IN THE HIGH COURT OF' KARNA'I'AKA, SANGAI,CI»I§§I+:.
DATED THIS THE 6"" DAY OE JUNE, A'
PRESENT 'E E I
THE IIONELE MRS. JUSTICE
AND « . .. . _ «. --.
THE I-ION'BLE MR. JUSTIcE"A..V:'N. VENUGOPIXLIAHEGOWDA
crI.A.I\.I_o. I~2Ii'7SI§f ( A)
BETWEEN:
STATE OF KA;RI\II9f_i'AKI§ T APPELLANT
[By Sm." I'>';I¢I,: .--'AIjI:>L. '{S'I+>IJJ'
1 RAVI'I7{UMAR_@'AS{ri'OK
5 "S10 GAI\I_GAI)IIAR EELCHADA
22 YRS, BEH..I_ND STATE BANK
COMPOUND,
S_IL\/'ERGATE, KULSIIEKAR,
II IVIANQALQRE
VI-SHWANATHA S /0 CHENNAPPA RAI
.3'2,Y:RS, KALENJA HOUSE.
'IN 'FRONT OF VISHNUMURTHI TEMPLE.
A KALENJA VILLAGE
VIA BALLARE2. SULLIA TQ
... ACCUSED
Sri. M MURALIDHARA M AMICUS CURIAE FOR R1. 8: R2]
THIS CRLA. IS FILED U/S. 378(1) :31 (3) BY THE SPP.
FOR THE STATE PRAYING THAT THIS HONBLE COURT
MAY BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST
Tl-IE JUDGEMENT DT. 18.12.2001 PASSED BY THE II
ADDITIONAL S.J., D.}{., MANGALORE. IN S.C.NO,EVil/2001.
ACQUl'f'I'ING- THE ACCUSED~RESPOI\lDENTS
OFFENCES PUNISHABLE U/Ss. 450 AND 302
SEC. 34 OF IPC.
THIS APPEAL COMING om FoAR..1»:EA.fi1i\1t3*fi~1ls I4_l)_AY",_ I °
MANJULA CHELLUR J. DELIVEREK) mTE«a,FoL'LowlNe'.Qf Seeor1clIAdditior1al
Sessions Judge, Daksh.ina- 1 2.2001.
I'2.lllIl'lheiicase:?o'f tli'e;prose"ou'Ei'on before the trial Court in
bne1'1é-_aé 11r1ILler:'«..'IV V.
. PW}-4..l13'.'M.1'V\_RdhIlit1§"ISVand pws Rohithaksha are the
'~ deceasved...Smt.DeVaki and they were all living at a
' alrlil-a.gAe._ir1raniarea called Kuclupu at Mangalore. PW4 Lalitha
'hy""occufiajljoi1 a teacher is none other than Wife of PW3
Rohlthaksha. PWS. 3 and 4 had Children who were also
I xreslndinlg with them. PWI Rohini is also a teacher who was
Syvborklng at Mulki and she was given quarters at Mulki.
I "Therefore she was stayirlg at Kudupu with her mother and
some1.i.mes at Muiki in the quarters allotted to her.
During Christmas Vacation in the year
children of PWs.3 and 4 had gone to
grandmother's place and PW1. 4} an_dMdeeeased'_'Aweifeu"
staying in the house in their residenoev
26.12.2000
when none of the”-._othetr0’familywere)
present at home Smt.DeVaki agedabout: 86 years
was murdered with the_ii1teI’i_tio;n vofttobibing vaiuable things
from her possession. A.Aoe_o’rdiogii,Lto’ddthejoroseeution Rohini
the daughteriof deceased retur’r’§ed”h’ome at about 12.30
noonrarid ‘oniiehearirig “1n’oaVninug”s’ounds from the house she
tried ‘open door-._iv_hieh was locked from inside.
Therefore0″s1’1e*rL1Shed0’fo–~’nthe back door but the same was
inside. ….. ..He-nee she raised alarm and eailed for
‘ ;heEpj1’rorn:’thje’ neighbourhood. In response to her cry PW2
‘said to haxf-edarrived at the spot. Both of them apprehended
dang.er’Vto.t:he life of deceased Devaki. It is the further case of
., ‘Liaiseuprodsecution that PWs. E <3: 2 peeped through the Window
0'-sitziate in the bedroom of Smt.Devaki and they saw A1 and
0 it holding two ends of the twisted Cloth which was tied
around the neck of the deceased being pulied and deceased
was lying on the cot. When PW] questioned Al who
other than the nephew of PW4 Lalitha he
person calling by name urging h_1'_m. to" thfieu'
spot. On noticing the AI and 2 runniiig
they chased them to a certain'*-distancelland tretti§l'1.eCl horned"
Meanwhile PWi6 M» Smt. Mohini"-::_n1other.o[ lPv'\?V2vvf%a1*rived at
the spot and noticed thetilidead b-;j)dy'4oEV'L'Dhev;1ki in the bedroom
and several persons gathered at the "
On _precei¥Jin.g.Vinfcrrnation hoyet” the phone, police
arrived” erlglnréd PW} and others. The
cornpla.int._ of. is at EXP] was recorded.
Meanwhilehighertauthozrities from police arrived at the spot.
cond\.ucted”inq.ue’st and sent the dead body for autopsy.
writtenvl.co:<1_1plaint of PW1 which is at, ]33x.Pl was received
'aé:"2'.15p;}g;_. and registered at 2.30p.m. in Cr.No.388/2000
on llthefilexoi' Kadupu police, Mangalore. The FIR at Ex.I?8
» "was dispatched to the Court through PW9 and EXP}
"reached the Court by 5.20p.m. on 26.12.2000.
3. During the course of investigation the spot rnahazar
and spot sketch came to be drawn and several art’icIé:sujwevre
seized under different mahazars. The blood
material tied around the neck ot”V-i,he’-dece–ase_d’
sent for opinion of medical expert3P’W:5\;’S
Conducted autopsy. The matte_r’ia_i artitlesiwere aisowsetnt to”
FSL, Bangalore, for ESL ar1d—-:Sero’}~ogy reportgi PW8 B.
Nanjundappa is the Mangalore.
PW? K. Vishwanath poojaréijg. ,;j1e_ okigxww gave Ex.P4 to
confirm” the. the”residenee”‘in the name of PW3 where
the offence_ took’ also the fact of deceased and
others 1ivi’ng._§ in the sa,id”h’ouse. PW17 K. Narasimha Bhat is
‘~ _engineer..wh’o drew the spot sketch as per EX.P-1 1.
‘ Chan_drashekar is the PSI who not only received
ieiegjhoneiriessage regarding the commission of offence but
is the virho visited the spot, recorded the complaint of PW}
it xa.’rS1d_ sent the same to Police Station through PC for
AS;fe>gistrat,ion of the case. It has aiso Come on record that the
it mudistance between the Police Station and the spot of incident
is about 4 to 5 kms. PVV18 PK. Shashidhar is the 10 who
6
took up “further investigation from PWl9 and filed charge
sheet. He not only apprehended and interrogate-d_ the
accused but al_so filed the charge sheet. From
material placed through the evidence of PWs..–;l:” V’
prosecution tried to bring on 1’eco.rdA»Vthye d=t1’ect”et1ide1iceyfor V
the commission of offence by Al
also part of the family of th»e_v’dQCeasé»dVW’h_Ql”apf{yed…at thewl
spot subsequent to th.e_ incidentuafteiaheating.thepvvnews over
the phone. pws. 2 andy.yPWl?5–.are the son and
rnothei*ytfh’o..:llved’« th’e:neighboi’hood of the deceased and
this fact not defence. PW5 ~ Sujandas is
another resident of’7_>’lo~c’ality who lives in the vicinity of the
the dec’eased’S1nt.Devaki who said to have seen A}
‘ -near the railway track at about 1.30 pm. on
26§’}l2.2GGVf}’;_ he also questioned the cause for their running.
Prosecutioti tried to bring on record extra-judicial confession
said.’ to have been made by A1 regaining the cornmissio-n of
‘offence before this gentleman. PW6–Dr.P. Bhaskar Alva is
it the doctor who conducted the autopsy and issued PM report
marked at Ex.P2. Further opinion rega1’ding material used
and 2 pleaded not guilty to the charges and _1;hoe’1’.edafter
evidence was recorded. In all 19 witnesses were
apart from EXs.P1 to P11 and EXs,l§A)m1b and.2″for:’the’=tle£e11ce”=
and M01 to .5 material objects lwe1″e’aljsol*n”ia.i’ked”‘for
prosecution.
5. As already stated Vetlxidence of
PW} and 2 co1’1*oboratel’c’l.l)~\r_the PWs.3, 5 and 16.
prosecution brotight on Support of the
charges leyelliled that PWs.1 and
2 aciuall.y– slaiJ»’*,}~\.lit”ari’d.d_j2~–.strahgulating the deceased Smt.
hue and cry by PWI they ran
awaiy”ih.:rough~ the lback door of the house which was seen by
Though PW2 tried to catch hold of them
‘by chasing therh to a certain distance he was unsuccessful.
Tt’ie1’e[_o’re,heAreturned back. According to the prosecution by
Athye the conterits of EX.P1 came to be recorded by the
ll”p.ol_1’nce within a span of 1 and 11/2 hours from the time of
__;loi”fence in question the names of Al and 2 came to be
disclosed in the complaint and the FIR reached the
Magistrate on the very same day at 5.2(3p.m. without any
9
delay either in receiving the complaint or in registerilrightlie
case or the FIR reaching the Court at 5.20p.rn.
6. As against this the defen;:deA”tried¢_t’o on: record’
different and contradictory defence”e\ienz with regard
cause of death of the decease–r;l:§V”v.iAccordingto death”
could not have been caused by”‘stran’g’u.lat.ion’ as projected by
the prosecution as with regard to
the material _w.’a–th strangulation said t.o
have been; iotVVP”\:Vs.l and 2. They
also r’nad_e.setieral_rst1ggest.i_onsf to t.he doctor PW6 indicating
that the i<:1eceasedV sustained injuries while trying
to 'put, the for drying on a rope by climbing on the
E"';:[:"l':e"3r~.«_.also to bring on record the fractures
.sustainggdvnby-.t..lie deceased could not have resulted in the
deathsof thleideceased. This is so far as the actual cause of
death-._.o'f the deceased in order to say whether it was a
i' 'horriicidal death amounting to murder.
Ultimately their
fdefence seems to be even if the Court comes to a conclusion
that it was homicidal death it was not within the knowledge
of PW:-3.1 and 2 who committed the murder of the deceased
l(}
as the evidence of PWs.1 and 2 coupled with the
PW16 would indicate that it was not
persons to notice what exactly
According to the defence o'r1_flacco'a–1nt..nof
dispute between PW 4 and hei*,lorotiher's._son[whio none V
other than the inlcolliidsion with
PW} conspired to eliminate knock off
the entire p1"Qp;§;nfi,. which; of wife of her
brother 'A1. In other words,
acco1*(jinlgV 3 and 4 taking undue
advantage ._ of have tried to accuse A1 of
comr_nittald"o.f 't1'1¢ The Learned Judge did not focus
}1iisct1s,sion'ii/ith…regard to the so called enmity between
V however he did not accept the case of the
it –..Vl'1na.rk at the backside of the neck of the deceased.
xi?'
he
.:second reason was nondisclosure of the names of
'pro'secutiori for several reasons.
it The first and foremost was the absence of a ligature
l The
the
accused 1 and 2 to the police over the phone by PW1 while
iritirnating murder of her mother. Another important lacuna
“git it _
14
11. While referring to the above circumstances..to”V;go’ V.
against the case of the prosecution. the arg__ti’rnVentA_i’vof
defence counsel is to the effect that P’.’V”v’s.i’3_a-inds:4«._are””theV”.
master minds in. conspiring the case to. e1imin;_ate~
No.1. The1’ei’ore, the suspicious.circumstaimeas.’_=sLirronnding V
the fact of commissionof~~o_ffen.’c.e”1:5y–: two at:’cu’sed would
ultimately persuade the Cotirt ¢o1:i::fi:~;<i+i.{h;3a judgment and
order of acquit'ta1««j._oassed by Keeping in mind
the above: arguniveiitsth.e"V_;51foscCution and also the
dei'encte';d"Wei.shaved':fgone–.througt3~~the evidence of Witnesses,
docutndentaryd evidence .a'nr._1'a1s¢ the reasoning of the learned
trial udge': , h =
Eihe points' that would arise for our consideration
'are: ' '
{vi} _VdA4j'iWhether the judgment and order of acquittal.
deserves to he set aside'?
(2) What order?
LE3. So far as the death of the deceased Devaki is
concerned, it is not in dispute that she was found dead on
” _sit”uation and circumstance.
km
E H1E11’1I’1€I’.
F»)
,;J
the deceased. By that time P.W.1 had called local done”
Shetty to ascertain the condition of her rnoth_e_r’.~-._ isaiid
doctor KB. Shetty said to haye de’c!_ai?edi’
Therefore. she called the police by rin’gin’g.numbe_rA 00. it
18. According to,.the is full
of contradictions and :,’to”-tiiiedmentioning of the
actual words t1sed__ by accused No.2
and so also rtj.n’V’i’rorn the front door
to the inside the house. The
defence C.ourisei.’tried»b’to»_jargue.’ that by hearing the sound of
some one front door or back door, the
as,sai1ancts whowere inside would have immediately ran away
. “from spot without giving scope for anyone to identify
1″ ~_th€VI11 ‘i it .. V
.. How 3. Witness or an assailant acts in a particular
H cannot be stated in a definite
in a1} probability, when she knocked at the front
door and the back door. the accused might not have noticed
their presence as they must. have been busy with their action
on the deceased inside the bed room of the deceased
Only when P.W.1 questioned the action of
accused No.1 seems to have realised that lo*ne~_wa_s”=
watching them and then he must have”ale1’tedl
that their plan was spoiled’: ‘Accoi”ding to
even wasting a second, these accused said” to lhlavevfgrun away
through the back door». h;Voi_i.s’e,_’~.7ll<1ye evidence of bot.h
P.Ws. 1 and 2 so far watching «ivindow, noticing
the accused otlthefdee-eiased and the action
of t}1e"accti.sed th'e;decelasedllis categorically stated by
them tlierelnll iirnaterial contradictions in their
evidence.' °P,.W.l saidtoahlave given her statement within two
after seeing.._.t_he ghastly incident over her mother. In
' she must have been out of her wits when the
'police arriveyduand she must have been in total shock to
discloses the entire facts giving minute details of the incident.
x£t:l".:nust have taken some time for her to come back to
ldnormalcy to behave like a nonnal person. It is also noticed
H that except her. none of other family members were present
at that time. It is also to be noticed that the evidence of
'29
22. It is the case of the prosecution that accosted’:-« 3
was in the habit of asking money from the
and the deceased Devaki used to of”
given to her by P.Ws. 1 and_3.
prosecution that in order to take:inoney’fro1’nd thedddedceased
and also other Valuablespthis rndadebyviaccused
No.1 with the assistance 5: any unknown
assailant would’:ly_gtve ‘Eliouse during the
absence house, definitely valuables
and “the cupboard kept in the
same housde __been missing. Even the gold
orr1a1_’nents”on’~ the the deceased were still on her
arrivedat the spot. If the assailants were to be
‘ =l:rio\:s_mv..to~ 1 and others, there was no reason that P.Ws. 1
.’andd3 wotilddiimplicate innocent persons leaving out the real
culprits…wVho took away the life of the deceased. Therefore.
from any angle when the facts were looked into, we are
diuriable to accept the defence of the accused that the crime
committed by some unknown persons was made use by
P.W.l at the instance of P.Ws. 3 and 4. The evidence of
30
P.W.2._ corroborates the evidence of l3′.W. 1.: how 3
was attracted to the cry of P.W.2._ when he Q
car in front of the house, how he
run after the accused, how he
learns the name of accused No.2,a1i.d how’-h.e’wa_s ‘i>.r5i”‘sibie to it
catch hold of them though lanxattelmpte. The entire
scene must have been as he was a
neighbour of to the deceased
for quite etridence of P.W.16 —-
mother'”o”i” come in the Way of
accepting and 2? On careful perusal
of the evidte–r_ic.e of this ivi.ti’1ess P.W.2 ~ Rajesh indicates that
theucry,____when he looked for source of the cry he
‘ noiicedV4P.tW,llf’vin front of the yard of the house, he rushed to
he did not notice whether his mother
acconiipanied him or not. He says his mother also came to
it nthespvoi. In aii probability she would have come there on
‘shearing the cries and this Witness definitely does not speak
that his mother accompanied him when he went to the spot.
So also P.W’.1 does not disclose before the Court that P.W.16
railway track.
corroborated by the evidence of P.W.5.
24. We do not rely upon the:«so1’_Acalledaextra
confession made by accu.sed_ “No.1 ‘r.ega1’di1:ig”‘.th..e crgirne
committed by him.
25. Next coiningztifito registering the
complaint, fi1l}’1g’C~.fV’th€ the Court.
the totality. that day would indicate that and 2 saw accused Nos.
1 and:’.2 c.o11irnittin_g*the.._cri_1jne.f By 1.00 p.m., she informed
the police, ‘l’he”police,. at the spot using a vehicle
coyreritng the V’d.i.s_tance’ of 4-5 kilorneters. After the police
.’ the spot, they must have first enquired into the
they would have recorded the statement.
within less than two hours from 12.80 noon,
A. statement of P.W.l was recorded by the police. By 2.30 pm.
case was registered in the police station as Crime No.
388/2000. Within 1 hour 45 minutes from the time the
crime was coi’rm1ittecl. the complaint came into existence.
The police arrived only after receiving the information over
in this way the evidence of’..~«~l7.’_.j”\?’*.7..2-“Visit” V.
40
to the accused when there is no scope for any doubt»
entertained with regard to the genuinenessfaf *
placed before us. Under these circurnstancesrivejallcwgthe it
appeal and pass the following O1’d€1″a:V’
The appeal is allowed Vsetting aside
order of acquittal against _reVs’pD_ntlent .No.s._ and 2.
Respondent Nos. 1 and of the offences
punishable und_er_Sectio’ns. r/w Section 34
IPC.
Heard regardpirig ‘sentence.
_Havir1’g_regardA’–._to'”‘the age of the accused and the
‘ V’ ‘CiVl’I3.i:iri1’E’:.taF1§3€S ‘wi’1ich the untimely death of the deceased
‘has’we are of the opinion that so far as the
‘offence. punishable under Section 450 IPC.. is concerned.
rigorous imprisonment of five years would be just and
progner. So far as the offence punishable under Section 302
V’;IPC., as the offence in question would not fall under the
category of rarest of rare cases, we impose imprisonment. for
life and a fine of Rs.5000/~ (Rs. five thousand) each to the
accused. In default of payment of fine ameunt, the
shall undergo further rigorous in1’pris0nrnenth:”‘~-fprhi6 K
months.
The accused are directed ‘iqsurreuder bef0Vre«-the.*tria1 , ‘
Court to serve the sentence irnp.0aed_ against them.
The remuneration for the ibsegfvicasv rendered by the
learned Amicsjs’-i°}_d1*iae;=is /’~.
Sd/«fin
Iudjé
Sd/gi
Judge
SAK/N33.