 2005
Dhanraj _ a   H
8/ o A.M. Wadeyar '

9 :3" K

Aged about 32; ~-  'V -Z   
Resident of '  ' '

Manjunatha Tiles Factory' Rte-ro'i;:es.

Savalanga Road, '
Shknoga.  '

 '(Now :n3"::J~g§11c:,a1 oil's-tedyy  APPELLANT

V . {BY  .  *C11oLf1dramouIi, Adv.)

 , BI<:1'W2{rE1;«:N§'u--"--"o'--- V' V

 % IN cRI;.A.""132é/2905

 ' {,}.uPAa':*a.shurama @ Parashi,
 S / o ' Garigadharappa,
~ -Aged about 31 years,
 R/_o__ Banubeedi,
 "~.Vidyanagar,
' "  Bhadravathi Road,

Shimoga.
(Now in Judicial Custody}  APPELLANT

{By Sri. C.V. Annaiah, Adv.)

 '



 

AND:

The State of Karnataka
By the Police of

Basavanahalli Police Station,  2 
Chickmagaiur.  RESPQN'DEl."*Yi7 

[Common in'     .

appeals}... V
(By Sri.S.B. Pavin, spp)   = 1. 

These Criminal Appeals are 

Cr.P.C., by the Advocate for: the app'eIlant/st. . against '=::he~_
judgment dated: 29.6.2005 passedxby the Presiding"';Qfficer, Fast

Track Court--I. Chikmagalur in 'S.C».No. 13'/97; -convicting the
appellant--accused No.3 _ & 1 y_.re_spectiveIy "for_  offence
punishable under Section 3.02 and 392 Read With Section 34 of
[PC and sentencing him to vfundergio }Rigo1'ous Imprisonment for
5 years and to pay a fine of Rs.5000/--  .i1np:'isonment for life
and to pay fine of =Rs.5000}'*--- for 'me_ offence': punishable under
Section 392 and 3Q2*Read With 'SeCt.io.n___3f4 of IPC and 1.1). to
pay the fine anmungt," to undergo Fdgjorouys Imprisonment for one
year and two-5 ye_a;1=s "respe4ctively._V:_--Bcth' the sentence shall run
concurrently, 'eut'~the defaultsentencei shall_ run separately.

These 0'   on for hearing this day,
SREEDHARRAQ J: delivered the following:
-- " '  J¥fDGMENT

  of the prosecution case disclose that, one

 in her house on '?.3.1995 around 12.00

noon.._:0ne-  -~ PW9 the daughter of the deceased returned

  1-'om the school around 12.00 noon to the house. She found her

  rrlother'p_'was lying naked on the floor in the bedroom and mouth

  the deceased was plastered. PW9 started crying. One

 . ;'Prasanna--PWl -- the brother of the deceased came and found his

sister lying dead and her mouth was plastered and she was

W



 

-3-
naked. He went and informed Sri C.'I'.Manjunath-PW2 the
husband of the deceased who was in the clinic nearby and PW2

comes home. The deceased is shifted to private nursingj.horne.

PW] lodged complaint Ex.P1 before the police 

narrating that, some unknown persons. has caulsedfpthe niurderl ~ _ 

and robbed the jewelleries. The autlopsyi 
death is homicidal. V' l l V dd V l

2. The investigation  is  The
C.O.D. takes over  the course of
investigation it reveals  the incident the
deceased    medical conference

along with   of} one Prasanna openly

expressed his  for the beautiful looks of the

deceased, which  by PW2. There were petty quarrels

 and differenceslbeltxfireen. the deceased and PW2 over that

 incident. _'  , 

  :lllf.Fh_e'Al.l:follouring are the doubtful circumstances, which

 _prompted':the"l'lCOD to file the final report against PW2 for

 murder of his wife and the case was registered in SC

 H996 on the file of Sessions Judge, Chickmagalur.

i) PW2 when he came home after knowing about the
incident, he removed the jewellery, which was on
the dead body.

ii] PW2 did not check the pulse of the deceased being a

doctor. 5%



 

-4-

iii) The deceased had certain stocks in the Karnataka
Bank, Chickmagalur. PW2 in the morning had
forged the signatures of the deceased on the
applications relating to transfer of shares.  .

iv) PW2 was subjected to polygraphy test._"--V'[t'lie",:':r_esittlt

was positive.

4. One Ramesh--PW33 the Police~t"~In:spectorA was. 

investigating in Crime No.273/K199-5,fg.fivon of'

Thyagarajnagar P.S, Bangalore.' The lnspector=filC'.Cl3_v dwafjs 

investigating in Crime No.2'73/ l§95:h'att'£hvagara}nagar R8,. in
that connection, A1 to  .__e.a's'e were arrested on
6.10.1998

at Shirnoga. Ttietirtvotlttritefliy*state1:t1ent disclosed that,

they Smtflruna and robbed the gold
jewelle13″~–_flfW33 the voluntary statement, but did
not affect recoveries.., V

‘l’he Siipefintendent of Police, Chickn1agalur–PW37

1nft_)rmed_;ofto,:the investigation in Crime No.273/1995 and he

takes over_thdinvestigation pertaining to the case in question.

A1 leads PW37 along with panchas to the shop of cw19 at

The MC. 13 gold ingot of 41 grams is recovered, which

..__”tf’pertains to ‘Mangal Suthra’ of the deceased. The A2 led the

gt flpanch and police to the shop of PW21, 2 silver plates and one

silver cup {M.Os.1 to 3) recovered under mahazar Ex.P9. The A3

led punch and police to the shop of PW29 and from his

-5-
report Ex.P39. The mahazar witnesses to the recovery of gold
ingots, silver plate and silver cup have supported the case of the

prosecution. The postmortem report disclosed that is

homicidal. On the basis of above evidence, A-

convicted. A-1 has filed Criminal Appeal_l\Io. 5&3″ .

has filed Criminal Appeal No. l570/- .. it

10. Sri.H.S.Chandramou_li~,.._V learned C0unse.i=…appearingi*

for the appellants submitted circumstances to

assail the order of convicti*on’. _ L

{1} The charge fin” – 1996 would
suggest ‘PWl»._2 is the'”cu:lprit.._….:l

(2) Theisitaternent Q pw–9, daughter of
{PW-2_A2x would suggest that PW-2
removed’ theA:_:gold__jewellery from the body of the
dec’ea._sed;V A it

~_.(“) wvlrecoverywevidence against A-1 and A-3 is

–i.nadmi’ssible. The 1.0., who recorded the
statements of A-1 and A-3, has not
eflected the recoveries. PW-37- the I.O. in this
* ease has effected the recoveries without
recording the voluntary statement and that too

it belatedly;

(4) The articles recovered are ingots. The
prosecution has failed to establish the identity
of the property as the one which are relatable

6’/.

-7-

to ‘Mangala Sutra’ and bangles of the

deceased;

{5} The evidence with regard to chance fingerprint:

of A-1 found at the scene is discrepant._

prosecution has not clearly adduced”‘.’=.Qnly 7 ffizlglerprirglts
are found to: “be a.r}dfifd”..suitable for
examination. of other
suspects’-and the” are not
taken sent =1:¢’° expert for
u i
(7j;_P\?V–33fv .. followed the requisite
pr.ocedure_ obtaining the admitted
fingerp_rint.Vi’ofA”the””faccused for sending it to
:cornparis”on,._____Itis necessary that the admitted
_ _V.ui’ingerprints have to be taken in the presence of
if ‘ “l’«v.f/fEv’z’.;igi_istrate, which is not done. Therefore,
H not established that the admitted
H ‘fingerprint belongs to A-1.

_ V “{8} In respect of A-3, there is absolutely no legal
evidence for conviction since the recovery of
ingot at M.O.1-4 does not establish that the

ingot is relatable to the bangle belonging to the
deceased. Except recovery evidence. there is

no evidence against A-3. Hence, the conviction

of A-3 is bad in law;

%/

i8,,

(9) The investigation conducted by PW-37 without
necessary permission from the court____
U/s.173(8) of Cr.P.C. and it is illegal. In
the prosecution stoutly opposed the
ofpw-2 in S.C.No.82/1996. it

In View of the above discrepah’t’« .cir’curns_tan_ces,:flit’~is T

strenuously contended that the ordearaotf’-conviction .,record~ed”is

bad in law and that the appellantslgidare tobe.

11. The contention.’that*ti’1e_:investigatio11i.conducted by
PW 37 is bad in law taken U/ s.

173(8) of Cr.P.C_ objection. The
irregularity in”th’e._ not Vitiate trial in
view of Sec; ‘Even otherwise, the conduct of

PW37 to procyeedv infvrestigation is bonafide, since he had

already umade anflapplication for permission. The situation

warranted swift investigation. Any further delay in the

of permission would have foiled the

_ evidence available against the accused.

A. 12;” id The contradictions marked at Ex.Dl to D6 in the

-_ev.ivdence of PW9 {d/o PW2] are only innocuous statements,

it ” which does not clinchingly suggest the guilt of PW2. In Ex.D1 to

” D.6 PW9 says that when she came home PW2 removed the

jewelry of the deceased. The fact that PW2 did not examine the

pulse, be forged the signatures of the deceased on the share

-9-
papers and that he removed the jewelry cannot be decisive
circumstance to hold that PW2 could be guilt of the offence. The

said circumstances at the most may create snspicion:}«._ “it is

perhaps for that reason PW2 was prosecuted

No.82/ 1996. But the investigation in…C,r.No._–2″7’3y’ » _

altogether a different version,
incriminate A1 and A3. g V V g V’ V 2 V l

13. It is the case of the Sutra
and gold bangies of deceased_ A-1 and A-3. The
ingots are recovered. that the
ingots pertainpto _/’arfi~,%bi(1″:bang1es belonging to

the deceased. Iherepforeu, th.el’1’ec.ove–ry evidence does not serve the

prosecution to the A1 and A.3

14. “in iirespectellof the prosecution has adduced

evideriufevto. show’ the chance fingerprint of A-1. was found at

in the offence. The finger print report clinchingiy establish

tha.t”‘lthe tally with the finger print of A. 1. There

V dd _ may sornelapse in the protocol while taking the fingerprint of

if H ” . The fingerprints are not taken in the presence of Magistrate.

the said lapse need not be viewed seriously to doubt

integrity of the evidence of PW–33 that he took the

if fingerprints of A-1 and sent it to fingerprint expert for

comparison. The expert evidence clinchingly establishes that,

one of the chance fingerprint sent to him tallies with the

(W10:

fingerprint of A-1. The Al has not disputed and denied the
taking of his fingerprint when he was examined U/s. 313 Cr.P.C.
Therefore, on thorough consideration of evidence the guilt of Aml

is fairly established by the fingerprint evidence.

15. However, in respect of A-3, the prosect:_tion

to prove the guilt only on the basis of recovery.evidence~.:Which” is

discrepant. Except that there is no

In that View of the matter; appeal filed l_\i3i’o.l ;

Criminal Appeal No.1322/ 2005 l_Appeal filed by
Accused No.3 in Crirninaf Appea} .luNo_.’ »].,i57Q/ 2005 is allowed.
Accused No.3 is to__be setgpatffreenot required to be

detainedfin any .f3ij.herV’:Vcase.’ _’

“aw. ….. EUEGE

Sd/-

JUDGE