Karnataka High Court
Basavaraj S/O. Mahabaleshwar Jiglur vs The State Of Karnataka on 15 April, 2024
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NC: 2024:KHC-D:6346-DB
CRL.A No. 100013 of 2023
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100013 OF 2023 (C)
BETWEEN:
BASAVARAJ S/O. MAHABALESHWAR JAGALURU
AGE: 31 YEARS, OCC: ELECTRICIAN WORK,
R/O: SHIROLA TQ: NARAGUND, NOW AT
LAKKUNDI BAJAR, NEAR VERUPAXESHAR TEMPLE,
GADAG, DIST: GADAG.
....APPELLANT
(BY SRI. RAGHAVENDRA A PUROHIT, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY P.I. VIDYANAGAR P.S. HUBBALLI,
REPRESENTED BY THE ADDL. SPP.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI. M. B. GUNDAWADE, ADDL.SPP)
Digitally signed
by SAMREEN
AYUB
DESHNUR
THIS CRIMINAL APPEAL FILED UNDER SECTION 374 (2)
Location: HIGH
COURT OF
KARNATAKA
CRIMINAL PROCEDURE CODES 1973, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 19/11/2021 AND ORDER OF
CONVICTION ON SENTENCE DATED 27/11/2021 IN SESSION CASE
NO. 109/2015 PASSED BY THE 1ST ADDITIONAL DISTRICT SESSIONS
JUDGE, DHARWAD SITTING AT HUBBALLI, FOR OFFENCES UNDER
SECTION 302, OF I.P.C. AND TO ACQUIT THE APPELLANT BY
ALLOWING THIS APPEAL, INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:6346-DB
CRL.A No. 100013 of 2023
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, RAMACHANDRA D HUDDAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
1. The present appeal is filed by the appellant-accused against the judgment of conviction dated 19.11.2021 and order of sentence dated 27.11.2021 passed by the I- Additional District and Sessions Judge, Dharwad, sitting at Hubballi (for short "Trial Court") in S.C.No.109/2015 (State by P.I., Vidyanagar PS, Hubballi v. Basavaraj Jagalur) whereby the appellant-accused was convicted for the offence under Section 302 of IPC and was sentenced to undergo rigorous imprisonment for life with fine of Rs.1,00,000/- and in default to pay the fine amount to undergo further simple imprisonment for a period of two years.
2. For the sake of convenience, the parties are referred to as per their rank before the Sessions Court. INTRODUCTORY FACTS:
3. The first information report in the present case was lodged by one Girish Pandu Rodakar, Police Inspector, Vidya -3- NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Nagar Police Station, Hubballi on 23.05.2015 by appearing before the SHO of the said Police Station at 11.00 p.m. stating that, on 23.05.2015, when he was in police station, at 9.11 a.m. he received a telephone call from somebody stating that near the bank of Unakal pond at Hubballi, one unknown person with grievous injuries on his person lying and struggling with injuries. Immediately, the complainant along with his staff by name Neelagar, Nayakwadi, Bhajantri, Driver Khaja and Anil Huggi went in their departmental jeep bearing Reg.No.KA-25/G-410 to the place of the incident. There, they noticed 7-8 localites, who took the complainant and his staff towards bank of Unkal pond and showed the person who was struggling, in the pool of blood, with grievous injuries on his mouth, head and hands. It was 9.20 p.m. at that time. Immediately, the complainant called an ambulance and till arrival of ambulance to the place of incident, he made video recording of conversation between himself and the injured in his smart phone. On enquiry with the injured, he came to know the name of the injured as Jagadish. -4-
NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 3.1. The injured told him that, he was working in District Civil Hospital at Gadag and is blind by birth. The injured told him that, he came to Hubli with an amount of Rs.1,00,000/- along with his friend Basavaraj Jigaluru and the said fact of bringing the said money was known to his friend Basavaraj Jagaluru. The injured told the complainant that, about one hour prior to 9.20 p.m., the said Basavaraj Jagaluru brought him to the said place and assaulted on his person by using some weapon and snatched away Rs.1,00,000/- from him. There, the complainant noticed a Machchu, which was found fallen by the side of the injured. Later, ambulance came to the place of the incident and there the localites, who were gathered, and the persons residing at Unkal village by name Bheemesh Menasinakai and other public helped the complainant to shift the injured to the hospital. Accordingly, the police constable Neelagar took the injured to KIMS Hospital for treatment and then the complainant followed the ambulance in his departmental vehicle. The injured was taking treatment at KIMS Hospital and on search of his person, the complainant -5- NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 found voter's identity card wherein his name was mentioned as Jagadish S/o. Paramesh Shiraguppi, R/o.Morab, Taluk-Navalgund.
3.2. The complainant came to know about the incident while he was making video recording of conversation between him and the injured. Thus, it is alleged that, the said Basavaraj Jagaluru and injured came to Hubli on the date of the incident and Basavaraj Jagaluru took the injured to Unkal pond and in between 8.10 p.m. to 8.30 p.m., he assaulted on his mouth, head and hands by using a weapon (Machchu) and attempted to cause his murder and also snatched away Rs.1,00,000/- from the injured by committing dacoity.
3.3. With the above allegations, the complainant filed the complaint, which was registered in Crime No.74/2015 for the offence punishable under Section 326, 307, 397 of IPC and criminal law was set into motion. 3.4. During the course of investigation, the accused- Basavaraj Jagaluru was arrested by the police on 24.05.2015 and as per his voluntary statement, the -6- NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 weapon alleged to have been used by him to commit assault on the injured was seized. The said injured- Jagadish succumbed to the injuries in KIMS hospital. Accordingly, a requisition was sent to the Court for inserting section 302 of IPC.
4. During the course of investigation, all the incriminating articles were seized by the police including amount alleged to have been snatched away by committing dacoit on the person of the deceased by the accused. In all Rs.1,40,000/- was recovered from the possession of the accused, which was recovered at his instance. Subsequently, it was released to the mother of the deceased.
5. During the course of investigation, the investigating officer visited the scene of offence and conducted spot mahazar. After the death of the deceased, inquest panchanama was conducted and dead body was sent for post-mortem. After conducting post-mortem, the dead body was handed over to the heirs of the deceased for cremation. After completion of investigation and after following all the -7- NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 procedures, the investigating officer filed charge sheet against the accused for the offence punishable under section 302 of IPC.
6. To prove the guilt of the accused, the prosecution in all examined 41 witnesses as PW1 to PW41 and got marked documents as per Ex.P1 to Ex.P119 with respective signatures thereon. M.O.1 to M.O.20 were also marked. During the cross-examination of the witnesses, Ex.D1 to Ex.D3 were also marked.
7. After closure of the evidence of prosecution, the Trial Court having heard the arguments of both the sides and on perusal of oral and documentary evidence, found the accused guilty of committing offence under Section 302 of IPC and sentenced him as stated above. This is how the appellant-accused is before this Court challenging the judgment of his conviction and order of sentence passed against him by the Trial Court.
8. Learned counsel for the appellant-accused, with all force, submits that this case is purely based on circumstantial evidence and there is no eyewitness. When the case is -8- NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 based on circumstantial evidence, it is the bounden duty of the prosecution to link the circumstances to establish that it was the accused who was the author of the crime. 8.1. He submits that, in this case, the complainant was police inspector, who was examined as PW32. He came to know about the incident of assault on the person of the deceased through telephone. Thereafter he went to the said place i.e. near Unkal pond and noticed the deceased having fallen down on the bank of the said pond, struggling with injuries sustained by him. As per the complaint allegations, he noticed the injured suffered with severe and grievous injuries not only on his hands but also on his mouth and head. He submits that, when such grievous injuries were sustained by the injured, how it was possible for him to answer the questions put to him by PW32-complainant.
8.2. He submits that, all the story has been cooked up by the prosecution so as to falsely implicate the accused in the present case. He submits that, there are so many contradictions and omissions in the evidence of the -9- NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 prosecution witnesses. The recovery of incriminating articles alleged to have been seized in the present case is not duly proved by the prosecution in accordance with law. He submits that, when recovery is not proved and when the accused did not accompany the deceased from Gadag to Hubballi as alleged by the complainant, the question of accused being author of the crime does not arise at all. The call details secured by the police do not connect the accused to show that he was very much present near the place of incident along with deceased at that point of time.
8.3. He further submits that, the call details falsify the case of the prosecution. It is his further submission that when such link is missing, merely because certain amount was recovered from the possession of the accused does not connect the accused in the commission of the crime. He submits that, as the circumstances to connect the accused as author of the crime are missing in this case, there arises a doubt in the case of the prosecution. The accused has been falsely implicated in this case by the prosecution.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 8.4. In support of his submission, Sri.Raghavendra Purohit, learned counsel for the appellant-accused points out so many contradictions in the evidence of the prosecution and also observation of the Trial Court. He submits that the appeal filed by the appellant-accused deserves to be allowed and the accused is entitled for acquittal.
9. As against this submission, Sri.M.B.Gundawade, learned Additional SPP submits that there is consistent evidence spoken to by the witnesses in this case. When consistent evidence has been spoken to by the witnesses and when the linking circumstances connect the accused as the author of crime, nothing remains to be proved by the prosecution. The deceased and the accused, both came together to Hubballi on the date of the incident. 9.1. He submits that, the deceased withdrew amount from his banker and wanted to give some amount to his friend and therefore, he requested the accused to accompany him so as to assist him. The accused having knowledge about possession of money by the deceased, he hatched a plan to snatch away the said money. He purchased
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 a weapon (Machchu) from a shop, prepared to commit the offence and succeeded to do so. The circumstances brought on record by the prosecution do establish that it was the accused, who was the perpetrator of the crime and he only is responsible for the death of deceased- Jagadish. He submits that, the Trial Court has evaluated the evidence placed on record by the prosecution and has rightly concluded that the accused is guilty of committing the said offence under Section 302 of IPC. Even right from the date of his arrest, the accused is in judicial custody. Merely because certain minor contradictions are brought on record in the cross- examination, the benefit of doubt cannot be extended to the accused.
9.2. In support of his submission, he too relies upon various evidence spoken by the witnesses and also drawn the attention of this Court to the cross- examination directed to the prosecution witnesses. According to him, the Trial Court has passed well reasoned judgment and it cannot be interfered with. Hence, prays to dismiss the appeal.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
10. In view of the rival submissions of both sides, the following points would arise for our consideration:
i) Whether the judgment of conviction and order of sentence passed by the Trial Court suffers from infirmity, illegality and without appreciating the evidence in proper perspective?
ii) If so, whether the said judgment of the Trial Court requires interference by this Court?
iii) What order?
The above points are discussed together.
11. It is a case of murder. Before discussing the other aspects of the case, it is just and proper to ascertain that whether the prosecution is able to establish the homicidal death of deceased-Jagadish. Once homicidal death is proved by the prosecution, then the question arises that who is the author of the crime.
12. To prove the aspect of homicidal death, after inquest proceedings, the dead body of the deceased was sent for autopsy (post-mortem). PW32-Complainant came to know
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 the name of the deceased through voter's identity card found with the deceased. As per Ex.P10-inquest panchanama, the investigating officer conducted inquest panchanama in the presence of panchas, which is supported by the witnesses examined in this case.
13. Initially, complaint was registered for the offence under Section 326, 307, 397 of IPC and subsequently after the death of the injured in the hospital, section 302 of IPC was inserted. Autopsy was conducted and post-mortem report was received from the doctor, which is marked at Ex.P81. On reading of the post-mortem report and the inquest panchanama, the deceased had suffered in all 38 injuries on his person. The fact of injuries suffered by the deceased on his person, is not disputed by the defence.
14. Ex.P1-Scene of offence panchanama shows where exactly the deceased was fallen down and was struggling with grievous injuries. Photographs of scene of offence were also taken and marked in this case. Likewise, death certificate of the deceased is also produced as per Ex.P66. At the time of drawing of Ex.P1-scene of offence
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 panchanama, chappals of the accused and the deceased were also seized. While marking those documents, no objection was raised by the defence. On reading the inquest panchanama, post-mortem report and the evidence of complainant and other witnesses examined in this case, it is established by the prosecution that the deceased died homicidal death because of injuries sustained by him.
15. Though the prosecution is able to establish the homicidal death of the deceased, it will not come to the aid of the prosecution to prove that it was the accused, who was the author of the crime. To ascertain as to whether the prosecution is able to establish that all the circumstances connect the accused with the crime in this case, we have to go through the oral as well as documentary evidence adduced by the prosecution.
THE PROSECUTION'S EVIDENCE:
16. PW32-Girish Pandu Rodakar is the complainant. As per his evidence, on 23.05.2015 at 9.11 p.m., when he was in Vidya Nagar Police Station, Hubballi, he received a
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 telephone call from unknown person stating that one person near the bank of Unakal pond is struggling with grievous injuries being suffered by him. Immediately he rushed to the spot along with his staff. When he reached there, he noticed 7-8 residents of Unakal village, who were present there and they led him to the place where the person was struggling with injuries. The said place was behind the Siddappajja Temple. There he noticed a person struggling with injuries on his person. Immediately he requested the police control room to send ambulance and started enquiring with the injured. He made a video recording of conversation between himself and the injured in his smart phone. The injured told his name as Jagadish and stated that he is a staff of Gadag Civil Hospital. He told that his friend Basavaraj Jagaluru working in the same hospital had accompanied him. At the time of coming to Hubballi, the injured was carrying Rs.1,00,000/- with him. This fact was known to the accused-Basavaraj. It was told that the said Basavaraj brought the injured to near Unakal pond i.e. behind Siddappajja Temple and assaulted him by using deadly weapon and took away Rs.1,00,000/- from
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 him. By the time the ambulance came there, along with police staff the complainant sent the injured to the hospital for treatment. The complainant followed the ambulance and went to KIMS hospital. CW29-Huggi police constable recorded the conversation regarding the information given by the injured at the spot. The complainant inspected the election identity card which was possessed by the injured and came to know his name as Jagadish Shiraguppi, R/o.Morab. This PW32 gave requisition to the doctor to give his opinion as to whether the injured was capable of giving his statement. The complainant lodged a complaint as per Ex.P77 before the SHO, Vidyanagar P.S.
17. According to him, the injured had suffered injuries on his head, hands and mouth. He states that he received message at 1 a.m. that the injured died in the hospital. He identified the letter addressed to the doctor as per Ex.P82. As per the directions of his superior officer, he tried to secure the presence of the accused. As per the information received based on the mobile SIM number, he came to know that the accused was very much available near Maruti Nagar plot at Lakkundi village. He went along with
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 his staff to Lakkundi village and apprehended the accused. On enquiry, the accused confessed about the commission of crime against the deceased. Therefore, he brought the accused to Hubballi and produced him before the investigating officer. Whatever video recording was made by him was transferred to the laptop. CD was prepared and photograph was taken. The said photographs were marked at Ex.P56 to 60 and C.D was marked as per M.O.16. When he produced the accused before CW51-Investigating Officer, he recorded his statement.
18. This PW32 being complainant was thoroughly cross- examined by the defence counsel but he is consistent throughout his cross-examination stating that he received telephonic call at 9.11 p.m. and went to the place of incident and noticed the injured at the said place. He denied all other suggestions. Thus, from the evidence of PW32, it is very much clear that on receipt of information through telephone, PW32 went to the place of incident where the injured was struggling with grievous injuries on his person. There he recorded the conversation between himself and the injured which was subsequently
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 transferred into C.D. He identified the said C.D., marked in this case as M.O.16. Thus, the evidence of this PW32 can be accepted to the extent that he has lodged the complaint with regard to the said offence committed by the accused on the injured, who subsequently succumbed to the injuries.
19. So far as other witnesses in this case are concerned, PW1- Sagar Pathan Gayakawad and PW2-Satish Anand Ballary are the pancha witnesses. PW1 speaks before the Trial Court, that on 24.05.2015 he was called by the police to the scene of offence where he noticed the presence of mobile phone, bloodstained machchu and also falling of blood on the ground. Even he noticed the presence of two pairs of chappals. The police seized the said articles by preparing panchanama in between 7.40 p.m. to 9.00 p.m. According to him, he put his signature on the said panchanama marked at Ex.P1. He also identified the said material objects which were seized under Ex.P1. He also speaks that when the panchanama was conducted, police also snapped photographs marked at Ex.P2 to Ex.P9. The person who showed the scene of offence is also seen in the
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 said photograph. He identified the material objects seized under Ex.P1-mahazar marked as per M.O.1 to M.O.6.
20. PW1 has also stated that, the police have conducted inquest panchanama on the dead body by taking him to KIMS hospital. He identifies the said inquest panchanama as per Ex.P10 and also his signature on it. According to his evidence, the police also took photographs as per Ex.P11 to Ex.P20. The said inquest panchanama was prepared in between 9.30 a.m. to 11.30 a.m.
21. PW1 has been thoroughly cross-examined by the defence. It is his evidence that, in between 7.00 a.m. to 7.45 a.m. when he was moving towards APMC and went near Unakal pond, he came to know that one blind person was murdered there. There, the police requested him to act as a pancha and accordingly, he acted as pancha to Ex.P1- Spot mahazar and Ex.P10-Inquest mahazar. He also states that M.O.1 to M.O.6 were seized in his presence. The presence of this PW1 when panchanamas at Ex.P1 and Ex.P10 were conducted by the police is not specifically denied by the defence in the cross-examination. Except
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 denial in the cross-examination, nothing worth is elicited from his mouth to as to disbelieve his version given in his examination-in-chief.
22. PW2-Satish Anand Ballari as stated supra is another pancha witness. According to his evidence, on 24.05.2015 at 4.00 p.m. he was called by Vidyanagar Police Station. One Ashpak i.e. CW4 was also present in the police station. It is his further evidence that, he noticed the presence of the accused in the police station. It was the accused, who led the police and panchas behind Siddappajja's temple near Unakal pond and showed the scene of offence to the police. He identified the place of offence. He stated that the police prepared panchanama as per Ex.P21 in the presence of panchas, took photographs as per Ex.P22 to 27. He states about his presence as well as presence of CW4 when the photographs were taken and panchanama was drawn.
23. According to his evidence, when Ex.P21 was written, it was about 5.15 p.m. and for half an hour, the police wrote the said panchanama. Thereafter, the accused led them to HDMC garden and he showed the place where he had
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 thrown the shirt near the gate. The police seized the said shirt. On inspection of the said shirt, entry ticket of Indira Glasshouse was found in the pocket of the shirt. The police seized the said shirt under Ex.P28-seizure panchanama. The said panchanama was written in between 6.00 p.m. and 6.45 p.m. He identified the photographs taken there as per Ex.P29 to Ex.P33. The shirt and the entry ticket seized under Ex.P28 panchanama were marked as M.O.7 and M.O.8. He has also identified his signature on the said M.O.7 and M.O.8.
24. It is further evidence of PW2 that, thereafter the accused led them to Lakkundi village, CW4 was also accompanied the police; the accused took the police and panchas near Marutinagar plot at Lakkundi and there he produced one bloodstained pant. The police seized the said bloodstained pant by writing another panchanama in between 8.15 p.m. and 8.45 p.m. The said panchanama was marked as Ex.P34 and he put his signature to the said panchanama. According to him, the police took photographs there, which were marked as per Ex.P35 to Ex.P37. The said pant is marked as per M.O.9. He identified the chit being affixed to
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 the said M.O.9. Thereafter the accused took them to the house of his maternal uncle Andappa and there he produced Rs.1,40,000/-, which was kept in a black bag kept on Sajja. He also produced a bloodstained towel. Police seized the said amount of Rs.1,40,000/- as well as bloodstained towel by writing another panchanama as per Ex.P38. This witness has put his signature on the said panchanama. He stated that the said panchanama was written in between 9.00 p.m. and 10.00 p.m. and photographs were also taken as per Ex.P39 to Ex.P46. The amount seized under Ex.P38-panchanama was marked as per M.O.11. According to him, the said amount was containing the currency notes having face value of Rs.1,000/- and Rs.500/- notes. Ex.P45 and Ex.P46 are the documents prepared at the time of seizure of the said amount of Rs.1,40,000/-. It is the case of the prosecution that, after the seizure of the said amount, as per the orders of the Trial Court dated 28.08.2015, it was released in favour of one Smt.Ratnavva Parameshwarappa Shiraguppi, the mother of the deceased. This witness has identified the bond being executed by the said lady as per
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Ex.C1. He states that M.O.10-bag and M.O.11-towel were seized under Ex.P38-seizure mahazar by the police. Even on 24.05.2015 itself, when himself and CW4 were called to the police station, as the accused had produced mobile phone, the said mobile phone was seized by writing Ex.P47-panchanama in between 4.15 p.m. and 4.45 p.m. The said mobile phone was marked as M.O.12.
25. This PW2 was thoroughly cross-examined by the defence. Though intensive and searching cross-examination was directed to this witness, but throughout his cross- examination, he has maintained that for all the aforesaid panchanamas, he accompanied the police and in his presence, the police at the instance of the accused has seized all the articles stated above. He also identified his signatures on the material objects so seized by the police under various panchanamas narrated above. He is consistent in his evidence that he accompanied the police along with CW4-another pancha. Except denial in the cross-examination, nothing worth is elicited so as to disbelieve the evidence given in his examination-in-chief. Throughout his cross-examination he is consistent that in
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 his presence all the material objects were seized by the police.
26. PW3-Manjunath Shankrappa Bammigatti has deposed before the Trial Court that in his presence the police have seized the C.D. by writing panchanama on 27.06.2015. The said panchanama is marked as per Ex.P49. He identified M.O.13-C.D. According to his evidence, in his presence Ex.P49 panchanama was written on 26.07.2015, so also Ex.P51-another panchanama on 27.06.2015 in between 8.05 p.m. to 8.45 p.m. He identified both the panchanamas. According to him, under panchanama, one underwear was also seized. He identified the same as M.O.14. Except denial in the cross-examination, nothing worth is elicited with regard to seizure of aforesaid articles in his presence. He denied all other suggestions directed to him. Therefore, the evidence of PW3 can be accepted to the extent of preparing Ex.P49 and Ex.P51 and seizure of M.O.14, in his presence.
27. PW4-Siddappa Bhimappa Mayannavar is the person who was present when the C.D. was seized under Ex.P53-
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Panchanama. According to him, Ex.P54 to Ex.P60 photographs were taken and C.D. was played in laptop. He identified the said articles. According to him, he was very much present when the said panchanama was prepared. He identified Ex.P62 to Ex.P64, photographs, which were snapped at the time of writing Ex.P61-panchanama. He identified M.O.4-chappals. According to his evidence, chappals were seized in the police station when the accused was in police station. He states that he did not read the contents of panchanamas completely but he was very much present in the police station. Therefore, to the extent of preparing panchanama in his presence, the evidence of PW4 has to be accepted.
28. PW5-Basavaraj Parameshwarappa Shiraguppi is none else than the brother of deceased-Jagadish Shiraguppi. He is a hearsay witness but he is consistent in his evidence that in the year 2014, the deceased joined services as attendar in Gadag District Hospital. He states that, the deceased used to travel from Morab to Gadag for the purpose of his employment. Deceased used to board the bus and it was he and other family members used to make arrangement
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 for conveyance of his brother from Morab to Navalgund. Whenever the deceased misses Navalgund bus, deceased used to board Hubballi bus to attend his employment.
29. It is his evidence that, though his deceased brother joined service, he was due of his salary for the last one year prior to his death and told him that he would get the entire salary at once. It is his further evidence that, in the month of April-2015 deceased received his complete salary of Rs.1,60,000/-, which was credited into his account of Corporation Bank, Gadag Branch. It was told to him by the deceased that, he has to pay Rs.10,000/- to his friend.
30. It is his further evidence that, as usual, on 23.05.2015 at 7.00 a.m. since the deceased missed Navalgund bus, the deceased was made to catch Hubballi bus to go to his employment. In the evening at 7.00 p.m. the deceased used to return to his house but whenever the deceased experience late, he used to stay in the room of his friend Pampanagouda or in the house of his maternal grandmother at Yamanur and from there he used to attend his employment on the next day morning. Therefore, this
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 PW5 was under the impression that, his brother might have stayed in his relatives or friend's room. But on that day, at 10.00 p.m. the son of his paternal uncle one Gurusiddappa-CW13 informed him through phone that Vidyanagar police gave him an intimation that one Basavaraj Jagaluru has assaulted the deceased and he is very serious. This witness came to know that the deceased was admitted in KIMS hospital and immediately he and PW13 came to KIMS hospital and noticed that his brother was taking treatment in ICU.
31. According to him, the deceased had suffered grievous injuries and was under treatment by the doctors. He came to know that the said Basavaraj Jagaluru by taking his brother to Unkal pond in a dark area committed assault by using Machchu and caused grievous injuries on his person. According to him, his brother was taken to Balaji hospital for further treatment but within 5 - 10 minutes he died at Balaji hospital at 12.20 p.m. on that day. Thereafter the dead body was shifted to KIMS hospital's mortuary. On the next day, police took him to the scene of offence and seized articles stated above marked at M.O.1 to M.O.6. The
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 police shown him the number to which the deceased called last and asked him as to whose number it was. This witness told the police that the said last called mobile number is of one Mahateshwari i.e. "would be" of the deceased. After post-mortem, the dead body of the deceased was given and they cremated the dead body of his brother. He identified the accused, who has committed murder of his brother.
32. It is his further evidence that, for the purpose of snatching Rs.1,40,000/- from the possession of his brother, the accused has committed the murder of his brother. According to him, his deceased brother was physically disabled. He identified the disability certificate of the deceased as per Ex.P65. He also identified M.O.17-Shirt worn by the deceased at the time of the incident, which was sent to FSL for the purpose of chemical examination. He also identified his brother's pant, baniyan, voter's card as M.O.18 to M.O.20, respectively.
33. According to him, the SIM to which the deceased called last was earlier belonging to one Suvarna Kurahatti, but since
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 her mobile was not working, the said SIM card was being used by Mahanteshwari i.e. "would be" of the deceased. The said Mahanteshwari is also blind by birth. This PW5 has been intensively cross-examined by the defence but all the suggestions directed to him were denied in toto. It is his evidence that, his brother told him that he has withdrawn amount from the bank on 23.05.2015 itself since he has to give Rs.10,000/- to his friend. Thus, one thing is clear from the evidence of PW5 that, his brother had withdrawn certain amount from the bank and was in possession of Rs.1,40,000/- at the time of the incident. It is stated by him that, the accused in order to snatch away the said amount from the possession of the deceased has committed the offence. Nothing worth is elicited from his mouth in order to disbelieve the case of the prosecution.
34. PW6-Gurusiddappa Basappa Shiraguppi is another witness who accompanied PW5 to the hospital. In his evidence, he also states in similar terms as that of PW5. Though he was cross-examined, nothing worth is elicited from his mouth by the defence. That means, the evidence of PW5 and PW6
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 is similar in nature. There are no contradictions and omissions in the evidence of these two witnesses.
35. PW7-Hanumareddi Shivareddi Kittur is the resident of Morab village, who knew the deceased attending his employment at Gadag and used to travel from Morab to Gadag. It is his evidence that, the family members of the deceased used to make arrangement to board bus for conveyance of the deceased to the place of his employment. He is hearsay witness with regard to the incident. According to him, he also went to the police station on the next day of the incident and there the police have seized amount etc., in his presence. He accompanied the police to the scene of offence and in his presence M.O.1 to M.O.6 were seized. Nothing worth is elicited from his mouth in the cross-examination.
36. PW8-Gadigeppa Siddappa Buttennavar was the driver, who accompanied the police along with CW8 at the time of seizure of voter's card etc. According to him, panchanama was written at 7.30 p.m. on 30.05.2015 under Ex.P67 and photographs were also taken, which are marked as per
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Ex.P68 to Ex.P72. He also identified the material objections marked at M.O.17 to M.O.20, which were seized by the police under Ex.P67-panchanama. He was directed with severe cross-examination by the defence, but nothing worth is elicited from his mouth in order to disprove the seizure of M.O.17 to M.O.20 or taking of photographs marked at Ex.P68 to Ex.P72 in his presence.
37. PW9-Kallappa Mallappa Thotiger is the witness, who came to know about the incident on 23.05.2015 itself in between 8.00 p.m. and 8.30 p.m. When he went to the place of incident, it was about 8.30 to 9.00 p.m. There he noticed the presence of police vehicle and one blind person with grievous injuries on his head, left jaw and blood was oozing. When the police enquired with the injured, he told that one Basavaraj Jagaluru, who had accompanied with him had snatched away amount from his possessions by committing assault on him with weapon. It is his evidence that the police have made video recording of the conversation between the injured and the police. According to him, the police were making arrangements for sending the injured to the hospital. That means, PW9 went to the
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 place of incident after getting information regarding assault on the person of the deceased near Unakal pond i.e. behind Siddappajja's temple. Though, this PW9 has been cross-examined at length but he identified the M.O.16-CD, which was prepared by the police. The said CD contains the video recording of conversation between the police and the injured. It was suggested to PW9 that in M.O.16 it can be noticed that the injured being sustained injuries was seen getting up and sitting. That means the defence admits that the deceased had suffered injuries and was struggling. Nothing worth is elicited from his mouth to disbelieve his version given in his examination-in-chief.
38. PW10-Vasureddi S/o Bhimaredd Shalawadi, R/o. Morab is also hearsay witness, who came to know about the assault on the person of the deceased on 23.05.2015 at 10.30 p.m. and accompanied the brother of the deceased to the hospital. According to him, the deceased was taken to Balaji hospital for treatment, where he was declared as dead. To that extent, the evidence of this witness has to be accepted. Nothing worth is elicited from his mouth in order to disprove the case of the prosecution. It was suggested
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 to this witness that the deceased was not blind by birth, but the said suggestion has been denied by him.
39. PW11-Ratnavva Parameshwarappa Shiraguppi is none else than the mother of the deceased. According to her, her son had drawn an amount of Rs.1,60,000/- as arrears of salary. She states that her son used to attend his employment at Gadag District Hospital by traveling from Morab to Gadag. She came to know that the accused has commited murder of her son for money. This witness is treated as hostile and was cross-examined but nothing worth is elicited. She being mother of the deceased came before the Trial Court and identified the dresses worn by the deceased at the time of the incident. She is hearsay witness.
40. PW12-Yalishakumar Hanukappa, was the contractor, who undertook work in Gadag hospital at the relevant time. According to him, the accused was working under him as assistant electrician on contract base for which he was paid Rs.4,000/- per month. According to him, the deceased was employee in the said hospital and was blind by birth. He
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 used to take assistance of his friends and contract employees. According to him, he came to know about murder of the deceased by the accused for getting an amount of Rs.1,40,000/-. From the evidence of this witness it is very much clear that the accused was working as a part time electrician under PW12 and both accused and the deceased were known to each other. Though he has not maintained records regarding employment of the accused, but he withstood the test of cross-examination that the accused was really working with him as a part time electrician. To that extent, his evidence has to be believed.
41. PW13-Andappa Basappa Timmapur is the maternal uncle of the deceased. He also speaks with regard to seizure of M.O.10 and M.O.11 in his presence at the instance of the accused. According to him, M.O.10-bag was containing Rs.1,40,000/- and he identified Ex.P76-the house property extract where the said amount was seized. Though he has been cross-examined at length, but nothing worth is elicited.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
42. PW14-N D Kalawad was the head-constable at the relevant time, who accompanied PW32 on 24.05.2015 to Lakkundi village. At 1.00 p.m. they apprehended the accused near Maruti Nagar plot. The accused was produced before the Police Inspector. He identified the accused as the person whom they apprehended on the said day and produced him before the Police Inspector. As there is no proper cross- examination, his evidence has to be accepted to the extent of apprehending the accused and producing him before the Police Inspector.
43. PW15-A H Huggi is another constable who accompanied PW32 on 23.05.2015 to the scene of offence and there they noticed the presence of injured near Unakal pond. According to him, blood was oozing from the person of the deceased. He video recorded the conversation between the injured and PW32. According to him, in between 10.30 p.m. and 11.00 p.m. the injured succumbed to the injuries in the hospital. He identified the photographs taken as per Ex.P54 to Ex.P60. Though he has been cross-examined at length by the defence, but he withstood the test of cross- examination. No doubt he is not having any experience in
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 making vidoegraphy of photography, but by using the mobile of PW32 he has made video recording of conversation between PW32 and the injured. This fact is not denied by the defence in material particulars. That means, from the evidence of PW15 it is very much clear that he had accompanied PW32 to the place of the incident on receipt of information with regard to injured (deceased) struggling with injuries near Unakal pond.
44. PW16-Shridhar Maruti Bhajantri was the constable at the relevant time. He too speaks on par with the evidence of PW15. He states that, when enquired by PW32, the deceased informed them that his friend Basavaraj Jagaluru by assaulting him with a weapon has taken away Rs.1,40,000/- from him. He also identified C.D. which contains video recording of conversation between PW32 and the deceased. This fact is not denied by the defence in material particulars.
45. PW17-Maruti Dundappa Mulimani was working as electrician on contract basis. According to him, accused was also working as an assistant electrician for one year in
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Gadag Government Hospital and the deceased was working as an attendar in the said hospital. According to him, he came to know about the murder of deceased by the accused for the purpose of money. He being hearsay witness came to know about the incident of murder of the deceased through some other. He stated that the deceased used to take assistance of some persons since he was blind. To that extent, his evidence has to be accepted.
46. PW18-Basappa Fakirappa Mayanaykar was police constable at the relevant time. As per direction of CW1 he submitted the complaint and FIR in Crime No.74/2015 to the jurisdictional Court on 24.05.2015. His evidence to the extent of submitting the complaint and FIR to the concerned Court has to be accepted. Except denial there is no evidence brought on record by the defence in his cross- examination. That means, the defence has admitted about this witness furnishing the FIR to the jurisdictional Court in time.
47. PW19-Sharanappa Kallappa Shimpi was the constable at the relevant time. He was taken to the scene of offence by
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 CW51 on 24.05.2015 at 7.45 a.m., and in his presence panchanama was prepared and M.O.1 to M.O.6 were seized. According to his evidence, even when the accused was apprehended and brought to police station, it was the accused who led them to Shivagiri garden and showed a shirt being worn by him, which was thrown by him at the said place. The police took photographs as per Ex.P29 to Ex.P33 and seized M.O.7-shirt in which Hubli glasshouse entry ticket was found. The said entry ticket was marked as M.O.8. He also speaks that he was also taken to Lakkundi village in police jeep and there the accused produced a bloodstained pant, which was thrown near a Nala at Maruti Nagar. Police took photographs there as per Ex.P35 to 37. This evidence of PW19 is very much corroborative with the evidence of PW32 in material particulars. He also accompanied the police when the above material objects were seized by the police. PW19 has spoken similar to the evidence of PW2. Though this witness was cross-examined by the defence, but he has withstood the test of cross-examination and nothing worth
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 is elicited to disbelieve the version given in his examination-in-chief.
48. PW20-Dr. Sunil Kumar Biradar was the doctor who conducted post-mortem on the dead body of the deceased- Jagadish. According to him, on 24.05.2015 in between 12.20 p.m. and 1.30 p.m. he conducted autopsy on the dead body of the deceased and noticed the following injuries on his person.
External Injuries:
1. Vertically placed surgically sutured wound of size 7cms present over left temporal region, 6cms above left eat pinna.
2. Obliquely placed surgically sutured wound of size 10 cms present over right side occipital temporal region, 5cms back of right ear.
3. Horizontally placed chop wound of size 4 x 1cms x boner deep present over right side occipital region, 1cm back of right ear and 105cms below injury no.2.
4. Horizontally placed surgically sutured wound of size 3cm present over right side occipital temporal region, 2cms below Injury No.3.
5. Horizontally placed surgically sutured wound of size 9cms present over back of middle of head, 10 cms above nape of neck.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
6. Horizontally placed surgically sutured wound of size 6cms present over back of middle of head, 5cms below injury no.5
7. Obliquely placed incised wound measuring 8x0.5cms x muscle deep present over back of left side of head, 8cms above nape of the neck.
8. Obliquely placed incised wound measuring 2x0.2cmsx skin deep present over back of left side of head, 0.5 cms above injury no.7.
9. Obliquely placed incised wound measuring 4x0.5cms x muscle deep present over back of left side of head, 1cms above injury no.8.
10. Obliquely placed incised wound measuring 3x0.4cms x skin deep present over back of left side of head, 0.8cms above injury No.9.
11. Obliquely placed incised wound measuring 4x0.6cms x muscle deep present over back of left side of head, 0.5cms above injury No.
10.
12. Vertically placed surgically sutured wound of size 11ems present over right side of face, extending from right side of forehead to right cheek, situated 1cms outer to right eye and 4cms inner to right ear.
13. Horizontally placed surgically sutured wound of size 6.5cms present over left cheek, extending from left side angle of mouth and situated 5cms inner to left ear.
14. Horizontally placed surgically sutured wound of size 14cms present over chin, situated 1cms below lower lip and 2cms above mentum, from its left end linear abrasion
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 measuring 9cms extending over left side of lower jaw.
15. Horizontally placed chock wound measuring 5x3cmsxoral cavity deep present over lower part of chin. 3cms below mentum.
16. Fracture and dislocation of left side of lower jaw bone present, with fracture of left upper and lower central, lateral incisors, canine, first premolar teeth and right lower central, lateral incisors, canine first premolar teeth.
17. Horizontally placed surgically sutured wound measuring 6cms present over front of neck, 2cms below thyroid cartilage.
18. Abraded contusion measuring 14cms present over back and top of right shoulder, 5cms above right collar bone and 6cms inner to right shoulder joint.
19. Abraded contusion measuring 16cms present over back and top of right shoulder. 3cms inner to right shoulder joint and 2cms below injury no. 18.
20. Horizontally placed surgically sutured wound measuring 12cms present over back of right shoulder, situated 1.5cmx below injury no.
19.
21. Horizontally placed surgically sutured wound measuring 9cms present over back of right shoulder, situated 2cms below injury no.20, from its inner end and abraded contusion measuring 6cms extending till injury no. 18.
22. Abraded contusion measuring 25cms present over back of chest, extending from inner border of left shoulder girdle(scapula) to top of right shoulder, 2cms above injury no.19.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
23. Abraded contusion measuring 5x2cms present over back of left shoulder, 3cms inner to left shoulder joint and 12cms outer to midline.
24. Abraded contusion measuring 3x1cms present over back of left shoulder, 3cms inner to injury No.23.
25. Horizontally placed chop wound measuring 5x2cmsx bone deep present over back of left elbow.
26. Obliquely placed surgically sutured wound measuring 5cms present over back of right wrist joint.
27. Obliquely placed surgically sutured wound measuring 3cms present over inner aspect of back of right wrist. 2cms inner to Injury no.26.
28. Obliquely placed surgically sutured wound measuring 7cms present over back of right hand. 0.5cms above base of right index finger.
29. Obliquely placed incised wound measuring 1x0.2cmsx.muscle deep present over back of right hand, 1cms above base of right thumb.
30. Horizontally placed chop wound measuring 6x1cmsxbone deep present over middle of right palm.
31. Vertically placed chop wound measuring 4.5x0.5cmsx muscle present over inner aspect of right index finger, exteding from middle phalynx to tip of the finger.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
32. Obliquely placed surgically sutured wound measuring 7cms present over back of middle third of left forearm.
33. Horizontally placed surgically sutured wound measuring 3cms present over inner aspect of left wrist.
34. Vertically placed surgically sutured wound measuring 7cms present over back of left hand, between left index and middle fingers.
35. Vertically placed surgically sutured wound measuring 5cms present over back of middle third of left middle finger.
36. Horizontally placed chop wound measuring3x1cmsx bone deep present over palmar aspect of base of left thumb.
37. Horizontally placed chop wound measuring 1x0.5cms x bone deep present over back of middle part of left thumb.
38. Vertically placed chop wound measuring 5 x 2cms x bone deep present over in between left index and middle finger with fracture of under laying bones.
49. According to him, the death of the deceased was due to shock and hemorrhage as a result of injuries sustained by him. He has mentioned the same in the post-mortem report. He has also identified the cotton swab soaked in blood and underwear which were marked as per M.O.14 and M.O.15. Except denial, nothing worth is elicited from his mouth by the defence to disprove the version of his
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 examination-in-chief. As per post-mortem report, in all the deceased suffered 38 injuries and because of continues barbaric attack on the deceased, he sustained so many injuries as per the case of the prosecution. This evidence led by the prosecution is corroborated with the evidence of this PW20. Nothing worth is elicited by the defence so as to disbelieve the version of evidence given by PW20 in his examination-in-chief. Therefore, in view of the evidence spoken by PW20, it is very much clear that because of the injuries on the person of the deceased he died because of shock and hemorrhage. This fact is not denied by the defence.
50. PW21-Dr. Vinayak Byatappanavar was the doctor who treated the deceased when he was admitted in KIMS hospital. According to him, he received a requisition from the police as per Ex.P62 seeking opinion with regard to medical condition of the deceased. According to him, the deceased was not fit to give any statement to the police at that time and when the deceased was shifted to casualty he was able to talk. Taking advantage of this evidence of PW21, it was suggested to him that, why the dying
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 declaration was not recorded by the doctor. When deceased had suffered 38 injuries on his body including vital organs, definitely deceased was not in a position to talk as per the evidence of the doctor. When deceased had suffered 38 grievous and simple injuries on his vital organs, one cannot expect him to speak and give his statement before the doctor or the police.
51. PW22-Shivappa Krishnappa Hulihalli was LIC agent. According to him, his house is situated near the garden at Shivagiri Unkal. Police brought the accused there, where he committed the murder of deceased-Jagadish and prepared panchanama. Under the said panchanama, the police seized the shirt of the accused marked at M.O.7 and also M.O.8-entry ticket of Indira Glasshouse. This evidence of PW22 shows that he was very much present when M.O.7 and M.O.8 were seized by the police. He has been cross- examined at length by the defence but he is consistent about his presence at the place of incident and seizure of materials by the police, which were produced by the accused.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
52. PW23-Bhimappa Siddappa Menasinakai was also resident of Unakal village. According to his evidence, four years prior, one day night at 9.30 p.m., when he was moving towards his garden land, he noticed that police jeep was stationed near Unakal pond. He came to know about assault on blind person. At that time, PW32 came there and on enquiring with the injured, the injured told that his friend Basavaraj had brought him there and assaulted him with weapon and took away money from him. To that extent, his evidence has to be accepted. That means, he went to the said place where the deceased was struggling with injuries and PW32 made video recording of conversation between himself and the injured.
53. PW24-Govindareddi Suresh Kalahal was the constable, who was deputed to bring the call detail records from Bharathi Airtel Ltd. Bangalore in respect of mobile No.7090354113. He has given endorsement as per Ex.P83 and Ex.P84. Those call details in respect of aforesaid number go to establish that the accused was very much present at Hubballi on the date of the incident. Even the entry ticket
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 of Indira Glasshouse says about the presence of the accused in Hubballi on the date of the incident.
54. PW25-Mallappa Nilappa Gurammanavar, was the police constable who identified Ex.P1, Ex.P21, Ex.P 28, Ex.P34, Ex.P38, Ex.P47, Ex.P49, Ex.P51, Ex.P53, Ex.P61 and Ex.P67 mahazars. He is the scribe of all those mahazars. Even he brought the CD from Wireless Section of Hubli- Dharwad Police Commissioner Office as per the direction of the investigating officer. He identified his signatures on all the panchanamas. He also identified the photographs in which he is also present, which are marked as Ex.P2, Ex.P5, Ex.P48, Ex.P23 to Ex.P27, Ex.P29 to Ex.P31, Ex.P35 to Ex.P37, Ex.P39, Ex.P40, Ex.P42, Ex.P46, Ex.P54 to Ex.P60, Ex.P63, Ex.P64, Ex.P68 and Ex.P52. While putting questions regarding his presence in the photographs and he writing the above panchanamas it was not objected by the defence. According to him, as per the direction of his superior officer, he has done all these things. He being official of police department, he has spoken about his role in writing the panchanamas stated above.
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023
55. PW26-Shrikant Viranagouda Biradar is also another constable who was deputed for the purpose of obtaining documents with regard to call details of SIM No.7090354113 from Bharati Telecom situated at Bannerughatta of Bengaluru. He has identified the said documents as per Ex.P87 to Ex.P90. This fact is not denied by the defence. Except denial, nothing worth is elicited in his cross-examination by the defence.
56. PW27-Ravi Mallappa Yedavannavar, was the PSI, of Vidyanagar Police Station at the relevant time. He received the complaint as per Ex.P77 and registered the same and set the criminal law into motion. On receipt of death information of deceased-Jagadish, he gave a requisition to the Court for inserting Section 302 of IPC on 24.05.2015. According to him, mobiles were seized and photographs were transferred to the laptop. He identified the said photographs as per Ex.P54 to Ex.P60. Except denial, nothing worth is elicited from his mouth by the defence.
57. PW28-Manohar Rudrappa Malligawad was ASI at the relevant time. According to him, he was deputed to KIMS
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 hospital casualty section where the deceased was brought for treatment. According to him, panchanama was prepared after demise of Jagadish and according to him, he identified M.O17 to M.O.20 which were seized by the police along with photographs marked at Ex.P68 to Ex.P78. He also identified the panchanamas and photographs. Nothing worth is elicited from his mouth in order to disprove the seizure of M.O.17 to M.O.20 by the police in his presence.
58. PW29-Somanagouda Patil, was the Assistant Engineer, who prepared Ex.P93-sketch of the scene of offence on the request made by the police. The preparation of sketch of the scene of offence is not denied by the defence.
59. PW30-Yamunasa Narayanasa Arasiddi is important witness in this case. As per the case of the prosecution, it was the accused who purchased M.O.2-Machchu from the shop of this PW30 situated at Gadag. According to him, at market in Gadag, he is running hardware shop and about 4½ years prior to giving of his evidence before the Court, accused paid Rs.60/- and purchased M.O.2-Machchu from his shop. After 4-5 days, the accused was brought by the police to
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 his shop along with M.O.2. He identified M.O.2 as that which was purchased by the accused. He also identified the photographs being taken at the time of visit of the police to his shop as per Ex.P79 and Ex.P80.
60. He has been cross-examined by the defence at length but he withstood the test of cross-examination. No doubt many customers visits his shop to purchase hardware materials but selling of M.O.2 to the accused is specifically spoken to by this witness. This M.O.2 is a deadly weapon alleged to have been used by the accused in the commission of crime. Except denial, nothing worth is elicited by the defence. Minor contradictions and omissions may arise when the witness got examined after 4-5 years of the incident. Therefore, much value cannot be attached to such contradictions or omissions. He has specifically stated in his evidence that he has sold M.O.2 to the accused, which is alleged to have been used by the accused to commit murder of the deceased.
61. PW31-Basavareddi Mallanagouda is also important witness, who was asked by the police to furnish the account details
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 of deceased-Jagadish. He has furnished the details to that effect as per Ex.P97 and the said account statement contains withdrawal of amount by the deceased as shown in Ex.P97. One thing is clear from his evidence that the deceased had withdrawn amount from his account when this PW31 was senior manager in the said bank.
62. PW33-Mahadev Shivaram Mathadavar was the Police Inspector in Wireless Control Room, Hubballi, at the relevant time. According to him, on receipt of information from Police Inspector, Vidyanagar P.S., he made arrangements to send ambulance. As per the directions issued to him to furnish telephone conversation between Vidyanagar Police Inspector and control room dated 23.05.2015, he has furnished the same in C.D. which is marked at M.O.13 along with a details marked at Ex.P99 and letter marked at Ex.P100. Nothing worth is elicited from his mouth by the defence.
63. PW34-Dr. Chayakumari was in-charge Deputy Director, RFSL, Davanagere. She deposed regarding chemical examination done by her. She identified articles marked at
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 M.O.1, 2, 5 to 7, 9, 11, 14, 15 and 17 to 19. According to her, she noticed bloodstains on the said articles. She opined that the blood found on M.O.1 to 3 was human blood. Except denial, nothing worth is elicited in the cross- examination by the defence.
64. PW35-Rudrappa Mareppa Horatti was constable at the relevant time, who was deputed to bring the particulars of mobile number of the deceased. Accordingly, he went to MTS Mobile Company and brought the details pertaining to the mobile number of the deceased, which was of 21 pages. He identified it as Ex.P112. It was conversation being made by the deceased after the incident.
65. PW36-Magundappa Mallappa Shiri was pancha to Ex.P103, which is not denied by the defence. Under the said panchanama, Rs.1,40,000/- was released in favour of the mother of the deceased by name Rathnamma.
66. PW37-Dr. Ashok Muniyappa Loni was senior surgeon in KIMS Hospital at the relevant time. According to him, on 23.05.2015 at 10.10 p.m., one Jagadish Shiraguppi was brought to the hospital with a history of assault. He noticed
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 so many injuries on his person, which are mentioned in post-mortem report. According to him, in all the deceased had suffered 38 injuries on his person. He opined that if a person is assaulted by weapon like Machchu (M.O.2) the injuries mentioned in Ex.P104-wound certificate are possible. Though this PW37 has been intensively cross- examined by the defence, but he withstood the test of cross-examination. One thing is clear from the evidence of PW37 that the deceased had suffered 38 injuries on his person, which resulted into his death.
67. PW38-Dr. Madhuri @ Malini V Mahishi was working as Administrator in Shri Balaji Institute of Neurosciences and Trauma Centre, Hubballi at the relevant time. According to her, the deceased was brought to the said hospital and on examination, pulse and BP was not recordable. Accordingly, she issued letter as per Ex.P107. She stated that, in Balaji Hospital, he succumbed to the injuries.
68. PW39-Prabhugouda Dattanna Kiredalli was Police Inspector in Gokul Road Police Station at the relevant time. According to him, he conducted the investigation and filed
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 charge sheet against the accused. On perusal of the entire evidence of this witness, he has specifically stated that at the instance of the accused so many articles were seized, which are marked in this case. He prepared inquest panchanama and seized material objects marked at M.O.1 to M.O.6 from the scene of offence. He also seized so many articles at the instance of the accused during investigation. The evidence of PW2 is very much clear with regard to seizure of the articles and corroborated with the evidence of this witness, which is not denied by the defence. The evidence of PW39 can be accepted to the extent of investigation done by him. He has done the investigation in proper manner.
69. PW40-Johnson Tom Thomas was nodal officer in Bharati Airtel company at the relevant time. According to him, as per the request made by the police, he has furnished the call details of SIM No.8453593743 as per Ex.P102. This fact is not denied by the defence.
70. PW41-Dr. Rudragouda Nilakanthagouda Patil is retired medical officer, who issued Ex.P109 at the request made
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 by the police stating that the deceased was working in Gadag Government Hospital as attendar. According to him, the accused was also working on contract base and in this regard he has issued document marked at Ex.P119. It is not in dispute that the deceased was employed in the said hospital as attendar and the accused was working on contract base as assistant electrician under a contractor.
71. So far as documentary evidence is concerned, as narrated in the foregoing paragraphs, the seizure panchanamas are proved through PW2 so also other panchas. So far as disability of the deceased is concerned, Ex.P65 proves that he was suffering from physical disability. The call details collected by the investigating officer do establish about the conversation between the accused and the deceased on various occasions and also on the ill-fated day. Further, the mobile number of the accused was not operated from 5.30 p.m. till 9.30 p.m. on the date of the incident. The said call details are marked under Ex.P90 and certified under Section 65-B of the Indian Evidence Act with regard to the CD and the accounts statements. Ex.P97 was about withdrawal of the amount by the deceased. To that effect,
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 the senior manager of the bank has come before the Trial Court and stated about withdrawal of the amount. Even the statement of the accused is very much silent about that. The details of SIM card, documents etc also go against the case of the defence. The pay particulars of deceased- Jagadish as well as certified copy of attendance register of the accused shows that on the date of the incident, the accused was absent for his duties. Merely because Ex.D1 to Ex.D3 are marked on behalf of the defence being portions of statement of PW5, PW6 and PW7, they will not shake the basic evidence of the prosecution. The bloodstains on M.O.2-Machchu, a pair of 8 number paragon and a pair of 7 number paragon chappals, belonging to the accused and the deceased were seized and marked as M.O.3 and M.O.4, which presupposes that the accused had definitely accompanied the deceased on the date of the incident.
72. The investigating officer has seized the bloodstained mud. Even at the instance of the accused only, so many articles were seized and marked as per M.O.1 to M.O.20. So these all documents goes against the accused.
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73. On perusal of the entire oral evidence spoken to by the witnesses, the important witnesses in this case are PW2, PW30, PW31, PW32 and PW33. On scrupulous reading of the evidence of these witnesses, they are consistent in their respective evidence that the accused as well as the deceased came to Hubballi on that particular day i.e. on 23.05.2015 and the accused was having knowledge of deceased bringing amount of Rs.1,40,000/- with him by drawing the same from the bank. The accused had intention to snatch the said amount. Therefore, he purchased M.O.2-Machchu from shop at Gadag. He already hatched a plan and purchased M.O.2 before 4-5 days of the incident. This fact is spoken to by the shop owner. Further, when the accused and deceased came to Hubballi on that ill-fated day, since the deceased being blind, he was taken by the accused to Unakal pond behind Siddappajja's Temple and there the accused assaulted him with M.O.2 indiscriminately causing 38 simple and grievous injuries on his person and snatched away the amount of Rs.1,40,000/- from the deceased. PW2 is specific in his
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 evidence that at the instance of the accused all the articles were seized by the police, which are marked in this case.
74. It is not the defence of the accused that, said Rs.1,40,000/-, which was seized from his possession was really belongs to him. If the said amount does not belong to him, then he has to offer explanation to that effect. He has not offered any explanation. He is not the owner of the said amount of Rs.1,40,000/-. If he is not owner of the said amount then he must be receiver of the stolen property. It is not the case of the defence that the accused had received the said amount from somebody else. Therefore, the only inference that can be drawn as per the case of the prosecution is that he has committed theft of the said amount. Further, the entry ticket of Indira Glasshouse, which was seized at the instance of the accused himself by the police from the shirt of the accused, shows that on the date of the incident the accused was very much present in Hubballi. The accused, who had prepared to commit some offence to snatch away the said money from the deceased, took the deceased behind
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Siddappajja's temple near Unakal pond, that too in a dark area at 8.00 p.m. and committed the offence.
75. It is argued by the counsel for the respondent-state that as per the case of the prosecution, the present case is purely based on circumstantial evidence. When the case is based on circumstantial evidence, one has to keep in mind the principles with regard to proving of case based on circumstantial evidence. That means, the entire case of the prosecution rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence is very well crystalised in the judgment of the Hon'ble Apex Court in Sharad Birdhi Chand Sarda v. State Of Maharashtra1. In paragraph 152, 153 and 154 of the said judgment, the Hon'ble Apex Court has observed as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar 1 (1984) 4 SCC 116
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
76. Further, the Hon'ble Apex Court in Ballu @ Balaram @ Balamukund and another v. State of Madhya Pradesh in Criminal Appeal No.1167/2018 disposed on 02.04.2024 has clearly observed with regard to circumstantial evidence and has laid down principle that when the case is based upon circumstantial evidence, a very elaborate exercise of discussing the evidence in great detail has to be done by the Trial Court to show that how the circumstantial
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 evidences are proved by the prosecution. The Trial Court is not supposed to discard any of the circumstances to connect the accused in the commission of the crime.
77. While appreciating evidence as required under Section 3 of the Indian Evidence Act, more particularly, circumstantial evidence, in a case of present nature i.e. murder, when the prosecution relies upon circumstantial evidence, it is for the prosecution to prove all incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be decided by the touchstone of law relating to circumstantial evidence. That means, when an appeal is filed under Section 374(2) of Cr.P.C., the scope of this section is to re-appreciate the entire evidence on record to come to an independent conclusion on uninfluenced findings recorded by the Courts below.
78. The present case is totally based on circumstantial evidence. The witnesses so examined in this case are only hearsay witnesses. The circumstantial evidence is recovery
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 of bloodstained clothes and material objects which are seized at the instance of the accused on the basis of confession of the accused and the evidence spoken to by PW2.
79. The other circumstances which are brought on record by the prosecution is the motive of the accused in accompanying the deceased to Hubballi on 23.05.2015 and the conduct of the accused prior and subsequent to homicidal death of the deceased. The accused was working as an electrical assistant under contractor and was part time worker in Gadag Civil Hospital. The deceased who was working in the same hospital was known to the accused. Accused accompanied the deceased on the ground that the deceased was blind and was carrying a huge amount. The accused had already purchased M.O.2-Machchu, which shows his previous conduct. He accompanied the deceased to Hubballi on the date of the incident, which is established through entry ticket of Indira Glasshouse at Hubballi. He took the deceased to Unkal pond near Siddappajja's temple that too in dark area at which time there were no public at the said place. The accused was finding such an
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 opportunity to commit offence. He assaulted the deceased by using M.O.2 indiscriminately and snatched away the amount possessed by the deceased. Thereafter, when public noticed the injured struggling with injuries at the said place, they called police and on receiving such information PW2 along with his staff rushed to the said place, called ambulance and made video recording of conversation between himself and the deceased. The deceased told that he was accompanied with accused- Basavaraj Jagaluru, who assaulted him with weapon and snatched away the amount. These circumstances were brought on record by the prosecution which clinchingly establish about the motive and conduct of the accused prior and subsequent to the homicidal death of deceased- Jagadish. As per the post-mortem report and oral evidence of the doctor, it suffices that the death of deceased- Jagadish is homicidal death. This is another strong circumstance to conclude that the death of deceased was homicidal.
80. Further, the burden of proof is always on the prosecution to prove all the circumstances from which the conclusion of
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 guilt is to be drawn must be established, and all the facts so established must be consistent with the hypothesis of the guilt of the accused. If the accused is able to prove consistent circumstance of his innocence then he is entitled for benefit of doubt. Therefore, keeping in mind all these factual features and the principles laid down in various judgments of the Hon'ble Apex Court, we have to narrate the circumstantial evidence brought on record by the prosecution during the trial before the Court below to connect the accused. Whether such circumstance really connects the accused is a question. On reading the entire evidence of the prosecution the following circumstances arise which would point out at the accused that he is really the author of the crime.
i) The deceased and accused were working at Gadag Civil hospital i.e. the deceased was a permanent employee and the accused was assistant electrician under contractor on part time basis drawing salary of Rs.4,000/- per month.
ii) The deceased was blind by birth and always needed assistance by his family members to
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 board a bus to reach his office. That means the deceased was very much required assistance of some other persons.
iii) The deceased was not disbursed with his salary for last one year and got his whole salary arrears in his account.
iv) As per the evidence brought on record by the prosecution, the deceased withdrew the arrears of salary from his banker, which was within the knowledge of the accused.
v) The deceased had told his family members that he had to give Rs.10,000/- to his friend at Hubballi.
vi) On the date of the incident, the deceased went to Hubballi by boarding a bus from Morab and though he was expected to reach home at 7.00 p.m., he could not return.
vii) It was usual practice of the deceased that if he experienced late to reach, he used to stay in his friend's or maternal uncle's house. Since the deceased did not come Hubballi after 7.00 p.m., the family members of the deceased were under the impression that he might have stayed in his friend's house or maternal uncle's house at Yamanur.
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viii) At 10.00 p.m. on the date of the incident, the brother of the deceased received a phone call from his maternal uncle's son stating that deceased was assaulted by one Basavaraj Jagaluru and is in serious condition taking treatment in hospital.
ix) The brother of the deceased and his uncle's son rushed to the hospital and noticed that the deceased was taking treatment in ICU at KIMS Hospital, Hubballi and thereafter he was shifted to Balaji Hospital, Hubballi.
These above are all one set of circumstances.
81. The other circumstances which are brought on record by the prosecution are:
i) PW2-complainant received information regarding struggling of injured near the bank of Unkal pond behind Siddappajja's Temple with severe injuries and he rushed to the staff along with his staff.
ii) There, he noticed the deceased with multiple injuries on his person.
iii) With the help of staff he started making video recording of conversation between him and the deceased.
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iv) The deceased disclosed the name of the accused as the author of the crime, who assaulted him for the purpose of money.
v) Immediately deceased was shifted to hospital for treatment and was admitted in ICU.
Thereafter he was shifted to Balaji Hospital where he succumbed to the injuries.
vi) On the next day of the incident, PW32 went to the scene of offence and there the investigating officer prepared scene of offence panchanama and seized M.O.1 to M.O.6. As the name of the assailant was disclosed by the deceased before his death, the Investigating Officer deputed police officials for apprehending the accused. They got information that the accused was in Maruti Nagar plot at Lakkundi village. There they went and apprehended the accused and produced him before the investigating officer.
vii) At the instance of the accused, material objects i.e. shirt, weapon and amount were seized as spoken to by PW2 in material particulars.
viii) During the course of investigation, the investigating officer recorded statement of various witnesses.
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ix) At the instance of the accused amount of Rs.1,60,000/- was seized by the police. There was no explanation offered by the accused as to how he came into possession of such a huge amount that too he being a contract worker drawing salary of Rs.4,000/- per month from his employer.
x) The accused never stated that he was financially sound to possess that much amount. As there was no proper explanation offered by the accused, then the only inference has to be drawn that the accused is the perpetrator of the crime and he is the author of the crime in the manner stated above by the prosecution witnesses.
82. The voluntary statement of the accused himself discloses that at his instance material objects were seized by the police. Even the FSL report tallies with the bloodstains and the hardware shop owner has also spoken that it was the accused who purchased M.O.2-Machchu from his shop by paying Rs.60/-. Except denial in the cross-examination directed to the owner of the shop, nothing is elicited.
83. From the evidence spoken to by the witnesses of the prosecution, the circumstances narrated above consistently
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 prove in holding that the accused is the author of the crime. In this case, the conduct of the accused would be relevant under section 8 of the Indian Evidence Act. With regard to his immediate reactions of producing the incriminating articles, the conduct of the accused prior to the incident also plays an important role.
84. It is pertinent to mention here that, when the case is based upon the circumstantial evidence, in a case of present nature, the Court can draw such inference based upon number of circumstances to decide the complicity of the accused and entire chain of events must corroborate to bring home the guilt of the accused. Therefore, the conduct of the accused in purchasing M.O.2-Machchu from hardware shop at Gadag and subsequent death of the deceased within four days and non-explanation about possession of said Rs.1,40,000/- by him is a strong circumstance to draw an inference that the accused is the person who committed the murder of deceased-Jagadish.
85. Applying the principles laid down in various judgments of the Supreme Court of India stated above and taking into
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 consideration the conduct of the accused prior and subsequent to death of deceased and production of various incriminating material objects by the accused and the circumstantial evidence brought on record, complete the link in chain, which has led the Trial Court to conclude that the appellant-accused killed Jagadish with an intention to snatch away or take away the amount being possessed by the deceased and caused 38 multiple simple and grievous injuries by using M.O.2-Machchu. The cumulative effect of proved facts narrated above completes the link in the chain of circumstances is compatible with innocence of the accused to draw inference of guilt without giving scope for any other hypothesis.
86. Therefore, the Trial Court has rightly accepted the circumstantial evidence and also proved circumstances which completed the links in the chain of circumstances and drawn inference that the accused is the person who committed murder of deceased-Jagadish Shiraguppi. Therefore, finding the appellant-accused guilty by the Court below cannot be found fault with while exercising the powers under Section 374(2) of Cr.P.C. and
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NC: 2024:KHC-D:6346-DB CRL.A No. 100013 of 2023 consequentially the judgment of conviction and order of sentence passed against the accused has to be affirmed by answering the above points for consideration against the appellant-accused and in favour of the prosecution.
87. We may place on record the assistance rendered by Sri.Raghavendra A Purohit, learned counsel appearing for the appellant/accused, represents through Karnataka Legal Services Authority.
88. In view of our discussions made above on points for consideration and the circumstances brought on record, the appeal filed by the appellant-accused is liable to be dismissed. Resultantly, we pass the following:
ORDER
i) The appeal filed by the appellant-accused is hereby dismissed.
ii) The judgment of conviction and order of sentence passed by the Trial Court is hereby confirmed.
iii) Intimate the concerned trial Court as well as Superintendent of Jail by mail regarding confirming sentence.
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iv) Send back the Trial Court Records along with copy of this judgment forthwith.
v) Amicus Curie's fees is quantified at Rs.15,000/-.
vi) Registry is directed to pay the said fees to the Amicus Curie, digitally.
Sd/-
JUDGE Sd/-
JUDGE YAN, List No.: 1 Sl No.: 20