Karnataka High Court
Basavaraj @ Basavaraju @ Ganesha vs State By R T Nagar P S on 23 December, 2010
Bench: V.G.Sabhahit, K.Govindarajulu
IN7THEHKH{COURTCMTKARNHDMQXHTBANGALORE
DATED THIS THE as" DAY OF DECEMBER .20;
PRESENT
THE HON'BLE MR JUsT1cE.v~e.sA;B@1'T "
AND
THE HONBLE MR JUsT1'CE'T:% GOVINDARAJDIB
CRIMINAL AppEAL%_N§;»v1M823/2006B,
BENNEEN:
BASAVARAJ @ BASAVARAJU -
@GANEsHA " M
S/0 LATE DYA":Vx'¥?P«%\ A x
AGED ABOUT "
CENTRAL ERIBDM A % T' _
BANGALORE 560' 109% ..APPELLANT
coNv1c;T ND ; T608 ,f: C).:'_'1jjA_i\I.("VxVAIV,ORE
_ (BY 112' 'S£f{INuI'V2-".S__,___ADVOCATE]
VMANb:_».V"«N
13.8.', " ~ '
A REPREBENTED BY PUBLIC
'~.__PRQSECI.j'1'OR. .. RESPONDENT
P M NAWAZ, ADDL spp) [U THIS APPEAL IS PREFERRED BY CONVICT/APPELIJXNT/ACCUSED THROUGH 'THE SUPERINTENDENT, CENTRAL PRISON. PARAE5PANA.A4 AGRAHARA, BANGALORE AGAINST THE JU;DC~MEjNT_. DT.23/24.01.06. PASSED BY P0,, F'TC--V, E'L;ORE2iVCe1T¥_'*P IN S.C.NO.43/05 OONVIOTING-..j"i ' CONVICT/ACCUSED/APPELLANT' FOR THE. .(jF3?_E',NC.E P/U/S 302 OF IPC AND SENTENCEINPG' UNDERGO IMPRISONMENT FOR LIFE AND» «ALSOQ LIABLE TO PAY A PINE .OI?._ RS.'5.0CO/--3V'VVF'AOR,_VVTHE OFFENCE P/U/S 302 OF IPC-«,I'."D., TO PAYf:THE PINE HE SHALL FURTHER TO UNOERGO IMPRISONMENT FORBMONTHS. " ' THIS APPEAL cOMIN'G'-ON' FOR"_=,HEARING AND BEING RESERVED FCJR=. 'PRONOUNi;:EMENT OF JUDGMENT _,T'H_IS. ;DAY_;;«: -..GOjV1N1*;ARAJULU J., DELIVERED TEr1Ei*""O,LI,.OW"iNG;.. CO"nviCtiOnV'v'O_'f"' for an Offence under Section 1\iE'.43/O5 is challenged in this g E A' ..... .. V ' 2, 5 Mohammed Faizulla is a milk Vendor representihgfiefitage Company. PW.2O was Supplying Vt*~..__ 'nTi1k 21:0 Egszvihaydri Bakery, a bakery Situated at Suitanpalya Main Road. On 31.7.2004 at 7.00 AM, he E" to bakery to Supply milk, finds that the bakery is closed, door was also closed. So he calls upon_.._the owner of the bakery Chandrashekhar {PW1) info1"rri:s»u about the closure of the bakery. Informs e' no person to receive the milk. It is' this intimatio-n_ otfthek-V closure of the Sahayadri Bakery law into motion in the facts of"tv.hi's,case.'--~
3. PW.1 is a at Manclya.
He, While a:=A._V along with his wife, r>w-- Bakery. PW.1 claims intiniation from PWZO, he visited the .bakery._e the bakery is locked, get a set of' 'keys house, opened bakery found Worker of the bakery being dead blood on the floor of the inner room of the _bakei'y. .--__'SO;:;he contacts police and files a complaint V'i.'~44"'V:nar1:ed as EX.P. 1. This complaint of PW1 is received by .'.siy'PW:1'i8'tA--on 31.7.2004 at 12.00 PM and registered in " No.221/04 for an offence under Section 302 IPC. PW.18 takes up investigation of the case. PW.18 contends that he visited the scene of offence, conducted the spot Mahazar in the presence of the panchay.atdars..vv Conducted inquest on the dead body of ~ drawing a mahazar as per EX.P.23.-He Ru post mortem over the dead body Officer attached to A."Medi.ca1: "5c'o11e"ge. Contends that he appointed-'"staff'"to search the accused. On 5.8.2004? fifiroduced before him, interrogat.e-do; Ifecoifded statement. In the Vo1Lg.Vn't'aH1'YA agreed to produce the blood stained_ "of the bakery. So in the presence of thevupanchayatdars, he conducted recovery oi" .these:""'itWo*~articles under two separate mahazars, of the doctor as to the cause of the death; C_o11ec'ted further information in the form of of"the SO, Statement of the witnesses thereafter the charge sheet. Contending accused while i along with Anjinappa. had picked up quarrel, assaulted in the bakery, committed murder in bakery. Accused totally denies the case of prosecution.
4. Accused has pleaded fontriial. ;l?ro_seAc::ti.oI1.Tish'3 permitted to lead evidence. PWS arev_-v_eAXan1ined.l"
EX.P.l to R29 are marked. "'~S:t'atemer'1t 313 Cr.P.C. is recordedby th.e'ltrial:tllud.ge. Alftervhearing both the sides, Court below under Section 302 IPC.
for the appellant and also learned it .. ,, " * " . advocate for the accused substantiates the faopleilant with the following subm1'.ssions:--
Caseon circumstantial evidence. Circumstances .. _. .. 1 ll" -- .. 1-"e£ie.d are." .\ a._(a)_last"seerae flew l ={b.)--abscondence [(3) recovery
7. None of these circumstances are proved)' 1 "
no material evidence to prove the '(:"i1'Curri_Statn:(i:eS_ rtevliedgg by the State. So, accused is acquittal. In the alternative; he:V'substanti'ates t1'tat"e\;en if Court Comes to the there "yvas an assault by the accusedideceased, the quarrei between' is in regard to payment shop, it reveals petty in a sudden fight there So the case cannot come jwvlthintétix-e_' ambit' of Section 302 IPC, at best may tvI'1e._a1"r1t)wi't"éof Section 304 Part II IPC. Place SHIVA KARAM PAYASWAMI TEWAR vs A STATE oi?' MAHARASHTRA reported in 2009 AIR sow " So; iaray for an order of acquittal.
8. Learned Special SPP Sri P M Nawaz, while supporting the Judgment of lower court contend--s"'th'ere.d'< is admission of accused working along with'..':decea"se'dt'_'"* V' After the incident, accused is absconding. the accused at Shahpur. This from the usual place of V recoveries. So the circuimstancés'.darepldprovedlH"
9. We {}1a\;f;e:pI'*gi\i:en lfcorisildderation to the contentions 'for the parties and .recorVd.VHaving regard to the contentioxrzspllurgedgpthe.following point would arise for our deterniinatioirv A it it ""N:lfietlier.conviction recorded by the Court below for an_Voffen'ce;--'1inder Section 302 is sustainable?"
d PW.l is the husband of PW.2. He states receiving the phone call of bakery being not opened on 20.7.2004. Thereafter, reached the bakery, found the bakery being locked, got another set of keys opened the doors of the bakery. On opening bakery:.."'he found in the oven room, body of Anjinappa spread in the room. Intimated the police. V S' examination nothing is brought :=..out.'-A-to? At actions of PW1. Questions in paragraph examination would support ..:case of State of Anjinappa and the accvu'se'd. the bakery, prior to20.7.2004.
11-.._ is the husband of PW1.
She speaksgof under the name and style,Sa.hyad1*i._.13ake'ry. Accused and deceased were bakery. They were attending looking expenditure of the bakery.
Smt Gowrarnma is the mother of the "{decea«sgedV.' She states accused working in bakery. She .___"'S'."sta;tes of finding Anjinappas body in bakery. 9 PW4 ~ Shekar ~ elder brother of mijinappa in__._the course of evidence states that the decease'd'--».vvas..'4 working in the bakery. He has seen the deadbody 0' brother. He also states that there:was*-a rod at PW5 Vittalshetty states he runsisl__beeda_--._.sIt1op. 0' 30.7.2004, the accused and his beeda shop, it was "duarrel between them in regard /- that was payable for further adds that he from the beeda shop. evidence that this witness aft._er qularrel"bake1*y"was closed. Owner of the bakery 'brough t-separate key and opened the bakery.
--:"Pr_aveenWduring the course of his evidence working at Sahyadri Bakery for a 0 00 _perio"d. of._'two:l1nonths. He sought for 8 days leave to go ~S.h.aba1*imalai. He was asked to get another person. was working in a bakery at Wilson Garden, 'naccused sought for work. Accused was brought got admitted for work at the bakery of PW2. He further adds that by the time he returned from Shaba1"itI1alai;vVr. accused had left the job on the ground thatztihe ll payable to him was Very less.
PW 7 m-- Raajigowda states bakery the name and style of L G 'for six years at Gulbargagi his rnnning bakery at Shahapur. for work, on 4.8.2004 in bakery pws - statejjsjl7acculs'et1':»§soaght for work. So had for Work. Witness also addslthatl aft.er police have come up in search; of the aceiised. V' states accused has produced have seized them while drawing _mahazar»--._'lL'XlP.9. He signed the mahazar as per din the cross examination, he admits M07 is l.l_Ajge'iv1_verally used by the electricians. PWIO -- is the Doctor who conducts the PM. PW. 11 is a witness to mahazar EX.P.1_3. He c1o_.._not support the case of the State of Police conducting..:"the.A4 mahazar at the instance of the accused. V' the Witness hostile. the case of th'e"State",of keys at the instance of accused while ° suggested.
PW 12 -- Srinivas, of PW} 1 PW 13 is the It is in his evidence that of the SO on 16.8.2004. it it 1. t FSL, Bangalore.
He statestoi has given the opinion of these~a_rticies.. U V' "
Chandrashekar is the PC who has " body of Anjinappa.
""'PW.;:I6-.iicollects report from the doctor and H 'A A44"'pui"od;tices"the articles at the FSL for examination. 17 H Venkatesh during the course of his T "--«:ie*sV/'icience states that on 3.8.2004, he took up the investigation of this case, appointed staff to trace .._out the accused and learnt credible information accused staying at Gulbarga. So he went it inquired With SLV Bakery. Thereafter 'on V 11.00 PM, contacted the owner of Gulbarga and learnt about there and he was arrest:e€1é_ the 10.
PW 18 - C Vijayagopai who takes up the in his evidence that according milk, the bakery was to the police, after opening and found the dead body; He sent the"cornp1aint received for registration to '=.__Station; Thereafter, continued the i1'1V_estigati:on_, v.f'_co"nducted the SO mahazar in the V it _presence»-._'of'the panchas. sent the body for post mortem Got the post mortem examination done medical officer; Appointed staff to trace out the "-«iiaccfused; PS1 has produced the accused before him. /{£.--~""
Thereafter. he questioned and recorded the voluntary statement ~-- Ex.P.28, conducted the seizure ma1{1a2:ars';,,A4 seized the blood stained clothes, pipe keys!' V' accused has not given any Voluntary statement'.'-.nox'g recovery is made. 9 A PW 19 - Sudha is a visit'or"of Sahyadri It is found in her evidenjcegg andvfxnjvinappa were working in the 4"'.fv'.v'»'__Accused and Anjinappa were pwzo 'milk to the bakery, narrates it led him to make a call tczdtlie of the bakery having come and opened H is the Witness to inquest over 'd¢ad':ho.dy'§V.t'VV' t t K T Venkatesh is the PC who carries the " .a"nd's'1:1bmits before the Magistrate. 23 -- Gcpalashetty, a photographer takes "--«:VV'Vphotographs of the scene of occurrence.
12. Having discussed the evidence. Each of .._the circumstances relied by the State and disputed defence counsel are considered as homicidalideathii V' Anjenappa is not disputed.
Last Scene:-
13. Prosecution has"'~vyi:§V:Iaced.Vh the evidence of PWS 5 and~..V_i9 PW5 is the owner of During the course of his; I accused and Anjinappa Though the nothing is elicited to disbeiiejie this witness about the accused aridutiie deceased working at Sahyadri bakery. to theviieiiect that except for the quarrel on the was no other quarrel. Suggestion V dd _supp'o--rtsv--..'the 'ijresence of accused in the company of the 'A V' ' - "'deeeia.sed';"
PW 19 Sudha while identifying the accused states the accused deceased were the persons who were managing bakery. On the night of 30"', both accused and deceased were in the bakery. Nothing is e1icite'd.f_in_ the cross examination to disbelieve the case of-thefj ' of the accused and deceased being' last Their being no evidence brought butt the examination to disbelieve the'.Versi'on 'of two witnesses, submission of thel"'l'earne"d_ defence counsel that last seen circumstances its-.i"1'o't is liable to be rejected.
14;} iKhsc'Qnde:nce.£?_'vEVidence of PWS7 and 8 are relied onby the subject. PW 7 states that he had'emp1ofyedV"accused as the accused was sent for PW éfffstates accused had come seeking ern,p'loyment,_ he recommended him for the _emp1oyment'i?vith PW7. To this evidence, evidence of has" to be read in. It is found in evidence of PW17 Went to Shahpur, talked to PW8 thereafter, Went T "-«:Vto"'fGulbarga, contacted PW7 and thereafter, took I 6 accused into custody on 5.8.2004. Learned defence counsel has not brought material to implication submitted by the learned defence M So the submission of the defence"
holds that abscondence of the accused place of work which relied by tl'1e.'prosecL1.tiorJ
15. Recovery: the Evidence Act, recovery is; aiatjfnporta.nt'pi"ece of circumstance. Ia NIAHARASHTRA Vs DAMU GOPINAT'H__SHINDE:--j.report'e'd' in 2000 Crl.L.J., 2031 at page their of the Apex Court have laid downlthe :ra_ti'o__ in regard to acceptance or otherwise of the subject of recovery. It reads as it _follov{fs:
_ "The basic idea embedded in 8.27 of the Evidence Act is the doctrine of 'confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a _ guarantee that the information ' supplied by the prisoner is true. The~f_ "
information might be confessiona1_.or. non--1ncu1patory in nature,-"'bu--t, if it. _i resuits in discovery of a factait becomes' V a reliable information". i'
17. In the facts of the p1ac'e«sd_re1iance on two recovery mahazars-_..V:i.e'.,'A--_one regard to the recovery of the blood stained the other in regard to weaponpipekeys.
learned advocate for the accused is that w'hei:ifrec'over:y is at a stretch why two mahaz;ars,. chosen by the 1.0. cannot be Pipe--1\/E07 . In regard to Pipe, PW1 in page'-d'jfp,oi" evidence, States police took rod from the V .80, re'covery"of rod at the instance of accussed is not proved. Key is said to be recovered from open space,.___ so recovery is not proved.
19. Proved circumst'ances,_ la«s_t' «._seen, abscondence, quarrel when last seerll'-are r1o't_*_3e'Xplain4e'cly V in state under section 313 Fallsusiin in omnibus is not applic~ab1e_«"in_ Apex Court in Nisar Ali vs _.~i{:,jvfiTa11j'll__l~'radesh [AIR 1957 so 356); iilcircurlnstlancesh.support case of prosecution vvorking in Bakery.
In View contend that dispute is payrnelnt: quarrel, so intention to kill is not a pipe that was available might have Vllbeenf By this submission prove quarrel wheirpacctilsed deceased were alone in the bakery is V it _reflect'ed_.-.[: . 2 In Shiva Karam Payaswarni Tewar vs State of T "l..:Maharashtra 2009 AIR 5324 1226. Case seems to be I 9 similar on basic facts but prosecution in the case reiies on extra Judiciai Confession. In the facts of accused had opportunity to explain in V' under Section 313 Cr.P.C. In the vreply, in accused states he went to Gulbaréalp jVo'<)."
false case is foisted. In Ex issjon account of head injury 'A-s-saiult has resulted in death. So exceptions in Sec 300 IPC sofejievcpt t1;ie'lof"§dVeience Counsel.
Accept the hold conviction recorded,vi's"prop;e'r:;':3.; " V 2 APP??? _ ;- Sd /...
EUSGE iiiiii :4 SW;
JUDGE hm '