Karnataka High Court
The State By Halavagalu vs Sri Firoz on 16 June, 2023
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NC: 2023:KHC:22411-DB
CRL.A No. 2139 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 2139 OF 2016
BETWEEN:
THE STATE BY HALAVAGALU POLICE STATION
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 01.
...APPELLANT
(BY SMT. RASHMI JADHAV, HCGP)
AND:
SRI FIROZ, S/O MAHAMAD SAB
AGED ABOUT 30 YEARS
R/O KUDUREHALU VILLAGE
RANEBENNUR TALUK
HAVERI DISTRICT - 581110.
...RESPONDENT
Digitally signed
by RAMYA D (BY SRI. P.B. UMESH, ADVOCATE FOR
Location: High SRI R.B. DESHPANDE, ADVOCATE)
Court of
Karnataka THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE STATE
PUBLIC PROSECUTOR FOR THE STATE/APPELLANT PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED
24.06.2016 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, DAVANAGERE IN S.C.NO.99/2013, THEREBY ACQUITTING
THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 302 AND 201
OF IPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, G BASAVARAJA J., DELIVERED THE FOLLOWING:
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CRL.A No. 2139 of 2016
JUDGMENT
The state has preferred this appeal against the judgment of acquittal passed by I Additional District and Sessions Judge at Davanagere in SC.No.99/2013 dated 24.06.2016.
2. The parties are referred to as per their ranking before the trial Court for the sake of convenience. The case of the prosecution is this:
The accused/respondent was engaged in illicit relationship with the deceased, Smt. Sumithramma, who was married to Mr. Hadimani Hanumanthappa of Kunchnur village. Overtime, Sumithramma, not being satisfied with their sexual relationship, began to harass and verbally abuse the accused, referring to him as "Shanda." In response to this situation, the accused devised a plan to eliminate her. Then on 08.09.2012 he took her to the land of Thippareddy of Bilisanur village, Harihara taluk and at about 5.30 p.m., with an intention to commit murder of -3- NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 said Sumithramma, accused caught hold her and pressed her neck tightly and made her to suffocate and caused her death and in order to conceal the evidence, he threw away her mobile phone somewhere and caused disappearance of evidence. The trial court framed charges for the purported commission of offences punishable under Sections 302 and 201 of IPC. The charges were elucidated to the accused, who pleaded not guilty and opted for a full-fledged trial.
3. In order to substantiate the prosecution's case, a total of 40 witnesses, identified as PWs.1 to 40, were examined. Additionally, 27 documents marked as Exs.P.1 to 27 and 6 material objects labelled as MOs1 to 6 were presented as evidence.
4. Following the conclusion of the prosecution's case, the accused was examined under Section 313 of the Cr.P.C. During this examination, the accused vehemently denied the evidence presented against them. However, the accused chose not to present any defence evidence on -4- NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 their behalf. After hearing arguments from both sides, the trial court was pleased to acquit the accused of the alleged offences. Aggrieved by the same, the State has filed this appeal.
SUBMISSIONS ON BEHALF OF THE STATE:
5. Learned HCGP has submitted that the Sessions Judge's judgement is in direct contravention with law, the facts of the case, and the evidence presented on record. The reasons put forth by the learned Sessions Judge are fallacious and inappropriate. The trial court has failed to accurately comprehend and evaluate the evidence on record in a judicious manner. It is imperative to note that the case rests on circumstantial evidence. The testimonies of PW7, 9, 17, and 20 provide ample support to the prosecution's last seen theory. Furthermore, PW13's testimony unambiguously establishes that the accused and the deceased were present at the sugarcane field, the site of the incident. The prosecution has successfully -5- NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 established a clear motive and intention on the part of the accused to commit the offence. Based on these grounds, humbly prayed to set aside the impugned judgment and order .
6. Per contra, the learned counsel representing the respondent has presented arguments contending that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. It is submitted that the trial court has appropriately evaluated the evidence on record and delivered the impugned judgment, leaving no justifiable grounds for interference. Hence, he sought for dismissal of this appeal.
7. Having heard the arguments on both sides and perusal of records the following points would arise for our consideration:
1. Whether the prosecution has made out a ground to interfere with the impugned judgment of acquittal?
2. What order?-6-
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8. Our answer to the above points are as under:
Point No.1: In the Negative Point No.2: As per final order RE. POINT No.1:
9. The Supreme Court in the case of RAMANANDA @ NANDLAL BHARTI VS. STATE OF UTTAR PRADESH rendered in Crl.A.No.64-65/2022, at Para No.1 it has held that:
"1. Mark Twain, the great American writer and philosopher, once said:
"It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case."
IN PARA NO.45:
"PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE.
45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole -7- NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered.
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved."-8-
NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016
10. The present appeal is based on the circumstantial evidence. After assessing the evidence placed by the prosecution, the trial court has held that the prosecution has failed to prove the guilt of the accused of the alleged commission of offences.
11. On the basis of missing complaint dated 11.09.2012 filed by PW3-Hadimani Hanumanthappa, the Sub-Inspector registered a case in Cr.No.100/2012 which is marked as Ex.P4. The contents of this complaint reveals that it is a missing complaint of wife of PW3 by name Sumithramma aged 26 years. Though the IO has registered the case in Cr.No.100/2012, he has not submitted this FIR to the court.
12. Ex.P5 is the complaint filed by PW3 Hadimani Hanumanthappa which reveals that on 11.09.2012 at 7.30 pm, he lodged a complaint to Halavagalu police station as to missing his wife who was missing from 08.09.2012. On -9- NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 that basis Halavagalu police registered the case in Cr. No.100/2012. Inspite of efforts made by his relatives and friends he could not trace his wife but he collected information that his wife Sumithramma had developed illicit relationship with the accused and he took his wife for the treatment of his wife to Harihara and he went to Sugarcane land of Bilisanur village, Harihara taluk and committed murder of his wife in the said sugarcane land and he concealed the dead body and caused the disappearance of the evidence. On the basis of this complaint dated September 19, 2012, filed as per Ex.P5, The sub-inspector of police of Kunchuru police station has endorsed on Ex.P.5 that he received a further complaint in the continuity of Cr.No. 100/2012 and submitted a request to the court to insert offences punishable under Sections 302 and 201 of the IPC.
13. According to the prosecution papers, the Investigating Officer (IO) submitted a requisition to the
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 trial court magistrate along with a copy of the First Information Report (FIR), marked as Ex.P.17, on September 24, 2012. The magistrate endorsed the requisition, acknowledging its receipt through PC No. 550 of Haluvagilu village police at 3.00 p.m. The Magistrate granted permission to add Sections 302 and 201 of the Indian Penal Code (IPC) to the case. Ex.P.17, which is a copy of the FIR, confirms that the IO presented it to the court. Another document, Ex.P.18, is a copy of the requisition submitted by the Inspector of Police at Haluvagalu police station. It reveals that the IO requested the inclusion of offences punishable under Section 302 and 201 of IPC in Criminal Case No. 100/2012 of Haluvagalu police station. The magistrate endorsed Ex.P.18, acknowledging its receipt on September 17, 2012, at 4 a.m. through PC 347 of Haluvagalu police. The endorsement indicates that permission was granted.
14. The allegations brought forth suggest a discrepancy regarding the submission of the alleged FIR,
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 Ex.P.17, to the court. The Sub Inspector of Police (SI) responsible for Ex.P.17 has not presented the FIR to the court as indicated. However, PW.33-PSI S.D.Noor Ahamad testified under oath, affirming that on September 11, 2012, at 7:30 p.m., he received a complaint from the complainant, Hadimani Hanumanthappa. Based on this complaint, he duly registered the case as Cr.No.100/2012, concerning a missing person, and submitted the FIR to the court. Surprisingly, no such FIR was found to have been presented to the court.
15. Regarding the requisition outlined in Ex.P.18, which sought the inclusion of offences punishable under Sections 302 and 201 of the Indian Penal Code (IPC), it was expected that the magistrate would review the FIR. However, without proper scrutiny of the FIR, the magistrate endorsed Ex.P.18, granting permission for the mentioned offences to be added. It must be noted that since the IO did not submit the FIR pertaining to
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 Cr.No.100/12, doubts arise as to the validity of granting permission for the inclusion of those specific offences.
16. Considering Rule 1 of Chapter V of the Karnataka Criminal Rules of Practice 1968, it is the magistrate's duty to endorse the FIR, mentioning the date, time, and the individual from whom it was received. The court is then responsible for registering it in Register No.1, adhering to the prescribed rules of practice. In the present case, however, the alleged FIR was not submitted to the court. Moreover, the IO provided false evidence by claiming to have submitted the FIR, while the trial court failed to examine whether the IO indeed submitted it. The magistrate mechanically admitted the document as Ex.P.17, neglecting to thoroughly assess its contents. Consequently, upon careful examination of the available materials, it becomes apparent that the IO proceeded with the investigation without submitting the FIR to the court, which is a violation of legal procedures.
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17. Section 154 provides any information that is received as to the commission of a cognizable offence may be given orally or written to the inspector in charge of the police station or as per his discretion can be read over by the informant and later signed by the victim or any other person who has given the information and the substantive information thereafter shall be recorded in the book for the records to be maintained by such in charge as prescribed by the state government on such matter. This information must have a copy made as records without any cost imposed on the informant of the said FIR. Since the Investigating officer has not complied the mandatory provision of Section 154 of Code of criminal procedure, 1973 the Ex.P.17 the alleged FIR looses its legal sancity that there is no foundation to this case as the IO has conducted the investigation without submitting FIR to the court. On the basis of the complaint filed by the PW1 on Ex.P.4 or Ex.P.5.
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18. Regarding the missing complaint document as Ex.P.4, it is evident that on September 12, 2012, the IO conducted a spot panchanama in the presence of PW1 Hanumanthappa, who acted as a Pancha. However, this spot panchanama was not promptly submitted to the court and was only produced during the filing of the charge sheet. Consequently, the delayed submission raises concerns about the reliability and integrity of these mahazars, as they were not presented to the court at the earliest possible juncture.
19. Furthermore, it is crucial to note that during the submission of the missing complaint, as documented in Ex.P.4, PW3 Hadimani Hanumanhappa, the husband of the deceased, failed to disclose the pertinent fact regarding his wife's illicit relationship with the accused. Strikingly, it took him a span of six days from the date of filing the missing complaint, specifically on September 16, 2012, to divulge this significant information. In contrast, PW3, Hadimani Hanumanthappa testified under oath, revealing
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 that his wife did indeed engage in illicit relationship with the accused. Moreover, PW3 admitted to having lodged a formal complaint with the police concerning this specific matter. The unequivocal testimony of PW3 underscores the undeniable fact that prior to filing the missing complaint, PW3 possessed explicit knowledge of his wife's illicit involvement with the accused. Despite being cognizant of this critical detail, PW3 consciously opted not to include it in the missing complaint, leaving the rationale behind this omission shrouded in uncertainty.
20. As per Ex.P5, it is stated that the accused enticed PW3's wife and took her to Harihara Hospital. In PW3's testimony, he mentioned that when he called his wife in Harihara, she informed him that she was at the hospital in Harapanahalli. However, upon his return to Kulchuru village, he called his wife again, and she claimed to be in Harappanahalli village, assuring him that she would return. However, she did not come back. PW3 made
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 efforts to locate his wife by searching in the houses of relatives for approximately 4 to 5 days. Failing to find her, he eventually lodged a missing complaint, as recorded in Ex.P4.
21. The conduct of PW3 raises suspicion due to the fact that despite being aware of his wife's illicit relationship with the accused, he did not report her disappearance at an earlier stage. Furthermore, even in the missing complaint, he chose not to disclose any details about the accused. These circumstances give rise to doubts and raise questions regarding PW3's actions and motivations.
22. During the course of cross examination of PW3 he has clearly admitted that he had married one Savithramma and after her death, he married the deceased. Further he has admitted that he has given maintenance as per the advice of panchaytas but he denied that his cruelty was the main reason for the death
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 of his first wife. Further he has denied that he is the main cause for the death of his wife. If really PW3 was in good terms with his wife, he should have taken necessary legal steps as to the missing of his wife. PW3 has not disclosed as to the phone correspondence prior to filing missing complaint. The call records between the accused and the deceased is also not collected by the IO. The IO has not explained anything as to the non collection of phone call records prior to the death of the deceased Sumithramma between the deceased and PW3. Even the prosecution has not disclosed the phone number of the deceased and PW3.
23. The prosecution maintains that the accused committed the murder of the complainant's wife inside sugarcane field in Bilasanur village and subsequently concealed the deceased's body at that location. It is alleged that the accused also disposed of the deceased's mobile phone, thereby attempting to remove potential evidence. Additionally, the prosecution asserts that the
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 police recovered the deceased's body solely based on the accused's voluntary statement, as documented in Ex.P.23. This recovery was conducted under the supervision of a panchanama, as recorded in Ex.P2. Furthermore, the police conducted a spot mahazar, as detailed in Ex.P.24, and an inquest panchanama, as per Ex.P3.
24. However, the version presented by the prosecution contradicts the evidence on record. Prior to the recovery of the body by the police at the accused instance, PW3 had already disclosed in his complaint, Ex.P5, that the accused had committed the murder and concealed the deceased's body in the sugarcane field in Bilasanur village. This disclosure formed the basis for the police's requisition to the court, seeking to include charges under Sections 302 and 201 of the Criminal Procedure Code (Cr.PC). In PW3's testimony, he explicitly stated that eight days after his wife's disappearance, he filed a
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 complaint with the police, accusing the accused of murdering his wife.
25. Given that PW3 himself divulged the presence of the deceased's body in the sugarcane field, the subsequent recovery of the body at the accused instance, as claimed by the prosecution following the accused's voluntary statement, lacks credibility. This inconsistency in the prosecution witnesses' testimonies suggests that the investigating officer did not recover the body based on the accused's statement. If PW3 had already disclosed the location of the deceased's body in the sugarcane field, it would have been imperative for the investigating officer to expeditiously proceed to the scene and conduct a spot mahazar and inquest panchanama. However, no such actions were taken by the investigating officer. Instead, the investigating officer constructed a narrative suggesting that the body was recovered solely based on the accused's statement after his arrest, which contradicts the evidence
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 presented by the prosecution. Consequently, this version of events cannot be deemed reliable or acceptable.
26. PW8-Hadimani Rajappa, PW9-Nagaraj, PW10- Gantera Kemsappa, PW11-Annigere chandrappa, PW14- Geetha, PW17 -Hadimani Hanumanthappa, PW18- Puttappa, PW19-Murigeppa, PW20-Meke Nagaraj, PW24- Parvathamma the mother of the deceased, PW31-Kirshna Murthy have deposed in their evidence that there was illicit relationship between the accused and the deceased.
27. PW40, Mahantesh Sajjan, a Circle Inspector of Police, testified that he obtained the accused's mobile number, 9535016637, during the voluntary statement. He examined the call details and found that the tower location was near the alleged incident site. These call details were marked as Ex.P.25. It was observed that on September 8, 2012, at 8:40 am, a call was made from the deceased's mobile number, 9900376406, with a tower location near
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 Kunchur bus stand (Ex.P.25(a)). The call details of the accused's mobile number, 9535016637, indicated that he received a call near the incident location, with the tower location marked as Kumarpatnam (Ex.P.25(b)). The call details of the deceased, Sumithramma, were marked as Ex.P26, revealing that on September 8, 2012, she received a call from the accused's mobile number, 9900376406 (Ex.P26(a)).
28. The investigating officer (IO) has recorded the statements of CW28-Murigeppa and CW32-Hazi Ali who are examined as PW19 and PW34 respectively. CW28 stated that he provided the SIM card to the deceased Sumithramma, while CW32 denied any association with the accused or the SIM card used by him. The IO admitted that he did not collect documents regarding the purchase of SIM cards or mobile phones, nor did he obtain evidence related to the application for obtaining the SIM cards. Additionally, he acknowledged not having collected any
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 documents to establish the usage of the mobile numbers in question. It is worth noting that the IO did not examine the person who provided the call details presented as Ex.P.25 and Ex.P.26. Furthermore, the prosecution failed to produce supporting documentation, such as certificates under Section 65(B)(4) of the Indian Evidence Act, 1872, for Ex.P.25 and Ex.P.26. The admissibility of these call details is therefore questionable. The trial court did not object to their inclusion, but the absence of objection does not establish their admissibility as legal evidence. Hence, these alleged call details cannot be relied upon to prove the guilt of the accused.
29. In the missing complaint (Ex.P.4), the complainant stated that on September 8, 2012, at 10:00 am, he called his wife's mobile number (9900376406), and she informed him that she was unwell and had gone to the hospital in Harappanahalli. Later that day, at 6:00 pm, when he attempted to contact his wife, her mobile was
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 switched off. Surprisingly, the complainant did not disclose his own mobile number in the missing complaint, and it remains unclear whether the investigating officer (IO) made any efforts to obtain this information. Furthermore, the IO neglected to secure the call details between the complainant and the deceased and failed to provide an explanation for this oversight.
30. Additionally, during the course of the investigation, it came to light that CW28 (PW19), who had handed over the mobile to the deceased Sumithramma, was not mentioned by the complainant in his statement. However, the IO did not collect the relevant documents pertaining to the SIM card for further examination. These shortcomings on the part of the IO cast doubt on the involvement of the accused in the case.
31. During the cross-examination of PW33, PSI Noor Ahamad, it was admitted that there was tension and unrest in Kunchunuru village following Sumithramma's
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 disappearance. Police were deployed to maintain order, and there was significant pressure from both higher- ranking officers and the public to locate the accused. However, it was denied that any additional statements were recorded from the complainant due to this pressure. The witness also acknowledged that no attempts were made to publicize the missing person's case or mobilize the police force to search for Sumithramma. Furthermore, no inquiry was conducted to ascertain the reasons behind the delay in filing the missing complaint. Notably, the IO did not receive a photograph of Sumithramma at the time the complaint was lodged, raising concerns about the IO's thoroughness in handling the case.
32. Moreover, it was revealed that the IO failed to submit the FIR to the court or higher authorities, even after receiving a second complaint. The IO falsely claimed to have submitted the FIR (Ex.P17) but was unable to provide any supporting evidence. The trial court did not scrutinize the submission of the FIR adequately, resulting
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 in an unreliable acceptance of the document. Consequently, without the proper submission of the FIR (Ex.P17) as required by Section 154 of the Code of Criminal Procedure, the inclusion of offences under Sections 302 and 201 IPC through the requisition (Ex.P18) becomes legally untenable. The two-Judge Bench of the Supreme Court in MEHRAJ SINGH V. THE STATE OF U.P, (1994), observed that F.I.R, in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial and the object of insisting upon prompt lodging of the F.I.R, is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of actual culprits and the part played by them, weapons used, if any, names of an eye witness, if any. Delay in filing F.I.R, in such cases provides scope for manipulating the material evidence and provides scope for presenting a coloured version or the exaggerated story thus adversely affecting the prosecution case. The jurisdictional Magistrate's approval of these
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 offences being added to the alleged FIR (Ex.P17) was granted without due consideration.
33. A careful scrutiny of the entire evidence of prosecution, it is crystal clear that there is no cogent, corroborative, consistence, believable and trustworthy evidence before this court to convict the accused.
34. The learned Sessions Judge has properly appreciated the evidence on record in accordance with law and facts. We do not find any legal infirmities in the impugned judgment. Accordingly, we answer point No.1 in the Negative.
RE. POINT NO.2:
35. For the aforesaid reasons and discussion, we proceed to pass the following:
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NC: 2023:KHC:22411-DB CRL.A No. 2139 of 2016 ORDER (1) Appeal is dismissed.
(2) The Registry is directed to send the copy of this judgment to Member Secretary of concerned District Legal Services Authority to award the compensation under Section 357A after due enquiry in accordance with law to the legal heirs of deceased Smt.Sumithramma.
Sd/-
JUDGE Sd/-
JUDGE BH List No.: 1 Sl No.: 3