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%
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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