IN THE HIGH COURT OF I-{ARXATAKA AT BANGALORE
Dated : This the 19"! of November, 2%
PREEENT
THE HOIVPBLE MR. JUSTICE 8.8. BAKNURMATH
THE I-ION'BLE MR. JUSTICE K. .. 3 A
CRIMINAL APPEAL No. 3.o:«:Q12.._oos *._"' V V
BE'l"WEEN:
1. Prabhakar Kumar,
S/o Abid Singh,
Aged abcmt 24 yeazs,
R/atBabanvillage, _ . _
Lalckisaradistxict,
2. Mohan Kumar, V
S] 0 Rs:-zjendra Si'a'g11,"
Aged about 24 yca.:*'::5_' ' _
R/a Hindupu.r.vi1}agc,' _
Thana Pcast, " ¢ V
I A. .....
La1(kisaJ*ay'i.,di:2!;t1Qt, -- < ' V. V
Bihar. " V , .. APPELLANTS.
P-1. Padii1avafli1;vz;iciv.)
'- -
Felice Station. RESPONDENT.
Sxfj Hhlawaz, Max SPF)
This Criminal Appeal is flied under Section 374(2)
{3r.P.C:., by the advocaie far tlm appellants against the §udgme_z_1_t
dated 8.4.2005 passed by the ?residi11g oat-car, Fast
C-o'u1't~IX, Bangalore City, in SI}-.No. 517/2002 ~
appellants/accused Nos. 2 and 3 for thtif',.Qfi'fi1'1Cf:Sh:31f£#iLfi'J¥éh1E:,
undar Sections 302, 392 IPC and sente11v<§i:ng;' 1;'
iznprisonmcnt for life and also santehcsgl V'toVpa3%' ¢i.;.ii11_VeVVVc2:7f
RS.5000] -- in default to undergo SJ. _1:.:1i:e o ffcnce
punishable under Section Aliéfj seéltgtncmg
them to undergo R.I. for'? Rs.300()].
in default to u1:1(it€_i9g1<3«v:;1iT'L~$:3 ,I._afof the offence
punishable: milder oxdercd that both the
sentences shall Vco'n{;u1=£'eni1"3{,'. " ' « '"
5étp;@{:a1vA_ and msetsvad for judgment is
coIfii:n g 511. 1 fflnnouncement of Judgment this day,
J2, 'délifférfid the following:
JUDGMENT
“appeal is by tha convicted accused Nos. 2 and 3
‘ the judgment of conviction: and substantive
<, se.'niience of imprisonment imposed on the accused by the
judgment dated 8th April 2005 passed by the Fast Tract Court
6:4"
No.IX, Bangalore, in S.C.No. 51′?/2002.
2. It is to be noted here itself that even though ‘
have been tried for the ofienees punishable untiéer
:20-B and 392 1130., since Saketkumar (aceu:<;ed~ 'No'}'}.) if
to be juvenile, his case has been
appellants [accused Nos. 2 3] hasfei m'<%:'d~ said
sessions case.
3. The to :_ t13e”‘pfesent case as per
the prosecution .fcg1l0ws; .. 7
One $2, ‘miss having a shop by name
‘Sha Vastimal who was dealing in home
ap’pl.Li}an.ce’g~ et%..,BaIi’g;a}ore.« Vvficcording to him, the deceased and
iipthe p’3’resei1t. by name Nsvaram was Working as a
.T”NianagerA the for the past 35 years. According to him,
~ Nafixsli Kumax’, P.W.19 — Srinivas, accused No. 1 —
and accfised No.3 – Mohan Kumar were all
h in his shop. According to the prosecution, the shop
on the gonad floor and in the 3″‘ and 491 floor, the
kieeeased and other employees were resifiing. According to him,
about one year prior to the incident, he along with his son had
6,1/(W
left for Rajasthan in respect of the marriage of his daughter and
during that time, the deceased Manager — Navaram was
charge of the same. It is not much in dispute that
Kanthilai – a nephew of the deceased is also !’CSi(§Z’l’eI1:f. M
Bangaiore having a business of his ow1:1′.'”” 1~’.r:co§a:di1_3vgf
prosecufion, P.W. 8 – Naresh _
accountant in the said shop and on’ he
over the cash of Rs. 1,34,000*1§z 1′!.1OI;t.iy] to
the éeeeased Manager – Navarent the owner
P.W.7 — Bavarlal Rajasthan.
According to the :;1ece*aS[cd staying in the
3″‘ floor of handing over the
money in the «tdeceased, a}} the 3 accused
were pI’6SC]:I:t» and aware of the availabiiity of
Ith”e..C’1ecejesed.«v Coming to the (‘late of incident, it
is ” at about 9 a.m., accused No.3 –
t°*Mohan 19 ~– Srinivas came to his house aed
~ .t.tig3tfofined thaLt_N”avaram has been munlered in the mom he was
visiting the spot, he saw the dead body of
h bearing injuries on his gerson and as such, he goes to
4′ jurisdictional police at Chickpet and gives a written
complaint as per Ex.P.7 at about 9.45 3.111. On receipt of the
same, P’.W.5 — the S.H.O. and 19.8.1. registers a case in Czrfgme
fi”‘”‘
16
found in the 3rd floor of the premises No.1S4/ 155 belonging tp
P.W.7 who had a shop on ground floor at AS. Char
Bangalore. The evidence of the autopsy doctor cleaxflf j”
that the deceased Navaram had received a_s._z..n1any
and stab injuries on his entire body’ asjjsetr ijf
doctor and his repoit, these i11juIieS’–._V}n7er’eA’~.etnte’
nature, which couid be caused by ectge like
M.Os. 16 and 17 and the to sahoek and
}:1eme:rrhage as a result. {if mjxlfiifile. by the
deceased. Hence, the
said Navamm met K Veetablished beyond
any doubt. us is ~ whether
the pm-secutioti reasonable doubt that
it is these; “Nos. 2 and 3} with juvenile
1;)’. and have caused the death crf
It is also to be seen Whether the
. »”‘pVmsecutio.;1V hae.esjtat)fished that the object of this murder was
” ‘reb».the suiuie-f Rs. 134,000] – said to be in passession of the
4: ~-tieee”@e_ed_bet’A_the relevant point of time.
Ga peruse} of the entire gmsecufiofi ease 311:1 the
evidence led, it is to be nested that them are no eye Witnesses; to
the actual -assault and as such, the entrixe case of the
fie,
‘ex
E1
proseeutti-mi is baseei on evidence of circumstantial in nature.
These CiI’C11}33.SU;’3I1C€S are as follows:
3)
bi
61)
Motive;
Robbery of large sum ef Rs.1,34,(}0{)/–~ ‘
homicidal death of Navaramg
Accused Nos} and 3 were empieyeee.
with the deceased, P.W:-3.8′
P.W.7 – Bavar1a1@ ‘DeepchaIi{i;~.. ‘
Accuses} Nos. 3 and floor of
the businevssj ‘premises’ ‘tc:l;e1eeeV_ fllegdeceased was
si:ayfing_ l’J,;11 .’ _ ‘
O11 tlie, eirenieg ‘bf 25.5.2002 large cash of
Rs. §;34,(§OO,L{–‘ieas ¥:§;}e custody of the deceased and
– _ had ‘kept “” Sam ‘ e in a cup board in the mom
relevant time of the incident.
V 4{§a$_1.staying;
A the .ae,-fiised Imew about the deceased having in
cu9;te@?;y such a large amount;
. _’I’he accused were near the scene of offence during the
Infaet it is accused N05.
I and 3 who have inforaeed about the finding of the
dead body to P.W.6;
K54,
E2
h) Recovery of the cash, blood stained azficies
Weapons at the instamres of and the ‘
statements made by the accused;
i) Fimiing ofa shirt button «~ M.(),; »14__oz1
one of the shirts I\e”i.O. 18 seized E311 iriflf
accused No.2, was found oi’v-a’b11ttcr»:s’Aé:1_1a<§
button found at the spot mafC:l1ec¥.._»_wit.li the Inissing
button on M.C).18. V
7. At the £ov%b.e é1ts”‘i;7e have already
helei that the e’ec§;aé.¢d Navaram is not
much in dissufe by the pmseeution
thmugh $he efiidgeiice of [inciuding mahazar
witnesses] -the poiice officials as well as the
efideiiee bf autapsy deetar,
8. A .__’IV’he ‘eircumstance mofive is aiieged to be for
~ .T.Ti§?.b}:$i:1g the dveeeased of large sum in his possession. It is the
V¥:l_:ze”‘Aprosec.13tio11 that accused Nos. 1 and 3 as Well as the
H V’V:éeeVesseq:1 were working in the shop of P.W.’? siong with P.W.8
19. In this regard, the a;rgume11t of the learned
.VCi<)unse1 fer the accused is that there is absaluteiy no
documentazy eviéence produced to show such employment of
5/4
13
the accused by P.W.’?. On peruse} of the entire evidence, itis
flue that no documentary evidence in respect
employment of accused Noe. 1 a:t:t{i 3 by P.W.7 :”
regarding their stay in the premises is prc>_d.;.1eed. :.<L5weg;¢:
should not deter us from accepting the ;ee–.:.§:1énc¢-» ef if
witnesses in this regard, if thee'j_sa;x11e 'is.
acrceptabie. In this regard, the
the employer himself. He has tesmts that
Saketh Kama}: 3"'uvenile._ (acettseri No.3
Mohan Kumar aioug and P.W.19 –
Srinivas were wori;i;.1gi:_”t1i; stated that the
premises coneiste the ground fitwr was the
shop Whereas tiietitieeeased was staying anti 03:1
the 4&1 0’E4.;I’é)..Vt’:J.€*:V’|AiA!£V7V()1;kII1.t-iI3L’.t’!…1011g with accuseé Nos. 3. and
3 a suggesfion to this witness that
the ‘ ” u.f1et:’.:.~working and he is falseiy deposizag,
44iéib’so1uteIy,t1Vo material is elicited from this Wimess. It
~ –té.jV»-net-»as if it Witness alone who speaks about tile said
‘jg;;.ep1e§%;ag;§t;_« lnfact, P.W.6 the br0ther-ix3,–1aW of 1=.w.7 and
h i?’.Ws.8 and 3.9 the Ccwemployees of accused
‘E%Q_s_;f1 and 3 have éeposed to this efiect. Their evidence is net
cormborated to each other but in the absence of any cross-
exazninatien as to why they are faieely impficafing these
f
16
empleyer. No doubt, he was not pzeeent. on 25.5.2002 but had
gone to Rajasthan one month eariier but his evidence
had learnt this amount from Naresh Kumar — P.W.8, j”
found fault with. Admittedly and undisputedly,
employer and he would be a1:1x:ious :’:a.boi_i1A. it 1″
mandatory transactions of his shopV__vth;t)u§hv.
Manager and employees ae t_ the
consideration of the dd 19 that on
25.5.2002 P.W.8 gave aeash ttie deceased
which he kept in the Vt floor. it is
also estabiished he was handing
pver the money Nos. 1 and 3
were present infact seen the deceased
keeping the meneét’ There is nothing strange
Gt the’ ‘accused as they were also co~
empioyeee in the eame buiiding on the 4&3
_1ffie-or.
‘ti t”‘If_1:1e presence of accused Nos. 1 and 3 while Navaram
V. and also just immediateiy after his dead body was
~V.gj1;i;ee:overed, they are spoken to by P.W.8 eonnbomted by the
evidence of P.W.6. Apart from them, there is umlmpeachable
evidence of P.W.17 the Security Guard who had just taken
fig/.
18
circumstances against them as faise. But they have not trieezi to
explain or Show that they were not employed by ?.W.7 or th;i£.»j
they were staying somewhere eise falsifying the case ..
prosecution that they were residing on the 431
premises and the murder did take place the ~3*’fi ‘ifI~§rVe11′}
on re-appreciation. of the evidence in Wé. V
the prosecution has established the tjreeettee ef _e.ee31é§e(i*V::Vot
only at the time of P.W.8. of
Rs.1,34,000/~ t0 the deeeasedttébettt. Veve’t1t’:t1te£?eatter’ till the
eiead body of the ciecea5ed__.
1 1. as to the guilt of the accused to the hxvesfigafing officer, of accused Nos. 1 and 3 on
}C’tT12.e;t.r wjere “tt1te’i1:’cV>gated and they gave voiuntary
state’t1te1;t_ to accused No.2, had two shirt
as “elader Shirt’ at Sudhamanagar.
to on taking the police, accused Nos. 1 and 3
accused No.2 – Prabhakar stating that they had
‘V.’jh_2;jt1tIed’;over the cash of Rs.1,34~,O{}€}/- to him for safe keeping.
VV”~–..C)iiVj1tteIIogat:ion of said accused No.2, it is stated that he took
tithe police and the mahazar Witnesses to the place where he was
residing in the same premises and from the plastic bag which
fee.
19
contained rice, the cash of Rs. l,34~,()O0]- was recovered. £1; is
also alleged that the accused also produced two blood
clothes said to have been used in the crime and e1;:1~ea::.§_’;_§’.;* ”
Pxabhakar accused No.2 leads the police 3
wimesses to the 4th. cross of Lz-Jlbaghl _ja’7g=.:di<:'I,V' _
plastic bag is pointed out. On Iecovely of Vlih.e:'saB3e,
pants axe recovered. it is sigI1ificaotve«..£o'.uote
shirt ~ M.o.1s had one buttoi:x..V_;'z3is§:iiisg;'.._evideiice"of the
1.0. has been corroborated " ,v mahazar
witnesses P.Ws. 9, cross
examination, evidence in this
respect has been In this mgajnd, it
is mainly conteiidedbgf diet the gpmsecution has not
esmbfishefi llleccused Nos. 1 and 3 and
more importantly it is alleged
thai involvement of accused No.2 and his
ialleged Volpeltazryledflltement leading to discovery is of false. The
~ for the accused pointing out to Ex.D.1 – the
4'V'l.I3.'l'__fil}£'.Ii§1tiO11 given to the accused, vehemently contended
' iflhelfiarrest in Ex.D. 1, the arrest of all the accused is shown
'at, em. However, it is argued that the recovery' mahazar,
tehich is drawzu at about 5.45 p.m. stafing that it is only after
accused Nos. 1 and 3 who gave voluntary statement and led the
gem
20
police and pamzhas to the spot, they founci Pmbhakar — accused
No.2 Working at the factory premises. it is contended ,
per Ex.[}. 1 when accused No.2 was in custody of the
couid not have been present at the V-fa’c’tory Vttatj.
Sudhaxnanagar so as to lead the 3
recovery of cash, the weapons and st”-aigged …I:i
this negard, on perusal of the, Station…:cti’ouse..LADieiy;t~ isiseen
that the mentiolzjng of ’emf along wétil
accused Nos. 1 and 3 inistggieeoestéitement given.
by the 1.0 and S.H.D., of the
relevant dates arrested around 7
13.111. it appesrs -.as a] routine, while giving the
arrest i.3:1timatioi1V._toVs1f1d 3, have also mentioned
the nsme”of’ aecoseel as such there is possibie
ioteteoceé was aiso arrested along with
aeeutsetit 4.30 pm. But we are satisfied after
of,t11ev_S~. that at the relevant point of time the fact
,_t:No éoubt the police have not produced any
the alleged friendship or link between
Nos. 1 and 3 on one hand and accused No.2 on the
But that fact has been practicaily established through
the evidence of P.Ws. 8 and 19. These co-employees of accused
Nos. 1 and 3 have as alreaeiy noted categorically stated that
We
23
12. The fiial Court has infant considered ail these;
aspects at length and in our view, has arrived at a }’£.1$.’>’£”.~’ £.€.=”1:..<_.Zi'< ".
proper conclusion.
13. In the resuit and for the
find that the appeal filed by acc11set1V__I$Eo$3. 2:
merits and is liable to be rejcgcted tl:1.e’:’ of
conviction and setntcnce passéé§..i’brAt.i”;c for the ofiences
punishable under Secficns V;
14. though we have
referred thé accused No.1 in the
crime in q11e$.tAi£j3:;,4″six1Ce,_.i«i:a§. i:L§ :_éi–#§:i:§;v.éi1i1e: and to be tried and he
is not on ease, any observations made for
iii; i§13{f}1V£¥V]fI’J;(vi’f!I’iEH”t’viS incidental and should not be
5.3 against him since ht: has to be tried in
compaajtént ‘:i;e., by the Juvenile Court.
4’
sd/-‘
Iudge
Sd/-~
Judge
I N311!»
