-1- IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD % DATED THIS THE 14TH DAY OF JULY % Tm: Honmu Mn. Jusncn 3,3. _ " V AND: Tan HOIPBLB ma. JUSTICE» qua. " " . CRIMINAL APPEA:V1:;N().4Siia'?;zIi§i_;)_c§v': S/o. . . Con.No.2931.. Central P1'isC~n, .1 . ....
(By Amie-us Curiae)
The. by C.’P.I_Mudhol
Polioémsta’ 110′ n)
%(235}%Tsmt.*T;M;%Gayaui, Addl. SPP)
. . RESPONDENT
“T}J;ui3;v(31’i1ninalAppcalisp1’cfcned bythcabove
through the Supdt. Central
_ Bijapur, against the judgment dated 21.3.2005
. pafisscd by the Single Judge, Bagalkot, in S,C.No.81/O3 –
This Criminal” ‘ Appeal (Sn this day,
BANNURMATH J., dcfivezfcd the 1 a ”
the learned Jfidge, Bagalkot in
;1ol{iii1gv——me accused guilty for the
otreraqe gage: 302 IPC.
‘ 2. A”The..__'”b£fi£§f facts giving rise to the present
‘ as foflows:
.. 3 ..
much dispute that PW~–3 Santavva and the deceased
Bandavva were devadasis. Though they were residing
in the same house, it is the case of the
itself that PW.l, PW.2 and the wife of
residing in a separate portion, ” ” a
deceased were residing in
by partition. According: to ”
accused had relationship for quite
some time and it is ‘fifinddiia had
relationship with others,’ and was
quarreling discontinue
her According to the
prosec1:1tio*_:,1,iA did not listen to the
advise given” it ended with the
‘V3; to the actual incident, according to
i the P’W—1 and PW«–2 had been to attend a
def one of their acquainter and after
of the marriage and lunch when they
“if were returning to the house and were near the house,
_ 4 _
they heard the my of the deceased coming from inside
the house. When they rushed, they met the accused
who pushed them and alleged to have run a
bicycle. Thereafter, when they entered the
saw the deceased Bandavva dead. ‘A ”
death of Bandavva with the
earlier quarrel between “the ” it
jurisdictional police at afiwritten
complaint PW-1 1 _ mceipt of the
same, reg’steI’s~.a for the
offence accused and
investigation. is ” « ..
:T1ie~ procedures like holding
The dead body is subjected to
in…__outia,utopsy,’:__AAecused is arrested on the next day and on
d it is ailged that as per the statement
fgdiizissibie under Section 27 of the Indian Evidence
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imprisonment for life. Hence, the present appeal by
the accused .
7. As the accused is an
had filed Jail Appeal, this Conn; ii”
Mal]1kHI]’ ‘un s. Masali, leamed”‘:.co’a’i’nsel
Court as Amicus Curiae.
8. We have ._ Curiae’
as Well as the learned .,
9. as the death of
may not be much
in dispute, the evidence of the Doctor
PW-6 Dri” his autopsy report Ex.P-2
cl&3_'<1'3iy s A' was circular contusion
neck, fractme of Hyoid bone and all
thcezftemaiv 'A . 'ad'? being ante–mortem. The cause of
to the doctor is due to asphyxia as a
"of strangulation. Hence, Bandavva met with
it death is proved by the prosecution.
6/"
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complete that there is I10 if’ Dviihii. A 1 i
the conclusion
probabilities the was ~ V
by the accused’ andenone 2
circumstantial ” e to
sustain niust ‘complete
and mcaptible~. of any
other ‘cit the guilt
:_. :no”t«;’orily be consistent
:__t,l_1e._ ‘ — of accused but
_’ l”shoul_d«.p _inconsistent with his
as follows:
by ” ‘ ._evid
‘While appreciating the circumstantial
ence, the Court must adopt a very
it ‘cautious approach and should record a
conviction only if all the links in the chain
are complete pointing towards the guilty of
the accused and every hypothesis
innocence is capable of being negatived
evidence.
of
on
Great care must be taken in
840), the Apex
5*”
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doctor who performed autopsy, PWs.9, IO and
the mahazar witnesses and remaining
members of the investigation team,” >
17. on perusal of t11e_evidei1ce’ of if to” st t It
the face of it, it appears to “consistente of
them consistently “date ovfwincident,
all of them had men he village and
after finishing; lunch, when
they they heard the cry
of the it : inside the house. While
going’ iiisicie;-V aside by the accused
away on a bicycle and
inside the house, they found
But on careful scrutiny of their
‘evAidTence,__Ai*the same appears to be unreliable. The
evidence of these Witnesses, is, as if, by chance, all of
“it came near the house only to hear the cry of the
‘ “iideceased and then see the accused running away. But
for these two, there was absolutely no material for the
investigating agency or the prosecution to connect the
gee
_ 15 –
accused with the crime in question in any way. It is to
be noted at this stage itself that though these people
had been to a marriage, according to these Wimesses,__V
cw–11 wife of PW-1 was at the house whims,
incident had taken place though of .3 v_: is
separate portion. She has not asfto
what happened inside the house. it
not be an eye Witness ‘out as is
residing is separated she could
have heard the g accused
and the cry of death
by best known, the
prosecution her. Ewen otherwise,
the presence” of the “wimesses examined is also
there is contradictions and
V”.o1’nVissio1is”~iri, the evidence between them inter se.
None or consistent as to the distance from
_ ‘w_’hieh”‘ti1ey:_ the cry. It is the very case that all of
iheiiiarere returning from a marriage together and
they were near the house, alleged to have been
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heard the cries of the deceased. If s(;,[jm~e
could not have been
from the house to the place when: A”
or coming through. No dofibfithe rustic
greater them. For
mofl1er;…thcyv§ei’e7Vat a of so to 70 ft PW-4
example, at a distance of
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they hearing cries of the deceased, more importantly
accused running away from the place, assumesscme
importance. We may not give much
simple factor like the so called .A
sense, PW-I says that
whereas PW-2 says, it was at
relevant is evidence of PW lunch
was over by 2.00 they
were returning to marriage is
about 1 k.m;,”ax§fay offence and as
such, by these
A:¢leai*ly”‘«e’stabfishes that the death
was as such, there is a dent
the presence of these witnesses.
It” mind that PWs.1 to 3 are closely
but their evidence cannot be
‘bmshedfaside only on that count. However, to
V” their evidence, prosecution has relied upon
. evidence of two independent witnesses – PWS.4 and
69″”
-19..
5. Of course, they are friends of PW~1, but
will not be normally held against them as i
witnesms. But the so called independent’ is
5 does not speak as to t11C»sj.)Ij6S61;1Cti”Of pus; i
4, though he was also comirigmhibaek.
His conduct is more 1′ to him,
when he was near theA.hoi1j$~e he saw
accused and he does
not state to go inside
the hoiise –A as unlike the other
Witnesses,’*h_eiidoes of hearing the cries of the
iflone peruses his evidence, it is
come to the spot afier PWs.1 and 3
it In our view, PW »5 is most unnatural
gwitness even if held to be a chance Witness, his
‘V V’ testimonj}, is unreliable for Want of corroboration.
18. As already noted, there are conuadictions
it ” the evidence of PWs.1, 3 and 4 as to the distance
and each of them, wants to show that they were
pushed by the accused and as such, they could
€190
..2{}-
remember him. It is to be noted that the V.
has consistently elicited from these K
the accused was lame and was d _, in .:_f’act,_V
Court has noted this and ‘V L’
evidence of PW~1 the
made to walk in the wazked
limping szowzyf. Thotifiglhd had such
infirmity, PWs.1, 4 and
5 have not him. It is not as
if the deadly Weapon and
hence stwezved On the other hand, the
accnsed. was “»not”‘oI1’If:x all the While, but also
Te jvdjbicycle. In the normal course, he has to
house, hold the bicycle, then peddle it
fllfough ride it. As such, if really these able
K tmdiedvypeople had seen the accused coming out of the
–‘ their natural conduct could have been to catch
” on the spot itself. As such, in our view, there is
doubt as to the presence of these witnesses as well as
their hearing the cry of the deceased and seeing the
44/
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accused rimming away. If these so called witnesses
regarding the cry of the deceased as well as more
importantly their seeing the accused nmning away
from the house is eschewed, there is absolnteIy”‘*’no
material lead by the prosecution to con11eJ(‘:f:”
accnsed with the crime in question except_y’:?i:eV _
motive.
admittedly the deceased ‘a S is
admitted by her sister Vtfiotheri She
had relationship with many vii-i;in_’fi’aet, there is
3 on one hand and
PW-2 on i;he I and 3 admit: that the
deceased _3:’e}atiofi_sld1’ii) with many persons Whereas
V’ denyfiie same. Be that as it may. It is
i ac-qua1n’ tance or iflieit relationship
and any one of them could have
cause for her death. The only connection
‘A tthe accused and the offence as already noted is
circumstantial evidence of PWs.1 to 5 seeing him
ewe
19. On these aspects, itais
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coming out of the house of the deceased. As we have
already eschewed this pan of the evidence of PWs.1 to
5, there is absolutely no material to connect the
accused with the crime in question.
20. After giving our careful consideratio1i’:to’ “~ V.
entire evidence, the finding arrived at
‘V ‘.
Court appears to be illegal
Court has failed to look into t11es.e”‘aspects,.
keeping in View the Weii’
estabiishment oi’ ah of
evidence of it is well
of circumstances
must as in our view, the
chain is baits the trial Court ought to
V’ ‘doubt to the accused and in not
it acted illegally.
for the rmsons stated above, we
allots ajipeal, set aside the judgment of conviction
dated 21.3.2005 passed by the Sessions
-23..
Judge, Bagalkot in S.C.No.81/2003 and hold that the
accused is not guilty of the oifence under Section ._ 302
IPC.
22. Since the accused is in
Prison, Bijapur, he shall be re1e.as.ed4’AV’
he is required in any other oifenee. ”
23. Before H the
assistance rendered as
Amicus Cilriae,’ We to pay a
hOI10I’aI’i11lI4l_V thousand only)
Sd/-.
fudge
2 …..
Judge’