Karnataka High Court
Channappa G S/O Malleshappa vs The State Of Karnataka on 22 February, 2024
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CRL.A No. 100438/2019
c/w CRL.A No. 100439/2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22nd DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100438 OF 2019
C/W
CRIMINAL APPEAL NO. 100439 OF 2019
IN CRL.A NO. 100438/2019
BETWEEN:
SAVITHA B. W/O. LATE MUDDAPPA B.,
AED ABOUT 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHIKKAJOGIHALLI VILLAGE,
KUDLIGI TALUK, DISTRICT-BALLRI.
...APELLANT
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
Digitally signed
THE STATE OF KARNATAKA
by
SHIVAKUMAR
BY CPI, KOTTUR CIRCLE, HOSAHALLI POLICE STATION,
HIREMATH REPRESENTED BY STATE PUBLIC PROSECUTOR,
Date:
2024.02.23 ADVOCATE GENERAL'S OFFICE,
13:16:48 +0530
HIGH COURT PREMISES, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF THE CONVICTION
21/09/2019 AND ORDER OF SENTENCE DATED 24/09/2019
PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND
SESSIONS JUDGE BALLARI (SITTING AT HOSAPETE) IN
SESSIONS CASE NO.5063/2014 THEREBY CONVICTING
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CRL.A No. 100438/2019
c/w CRL.A No. 100439/2019
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION
120B, 302, 201 R/W. 34 OF IPC AND CONSEQUENTIALLY ACQUIT
THE APPELLANT HEREIN ACCUSED NO. 1 OF ALL THE CHARGES
LEVELED AGAINST HER, IN INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO. 100438/2019
BETWEEN:
CHANNAPPA G. S/O. MALLESHAPPA,
AGE ABOUT 42 YEARS, OCC: FORMER,
R/O: SIDDAPURA VILLAGE, TQ: KUDLIGI,
DIST: BALLARI.
...APELLANT
(BY MISS. RANJITA RADDI ALAGAWADI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CPI, KOTTUR CIRCLE,
HOSAHALLI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF THE CONVICTION
21/09/2019 AND ORDER OF SENTENCE DATED 24/09/2019
PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND
SESSIONS JUDGE BALLARI (SITTING AT HOSAPETE) IN
SESSIONS CASE NO.5063/2014 THEREBY CONVICTING
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION
120B, 302, 201 R/W. 34 OF IPC AND CONSEQUENTIALLY ACQUIT
THE APPELLANT HEREIN ACCUSED NO. 1 OF ALL THE CHARGES
LEVELED AGAINST HER, IN INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100438/2019
c/w CRL.A No. 100439/2019
JUDGMENT
These appeals by the convicted accused arising out of judgment of conviction and order of sentence dated 21.09.2019, passed by the III Addl. District and Sessions Judge, Ballary (Sitting at Hosapete), in SC No. 5063/2014, wherein, the learned Sessions Judge has convicted both the accused for the offences punishable under Sections 120(B), 302 and 201 read with Section 34 of Indian Penal Code (for short 'IPC') and sentenced them to undergo rigorous imprisonment for life till their lifetime and to pay fine of Rs. 25,000/- each, in default of payment of fine amount, they shall further undergo imprisonment for a period of six months for the offences punishable under Sections 302 and 120B read with Section 34 of IPC. Further, the learned sessions Judge also sentenced them to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.5,000/- each, in default of payment of fine, they shall further undergo imprisonment for a period of 3 months. Learned Sessions Judge has also ordered that, both the sentences shall run concurrently. -4- CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019
2. Parties are referred to their original rankings before the trail Court. Accordingly, accused No.1 is the appellant in Criminal Appeal No.100438/2019, accused No.2 is the appellant in Criminal Appeal No.100439/2019 and the state is respondent in both the appeals.
3. The factual matrix of the prosecution case in brief are as follows-
A Complaint came to be filed by B.Basavaraju-PW1 stating that, his brother Muddappa-now deceased in this case, was married to accused No.1, 15 years back and out of the said wed-lock, they also have two children, who are studying in BEST school, Ballari. Further, it is the case of the prosecution that, since, the deceased was a Head Master and the children are also studying in Ballari, he along with his wife-accused No.1, was residing in Chikkajogihally village, in a rented house belonging to K. Vamanna-PW.16. It is further presented that, post marriage, in the recent decade, the marital relationship of the deceased and accused No.1 was strained, as deceased -5- CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019 used to question the accused No.1, as to her fidelity and as such, they also had frequent quarrels among them. In this regard, PW.1-Complainant along with PW.4 and PW.13 had advised, both the deceased and accused No.1 to live a fruitful marital life. It is also the case of the prosecution that, in relation to the same quarrel, the brothers and father of accused No.1 had also quarreled with the deceased, warning him, not to torture accused No.1 by questioning her fidelity.
4. Further, on 15.06.2014, at about 07.00 am, one Thipperudrappa, relative of PW.1, informed PW.1 that, Muddappa (now deceased) was lying dead near the field of Kurihatti Thippeswamy, which is adjacent to Chikkajogihalli-Gundumunagu road. Soon after receiving such information, PW.1 rushed to the spot along with PW.4 and witnessed that, his brother Muddappa was lying dead with clots and marks on his neck, along with swelling in his male gonads and injuries in between the right hand fingers so also scratches on his right knee. PW.1 also witnessed that, the deceased right leg below the knee seemed -6- CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019 fractured. On witnessing the same, PW.1 filed the complaint as per Ex.P1, against accused No.1, her brothers and father so also one Sri. Pruthwiraja Naik before the jurisdictional Police. The same has been registered under Crime No.81/2014 for the offences punishable under Sections 302, 201 read with Section 34 of IPC as per Ex.P39. Thereafter, PW.41 conducted the investigation by drawing the spot and inquest panchanama and subsequently, handed over the investigation to PW.44, who examined the witnesses and arrested accused No. 1 and on her voluntary statement arrested accused Nos.2 and 3 and laid the chargesheet against them before the committal Court and dropped the father and brothers of the accused No.1, including one Pruthwiraja Naik.
5. After committal of the case before the Sessions Court, the learned Sessions Judge framed the charges against the accused for the aforesaid offences and read over the same to the accused. However, the accused denied the charges and claimed to be tried. -7- CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019
6. In order to prove the guilt of the accused for the offences charged against him, the prosecution in total examined 44 witnesses as PW.1 to PW.44 and also got marked 56 documents as Ex.P.1 to Ex.P.56 so also got identified 17 material objects at MO.1 to M.O.17.
7. After completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidences of the material witnesses to the accused as contemplated under the provisions of Section 313 of Cr.P.C. The accused denied the same. However, the accused have not chosen to examine any witnesses on their behalf but have got marked 2 documents as Exs.D1 and D2 during the course of evidence.
8. After assessment of the oral and documentary evidences placed before the learned Sessions Court, the learned Sessions Judge framed following charges for consideration:
i. Whether prosecution proves beyond all reasonable doubt that, the accused No.1 to 3 on 14.06.2014 at -8- CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019 about 10:30 p.m. in the house of C.W.22 Lalsingh near Girls High School of Chikkajogihalli, conspired to commit the murder of deceased Muddappa, the husband of accused No.1 to continue the illicit relationship of accused No.1 with accused No.2 while he was sleeping in the house and thereby committed the offence punishable U/Sec. 120B R/W Sec. 34 of 1.P.C.?
ii. Whether prosecution proves beyond all reasonable doubt that, the accused person on the above said date, time and place in furtherance of their common intention, assaulted the deceased, accused No.2 tried to stab the deceased with knife provided by accused No.1, squeezed the testicles, accused No.3 squeezed the neck of deceased while accused No.1 was holding his legs and committed his murder and thereby committed the offence punishable U/Sec.
302 R/W Sec. 34 of I.P.C.?
iii. Whether prosecution proves beyond all reasonable doubt that, the accused person on the above said date, time and place in furtherance of their common intention, shifted the dead body of deceased on the motor cycle of accused No.2 bearing registration -9- CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019 No.KA-17/L-1523 along-with accused No.3 towards the land of C.W.7 Thippeswamy in order to destroy the evidence and thrown the dead body by the side of road, so as to pose it as an road accident and thereby committed the offence punishable U/Sec. 201 R/W Sec. 34 of I.P.C.?
iv. What order?
9. Learned Sessions Judge, answered Point Nos.1 to 3 in the affirmative, Point No.4 as per the Final Order and convicted the accused Nos.1 and 2 and sentenced them as stated supra. As accused No.3 had expired during the trial, the case against him was abated. The correctness and legality of the said Judgment is challenged under these appeals by the accused Nos.1 and 2 in Criminal Appeal No.100438/2019 and Criminal Appeal No.100439/2019, respectively.
10. Heard Sri.Aravind D Kulkarni for the appellant in Crl.A.No.100438/2019, Kum.Ranjitha for the appellant in Crl.A.No.100439/2019 and Sri. M.B. Gundawade learned Addl.SPP for the state in both the appeals.
11. The learned counsels for the appellants vehemently contend that, the judgment under these appeals suffers from
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 perversity and illegality and the learned Sessions Judge convicted the accused only based on surmises and conjectures, without appreciating the evidences deposed by the witnesses. They would further contend that, since the case totally rests on circumstantial evidences, the prosecution has failed to prove the circumstances unerroringly pointing towards the guilt of the accused and even if all the circumstances are considered together, they are incapable of drawing any explanation or any reasonable hypothesis to point out the guilt of the accused in the crime.
12. Except the circumstances of homicidal death of the deceased, absolutely no other circumstances are proved by the prosecution. The learned Sessions Judge totally relied on the evidences of P.W.8 and P.W.15 for recovery of the clothes of the accused No.2 so also recovery of one T-shirt and one pillow cover at the instance of accused No.1 at her residence based on their voluntary statements. However, according to learned counsels, the prosecution has failed to prove the recovery of the motorcycle-M.O.17, said to have been used for the transportation of the dead body of the deceased, post committing the crime on 14.06.2014, at the instance of
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 accused No.2, since P.W.8 and P.W.15 have partly turned hostile to the prosecution case. According to the learned counsels, except the said evidences, absolutely no other evidence is placed by the prosecution to prove the chain of circumstances to connect the accused in the crime. Further, they would contend, the prosecution utterly failed to prove the alleged murder committed by the accused Nos.1 to 3 in the house of deceased and thereafter, transportation of the dead body from the house to the place where the dead body is recovered i.e., in an open place. Such being the position, according to the learned counsels, the accused No.1 cannot be held liable to explain the death of deceased as contemplated under Section 106 of Indian Evidence Act. Even otherwise, before such explanation by the accused, the prosecution has to prove its initial burden. They would further contend that, the recovery of incriminating articles at the instance of accused Nos.1 and 2 cannot be considered as a major circumstance, for the reason that, the same has not recovered within the ambit of Section 27 of Indian Evidence Act and also as per the law laid down by the Hon'ble Apex Court in the case of Subramanya v. State of Karnataka, reported in 2022 SCC
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 OnLine SC 1400. With these grounds, they pray to allow the appeals.
13. Per contra, the learned Additional State Public Prosecutor vehemently contends that, the learned Sessions Judge has rightly convicted the accused, by meticulously examining the evidences of the witnesses before the trial Court. According to him, the learned Sessions Judge appreciated the evidences on a right perspective and to emphasize, he would persuade this Court to rely on the evidences of P.W.8 and P.W.15, who are the independent witnesses and have categorically deposed in respect of the recovery of clothes of the accused No.2, so also, the blood stained T-shirt and pillow cover in which, the accused No.1 wiped the blood stains found on the floor of the house, while committing the murder of the deceased. Further, according to the learned Addl. SPP the evidence of these two witnesses corroborates to the evidence of the Investigating Officer P.W.44. As such, there is no reason to disbelieve their version. The learned Addl. SPP would also contend that, the blood stained clothes were sent for FSL and scientific Officer, RFSL examined as P.W.32 and placed the report as per Ex.P.51 which clearly depicts that the blood stains
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 found on the clothes so also the baniyan and pillow cover recovered at the instance of accused Nos.1 and 2 are stained with the human blood of A-group. In such circumstances, the oral testimonies of P.W.8 and P.W.15 also corroborates with the scientific evidence. He would further contend the defence of the accused No.1 that she had lodged a complaint before the police soon after the incident cannot be believable for the reason that, no such complaints are forthcoming in the entire chargesheet or produced by the accused No.1. According to her the police failed to register her complaint, but no such efforts have been made by her to approach the higher authority for registering the case against the perpetrator of the crime. Hence, according to learned Addl. SPP, the defense of the accused No.1 is not a probable one. Per contra, the prosecution has successfully proved the strained relationship of the deceased and accused No.1, for the reason that the accused No.1 had extra-marital affair with some third party. In such circumstance, the inference can be drawn against accused Nos.1 and 2 and accordingly, the learned Sessions Judge has rightly convicted the accused for the charges aforementioned. With these grounds, he prays to dismiss the appeal by confirming the order of the learned Sessions Judge.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019
14. Having heard the learned counsel for the respective parties, so also on perusal of the evidence and materials placed before us, points that would arise for our consideration are that:
"1.Whether the learned Sessions Judge has committed an error by convicting the accused for the offence punishable under Exception I to Section 300 of IPC and sentencing him under Section 304 Part I of IPC?
2.Whether the Judgment under these appeals is suffers from any perversity or illegality?"
15. Since, both these points are interlinked with each other; they are taken up together for common discussion in order to avoid the repetition of facts. Accordingly, this Court being the appellate Court is required to relook and re- appreciate the materials and evidences made available before this Court and on a cursory glance of the evidence adduced by the prosecution before the trial Court, we find -
PW.1-Basavrajappa- brother of the deceased, lodged complainant in this case as per Ex.P.1. By reiterating the contents of Ex.P.1, he deposed that, on 15.06.2014 at about 7.00 a.m., one Thippe Rudrappa informed him about the death of his brother and that the corpus of his brother was lying near the farm of one Thippe Swamy situated adjacent to the road.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 Thereafter, he rushed to the spot along with P.W.4 and seen the dead body of his brother with injuries. Subsequently he lodged the complaint before the respondent-police as per Ex.P.1. However, during the course of his evidence, he deposed about the strained relationship between the accused No.1 and the deceased.
PW.2- Sanna Mareppa, P.W.5-Basavaraja, P.W.6-Nagaraj, P.W.17-Kodandarama are the villagers, among them P.W.2 is a witness for inquest panchanama drawn on the dead body of the deceased as per Ex.P.5. He is also a witness for spot mahazar as per Ex.P.4 wherein, M.O.1 to M.O.7 were seized. P.W.5 is also a co-pancha for Ex.P.4 and Ex.P.5. P.W.6 though a co- pancha for Ex.P.4 and Ex.P.5, turned hostile to the prosecution case. P.W.17, is a witness who identified M.O.1 to M.O.5 on the spot.
PW.3-Rathnamma, sister of deceased in this case. P.W.4 Mooganna, uncle of the deceased, P.W.13-Hemashekhara, cousin brother of deceased, P.W.14-Sharadamma, another sister of deceased. All these witnesses are circumstantial witnesses, deposed that after receiving the information about the death of the deceased they reached the scene of offence
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 and witnessed the body of the deceased. They also noticed the slippers and shirt of deceased besides the body. All these witnesses are panch witness for the inquest panchanama i.e., Ex.P.5.
P.W.7-Thippeswamy, panch witness to the recovery mahazar drawn under Ex.P.8, wherein, M.O.3, M.O.4 and M.O.5 were seized at the instance of accused No.2.
P.W.8-Thimmappa and P.W.15-Bosaiah are the independent panch witness to the recovery mahazar at Ex.P.9, Ex.P.10 and Ex.P.11. These mahazars were drawn based on the voluntary statements of accused Nos.1 and 2. According to them, accused No.2 took the witnesses and police officials to Siddapur stockyard, there accused No.2 produced Lungi-M.O.8, Baniyan-M.O.9 and Cell phone-M.O.10 and motorcycle under Ex.P.9. They also deposed about the recovery of T-shirt, cell phone, knife and pillow cover, produced by accused No.1, in the house of the accused No.1 and the deceased as per M.O.11 to M.O.17.
P.W.9-Nagaraj, P.W.10-Sarojamma, P.W.11-Prasad, P.W.12-Hampanna, are the circumstantial and hearsay
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 witnesses. However, all these witnesses have not supported the case of the prosecution and turned hostile.
P.W.16-Vamanna, the owner of the house, where the accused No.1 and deceased were residing. He has deposed about the strained relationship between the accused No.1 and the deceased. He also deposed that, he had been the place where the dead body was found.
P.W.18, circumstantial witness, turned hostile to the prosecution case.
P.W.21 who runs the photocopy shop, deposed that, accused No.1 got photocopied the documents pertaining to one Hanumakka to purchase sim-card.
P.W.24-Manjunatha, photographer, taken photos at the time of recovery of material objects under Ex.P.9 to Ex.P.11.
P.W.25-Jeetendra, P.W.27-Nagaveni, P.W.28-Jeelan are the police officials, apprehended the accused persons and produced them before P.W.44 and reported accordingly.
P.W.26-B. Shekarappa, ASI, scribe to mahazar at Ex.P.9 to Ex.P.11.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 P.W.29-Dr. Mehaboob Ali, Medical Officer, conducted the autopsy on the dead body and issued Post-Mortem report as per Ex.P.32.
P.W.30-Thippeswamy, another circumstantial witness, husband of Hanumakka in whose name accused No.1 purchased the Idea sim-card. However, he turned hostile to the prosecution case.
P.W.31-Prabhakara, the scribe of Ex.P.5 i.e. inquest panchanama.
P.W.32-the Assistant Executive Engineer drawn spot sketch where the dead body found, so also the place where the accused has allegedly committed the murder as per Ex.P.37 and Ex.P.36 respectively.
P.W.33- another circumstantial witness, turned hostile to the prosecution case.
P.W.34-Shivakumar, the then police constable, transmitted FIR as per Ex.P.39 to the jurisdictional Magistrate.
P.W.35-Nagarajachari, supplied the service records of the deceased as per Ex.P.40 and attendance copies as per Ex.P.41 and Ex.P.42.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 P.W.36 the then police constable, took viscera to FSL. P.W.37,P.D.O, issued RTC of the house of accused as per Ex.P.23.
P.W.38-Dr.Pradeep, Medical Officer examined accused Nos.1 and 2 and issued Wound Certificate as per Ex.P.43 in respect of accused No.2.
P.W.39-Rajesh and P.W.40 Stanlee are the Nodal Officers supplied CDRs, pertaining to the accused Nos.1 and 2 as per Ex.P.45, Ex.P.46, Ex.P.47 and Ex.P.48.
P.W.41-the then CPI of the respondent-police conducted partial investigation of the case and handed it over to P.W.44.
P.W.42-Dr. Geeta Lakshmi, Scientific Officer, examined the blood stains found on the clothes of accused Nos.1 and 2 and issued FSL report as per Ex.P.51.
P.W.43-Raghunath, the then S.H.O. of the respondent police, registered the FIR and also conducted the recovery mahazars at Ex.P.9 to Ex.P.11 after arresting accused No.2.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 P.W.44-N.Lalya Naik, CPI, completed the investigation and laid the charge-sheet against the accused for the offences stated supra.
16. On careful perusal of the above evidences available on record, in order to prove the homicidal death of the deceased, the prosecution mainly relied on the evidence of Doctor-P.W.29, who conducted the autopsy on the dead body and issued Post-Mortem report as per Ex.P.32. On cautious examination of Ex.P.32, it depicts that; death is due to 'vagal inhibition as a result of injury to scrotum'. Further, the Doctor also opined that, the injuries found on the dead body of the deceased are ante mortem in nature. In addition to, the prosecution has also relied on the inquest panchanama conducted by P.W.41 in the presence of P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.17 as per Ex.P.5. All these witnesses have supported the case of the prosecution, in respect of drawing of inquest panchanama on the dead body of the deceased and identified their signature on Ex.P.5. Hence, on a collective reading of the evidence of Doctor and above witnesses, along with Ex.P.32 and Ex.P.5, we are of the
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 considered view that, the prosecution has proved the homicidal death of the deceased beyond all reasonable doubt.
17. Before adverting to the evidences relied upon by the prosecution, to connect the accused to the homicidal death of the deceased, on carefully examining the entire evidences and materials available on record, we find that, the case of the prosecution totally rests on circumstantial evidences. Therefore, we find it relevant to refer to the decision of Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, wherein, the Hon'ble Apex Court has laid down the principles(panchasheela's) that are to be proved by the prosecution to prove the guilt of the accused in a case resting on circumstantial evidence. The same is reiterated by the Hon'ble Apex Court in the case of Shankar Vs. State of Maharastra, reported in 2023 SCC OnLine SC 268, wherein, paragraph Nos. 8,9 and 10 of the order reads thus-
"8. In the decision in Prakash v. State of Rajasthan3, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra4:--
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"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
19. ..."Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
9. After noting the above five golden principles, it was held in Prakash's case (supra), that they would constitute the Panchsheel of the proof of a case based on circumstantial evidence and conviction could be sustained on the basis of last seen, motive and recovery of incriminating articles in pursuance of the
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 information given by the accused if those five golden principles of the proof of a case based on circumstantial evidence are satisfied.
10. Virtually, the law laid down relating circumstantial evidence in those decisions are unfailingly followed by this Court while dealing with the cases where conviction is rested on circumstantial evidence."
18. In the case on hand, in order to prove the charges leveled against the accused, the prosecution has mainly relied upon the evidences of P.W.8, P.W.15 and P.W.44. Among them, P.W.8 and P.W.15 are the independent witnesses for the recovery mahazars drawn as per Ex.P.9 to Ex.P.12. On thoughtful scrutiny of these mahazars, Ex.P.9 drawn at Siddapur stockyard based on the voluntary statement of accused No.2 and recovered one baniyan, one lungi, cell-phone and motorcycle as per M.O.8, M.O.9, M.O.10 and M.O.17. However, P.W.8 and P.W.15 have partially turned hostile in respect of seizure of motorcycle at the instance of accused No.2 and mobile phone at the instance of accused No.1 as per M.O.16.
19. Further, these witnesses have also deposed about drawing of Ex.P.10, in the house of accused No.1 and seizure of M.O.11, M.O.12 and M.O.13 i.e., one T-shirt, pillow cover and knife, so also bed-sheet and cotton box, used by accused No.1
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 after the commission of the offence, to wipe the blood stains as per M.O.14 and M.O.15 under Ex.P.11. However, during the course of cross-examination of P.W.8, he admitted that, the accused have not stated anything before them in respect of the material objects which they have allegedly kept in their house where Ex.P.8 to Ex.P.11 drawn. Further, P.W.8 has also failed to identify the color of the clothes recovered at the instance of accused No.2. He also deposed that, he was not aware of the place where the mahazars were drawn. He further admitted that, he signed the mahazars at Hospital. P.W.15 also stated that, he did not witness the handing over of the cell phone by the accused No.2 to the police authorities. Further, he admitted that, he was not aware of the contents of mahazars i.e., Ex.P.9 to Ex.P.12. On meticulous examination of evidences of P.W.8 and P.W.15, keeping in view the law laid down by the Hon'ble Apex Court in the case of Subramanya v. State of Karnataka, reported in 2022 SCC OnLine SC 1400, wherein, paragraph Nos.82,87,93,94 and 98 of the Order reads as under-
"82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in
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accordance with law. Section 27 of the Evidence Act reads thus:
"27. How much of information received from accused may be proved.--
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
***
87. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:--
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra : (1976) 1 SCC 828 : AIR 1976 SC 483.
Two conditions for application : -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered - Earabhadrappa v. State of Karnataka : (1983) 2 SCC 330 : AIR 1983 SC 446.
***
93. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
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"18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 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 as 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 information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable
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information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : (1946-47) 74 IA 65] is the most-
quoted authority for supporting the interpretation that the "fact discovered"
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301].) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
[Emphasis supplied]
94. Mr. V.N. Raghupathy, the learned counsel for the State would submit that even while discarding the evidence in the form of various discovery panchnamas the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance,
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand ersus State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400]. Even if we hold that the disclosure statement made by the accused- appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8....."
[Emphasis supplied] ***
98. Thus, even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. The trial court rightly disbelieved motive to commit the crime as the evidence in this regard is absolutely hearsay in nature."
20. These principles were again reiterated by the Hon'ble Apex Court in the case of Boby v. State of Kerala, reported in 2023 SCC OnLine SC 50, wherein, paragraph Nos.32 and 40 of the Order reads as under -
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019
"32. A three-Judges Bench of this Court recently in the case of Subramanya v. State of Karnataka7, has observed thus:
"82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:
"27. How much of information received from accused may be proved.--
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-
witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 in all the aforesaid relevant aspects of the matter."
40. A perusal of paragraph 71 of the said judgment would reveal that the Court has reiterated that the two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. The Court held that the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence.
21. On perusal of the dictum laid down by the Hon'ble Apex Court in the above Judgments along with the case on hand, the prosecution, in order to prove the recovery, relied on the evidences of PW.8 and PW.15. Though they supported the case of the prosecution, both these witnesses have categorically deposed that, they do not know the contents of the Ex.P9 to Ex.P11. Further, according to P.W.8, the police authorities have not enquired the accused in the presence of these panch witnesses, before leading to the discovery of M.O. 8 to M.O.17. Further, PW.8 admitted in his cross-examination that he had signed the mahazars at the Hospital. Even PW.15 in his testimony has admitted in his cross-examination that, he
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 do not know the contents of Ex.P.9 to Ex.P.11. Moreover, both these witnesses have turned hostile in respect of the recovery of the motorcycle at the instance of accused No.2 in the stockyard, which was allegedly used for the transportation of dead body of the deceased after commission of the murder by the accused in the house of accused No.1, to the place where the dead body was discovered. Further, though these witnesses have deposed that, the accused No.1 has shown the place where the dead body was discovered, but the same was after the recovery of the corpus. The said corpus was initially found by one Thippe Rudrappa, who in turn informed the same to the complainant i.e., P.W.1. The said Thippe Rudrappa though cited as a witness in the chargesheet, the prosecution has failed to examine him before the trial Court. In such circumstances, much evidentiary value cannot be attached for the evidences of P.W.8 and P.W.15, for the recovery of M.O.8 to M.O.17 under Ex.P.9 to Ex.P.11 or in respect of indicating the place where the dead body was disposed, by accused No.1. On careful scrutiny of the evidences of these witnesses, their evidence cannot be relied to prove the recovery as per the settled position of law by the Hon'ble Apex Court in the Judgments cited supra. The Hon'ble Apex Court has clearly held that, in order to prove the
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 discovery of weapons or the other incriminating articles at the instance of the accused, the Investigating Officer has to draw a panchanama in the police station, in the presence of recovery mahazar witnesses and thereafter, the accused have to lead the witnesses and the police to the place where the incriminating articles have been placed. In the present case, absolutely no such evidences are forthcoming on perusal of the testimonies of P.W.8 and P.W.15. The learned Sessions Judge, relied much on the evidence of these two witnesses to connect the accused in the homicidal death of the deceased which in our considered view, requires interference.
22. As far as the other circumstance which the prosecution has relied is, motive for the commission of the crime. In order to prove the same, the prosecution relied on the evidences of P.W.1, P.W.2, P.W.3, P.W.4, P.W.13, P.W.14 and P.W.16. All these witnesses have deposed about the strained relationship of accused No.1 and her husband deceased. However, none of these witnesses have deposed that the accused No.1 had illicit affair with the accused No.2. Even the initial complaint lodged, was against the accused No.1, her father-Basavarajappa, her brothers-Manjanna and Vijayakumar
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 and also one Pruthviraj Naik. The contents of Ex.P.1 depicts that, the deceased was quarreling with accused No.1, for which, she lodged a complaint before the police and the police called them and advised, not to indulge in such act and on that count, the said Pruthviraj Naik, quarreled with the deceased. Hence, P.W.1 suspected the said Pruthviraj Naik and the parent and siblings of accused No.1 as the perpetrators of the crime. Hence, on careful reading of Ex.P.1 coupled with the evidences of P.W.1 and other family members as stated supra, all these witnesses have deposed only in respect of the strained relationship of the accused No.1 and the deceased and they have not whispered anything about the alleged illicit relationship between the accused No.1 and accused No.2 is concerned. It is for this reason, these evidences cannot be considered as reliable piece of evidence to prove the motive in this case; that the accused No.1 had illicit relationship with accused No.2 and they along with accused No.3 hatched a conspiracy to commit the murder of the deceased and accordingly, they executed the same. The evidences only in respect of the strained relationship between the accused No.1 and the deceased in itself, is not a sufficient piece of evidence to connect accused No.1 in the crime.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019
23. The learned Addl. SPP also canvassed his argument that, the accused No.1 being the wife of the deceased, has not lodged any complaint after the death of her husband, in spite of the fact that, they both are living together in a same shared household at the time of incident. However, on perusal of the 313 statement of accused No.1, she filed a written statement under Section 313(3) of Cr.P.C, wherein, stated that immediately after the death of her husband, she went to the police station and lodged a complaint against the above mentioned Pruthviraj Naik, however, the police failed to receive her complaint due to the intervention/influence of the local politicians. According to her, she made her best efforts to lodge the complaint before the said police repeatedly, but the police failed to register the same. As such, it cannot be said that, the accused No.1 has failed to explain the special knowledge as contemplated under Section 106 of Indian Evidence Act. Moreover, though the accused is liable to explain the special knowledge about the crime, but the initial burden always lies on the prosecution to prove its case beyond reasonable doubt, then only such burden shifts on the accused.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019
24. Hence, in our considered view, the prosecution also failed to prove the motive and suspicious conduct of the accused No.1 to connect her in the crime.
25. As stated supra, since the case rests on the circumstantial evidences, the prosecution has failed to prove one of the important circumstances i.e., the transportation of the dead body from the house of accused No.1, after commission of the murder in the house. As discussed supra, the prosecution has also failed to prove the recovery of motorbike i.e., M.O.17 which is allegedly said to be used for the said purpose by accused No.2. Even otherwise, absolutely there exists no piece of evidence to prove this circumstance.
26. The other circumstantial witnesses i.e., P.W.9, P.W.10, P.W.11 and P.W.12 have totally turned hostile to the prosecution case, as such, the prosecution failed to prove the other surrounding circumstances to connect the accused in the alleged crime. Though the prosecution seized the mobile phones of accused Nos.1 and 2, to prove that the conspiracy hatched by them, before the commission of the crime; the prosecution has also failed to prove the said circumstance by leading cogent evidence. The mobile phone seized at the
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 instance of accused No.1 and the sim-card in it, was not standing in her name and in the name of one Hanumakka. To prove the same, though prosecution examined P.W.30 Thippeswamy i.e., husband of the said Hanumakka, he turned hostile to the prosecution case. The prosecution has also failed to prove that, one more mobile phone/sim-card stands in the name of accused No.2. In such unproven circumstances, mere obtaining the CDRs and examining the Nodal Officer in itself is not sufficient to draw an inference that, the sim-cards used in the cell phones, stands in the name of accused Nos.1 and 2 and they were using the said mobile phones to hatch the conspiracy.
27. Hence, on meticulous reading of the overall evidences placed by the prosecution, except the circumstance of homicidal death of the deceased the prosecution has miserably failed to prove all the other circumstances like motive for the incident, the last scene theory, recovery of the weapons and other incriminating articles at the instance of the accused, the transportation of the dead body from the house of accused No.1, to the open place where the body was discovered and the conspiracy hatched by the accused Nos.1 to 3. Further, the
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 prosecution failed to place any piece of evidence in respect of the commission of the alleged crime on 14.06.2014, by the accused Nos.1 to 3, by examining any of the neighbours of accused No.1 and deceased. In such scenario, in our considered view, the prosecution has miserably failed to prove all the facts, each one among which leads to the conclusion of guilt of the accused and when conclusively read, all together would be justifiably bolster the conclusion of the guilt of the accused. Prosecution has also failed to connect the facts with sufficient corroboration, so as to lead to a unilateral hypothesis of the guilt of the accused and exclude every hypothesis, except the one sought to be proved by them. Moreover, there has to exist chain of evidences so complete, closing the doors for any kind of interpretation consistent with the innocence of the accused and these evidences must depict, in all the human probability, the act must have been done by the accused, which, in our opinion, the prosecution has failed to present before us.
28. Further, the learned Sessions Judge also erred in convicting the accused for the offence punishable under Section 302 of IPC by sentencing them till the reminder of life, in view of the law laid down by the Apex Court in Union of India v.
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CRL.A No. 100438/2019c/w CRL.A No. 100439/2019 V.Sriharan Alias Murugan and others reported in (2016) 7 SCC 1 and reiterated by the Co-ordinate Bench of this Court, in Shekhar Babasaheb Hadimani vs State of Karnataka reported in AIR Online 2023 KAR 1619. However, since this court has found fault in the appreciation of evidence by the learned Sessions Judge and inclined to allow the appeal, we are of the view that, there requires no further detailed examination of the same.
29. Hence, for the discussions made hereinabove, we are of the considered view that, the Judgment of conviction and Order of Sentence passed by the learned Sessions Judge requires interference at the hands of this Court and accordingly, by answering the above raised points in the affirmative and negative, we proceed to pass the following -
ORDER
i. Crl.A.No. 100438/2019 and
Crl.A.No.100439/2019 filed by
accused Nos.1 and 2 respectively are
allowed.
ii. The judgment of conviction and order of sentence dated 21.09.2019,
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CRL.A No. 100438/2019 c/w CRL.A No. 100439/2019 passed by the III Addl. District and Sessions Judge, Ballary (Sitting at Hosapete), in SC No. 5063/2014 is set aside. Consequently, the appellants/accused Nos.1 and 2 are acquitted for the offences punishable under Sections 120(B), 302 and 201 read with Section 34 of Indian Penal Code.
iii. The bail bonds and surety bonds
executed by the accused shall stand
cancelled.
iv. Fine amount paid, if any, by the
accused is ordered to be refunded to
the accused on their proper
identification.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-