Karnataka High Court
Sri Sharanappa Amarapura vs State Of Karnataka By on 4 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1712 of 2021
C/W CRL.A No. 1074 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL NO.1712 OF 2021
C/W
CRIMINAL APPEAL NO.1074 OF 2021
IN CRL.A. No.1712/2021
BETWEEN:
SRI SHARANAPPA AMARAPURA,
AGED ABOUT 43 YEARS,
S/O. LATE CHATRAPPA,
RESIDENT OF AGOLI AMPASS DURGA,
VENKATAGIRI POST,
Digitally signed GANGAVATHI TALUK,
by SHYAMALA
KOPPAL DISTRICT - 582 114. ... APPELLANT
Location: HIGH
COURT OF
KARNATAKA (BY SRI SUNIL KUMAR B.N., ADVOCATE)
AND:
STATE OF KARNATAKA BY
CIRCLE POLICE INSPECTOR,
REP. BY SPP HIGH COURT BUILDING COMPLEX,
AMBEDKAR VEEDHI,
BENGALURU - 560 001. ... RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)
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CRL.A No. 1712 of 2021
C/W CRL.A No. 1074 of 2021
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 26.03.2019 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, UDUPI, UDUPI DISTRICT IN
S.C.NO.54/2011 - CONVICTING THE APPELLANT/ACCUSED
NO.4 FOR THE OFFENCE P/U/S 302, 353, 326, 506 R/W
SECTION 34 OF I.P.C.
IN CRL. A. No.1074/2021
BETWEEN:
SHEIK RIYAZ AHMED
S/O. ABDUL SAMAD
AGED 42 YEARS,
R/O. NO.2898, B.N. ROAD
TURUBALI STREET, MANDI MOHALLA,
MYSURU - 570 021.
(NOW IN DHARWAD
CENTRAL JAIL, DHARWAD). ... APPELLANT
(BY SRI N.R. KRISHNAPPA, ADVOCATE)
AND:
STATE BY BRAHMAVAR POLICE STATION,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA
AT BENGALURU - 560 001. ... RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT DATED 26.03.2019 AND SENTENCE
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CRL.A No. 1712 of 2021
C/W CRL.A No. 1074 of 2021
DATED 28.03.2019 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, UDUPI IN S.C.NO.54/2011, CONVICTING
THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCE P/U/S 302,
326, 353, 506 R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
DICTATION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:-
JUDGMENT
It is an unfortunate case where the accused persons involved in the homicidal death of the deceased Vinod Shettigar in the jail by the undertrial prisoners i.e., accused Nos.1 to 4 filed the present appeal against the impugned judgment of conviction order of sentence dated 26/03/2019 in S.C.No.54/2011 on the file of the Principal District & Sessions Judge, Udupi, convicting accused Nos.1 to 4 for imprisonment of life with fine of Rs.20,000/- for the offence punishable under Section 302 of the Indian Penal Code ("IPC"); to undergo imprisonment for three years for the offence punishable under Section 326 of the IPC and in default to pay fine of Rs.5,000/-;
sentence to undergo imprisonment for one year for the offence punishable under Section 353 of the IPC and a fine of Rs.2,000/- and one year imprisonment for the offence punishable under Section 506 of IPC with default clause.
-4- CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 20212. It is the case of the prosecution that on the basis of the complaint (Ex.P-1) lodged by P.S.Ambekar - PW.1, that he was working as Superintendent of the Prison, since one year and one Poornesh Urs - PW.4. Siresj Bamdoja; - PW.12, one Suresh, C.E.Mahadeva, U.R.Doddamani were also working with him. It is further alleged that some of the private security staff were also employed by them, they are, PW.2 Dinesh Acharya and one Shankar. On 14/01/2011 from 6.00 a.m., the said PW.4 Poornesh Urs, PW.2 Dinesh Acharya and Shankar were on duty in the jail and at about 8.15 a.m., the complainant PW.1 was in the house. That warder Poornesh called over his mobile phone and informed that some prisoners were assaulting the prisoner Vinod Shettigar and asked the complainant to come to prison immediately. Accordingly the complainant came to the prison and found that in front of barrack No.1, in the verandah, the undertrial Vinod Shettigar was lying in a pool of blood. The accused Muthappa @ Suresh Balegar, Nagaraj Balegar, Sheik Riyas Ahmed and Sharanappa Amarapura accused Nos.1 to 4 respectively were holding knives in their hands and they were threatening other prisoners that no one should say that they witnessed the incident and if they tell about the same, they -5- CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021 would also face similar destiny. Since the accused were holding weapons and there were no sufficient security staff, the complainant - jail Superintendent felt that it is not possible to catch hold of the accused. Therefore, immediately he informed the jurisdictional police about the incident. Thereafter, when he enquired the warder PW.4 Poornesh, he came to know that as usual at about 6.45 a.m. the undertrial prisoners were unlocked from the barracks to go to barthrooms and at about 8.00 a.m.they were put in the barracks and locked up. It was also informed by PW.4 to PW.1 that while Vinod Shettigar was returning to barrack, the accused persons suddenly came there and assaulted the deceased Vinod Shettigar with knives and when the guard PW.2 - Dinesh Acharya tried to stop the accused persons, he was also assaulted with knife and he sustained injury. Therefore, it was informed that PW.4 and others could not go near the accused or rescue the deceased.
It is further stated that the accused persons have assaulted Vinod Shettigar who sustained multiple injuries and died on the spot. It is stated that the incident might have taken place at about 8.15 a.m. due to some previous enmity between the deceased and accused. Accordingly, PW.1 lodged complaint -6- CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021 with the jurisdictional police on 14/01/2011 as per Ex.P-1.
Accordingly, the jurisdictional police registered the case in Cr.No.4/2011 for the offence punishable under Section 302 read with Section 34 of the IPC.
3. Based on the aforesaid complaint Ex.P-1, PW.33- Vinayaka Billava, the PSI of Hiriadka Police Station set the complaint in motion the criminal law and case was registered in the above crime number. After investigation, the jurisdictional police filed the charge sheet against the accused persons.
Since the case is triable by the learned Sessions Judge, the matter was sent to learned Sessions Judge. Accordingly, the learned Sessions Judge framed the charges on 18/08/2012 for the offences punishable under the provisions of Sections 302, 353, 326, 506, 120B, 109, 326 read with Section 34 of the IPC and after securing the presence of the accused persons, the charges were read over to the accused in the language known to them, who pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused, the prosecution in all examined 35 witnesses as PWs.1 to 35 and got marked the material documents - Exs.P-1 to P-76 and the -7- CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021 material objects - Mos.1 to 32. The accused has not chosen to lead any defence evidence, but got marked the documents -
Ex.D-1 to Ex.D-5. Learned Public Prosecutor has given up the evidence of CWs.13, 15, 18, 19, 22, 24, 25, 33, 35, 39, 42, 43, 44 as some of them were repeating witnesses and some of them were not available to be examined for various reasons.
5. After completion of evidence of the prosecution witnesses, the statements of the accused persons as contemplated under the provisions of Section 313 of the Code of Criminal Procedure were recorded by the learned Sessions Judge. The accused denied all the incriminating evidence adduced against them and also the case set up by the prosecution.
6. Based on the aforesaid pleadings, learned Sessions Judge considering the entire material on record, formulated the following points for consideration, which read as under:
1. Whether the prosecution proves that the death of deceased Vinod Shettigar was homicidal death?
2. Has the prosecution proved beyond reasonable doubt that the accused have caused the death of deceased Vinod Shettigar?-8- CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021
3. Whether the act of the accused in causing death of deceased Vinod Shettigar by assaulting him with knife on 14-01-2011 in front of barrack No.1 of the District Prison, Udupi is culpable homicide amounting to murder or not amounting to murder?
4. Whether the accused No.5 has supplied the weapons to the accused No.1 to 4?
5. Whether the prosecution proves beyond reasonable doubts that the accused Nos. 1 to 4 had also deterred the public servants i.e., PW.2 and 4 from doing their public duty and PW.2 was injured while he tried to intervene to rescue the deceased Vinod Shettigar and the accused had threatened with life?
7. After considering both the oral and documentary evidence on record, the learned Sessions Judge answered point Nos.1 to 5 in the affirmative and recorded a finding that the prosecution has proved beyond reasonable doubt that the deceased Vinod Shettigar an undertrial prisoner in the jail is a homicidal death. The act of the accused persons causing the death of the deceased by assaulting with MOs.1 to 3 (knives) on 14/01/2011 in front of the barrack No.1 of the District Prison at Udupi is culpable homicide amounting to murder and -9- CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021 further recorded a finding that the prosecution has proved beyond reasonable doubt that accused No.5 has supplied weapons to accused Nos.1 to 4 and the prosecution has proved beyond reasonable doubt that accused Nos.1 to 4. Accordingly, the learned Sessions Judge by the impugned judgment and order convicted the accused Nos.1 to 4 to undergo imprisonment for life for the offences punishable under Section 302 of the IPC with fine of Rs.20,000/-, three years of imprisonment for the offence punishable under Section 326 of the IPC with fine or Rs.5,000/-, imprisonment for one year for the offence punishable under Section 353 of the IPC with fine of Rs.2,000/-, imprisonment for one year for the offence punishable under Section 506 of IPC with fine of Rs.2,000/-
with default clause. Hence, the present appeal is preferred by accused No.4 and Crl.A.No.1074/2021 is filed by accused No.3 seeking to reverse and set aside the judgment passed in S.C.No.54/2011, by the Principal District & Sessions Judge, Udupi. Accused Nos.1 and 2 have not preferred any appeal against the impugned judgment of conviction and accused No.5 was acquitted. The criminal case against accused No.6 is abated.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 20218. We have heard learned counsel for the parties to the lis.
9. Sri N.R.Krishnappa, learned counsel for accused No.3 in Crl.A.No.1074/2021 contended with vehemence that the impugned judgment of conviction and order of sentence under Sections 302, 326, 353 and 506 of the IPC is erroneous and contrary to the material on record cannot be sustained and liable to be set aside. He would further contend that there is no specific allegation against accused No.3 in the homicidal death of the deceased Vinod Shettigar inside the jail. He further contended that the security guard PW.2 assaulted accused No.3 and other accused persons standing outside the barrack No.1 to attend the Court hearing.
10. Learned counsel further contended that the security guard-P.W.2 directed accused No.3 and others to stand outside the barrack as they were supposed to attend the Court.
Accordingly, accused No.3 and other accused persons were standing out side the barrack with empty hands. The deceased was attacked by the inmates of the jail infront of the barrack.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Inspite of the same, accused Nos.3 and 4 have been falsely implicated in the alleged offence.
11. Learned counsel further contended that there is no enmity between accused Nos.3 and 4, and the deceased. The learned Sessions Judge failed to consider the evidence of P.W.1-complainant wherein he has stated that he has not seen the accused Nos.3 and 4 attacking the deceased. In spite of the same, based on the contradictory evidence adduced by the prosecution witnesses in particular, P.Ws.1, 2, 3 and 4, learned Sessions Judge proceeded to convict the accused No.3 and the same cannot be sustained.
12. Learned counsel further contended that P.W.1 has deposed that he is not aware as to how the weapons M.Os.1 to 3 came inside the prison. P.W.2-Dinesh Acharya, who was working as security guard in Hiriadka jail clearly admitted that, as on the date of the incident he was observing the activities of accused No.3 and others and he has not deposed that he has seen the accused No.3 participating in the offence. Therefore, there is no evidence on record to convict the accused No.3 and thereby, he is liable to be acquitted.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 202113. Sri N.R.Krishnappa, learned counsel further contended that P.W.3-Sukesh who signed the police panchanama in the police station deposed that he did not know what was written in Ex.P.2-seizure mahazar under which M.Os.4 to 11 were seized. Thereby, evidence of P.W.3 cannot be the basis for conviction. P.W.4-Poornesh Urs, who was working as Warder at the relevant time admitted that he is deposing the incident for the first time before the Court and he has not stated anything before the Judicial Magistrate.
Thereby, based on the omissions, the conviction order cannot be sustained. The prosecution examined N.R.Nayak, Scientific Officer, Regional Forensic Science Laboratory, Mangaluru, as P.W.8 who deposed that the articles sent for examination were subjected to chemical analysis. Unfortunately, the prayer of the learned counsel for accused Nos.1 to 3 to cross-examine P.W.8 was rejected without assigning any reasons. The said aspect has not been considered by the learned Sessions Judge while convicting the accused No.3.
14. Learned counsel further contended that P.W.27- photographer, P.Ws.28 and 29 who were working as cleaner and warder in the jail turned hostile. P.W.30 deposed that his
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021statement was not recorded by the police. Thereby, the prosecution has not proved its case beyond reasonable doubt.
Therefore, accused No.3 is liable to be acquitted and hence, sought to allow Criminal Appeal No.1074/2021.
15. Sri B.N.Sunil Kumar, learned counsel for the appellant/accused No.4 in Criminal Appeal No.1712/2021, while adopting the arguments advanced by Sri N.R.Krishnappa, contended that only three weapons i.e., M.Os.1 to 3 were seized at the spot and accused No.4 was not holding any weapon. Absolutely there is no material to implicate accused No.4 in the homicidal death of deceased-Vinod Shettigar, inside the jail. Thereby, conviction of accused No.4 is without any basis. Merely because accused No.4 was standing along with accused Nos.1 to 3, that cannot be a ground to convict him, since there are no overt acts against him.
16. Learned counsel further contended that during the investigation of accused No.1, it was revealed that accused No.5 was the one who supplied the alleged weapons for assaulting the deceased. But, voluntary statement of accused No.1 reveals that alleged weapons were kept in the Court toilet
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021by accused No.5. When accused No.1 was taken to the Court in some other case, he secured the weapons from the Court toilet. Thereby, the prosecution case creates doubt with regard to Rules and Regulations of the Jail. The Under Trial Prisoners who attend the Court and return to the jail will be fully searched before sending inside the jail and while sending outside the jail to attend the Court. Thereby, the prosecution has not elicited anything about the search of the body of the accused No.4 before entering the jail from the Court and prosecution has not produced the search register to show that accused Nos.1 to 3 had knives as alleged, which was used to kill the deceased. The said aspect of the matter has not been considered by the learned Sessions Judge while convicting accused No.4.
17. Learned counsel further contended that the evidence of P.W.1-complainant, P.Ws.2, 3, 4 and 12 are inconsistent with regard to the involvement of accused No.4 in the offence. Thereby, accused No.4 cannot be convicted and the impugned judgment passed by the learned Sessions Judge based on assumptions and presumptions cannot be sustained.
The learned Sessions Judge failed to notice that P.W.2-Dinesh
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Acharya deposed that he cannot identify two knives, but can identify only one knife. During the examination of Sukesh-
P.W.3, he has categorically not supported the evidence of the prosecution and thereby it is categorically held that P.W.3 is not conversant with the statement which he has signed in Hiriyadka jail. The learned Sessions Judge failed to appreciate the fact that the panch witness who signed the panchanama i.e., Raghavendra Kanchan was friend of deceased Vinod Shettigar and he is also interested in prosecuting the accused including Pitty Nagesh who had rivalry since 10 years.
Thereby, the evidence of interested witnesses cannot be relied upon to convict accused No.4 for the offence punishable under Section 302 of the Indian Penal Code.
18. Learned counsel further contended that P.W.15- Harish Rao, AHC DAR, Udupi, deposed that on 13.01.2011, himself and C.W.27-Sachin Shetty had been to Karkala to escort accused No.1-Muthappa. In the cross-examination, he admitted that himself, accused and C.W.27 came from Karkala to Athradi in bus. The moment he handed over accused No.1 to the Prison Authority, they made personal search on the person of accused No.1. He admitted that no incriminating
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021material were found on the person of accused No.1. The said aspect has not been considered by the learned Sessions Judge and thereby, accused No.4 has been erroneously convicted.
19. Learned counsel further contended that P.W.21- Guruprasad Shetty in his evidence admitted that he is accused in a case registered against accused No.6-Pitty Nagesh. He deposed that when he was in Hiriadka prison, prior to murder of Vinod Shettigar, accused Nos.1 to 4 were harassing and assaulting the other under trial prisoners which depicts that the said statement is made for the first time before the Court. This clearly discloses that the accused No.4 has been falsely implicated. Thereby, the learned Sessions Judge is not justified in convicting accused No.4 based on presumption and assumption and therefore, sought to allow Criminal Appeal No.1712/2021.
20. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, contended that P.W.1- complainant has specifically stated on oath that the weapons
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021were found in the hands of accused Nos.1 to 4. The said statement is corroborated by the evidence of P.W.4. The doctor who examined P.W.2-injured eye witness and issued wound certificate-Ex.P.17 stated that the injuries are grievous in nature. The evidence of P.Ws.1 and 2 supported by the evidence of P.Ws.4 and 12 depicts the involvement of accused Nos.3 and 4 in the homicidal death of deceased-Vinod Shettigar. The blood stained clothes of accused Nos.1 to 4 were seized under seizure Mahazar-Ex.P.2. The FSL report depicts that the blood stains found on M.Os.4 to 11-clothes of the accused persons tallies with the blood stains found on the clothes of the deceased.
21. Learned Additional SPP further contended that the motive for the murder was that there was rivalry between accused No.6-Pitti Nagesh and deceased-Vinod Shettigar.
P.W.6-Dr.Nityanand Nayak, was examined on 17.03.2015. He deposed that he has issued wound certificates-Exs.P.17 and 19 and gave opinion as per Ex.P.20. He was not cross-examined by the counsel for accused Nos.1 to 3. They failed to avail the opportunity of cross-examining the doctor. The same cannot be agitated in the present Criminal Appeal, when the learned
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Sessions Judge has passed the impugned Judgment on merit.
He further contended that in similar terms, P.W.7-Subraya S. Hegde, Asst. Engineer, P.W.D., Mangaluru, was examined in the year 2015. The witness was recalled on 29.09.2018 for cross-examination. P.W.8-Narayan Naik was examined on 18.03.2015. The prayer seeking time to cross-examine the said witness by accused Nos.1 to 3 was rejected and cross-
examination was taken as nil. The same has not been challenged by the accused persons. He further contended that the weapons M.Os.1 to 3 does not belong to the jail kitchen. In the statement recorded under Section 313 of the Code of Criminal procedure, the accused persons have denied all the incriminating circumstances adduced against them, in toto. No explanation is offered and no defence is taken in the cross-
examination of prosecution witnesses with regard to M.Os.1 to 3 to prove that the weapons were not brought from out side the jail. He further contended that though the learned counsel contended that accused No.4 was not holding any weapon, however, no defence is taken either in the cross-examination or in the statement recorded under Section 313 of the Code of Criminal Procedure to establish that accused No.4 was not
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021holding any weapon. Thereby, adverse inference has to be drawn against the accused persons. Therefore, learned Additional SPP sought to dismiss the Criminal Appeals.
22. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration is:
"Whether appellants/accused Nos.3 and 4 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, in the facts and circumstances of the present case?"
23. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, including original records, carefully.
24. This Court being the appellate Court, in order to re-
appreciate the oral and documentary evidence on record, it is relevant to reconsider the evidence of the prosecution witnesses and the documents produced by them.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021(i) P.W.1-P.S.Ambekar, deposed that he was working as Superintendent of Jail, Udupi from 25.10.2009 to 18.01.2011. At that time, accused Nos.1 to 4 were under trial prisoners in the said jail. He knows accused Nos.1 to 4 and deceased Vinod Shettigar. On 14.01.2011, he came to know through P.W.4-Poornesh Urs that Vinod Shettigar was killed by accused Nos.1 to 4 and reiterated the averments made in the complaint and supported the prosecution case. Nothing has been elicited in his cross-examination to disbelieve his statement that the murder of Vinod Shettigar took place inside the jail.
(ii) P.W.2-Dinesh Acharya, deposed that he was working as security guard in Hiriadka jail. He used to do the work assigned to him by the warder. On the date of the incident he was on duty and was looking after the prisoners. While he was working, a warder and two security guards were working. There used to be three shifts. The first shift was from 6.00 am to 1.00 pm, second shift was from 1.00 pm to 6.00 pm and the third shift was from 6.00 pm to 6.00 am on the next day. He further deposed that Vinod Shettigar's murder happened inside the jail. On 14.01.2011 at 6.45 am he unlocked three barracks to facilitate the prisoners to do their morning ablutions. At
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8.00 am, they used to allow the prisoners who have to attend the Court, to use the toilets and bathrooms. He started to lock the barracks at 8.00 am. First he locked barrack No.1 and noticed that Vinod Shettigar has not come to barrack No.1. He came to know that Vinod Shettigar was in toilet. Therefore, he locked barrack No.1 and went to barrack No.2. Before locking barrack No.2, Accused-Nagaraj and Sharanappa went to kitchen to drink hot water saying that they have throat pain. Though he asked them not to go, they went to the kitchen saying that they want hot water to drink. Accused-Muthappa and Riyaz were retained outside as they were to be taken to the Court. He asked them to have bath. He went to the toilet to see whether anybody is inside. Muthappa and Riyaz went towards the kitchen. When he was returning from toilet, he heard hue and cry. Accused Nos.1 to 4 were assaulting Vinod Shettigar with knives. He tried to rescue. But he got assaulted on his hand. Therefore, he ran towards warden by screaming and informed Poornesh regarding the incident. He further deposed that near the window of barrack No.1, the accused persons assaulted the deceased and the accused were possessing three knives, and supported the case of the prosecution. Nothing
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021has been elicited in the cross-examination to disprove the case of the prosecution.
(iii) P.W.3-Sukesh, panch witness to Ex.P.2, identified M.Os.4 to 11. the witness supported the case of the prosecution. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.
(iv) P.W.4-Poornesh Urs, warder, deposed that during December 2010 he worked for one month on deputation in Central prison, Udupi. He knows accused Nos.1 to 4. Since there was dearth of staff in Udupi prison, he was posted to work there on deputation. On 14.01.2011, at 6.45 am, himself, security guard-Dinesh and Shankar were on duty. After unlocking the prisoners at 6.45 am, he asked Dinesh and Shankar to keep an eye on the prisoners and went to the main gate to register the court warrants in the book. Around 8.00 to 8.15 am, he heard hue and cry inside the jail premises. Therefore, he went to the veranda. At that time, Dinesh -Security Guard came running by screaming and his hand was chopped and was hanging. To prevent the bleeding, he tied the cloth. When enquired, Dinesh informed him that infront of barrack No.1, accused Nos.1 to 4 assaulted Vinod Shettigar with knives. When he
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021tried to rescue Vinod Shettigar, he was also assaulted. The witness further deposed that, immediately he went to the spot. Vinod Shettigar had collapsed and was lying on the floor. When he tried to threaten the accused, threatened him back. Immediately he went to the main gate and informed the Superintendent over phone. Immediately, the Superintendent and other staff came. When all of them went to the spot, accused persons warned them to stay away. Later, complaint came to be lodged. Accordingly, he supported the case of the prosecution. Nothing has been elicited in the cross-examination to disbelieve the evidence of prosecution witnesses.
(v) P.W.5-Naveen Kumar, working as house keeper in KMC Hospital, panch witness to mahazar- Ex.P.15 and sketch- Ex.P.16 supported the case of the prosecution.
(vi) P.W.6-Dr.Nityananda Nayak, Ophthalmologist, District Hospital, Udupi, deposed that, on 14.01.2011, at about 9.50 am, one Dinesh Acharya was brought to the hospital with the history of injury to right elbow joint with sharp weapon while avoiding fight between prisoners, Vinod Shettigar and others inside the District Prison, Udupi, on the same day at 8.30 am. On
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021examination, he found cut injury over posterior aspect of right elbow joint just above olecrenon of size 8 cm x 2 cm x bone depth with injury of triceps tendon and chip fracture olecrenon process of ulna. He was admitted as indoor patient under IP No.215/2011 on 14.01.2011 and was discharged on 18.01.2011. He issued the wound certificate as per Ex.P.17 and opined that the injuries are grievous in nature. The witness supported the case of the prosecution. Nothing has been elicited in his evidence to disprove the case of the prosecution.
(vii) P.W.7-Subraya S. Hegde, Assistant Engineer, P.WD., Mangaluru, deposed that, a requisition was received in the office for preparing the sketch of scene of occurrence situated in District Prison, Udupi, on 15.01.2011. On 05.03.2011, Ravichandra, P.C.No. 1074 took him to District Prison, Udupi and shown the scene of occurrence. He prepared the sketch as per Ex.P.22. His signature was marked as Ex.P.22(a) and the place where dead body was lying was marked as Ex.P.22(b). In the cross- examination, he admitted that he has not shown the distance between grill window and the place where the dead body was said had fallen. He denied the suggestion that he had not gone to
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021the prison and prepared the sketch Ex.P.22 by sitting in his office at the instance of police. The witness supported the case of the prosecution. Nothing has been elicited in the cross examination to disprove the case of the prosecution.
(viii) P.W.8-Narayan Naik, deposed that the from 22.12.1999 to 01.08.2012 he was working as Scientific Officer, Regional Forensic Science Laboratory at Mangaluru. On 22.01.2011, he received four sealed articles concerned to Cr.No.4/2011 of Hiriadka Police Station from Dy.S.P., Udupi through PC No.1038 Sri Hemaraj. The seals found on the articles were intact and tallied with sample seal. He issued the certificate dated 29.01.2011 as per Ex.P.23. Thereby, supported the case of the prosecution.
(ix) P.W.9-Dr.G.Pradeep Kumar, deposed that he was working as Professor and HOD in the Department of Forensic Medicine, Kasturba Medical College, Manipal, during the year 2011. On 14.01.2011, at 4.00 pm, he received requisition from Hiriadka Police Station through Balakrishna P.C. along with request for conducting postmortem examination on the dead body of Vinod Shettigar. Accordingly, he conducted the post mortem between 4.05 pm to
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 20216.30 pm in the mortuary of the hospital. He found 26 external injuries along with chop wounds. Injury numbers 7, 8, 9, 11, 14, 15, 18, 24A and 24B are stab wounds caused by sharp pointed weapon like knife. Injury numbers 1, 3, 4, 6, 13, 16, 17, 20, 21, 22, 23, 25 and 26 are sharp wounds caused by heavy sharp weapon. Injury numbers 5, 10, 12 and 19 are incised wounds caused by sharp weapon. Accordingly, he issued the post mortem report-Ex.P.24 and opinion as per Ex.P.25 and opined that the deceased died due to haemorrhage secondary to multiple chop, stab and incised wounds consistent with history provided by the police. Accordingly, the witness supported the case of the prosecution.
(x) P.W.10-Ravindra, deposed that during the year 2011, he was working as police constable in Hiriadka Police Station. On 14.01.2011, at about 11.15 am, PSI of Hiriadka Police Station gave him FIR and original complaint in Cr.No.4/2011 to hand over the same to the JMFC, Udupi. He was informed that the Magistrate will be available in District Prison, Udupi and accordingly, he went there and handed over FIR and original complaint to JMFC, Udupi, at 12.00 noon. Accordingly, he
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021supported the case of the prosecution. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.
(xi) P.W.11-Raghuram Shettigar, deposed that deceased Vinod Shettigar is his younger son. He was murdered in Hiriadka Jail. On 14.01.2011 at about 11.00 am to 12.00 noon, police called him to Hiriadka Jail. At that Jail Superintendent and Judge were present. He saw the dead body of his son which was lying on the veranda of the jail. He found several injuries on the person of his son. There was enmity between accused No.6-Pitty Nagesh and his son in respect of some business. His son had told him that Pitty Nagesh was threatening him that he would finish his life. There was a quarrel between his son and accused No.6 and in that regard, his son was remanded to judicial custody. He had given statement before the Magistrate and he had not lodged the complaint before the police. He further deposed that neither the police nor the Judge conducted panchanama in his presence. He did not see M.O.1- knife in the jail. He does not know who committed the murder of his son. Thereby, he was treated as hostile.
In the cross examination done by the Public Prosecutor, he deposed that he came to
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021know about murder of his son by the accused, through newspaper. He came to know that accused No.5-Raghavendra had supplied weapons to other accused in the jail and M.Os.1 to 3-knives were lying on the spot. The accused persons used M.Os.1 to 3 in commission of murder of his son. He came to know that all the injuries found on the body of his son were caused by M.Os.1 to 3. The under trial prisoners told him that accused Nos.1 to 4 committed the murder of his son with M.Os.1 to 3. He further deposed that he has stated theses facts before the Judge. On 14.01.2011 from 12 noon to 3.00 pm, the JMFC prepared the inquest panchanama on the dead body of his son and he was very much present at that time.
In the cross-examination done by learned counsel for accused No.5, he deposed that his son-in-law/Sri Ramdas Shettigar is Development Officer at United India Insurance Company, Udupi. His deceased son Vinod Shettigar joined to first BBM at Micro College and later he discontinued the education. On several occasions, his son Vinod Shettigar was sent to Mangaluru and Udupi jail. There were three murder cases against his son. He denied the suggestion that he never attempted to get
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021release his son from the said cases. He admitted that his deceased son was a rowdy element out side the house. His friends and enemies never came to their house and he never attempted to lodge any complaint against any persons. He was not aware that his son Vinod Shettigar was the rowdy sheeter. After the incident, police never came to their house. He never went to the police station for any reason after the incident. Accordingly, he partly supported the case of the prosecution.
(xii) P.W.12-Suresh Basappa Banda, deposed that he was working as warder at District Prison, Udupi from 2009 till December 2011. He was entrusted with tappal branch and his duty hours was from 6.00 am to 8.00 am, 9.00 am to 12.00 noon and 4.30 pm to 6.30 pm. On 14.01.2011, at 6.00 am, he came to prison, Udupi for duty from his residential quarters. The distance between his residential quarters and the prison is about 100 metre. When he was taking bath, he heard the voice of P.W.4-Poornesh Urs from prison who shouted that there was quarrel going on in the prison. Therefore, he rushed to the prison at 9.00 am. He went upto the prison gate. But he was not allowed at second gate. He was in between two gates. P.W.4 told him
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021that accused Nos.1 to 4 have committed murder of deceased Vinod Shettigar. He saw the dead body of Vinod Shettigar at 9.30 am. He identified accused Nos.1 to 4. He further deposed that, he has not seen the incident personally. Accused Nos.1 to 4 have not stated anything in his presence. Thereafter, PSI and other police of Hiriadka came to the spot. The JMFC, Udupi has not recorded his statement. He does not know anything about the case, apart from the aforesaid facts. Thereby, he was treated as hostile witness.
(xiii) P.W.13-Raghavendra Kanchan, deposed that during 2011, he was carrying on chicken business. He used to purchase hens from Rathnakara Shetty of Athradi village. On 14.01.2011, at about 7.30 am, he had been to the store of Rathnakara Shetty for purchase of hens. At about 8.15 am, he heard about the murder in the jail. Therefore, he went to the jail in his motr cycle and was waiting in front of the jail gate. One of the police constable requested him to stand as pancha. Later, he entered the jail and saw the dead body of Sri Vinod Shettigar. Police Officers, Judge, father of the deceased and other police constables were present near the dead body. The dead body was
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021lying in front of first barrack on reverse side. The deceased Vinod Shettigar was wearing green colour T-Shirt and blue colour night pant and blue colour jacket. He found red colour thread on his right wrist, Wills cigarette packet in the right pocket of the pant. He found several injuries on the head, wrist, forearm, neck, abdomen, leg and other minor injuries on the dead body. He found viscera out side the abdomen. Three knives were lying near the dead body. He identified the knives. He further deposed that the police and other inmates of the jail told him that accused Nos.1 to 4 committed the murder of deceased-Vinod Shettigar, and supported the case of the prosecution.
(xiv) P.W.14-Umesh Ramanna Doddamani, deposed that, he was working as warder at District Prison, Udupi, from 2009 till 2012. On 14.01.2011, his duty commenced at 1.00 pm. On the same day, at 8.20-8.30 am, when he was in his residential quarters, he heard the hue and cry inside the prison. P.W.4 came to the quarters and called all the staff to the prison, as there was galata in the prison. Thus, himself and other staff went to the prison and saw the dead body of Vinod Shettigar in the pool of blood. He inquired other inmates of the prison
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021about the incident. They informed him that accused Nos.1 to 4 have committed murder of deceased Vinod Shettigar. One of the security guard sustained injuries on his hand. At about 8.45 am, the PSI, Hiriadka came to the spot. He took the security guard to the Government Hospital, Udupi. The Hiriadka police recorded his statement. That apart, he does not know anything about the case. Accordingly, he was treated as partly hostile.
(xv) P.W.15-Harish Rao, deposed that he was working in District Armed Force, DAR, Udupi since 18 years. As per the directions of the higher authorities, he used to bring the accused from jail and produce them before the Court. On 13.01.2011, himself and C.W.27-Sachin Shetty had been to Karkala to escort accused No.1-Muthappa. After completion of court case, accused No.1 went to the toilet situated in the court premises for attending his nature call at about 6.00 pm. They left Karkala at 6.15 pm and reached Hiriadka Prison at 7.15 pm and handed over accused No.1 to the prison authorities.
In the cross-examination, he deposed that himself, accused and C.W.27 came from Karkala to Athradi in bus by sitting. The moment they
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021handed over Accused No.1 to the prison authorities, they made personal search on the person of accused No.1. During personal search of accused No.1, no incriminating material or any weapons were traced. Himself, C.W.27 and prison authorities never suspected accused No.1. Accordingly, supported the case of the prosecution.
(xvi) P.W.16-Prakash Gurikar, deposed that he during 2011, he was working as police constable buckle 2089 at Hebri Police Station. On 14.01.2.011, at 8.00 am, himself and C.W.47 came to Hiriadkar Prison as there was murder of Vinod Shettigar in side the jail. During the said period, he assisted the Magistrate to visit the prison. As per the dictation of the Magistrate (C.W.46), he wrote the contents of inquest panchanama as per Ex.P.29 between 12.00 noon to 3.30 pm. On the same day, as per the directions of Magistrate, again himself and C.W.48 visited Hiriadka prison and C.W.48 seized the clothes of accused Nos.1 to 4 and prepared mahazar- Ex.P.2 in his own hand writing in between 7.00 pm and 8.00 pm as per the instructions of C.W.47. He further deposed that he can identify accused. He identified accused Nos.1 and 3 who were present before the Court and identified
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021accused Nos.2 and 4 through video conference from Belagavi and Dharwad prison. In the cross-examination, he denied the suggestion that he never wrote any panchanama in the presence of Magistrate at Hiriadka Prison. He denied the suggestion that Judicial Magistrate never dictated to prepare any panchanama and he never visited Hiriadka prison and no mahazar was prepared by him at the Hiriadka prison. He further denied the suggestion that as per the directions of his higher authorities, he is giving false evidence. Accordingly, supported the case of the prosecution.
(xvii) P.W.17-Hemaraj, deposed that he was working as Police Constable at Hiriadkar Police Station from July 2010 till September 2011. On 22.01.2011, C.W.48 handed over 25 articles seized in Cr. No.4/2011, in order to hand over the same to RFSL, Mangaluru, through Dy.S.P., Udupi. On the same day he submitted 25 articles to RFSL, Mangaluru, and received acknowledgment to that effect and reported before C.W.48. On 29.03.2011, C.W.48 handed over two packed and sealed covers in order to hand over the same to Dr. Nityanand Nayak, District Hospital, Udupi. Accordingly, on the same day, at 3.00 pm, he handed over the
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021covers. After examination, the articles were repacked and sealed and were handed over to him along with the report by Dr.Nityanand Nayak. Ex.P.20 is the report given by Dr.Nityanand Nayaka. He handed over the report of C.W.48. Accordingly, he supported the case of the prosecution. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.
(xviii) P.W.18-Ranjan, Head Constable-753, deposed that on 14.01.2011, at 9.15 am, himself and C.W.47 had been to rounds duty towards Perdoor. At the same time, P.W.47 received information that at Hiriadka prison there was murder of Vinod Shettigar in side the jail. Immediately, himself and C.W.47 came to Hiriadka prison and saw the dead body of Vinod Shettigar, who had sustained several injuries on his person. During the said period, C.W.48 and Judicial Magistrate, Udupi, came to the prison for inspection and Judicial Magistrate prepared the inquest panchanama. As per the instructions of the Judicial Magistrate, he collected blood stained three knives, blood from floor and wall, blood stained cotton, sample cotton and cap. He deposed that the said articles are already marked as M.Os.1 to 3, M.O.13, M.O.19 to
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021M.O.21. As per the dictation of Judicial Magistrate, he reduced the statements of jail staff i.e., C.W.6-Suresh Babu, P.W.12-Suresh Bandal, P.W.14-Umesh Doddamani, C.W.7- C.E.Mahadeva. He further deposed that on the same day, at about 5.00 pm, himself and Judicial Magistrate, visited District Government Hospital, Udupi and saw P.W.2-Dinesh Acharya, Security Guard of District Prison and recorded his statement. He reduced the statement as per the dictation of Judicial Magistrate. He gave his statement before C.W.48 on 16.01.2011. During preparing panchanama, accused Nos.1 to 4 were also present at the spot. The witness identified accused Nos.1 and 3 who present before the Court and accused Nos.2 and 4 through video conference from Belagavi and Dharwad Prison.
In the cross-examination, he deposed that himself, C.W.47 came to Hiriadka police station and then visited Hiriadka prison at 9.45 am on the same day at 10.45 am. He found three blood stained knives here and there near the dead body. He does not remember the exact location of each knife near the dead body. The dead body had fallen on the ground facing head towards west. There was no occasion for him to
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021collect control mud at the scene of offence. Accordingly, he supported the case of the prosecution.
(xix) P.W.19-Laxminarayan, deposed that he was working as ASI, at Hiriadka Police Station. On 19.01.2011, C.W.48 deputed himself and C.W.42 to secure accused No.5-Raghavendra in Cr.No.4/2011 of Hiriadkar Police Station. On 20.01.2011, at 9.00 am, on Manipal-Alevuru Road, near Rajiva Nagar cross, near bus stop, a person was sitting at bus stop in suspicious manner. When enquired, he told his name as Raghavendra. Thus, he secured him and produced before the Investigating Officer at 10.00 am, along with report-Ex.P.33, and supported the case of the prosecution.
(xx) P.W.20-Raghuveer, P.C-2058 of Hiriadka Police Station deposed that on 29.01.2011, C.W.48 directed him to bring articles such as three knives along with report from RFSL, Mangaluru. On the same day, he went to RFSL and brought threee knives in packed condition and produced the same before C.W.48. On 30.01.2011, as per the directions of C.W.48, he produced the said packed articles along with requisition of the Investigating Officer to the Doctor, FSL, KMC
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Hospital, Manipal, and obtained receipt to that effect.
In the cross-examination, he denied the suggestion that C.W.48 never deputed him to bring three knives from RFSL, Mangaluru and he never produced them before KMC Hospital for opinion of the doctor. He further deposed that, as the articles were sealed and packed condition, he did not verify its contents. The Investigating Officer had issued Passport to him. He denied the suggestion that as per the directions of his higher authorities, he is deposing false evidence, and supported the case of the prosecution.
(xxi) P.W.21-Guruprasad Shetty, deposed that he knows accused No.6(deceased Pitty Nagesh). Himself and deceased Vinod Shettigar were in Hiriadka jailon the charge of attempt to murder of accused No.6 i.e., Pitty Nagesh. During the said period, accused Nos.1 and 3 who are present before the Court and accused Nos.2 and 4 present through video conference from Belagavi and Dharwad prisons were in Hiriadka prison. In Hiriadka prison there are three barracks. The prison has under ground barrack. However, the prison authorities never kept any UTPs in underground barrack. Himself and deceased Vinod Shettigar were kept in barrack
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021No.1. Accused Nos.1 to 4 were kept in barrack No.2. When he was Hiriadka prison, prior to murder of Vinod Shettigar, accused Nos.1 to 4 were harassing i.e., assaulting other prisoners in respect of remote of TV and other matters. In this regard C.W.16- Jalaluddin (who was inmate at that time) and one Vadiraj came to deceased Vinod Shettigar and told him that accused Nos.1 to 4 were harassing them. Thus Vinod Shettigar brought this aspect to the knowledge of Superintendent of Prison, who directed accused Nos.1 to 4 to rectify their mistake. But accused Nos.1 to 4 went on strikes against Superintendent of Prison. On 11.01.2011, again there was galata between accused Nos.1 to 4 and Jalaluddin and all the accused assaulted Jalaluddin with hands. Deceased Vinod Shettigar came to the rescue of Jalaluddin and warned them. Immediately, superintendent of Prison came and separated C.W.16 from barrack No.2 and kept him in barrack No.1. He further deposed that on 14.01.2011, between 6.45 am and 8.00 am, all the inmates of the prison were outside the barrack to go to toilet. Himself, P.W.2 and other inmates of barrack No.1 were in barrack. Deceased Vinod Shettigar was outside the barrack as there was delay. P.W.2-Dinesh Acharya locked barrack No.1. But accused Nos.1
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021to 4 were outside barrack No.2 saying that they want to attend the Court on that day. After coming from toilet, Vinod Shettigar was sitting infront of barrack No.1 in the passage. One Thippesh, inmate of barrack No.1 gave him a cup of tea through window. After having tea, Vinod Shettigar returned the empty cup through the window. Immediately, accused Nos.1 to 4 attacked Vinod Shettigar and they were holding knives. Accused No.1-Muttappa caught hold of the neck of Vinod Shettigar and pulled him on the ground. Accused No.2-Nagaraj stabbed on the stomach and neck and left shoulder of Vinod Shettigar. At the same time, himself and other inmates of barrack No.1 raised hue and cry. Accused No.3-Riyaz Ahmed stabbed on the chest and stomach of Vindo Shettigar with knife. Vinod Shettigar abused the accused in tulu language saying "£Á¬Ä¯Éà §ÄqÉèA¨É (£Á¬ÄUÀ¼Éà ©r)".
Accused No.4-Sharanappa also stabbed with knife on the chest of Vinod Shettigar. During the scuffle, accused No.2 also sustained injuries on his leg. Accused Nos.1 to 4 also abused Vinod Shettigar saying in tulu language that "§ÄqÉÆèaÑ PÉgÉÝ ¥ÁqÉè (©qÀ¨ÉÃr PÉÆAzÀÄ ºÁQ)". He further deposed that immediately they called P.W.2-Dinesh Acharya to open the lock in order to rescue Vinod Shettigar. Thus he immediately
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021came and tried to open the lock of barrack No.1. Immediately, accused No.3 assaulted with knife on his hand. Thus, P.W.2-Dinesh Acharya went to office. As accused Nos.1 to 4 were holding knives, none of the staff attempted to rescue Vinod Shettigar. Later, accused Nos.1 to 4 threatened all the inmates not to give any statement to the police or before the Judge, otherwise, they would finish such persons. Accordingly, the witness supported the case of the prosecution. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.
(xxii) P.W.22-Stanely Agnelo, Nodal Officer, Airtel, deposed that during 2011, their office received e-mail from S.P. Udupi seeking particulars in respect of mobile No.8971129829. Accordingly, he furnished the call details from 01.01.2011 to 15.01.2011 through e-mail. He deposed that mobile No.8971129829 belongs to Suresh Baligar. As per the data stored in their systems, they furnished the call details, and supported the case of the prosecution.
(xxiii) P.W.23-Chandrashekar Hegde, deposed that he is residing at Alevuru since his birth. He knows deceased Vinod Shettigar who used to play cricket with him. He died at District Prison,
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Udupi. He knows accused No.6-deceased Pitty Nagesh. There was enmity between Vinod Shettigar and Pitty Nagesh. During 2010, he had been the tea shop of one Dinesh Shenoy. At that time, Pitty Nagesh was there. There was heat discussion between Pitty Nagesh and others. Pitty Nagesh proclaimed Vinod Shettigar was remanded to Jail. He has his men there and thus they would finish him in the jail. If Vinod Shettigar is released from jail, then he would commit murder of Pitty Nagesh. Latger, he came to know about the murder of Vinod Shettigar through newspaper that some of the under trial prisoners have committed the murder of Vinod Shettigar with talwars. Police have not inquired him, and supported the case of the prosecution.
(xxiv) P.W.24-Nandeesh, Senior Civil Judge and Member Secretary, DSLA, Chamarajanagara, deposed that he was working as II Additional Civil Judge and JMFC, Udupi from 2009 to 2012. On 14.01.2011, at 10.30 am, he received requisition from Police Inspector, Brahmavar Circle, requesting him to conduct inquest mahazar on the dead body of Vinod Shettigar. On the same day, he secured permission from Hon'ble Principal District and Sessions Judge,
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Udupi, and proceeded to District Prison, Hiriadkar and reached the said place at 11.00 am. He instructed the Investigating Officer to secure three panchas, father of deceased Vinod Shettigar and photographer. He started inquest panchanama at 12.00 noon at District Prison in front of barrack No.1 near dead body of Vinod Shettigar. The dead body was lying in front of barrack No.1. The head was facing towards south and the dead body was lying in pool of blood. He found 15 injuries on the dead body and supported the case of the prosecution.
(xxv) P.W.25-Maruthi G. Nayak, deposed that he was working as Police Inspector, Udupi Town Circle since October 2008 till Novermber 2010. During his tenur as PSI, Udupi town Police Station, he registered complain lodged by one Yogeesh Narayan Shetty, where he had alleged that some unknown person assaulted Pitty Nagesh. He registered the complaint on 20.07.2010 in Cr.No.272/2010 for the offence punishable under Section 307 r/w 34 of the Indian Penal Code. He identified the true copy of FIR and complaint and the same were marked subject to objection as Ex.P.34 and Ex.P.35. He filed the charge sheet. The victim of Pitty Nagesh and accused by name Vinod Shettigar are rowdy sheeters of Udupi
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Town Police station and they have enmity against each other, and supported the case of the prosecution.
(xxvi) P.W.26-Jalaluddin, UTP No.10647 of Central Prison Bengaluru deposed that he knows accused No.6 (deceased Pitty Nagesh) and that he was a permanent resident of Ullal Village. During 2010, he was remanded to judicial custody at Hiriadka prison in a theft case at the Ullal Police Station and thereafter, he was shifted to Hiriadka prison and was there till 2011. During the said period, P.Ws.21, 26, C.Ws.13 to 15 and 17 and 18 were in prison. He was kept in barrack No.2 of Hiriadka prison. He further deposed that he knows accused Nos.1 to 4 and identified them through video conference and told their names individually. Accused Nos.1 to 4 were also kept in barrack No.2 of Hiriadka prison, where they formed their own group, threatening other inmates, including him, and P.W.26 abused accused No.1-Muttappa. In this regard, accused Nos.1 to 4 assaulted him with hands and legs in prison. Therefore, I complained to the Superintendent of prison and requested to change the barrack. Thus, the Superintendent of prison shifted him from barrack No.2 to barrack No.1. He informed Vinod
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Shettigar about the threat and assault made by accused Nos.1 to 4, and in turn, he informed the Superintendent of Prison and also advised accused Nos.1 to 4 not to repeat such acts in the prison.
That on 14.01.2011 at 6.45 a.m., the Jail authorities permitted us to use bathroom and toilet. All the inmates were kept in barracks at 8.00 a.m. but deceased Vinod Shettigar was outside from the barrack as there was delay. P.W.2-Dinesh Acharya locked barrack No.1 but accused Nos.1 to 4 stayed outside from barrack No.2 near the kitchen. Immediately, deceased Vinod Shettigar emerged from the toilet and sat in front of barrack No.1 passage, which was locked, and asked one Tippesh, an inmate of barrack No.1, to give him a cup of tea through the window. Accordingly, Tippesh served tea to him through the window. After having tea, Vinod Shettigar returned the empty cup through the window. Immediately accused Nos.1 to 4 attacked Vinod Shettigar. Accused No.1- Muttappa caught Vinod Shettigar from the backside. Accused No.2-Nagaraj stabbed on the stomach and neck and left shoulder of Vinod Shettigar. Immediately, Vinod Shettigar fell down and abused them in Tulu. At the same time, he and other inmates of barrack No.1
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021raised hue and cry. At the same time, accused Nos.2 to 4 stabbed Vinod Shettigar with a knife. While stabbing with knife to Vinod Shettigar, accused No.4 caused injuries to accused No.2. Thereby, supported the case of the prosecution. Nothing has been elicited in the cross- examination to disbelieve his statement.
(xxvii) P.W.27-Raghavendra .G., Photographer and Videographer at Sneha Media Shop, deposed that he joined the media shop one month prior to the alleged murder. About eight years ago, one day at 10.30 a.m. the PSI of Hiriadka Police Station called his owner over the telephone and told him to visit Hiriadka Prison to take photographs and videography of the scene of the offence at Hiriadka Prison. Accordingly, the owner sent him to Hiriadka prison at 11 a.m., where he videographed as instructed by PSI, in the presence of the Magistrate. He deposed that he saw the dead body of Vinod Shettigar and his body was lying on the ground floor with bloodstains. Police have issued a notice as per Ex.P.36. Thereafter, police took him to KMC Hospital, Manipal, where he videographed the dead body of Vinod Shettigar while conducting inquest panchanama and took the signature of P.W.27 on the inquest panchanama, which is
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021marked as Ex.P.29(c) and he partly turned hostile and partly supported the case of the prosecution.
(xxviii) P.W.28-Raghu @ Raghavendra deposed that during 2011 he was entrusted with cleaning at Hiriadka Prison. On 14.01.2011, he cleaned all bathrooms and veranda in front of barrack Nos.1 to 3 and went outside prison to throw the dust. As soon as he entered the prison, he heard hue and cry in front of barrack No.1. Hence, he rushed towards barrack No.1 and saw the injured Vinod Shettigar. He was murdered by someone. One of the Security Guards was also injured on his hand. He do not know who committed the murder of Vinod Shettigar, and thereby, he has turned partly hostile.
(xxix) P.W.29-Suresh Babu, Ex-Warder deposed that he was working as Warder at District prison, Udupi from 2009 to 2012. He deposed that his duty commenced at 6.30 a.m. to 8.00 a.m. and 9.30 a.m. to 1.30 p.m. and thereafter, at 4.00 p.m., till lockup, i.e., 6/6.30 p.m. He knows P.W.2-Dinesh Acharya, a Security Guard, P.W.1- Ambekar, the Superintendent of District Prison and P.W.4-Poornesh Aras, a warder at the District Prison. He knows deceased Vinod Shettigar as well as accused Nos.1 to 4. Vinod
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Shettigar was murdered in the jail on 14.01.2011 and on the same day at 6.30 a.m., he came to prison and attended duty. He left the prison at 8.00 a.m. and went to residential quarters. On the same day, at 8.10 a.m. he received a phone call from P.W.4, who told him that there was quarrel in jail and asked him to come to prison. Immediately, he rushed to prison and saw the dead body of Vinod Shettigar in front of barrack No.1 in a pool of blood. Accused Nos.1 to 4 were standing near the dead body and they were holding knives. Three staff and jail Superintendent were also present in the spot and this witness has partly turned hostile.
(xxx) P.W.30-Gururaj Nayak, Coolie deposed that he was in Hiriadka Prison in 2011 for the offence punishable under Section 379 of the IPC. He knows deceased Vinod Shettigar and accused Nos.1 to 4. During 2011, deceased Vinod Shettigar and accused Nos.1 to 4 were in District prison, Udupi. Vinod Shettigar was murdered in prison. Himself and Vinod Shettigar were in barrack No.1 while accused Nos.1 to 4 were in barrack No.2. He further stated that, about three years ago, accused Nos.1 to 4 committed murder of Vinod Shettigar. But he has not seen the manner of committing the murder, as he
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021was sleeping in barrack No.1. Apart from that, he does not know anything about the case. Thereby, this witness is treated as partly hostile.
(xxxi) P.W.31-Dr. Geethalakshmi P., Senior Scientific Officer, Regional Forensic Science Laboratory, Mangaluru deposed that on 22.01.2011 received 19 sealed articles from Hiriadaka Police Station in respect of Crime No.4/2011 through PC No.1038. The seals found on the articles received were intact and tallied with the sample seals. After examination of the said samples, item Nos.A, B, D, E, F, G, H, I, J, K, L, M, N, O, P, U, V-1, V-2, V-3, V-4, V-5 and W were stained with the 'O' blood group and also issued a serology report as per Ex.P.41 and thereby, supported the case of the prosecution. Nothing has been elicited to disbelieve the statement in the cross-examination.
(xxxii) P.W.32-Rakesh Shetty deposed that he was doing travel agency business in the name and style of Suraksha Travelling Agency. He knows the deceased Vinod Shettigar, who was murdered at Hiriadka Prison. On 19.01.2011 at 2.00 p.m., C.W.47 called him to Hiriadka Prison and he went there at 3.00 p.m. At that time, accused No.1-Muttappa Balegar was in the
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021custody of police and accused No.1 disclosed before the investigating officer that he would show the place, where he took the knife used for the commission of the murder of Vinod Shettigar, which was kept by one Raghu. Accordingly, the police have prepared a spot mahazar as per Ex.P.44 and taken his signature as per Ex.P.44(a). Nothing has been elicited to disbelieve the statement in the cross- examination.
(xxxiii) P.W.33-Vinayak Billav, PSI, Traffic Police Station, Karwar deposed that on 14.01.2011 at 9.15 a.m. he was on patrolling duty at Perdoor i.e., Anantapadmanabha Jatra Mahotsava, at that time, he received information from the police station, wherein the SHO told that there was assault in between prisoners at Hiriadka Prison. Immediately, he instructed ASI Laxminarayana to visit the Hiradka Police Station along with staff. He also visited Hiriadka Prison at 9.30 a.m. and saw the dead body of Vinod Shettigar in the pool of blood. He saw accused Nos.1 to 4 near Vinod Shettigar's dead body, as well as the blood stained knives in the hands of Muttappa Balegar, Shaikh Riyaz Ahmad, and Sharanappa Amarapura. On enquiry, the Superintendent of Prison stated that accused
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Nos.1 to 4 stabbed Vinod Shettigar with a knife and also assaulted P.W.2-Dinesh Acharya while he was attempting to rescue Vinod Shettigar. He was also informed that accused Nos.1 to 4 threatened P.W.1 and their staff. Therefore, none of the prison authorities have prevented their acts and supported the case of the prosecution.
(xxxiv) P.W.34-C. Mahadeva deposed that he was working as a Warder at District Prison, Udupi from 2009 to May 2011. He was residing in Staff quarters. His shift began at 6.30 a.m. and ended at 1.00 p.m., as well as 6.30 p.m. and 6.00 a.m. the following day. He knows P.W.1- Ambekar, Superintendent of District Prison, P.W.4-Poornesh Aras, Warder in the District Prison and the deceased Vinod Shettigar. Vinod Shettigar was murdered in the jail on 14.01.2011. On the same day, at 6.30 a.m., he finished his duty, left prison and went to his residential quarters. On the same day, at 8/8.30 a.m., when he was taking bath, P.W.4-Poornesh Aras rushed towards prison, saying that there was a quarrel in prison, immediately, after taking bath, he rushed to prison and saw the dead body of Vinod Shettigar in front of barrack adjacent to kitchen in the pool of blood. Accused
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Nos.1 to 4 were standing near the dead body, and they were holding knives (three persons were holding knives). Immediately, P.W.1 directed to shift injured-P.W.2 to the hospital for treatment. Accordingly, he and P.W.14 Umesh Doddamani shifted him to the Government Hospital for treatment, and he was treated partly hostile and also admitted in the cross- examination that it is true that accused Nos.1 to 4 committed the murder of Vinod Shettigar.
(xxxv) P.W.35-G. Krishna Murthy, Dy. SP, deposed that he was working as Circle Inspector from September 2008 to February 2012 in Brahamavara Circle. On 14.01.2011, at about 10.00 a.m. he received information through P.W.33 that there was a quarrel between the accused persons and the deceased in Hiriadaka Jail and accused Nos.1 to 4 assaulted and murdered the deceased Vinod Shettigar. Thereby, he visited the District Central Jail at about 10.45 a.m. and found Vinod Shettigar lying on the floor with a pool of blood near barrack No.1 and also saw accused Nos.1 to 4 holding knives in barrack No.1. Accordingly, he informed the learned District and Sessions Judge, Udupi and requested the judicial Magistrate to appoint a Judicial First Magistrate
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021under Section 176 of the Cr.P.C. since the deceased was a prisoner and the murder took place in the jail. Accordingly, 2nd Additional Civil and Judicial First Magistrate-Nandish-P.W.24 was appointed to hold enquiry under Section 174 of the Cr.P.C. as per Ex.P.46. Thereafter, he called P.W.24 through phone to the District Prison and also to the video and photographer and inspected spot and requested the District Judge to hold enquiry under Section 174 of IPC as per Ex.P.46 and the same was given to Magistrate as per Ex.P.47. Thereafter, after enquiry, seized clothes of the accused persons as per Ex.P.48 and recovered seven items on the spot and drawn inquest mahazar as per Ex.P.29, recorded the statement of the accused persons and after investigation, he filed charge-sheet and supported the case of the prosecution.
Based on the aforesaid material on record, the learned Sessions Judge proceeded to convict accused Nos.1 to 4 for the offence punishable under Sections 302, 326, 353 and 506 read with Section 34 of the IPC and acquitted accused No.5 for the offence punishable under Sections 302, 120B and 109 read with Section 34 of the IPC and petition against accused No.6 was dismissed as abated.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 202125. Though learned counsel for accused Nos.3 and 4 vehemently contended that there are no specific allegations against accused Nos.3 and 4, the fact remains that the unfortunate incident took place in the Hiriadka Prison on 14.01.2011 at about 6.00 a.m. as per Ex.P.1-complaint. P.W.2 is the eye witness to the incident and has sustained injuries while trying to rescue the deceased in the incident and as per Ex.P.7-Wound Certificate issued by the doctor, injuries sustained by P.W.2 are grievous in nature. The evidence of P.W.1 depicts that M.Os.1 to 4 were found in the hands of the accused and the same was supported by the evidence of P.W.33-Vinayak Billava and P.W.34-C. Mahadeva. It is also not in dispute that the blood stained clothes of accused Nos.1 to 4 and three knives were recovered at the instance of P.W.3 from the accused at the spot as per Ex.P.2. It is also not in dispute that the deceased was murdered in the prison near barrack No.1 by accused Nos.1 to 4 and the same was seen by injured-
P.W.2, who was eye witness to the incident and same was deposed by P.W.26-Jalaluddin. P.W.28-Raghu @ Raghavendra deposed that accused Nos.1 to 4 were holding blood stained
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021knives in their hands and also stated by P.W.33-Vinayak Billava and P.W.34-C. Mahadeva.
26. P.W.9-Doctor, who conducted postmortem deposed that he was working as Professor of HOD in Department of Forensic Medicine, Kasturba Medical College, Manipal during the year 2011. On 14.01.2011, at about 4.00 p.m., he received a requisition from Hiriadka Police Station through Balakrishna PC to conduct postmortem on the dead body of Vinod Shettigar.
Accordingly, he conducted the postmortem examination over the dead body of Vinod Shettigar between 4.05 p.m. and 6.30 p.m. in the mortuary of the hospital.
27. In Form No.146(i) and (ii), it was alleged that on 14.01.2011 at 8.15 a.m. in District Prison, Anjaru Village, the prisoner Mr. Vinod Shettigar was stabbed by using knives and was murdered by Muttappa, Nagaraj, Shaikh Riyaz Ahamad and Sharanappa with the common intention. Thereby, the deceased sustained 26 injuries as per Ex.P.24-Postmortem report, which reads as under:
"THE FOLLOWING EXTERNAL INJURIES WERE PRESENT ON THE BODY:
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1) A glancing chop wound measuring 6x3.5 cm x bone deep was present over the centre of the forehead, directed from above downwards with contused lower margin and bevelling of the upper margin. It was situated 3 cms above the root of the nose.
2) Abrasion, reddish in colour measuring 3x 1.2 cm was present over the forehead on the right side, situated 0.5 cm above the midpoint of the right eyebrow.
3) A horizontally placed linear chop wound with contused margins measuring 7x0.3 cm x bone deep was present over the left side of the head over the temporal region, situated 6 cms above the left mastoid process.
4) An obliquely placed chop wound with contused margins measuring 6x0.5 cm x bone deep was present over the back of the head, situated 8 cms above the external occipital protuberance.
5) A horizontally placed incised wound (cut throat) with clean cut margins measuring 14x3 cm x muscle deep was present over the front of the neck extending from the midline to right side, situated 11 cms above the suprasternal notch. The
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wound resulted in the transection of the right external jugular vein.
6) A horizontally placed chop wound with contused margins measuring 8x3.5 cm x muscle deep was present over the front of left shoulder, situated 2 cms inner to the left shoulder tip.
7) A horizontally placed oval shaped stab wound (penetrating incised wound) with clean cut margins measuring 3x1.2 cm (On approximation of the wound it measured 3.5 cm in length) was present over the front of the chest on the right side extending from the midline to the right side of the chest in fifth intercoastal space perforating the sternum in the midline and contusing the soft tissues infront of the pericardium. It was situated 15 cms below the suprasternal notch.
8) An obliquely placed stab wound (penetrating incised wound) with clean cut margins measuring 3.5x1.2 cm (On approximation the wound measured 4 cms in length) was present over the outer aspect of the chest on left side situated 11 cms below the anterior axillary fold. This penetrated the upper part of the lower lobe of the left lung with the injury to lung measuring 2x0.5 cm x 1 cm deep.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 20219) An obliquely placed stab wound (penetrating incised wound) with clean cut margins measuring 3x1.3 cm (On approximation wound measured 4 cms in length) was present over the outer aspect of abdomen on the left side, situated 5 cms below injury No.8. It penetrated the diaphragm in the 8th intercoastal space, incising the left adrenal gland and incising the spleen into two halves.
10) An obliquely placed "Y" shaped incised wound with clean cut margins measuring 19x 0.3 cm with a branch measuring 7x0.3 cm was present over the front and side of the abdomen on the left side in its lower third, situated 7 cms above the left iliac crest.
11) An obliquely placed stab wound (penetrating incised wound) with clean cut margins measuring 3x1.5 cm (On approximation wound measured 3.3 cms in length) with tailing at its lower margin. It was present over the front of the abdomen in its left lower quadrant with protrusion of omental fat. The wound extended into the abdominal cavity and perforated the jejunum. The wound was situated 9 cms above the left anterior superior iliac spine.
12) A horizontally placed incised wound with clean cut margins measuring 7x0.8 cm was the back of the left shoulder, situated 5 cms inner to the tip of the left shoulder.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 202113) An obliquely placed chop wound with contused margins measuring 6x0.5 cm x bone deep was present over the back of left shoulder, situated 4 cms below injury number 12.
14) An obliquely placed stab wound (penetrating incised wound) with clean cut margins measuring 3x1 cm x muscle deep (On approximation wound measured 3.5 cms in length) was present over the back of the right side of the chest, situated 3 cms away and 10 cms below from the tip of the right shoulder.
15) An obliquely placed stab wound (penetrating incised wound) with clean cut margins measuring 2.5x1 cm x muscle deep (On approximation wound measured 3 cms in length) was present over the outer aspect of left flank, 4 cms above the iliac crest.
16) An obliquely placed chop wound with contused margins measuring 3x1.5 cm x muscle deep was present over the back of the abdomen on left side in its lower aspect, situated 3 cms above and 2 cms to left posterior-superior iliac spine.
17) An obliquely placed chop wound with contused margins measuring 5.5x3 cm x muscle
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021deep with bevelling of its upper margin was present over the outer aspect of the right arm in its lower third. It was situated 5 cms above the right elbow joint.
18) An obliquely placed stab wound (penetrating incised wound) with clean cut margins measuring 5x2.5 cm x muscle deep (On approximation wound measured 5.3 cms in length) was present over the front of the right forearm in its upper third, situated 2 cms below the right elbow joint.
19) An obliquely placed incised wound with clean cut margins measuring 6x0.8 cm was present over the back of the right forearm in its middle one third, situated 10 cms below right elbow joint.
20) An obliquely placed chop wound with contused margins measuring 5.5x2 cm x muscle deep was present over the back and outer aspect of the right forearm in its lower third, situated 4 cms above the right wrist joint.
21) An obliquely placed chop wound with contused margins measuring 13x4 cm x bone deep was present over the front of the left leg. situated 12 cms below the left knee joint.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 202122) An obliquely placed chop wound with contused margins measuring 3x1.5 cm x muscle deep was present over the outer aspect of left buttock, situated 15 cms below and 3 cms inner to left posterior-superior iliac spine.
23) An obliquely placed chop wound with contused margins measuring 3x1.3 cm x muscle deep was present over the outer aspect of left thigh in its upper third, situated 6 cm below the injury number 22.
24) Two (24A and 24B) obliquely placed stab wounds (penetrating incised wounds) with clean cut margins each measuring 5x1.5cm x muscle deep (On approximation each wound measured 5.5 cms in length) 0.5 cm apart were present over the back of the left thigh in its middle third, situated 23 cms above the left knee joint.
25) An obliquely placed chop wound with contused margins measuring 13x6 cm x muscle deep was present over the outer aspect of the left elbow joint.
26) An obliquely placed chop wound with contused margins measuring 16x5 cm x bone deep was present over the front of left hand extending from the base of the thumb to proximal
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021interphalangeal joint of left middle finger with associated fracture of the underlying bones."
The evidence of the doctor and the opinion in the postmortem report clearly depicts that the deceased died due to Heamorrhage secondary to multiple chop, stab and incised wounds consistent with the history provided. Thereby, the homicidal death of Vinod Shettigar is proved.
28. The evidence of P.W.2, Security Guard in Hiriadaka jail, who is an eye witness to the incident, the evidence of other criminal, namely P.W.26 and the evidence of P.W.33-Vinayak Billava, PSI, Traffic Police Station, Karwar and P.W.34- Mahadeva, Warder, Central Prison clearly depicts that on the date of the death of Vinod Shettigar, they have seen accused Nos.1 to 4 holding knives and standing near the dead body of the deceased. Thereby, there is no dispute that the murder of the deceased took place in the jail/prison.
29. Though learned counsel for the accused/appellant submits that the prosecution has not proved the motive for murder of the deceased, the same cannot be accepted in view of categorical evidence given by P.W.26- Jalaluddin, who was in
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021prison in Barrack-I along with the deceased Vinod Shettigar, who deposed that he knew accused Nos.1 to 4 and he can identify them. He further deposed that he knows accused Nos.1 to 4 and identified them through video conference and told their names individually. Accused Nos.1 to 4 were also kept in barrack No.2 of Hiriadka prison, where they formed their own group, threatening other inmates, including him, and P.W.26 abused accused No.1-Muttappa. In this regard, accused Nos.1 to 4 assaulted him with hands and legs in prison. Therefore, P.W.26 complained to the Superintendent of prison and requested to change the barrack. Thus, the Superintendent of prison shifted him from barrack No.2 to barrack No.1. He informed Vinod Shettigar about the threat and assault made by accused Nos.1 to 4, and in turn, he informed the Superintendent of Prison and also advised accused Nos.1 to 4 not to repeat such acts in the prison.
30. That on 14.01.2011 at 6.45 a.m., the Jail authorities permitted the prisoners to use bathroom/ toilet. All the inmates were kept in barracks at 8.00 a.m. but deceased Vinod Shettigar was outside from the barrack as there was delay. P.W.2-Dinesh Acharya locked barrack No.1 but accused
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Nos.1 to 4 stayed outside from barrack No.2, near the kitchen.
Immediately, deceased Vinod Shettigar emerged from the toilet and sat in front of barrack No.1 passage, which was locked, and asked one Tippesh, an inmate of barrack No.1, to give him a cup of tea through the window. Accordingly, Tippesh served tea to him through the window. After having tea, Vinod Shettigar returned the empty cup through the window.
Immediately, accused Nos.1 to 4 attacked Vinod Shettigar.
Accused No.1-Muttappa caught Vinod Shettigar from the backside. Accused No.2-Nagaraj stabbed on the stomach and neck and left shoulder of Vinod Shettigar. Immediately, Vinod Shettigar fell down and abused them in Tulu. At the same time, he and other inmates of barrack No.1 raised hue and cry.
At the same time, accused Nos.2 to 4 stabbed Vinod Shettigar with a knife. While stabbing with knife to Vinod Shettigar accused No.4 caused injuries to accused No.2. The injuries sustained by accused No.2 reads as under:
"1. Cut injury over dorsum of right hand of size 1.1/2 cm x ¼ cm x ½ cm, bleeding present.
2. Cut injury over lower 1/3 of left forearm near wrist joint on radial side of size 1.1/2 cm x ½ cm x ½ cm.
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3. Cut injury over lower 1/3 of left thigh at antero lateral aspect of size 8 cm x 2 cm x muscle depth. 1/3 thickness of muscle was cut. Bleeding present.
- Refused admission. Treated as O.P. patient."
31. P.W.6-Dr. Nityanand Nayak, who treated accused No.2 has issued a wound certificate as per Ex.P.19, which depicts the history of the assault by a person named Vinod Shettigar by means of a knife at 8.30 a.m. on 14.01.2011 at the District Jail, Udupi and deposed that there are three cut injuries and refused admission as the injuries sustained by accused No.2 were simple in nature and treated him as an out patient. Thereby, evidence of P.W.6 clearly depicts that there was a quarrel between the accused persons and the deceased on 14.01.2011 at about 8.00 a.m. and the assault of the deceased by the accused persons and injuries sustained by accused No.2 are also not in dispute.
32. The evidence of P.W.26 clearly depicts that at the time of assault by accused Nos.1 to 4 to deceased with the knives, P.W.2-Dinesh Acharya came from the toilet side by
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021hearing screaming and tried to rescue Vinod Shettigar. But accused No.3-Riyaz Ahamad assaulted, stabbed and caused injury to PW.2.
33. P.W.6-Nithyanand Nayak deposed that he has issued a wound certificate in respect of P.W.2 as per Ex.P.17.
He deposed that P.W.2 was accompanied by U.R. Doddamani, Warder, District Jail, Hiriadaka, Udupi, reporting certain injuries said to have been caused to right elbow joint with sharp weapon while avoiding fight between prisoners-Vinod Shettigar and others inside the District Jail, Hiriyadka, Udupi on 14.01.2011 at 8.30 a.m. He also deposed that P.W.2 sustained cut injuries over right elbow joint and opined that the injuries sustained by P.W.2 were grievous in nature.
34. The evidence of P.W.26 is also corroborative with the evidence of P.W.2, who was eye witness to the incident.
Thereby, evidences of P.W.26-Jalaluddin and P.W.12-Suresh Basappa Banda made on 14.01.2011 clearly depicts that accused Nos.1 to 4 assaulted with hands to P.W.26-Jalaluddin and on the request made by P.W.26-Jalaluddin, he was shifted from barrack No.2 to barrack No.1. P.W.26-Jalaluddin has
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021complained to Vinod Shettigar about the assault made by accused Nos.1 to 4 and Vinod Shettigar has warned accused Nos.1 to 4. Thereby, enmity was developed between Vinod Shettigar and accused Nos.1 to 4 inside the jail.
35. P.W.12-Suresh Basappa Bandal deposed that when he was taking bath, he heard the voice of P.W.4, who shouted that there was quarrel between the deceased and accused Nos.1 to 4. When he rushed to the prison at 9.00 a.m., P.W.4 stated that accused Nos.1 to 4 have committed murder of the deceased Vinod Shettigar. In the statement recorded on 14.01.2011 of P.W.26, he has supported enmity as stated by him in his evidence. Thereby, the motive of the murder is proved.
36. P.W.21-Guruprasad Shetty also deposed that he and Vinod Shettigar were in Hiriadaka Prison for allegation of attempt to murder of accused No.6-Pitty Nagesh. Prior to murder of Vinod Shettigar, accused Nos.1 to 4 were harassing i.e., assaulting other prisoners in respect of TV remote and other matters and in this regard, P.W.26-Jalaluddin and one Vadiraj came to deceased Vinod Shettigar and told him that
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021accused Nos.1 to 4 were harassing them. Thus, Vinod Shettigar brought this aspect to the superintendent of prison and Superintendent of prison directed accused Nos.1 to 4 to rectify their mistakes. He further deposed that on 11.01.2011, again there was quarrel between P.W.26 and accused persons and the accused persons assaulted P.W.26-Jalauddin with hands.
Thus, Vinod Shettigar came and rescued P.W.26 and warned the accused persons not to repeat such acts in future.
Immediately, the superintendent of prison came and shifted P.W.26-Jalaluddin from barrack No.2 to barrack No.1.
37. PW.26 further deposed that on 14.01.2011, in between 6.45 am and 8.00 am all the inmates of the jail were outside the barrack for toilet. P.W.21, P.W.2 and other inmates of barrack No.1 were kept in the barrack. But, deceased Vinod Shettigar was outside the barrack. P.W.2-Dinesh Acharya locked the barrack No.1. Accused Nos.1 to 4 were outside the barrack No.2 saying that they want to attend the Court on that day. At that time, Vinod Shettigar came from toilet and was sitting infront of barrack No.1 in the passage. One Tippesh, an inmate of barrack No.1 gave him a cup of tea through window.
After having tea, Vinod Shettigar returned the empty cup
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021through the window. Immediately, accused Nos.1 to 4 attacked Vinod Shettigar. They were holding knives. He further deposed that accused No.1-Muttappa caught hold of the neck of Vinod Shettigar and pulled him on the ground. Accused No.2-Nagaraj stabbed on the stomach and neck and left shoulder of Vinod Shettigar. At the same time, himself and other inmates of barrack No.1 raised hue and cry. Accused No.3-Riyaz Ahmed stabbed on the chest and stomach of Vindo Shettigar with knife. Vinod Shettigar abused the accused in tulu language saying "£Á¬Ä¯Éà §ÄqÉèA¨É (£Á¬ÄUÀ¼Éà ©r)". Accused No.4-Sharanappa also stabbed with knife on the chest of Vinod Shettigar. During the scuffle, accused No.2 also sustained injuries on his leg. Accused Nos.1 to 4 also abused Vinod Shettigar saying in tulu language that "§ÄqÉÆèaÑ PÉgÉÝ ¥ÁqÉè (©qÀ¨ÉÃr PÉÆAzÀÄ ºÁQ)".
38. The said evidence is corroborated by the evidence of P.W.23-Chandrashekar Hegde who deposed that there was enmity between Vinod Shettigar and Pitty Nagesh. During 2010, he (witness) had been to the tea shop of one Dinesh Shenoy. At that time, Pitti Nagesh was there. There was heat
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021discussion between Pitty Nagesh and others. Pitty Nagesh proclaimed Vinod Shettigar was remanded to Jail. He has his men in the jail and they would finish him. If Vinod Shettigar is released from Jail, then he would commit murder of Pitty Nagesh. Thereafter, he came to know about murder of Vinod Shettigar through newspaper. Thus, the enmity between accused Nos.1 to 4 and deceased-Vinod Shettigar is proved.
39. P.W.24-R.P.Nandeesh, Senior Civil Judge and Member Secretary, DSLA, Chamarajanagara, deposed that on 14.01.2011 at 10.30 am, he received the requisition from the Police Inspector, Brahmavara Circle, requesting him to conduct inquest mahazar on the dead body of Vinod Shettigar. He secured three panchas and the inquest was drawn as per Ex.P.29.
40. With regard to availability of M.Os.1 to 3 in the prison, it is relevant to consider the evidence of P.W.15-Harish Rao, AHC DAR, Udupi, who deposed that he was working in District Armed Force, DAR, Udupi, since 18 years. As per the directions of his higher authorities, he used to bring the accused from jail and produce them before the Court. On
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 202113.01.2011, himself and C.W.27-Sachin Shetty had been to Karkala to escort accused No.1-Muthappa. After completion of Court case, accused No.1-Muthappa went to the toilet inside the Court premises for attending nature call at about 6.00 pm. They left Karkala at 6.15 pm and reached Hiriadka prison at 7.15 pm and handed over accused No.1 to the Prison authorities. In the cross-examination, the witness deposed that the measurement of leading chain is about 3 to 4 metres.
They used to keep the chain in their hand. During urination, the chain was connected to his hand. He did not enter the toilet. C.W.27 also did not enter the toilet and that they came by bus from Karkala to Athradi.
41. P.W.19-Laxminarayan, retired ASI, Sastan, Udupi, deposed that he was working as ASI, Hiriadka Police Station from 2009 till 2013. On 19.01.2011, C.W.48 deputed him and C.W.42 to secure accused No.5-Raghavendra in Crime No.4/2011 of Hiriadka Police Station. On 20.01.2011, at 9.00 am, on Manipal-Alevuru road, Near Rajiva Nagar cross, near bus stop, a person was sitting at bus stop in suspicious manner. When enquired he told his name as Raghavendra.
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Thus, he secured him and produced before the Investigating Officer at 10.00 am along with report.
42. P.W.28-Raghu @ Raghavendra deposed that he was at Hiriadka prison during 2011. He was entrusted with the working of cleaning the prison. On 14.01.2011, he cleaned all bathrooms and varanda in front of barrack Nos.1 to 3 and went outside the prison to throw the dust. He was treated as partly hostile. But, in the statement recorded in the jail, he has deposed that he was informed by P.W.4 that there was a quarrel between accused persons and the deceased. When he went to the spot, he found the deceased in pool of blood and accused No.1 warned all the inmates of the jail as well as the police officers that whoever comes to the rescue of Vinod Shettigar will have to face the same fate. Thereafter, accused person threw the weapons-M.Os.1 to 3 near the dead body and surrendered to the police.
43. At this stage, it is relevant to note that the complainant-P.W.1-P.S.Ambekar, who was working as Superintendent of District Prison, Udupi between 25.10.2009 to 18.01.2011 has written the letter dated 25.01.2011 to the Circle Inspector, Brahmavara Circle, Brahmavara, marked as
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021Ex.P.4 stating that the knives used in the murder of Vinod Shettigar does not belong to the prison.
44. The unfortunate incident which resulted in the homicidal death of the deceased took place inside the prison and the evidence on record clearly depicts that there are no sufficient jail staff and thereby, the police could not control the under trial prisoners. It is a sorry state of affairs in Hiriadka Jail and the Jail has become a "den of criminals" The unfortunate incident happened inside the jail at about 8.30 am in the presence of other inmates. They lose confidence with regard to their safety in the jail and the present incident is nothing but staling of jail as well as Home Department.
45. It is high time for the State Government to take appropriate steps for the safety and protection of the inmates of the jails and ensure good management of the prisons and prisoners. This Court has experienced that unfortunate incidents have happened not only in Hiriadka prison, but also in the Central Jail, Shivamogga, where, the officers working in the prison assaulted the prisoners. In the said attack, the prisoners sustained fractures and ultimately, the prison
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021authorities were transferred to some other jail. This clearly indicates that the Home Department has not concentrated about the discipline and management of the Prisons. Thereby, this kind of incidents are occurring time and again. Therefore, it is high time for the State Government to open its eyes and ensure proper management of the Prisons and safety of the prisoners. If these kind of incidents occur in the jails, it is nothing but indirectly encouraging goondaism in jail, which cannot be tolerated.
46. By careful perusal of the entire material on record, and after re-assessing the oral and documentary evidence on record, it clearly depicts that the crime has happened inside the jail, that too during early morning in the presence of other inmates. P.W.2 is the injured eye witness. Except total denial, the accused persons have not stated anything in the statement recorded under Section 313 of the Code of Criminal Procedure and have not offered any explanation. When the initial burden is discharged by the prosecution, that the murder took place inside the jail and weapons used in the crime were recovered at the spot near the dead body and they do not belong to the jail, an adverse inference has to be drawn against the accused
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021persons and our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported (2020)1 SCC Crimes 381, wherein, at paragraph 11, it is held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
Though a specific contention was taken by the learned counsel that accused No.4 was not holding any weapon, the fact remains that either in the statement recorded under Section 313 of the Code of Criminal Procedure or in the cross-
examination of prosecution witnesses, the accused No.4 has not taken any specific defence that he was not holding any weapon. The evidence of prosecution witnesses stated supra, clearly depicts that, accused No.1-Muttappa caught hold of the neck of Vinod Shettigar and pulled him on the ground. Accused No.2-Nagaraj stabbed on the stomach and neck and left
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CRL.A No. 1712 of 2021 C/W CRL.A No. 1074 of 2021shoulder of Vinod Shettigar. Accused No.3-Riyaz Ahmed stabbed on the chest and stomach of Vindo Shettigar with knife. Accused No.4-Sharanappa stabbed with knife on the chest of Vinod Shettigar. During the scuffle, accused No.2 also sustained injuries on his leg. Thereby, the contention of the learned counsel that accused No.4 was not holding any weapon, cannot be accepted.
47. For the reasons stated supra, the point raised for consideration the present Criminal Appeals is answered in the negative holding that the appellants/accused Nos.3 and 4 have not made out any case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge. Thus, no interference is called for in exercise of appellate powers under the provisions of Section 374(2) of the Code of Criminal procedure.
48. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal No.1074/2021 filed by accused No.3 and Criminal Appeal No.1712/2021 filed by
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the accused No.4 are dismissed as devoid of any merit.
(ii) The impugned judgment of conviction dated 26.03.2019 and the order of sentence dated 28.03.2019 passed in Sessions Case No.54/2011 on the file of the Principal District and Sessions Judge, Udupi, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Para Nos.1 to 9 ....S* 10 to 24(xxv)...kcm 24 (xxxvi) to 36...MBM 37 to end .....kcm