Karnataka High Court
Mr N Vinaya Kumar @ Thammanna @ Udaya Rai vs The State Through The Assistant ... on 28 January, 2010
Bench: K.Sreedhar Rao, Subhash B.Adi
IN THE H!GH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28"' am! OF JANUARY 2010 __
PRESENT
THE HON'BLE MFLJUSTICE K.SREEDHAR_.F{AO"Aff: if
AND
THE HON'BLE MR.JUSTICEvSUI'3HAA;SuHBTAD-! " A
CRMNAL APPEaA.L_No;1'?t5_;2_;m:»tA'oA A 'Z;
CRiMlNAL_.APPEAL----$tC3_;5_2_§}'i20t)f3'
"IN CRL.A.No.1752!?007 A A
BETWEEN:
Mr. N. Vinaya !<§uma;tV@ A ' V H
Thammatmav @_ Vijidaya Rai' ,
@ Yash:awanth"R"ai,_'V _ --
S/o Mr. Kittana i'?ai'@-~._ A '
Balakrishriafiai, ' V
Aged about 34 yoars,.
Ft/o Kandiga House', V. -
Kayatthadka, Kalanja Village,
A --Be|t'hahg5ady Taluk. "" ..APPELLANT
,.A_'(E3'yA ; Prasad, Adv.)
AN Q': A
=._The State";
2 ThrQiJgh the Assistant
" « . "3upe'r«intendent of Police,
_ P_utiL:--:"Sub-Division,
" Putter, D.K.,
.4 -"Represented by Eearned
State Public Prosecutor
High Court of Karnataka,
Bangalore -- 560 001. ..F{ESPONDENT
%/
(By Sri. PM. Nawaz, Addl. SPP)
IN CF-{L.A. No. 1207/2006
BETWEEN:
E). Ganesh Bhat,
S/o Venkataramana Bhat,
Aged about 55 years, ' A
Occ: Agricultural,
R/0 "Rama Nilaya",
House,Gadipila,
Narimogru Village, .
Puttur Taluk. ..APPELLA3\lT
(By Sri. RB. Deshpande, Adm) _
AND: _ '
The State of Kar2ia{é:}ka}_ "Al"'-------=i..F1'ESPONDENT
(By Sri. PM. E;.iaw§:;.%Add:l~$i#P)
IN cRL.;A.li¢';r4§4/zfiégl
BETWEEEu'N:--'-- A A A
M. Ramesh, V
S/o Sféinappa Rai} -A
" «--.Age;-:3 years», Occ: 'C0'0*l*i'é,
Rio rMavarathoo'r«.House,
Kaila '»'ill|age,l Esaritwal Taluk,
Presl-'ant Adfci':e_ss."at;"
Ummerkunhl' 'ccmpound,
Olathadka,' Aryapu village,
' ',PutturT.alul§,
" VManga|ore--District. ..APPE-ELLANT
A 8.8. Prasad, Adv.)
Céi
AND:
The State of Karnataka,
Represented by Assistant
Superintendent of Police,
Puttur Sub-Division,
Puttur. ..RESPONDEi\£_T--._
(By Sri. PM. Nawaz, Addl. SPF')
**i-*1-iri-**
These Criminal Appeals are filed
against the judgment dated: 29.4.2006/Oi2.G5_.2006 passed b.y'~the*,
Presiding Officer & District &v'i:3essions,. Jddge', 'E§"{(3_;l,
Mangalore, in S.C.No.40/2005 conyictying the lapp'e|la'r?ts/accused
No.3, 2 and 1 respectively for the offence pyunishablye under Sections
302, 392, 321 & 120-8 R/VV---Section"3-.1 of IPC and sentencing him to
undergo life imprisonment an_d'ya|so'_sha!lVp'ay-a fine of Fts.25,000/- and
l.D., of payment of fine amount' h'e.s'hall _unc'ergo further Rigorous
lmprisonment,etc., V H ' V. V ' --.
These App"eai"s--comiing =iorr' for" heari'ng..this day, SREEDHAR
RAO J., deliveredthe-it-l'£.owing.; " .
" _.;__d"p G M E N T
§j)net..Fiaghurarn 'lBhandary 'is the deceased No.1 (in short D1).
Kotyan is deceased No.2 (in short D2). One Rekha
l1Shfettylis No.3(in short D3).
Appellant in Criminal Appeal No.474/2008 is accused No.1,
short At). Appellant in Criminal Appeal No.1207/2006 is accused
short A2). Appellant in Criminal Appeal No.1752/2007 is
Ii: ' 'i3.CClJSed No.3 ( in short A3) before the Trial Court.
4/
3. D1 owning an agricultural land in Muthinagadde in
Kadeshwalya Village. The D1 was residing in the land. D2 anC§»..D3_V_are
the workers permanently employed by him to attend to _
and they were residing with him in the same house,.u_:l'he*~l.i.::accu.sed..'V
No.3 got employed D3 under D1 as maiydse'rvai1t'a:nd.,'he'
frequently visiting D3 at the residence of ."'i*" he Nos."lt'o a
had come to Kadeshwalya village for'i4r;:o'olie work,V_S'iince thereiiwas no
bus facility for return, they stayed inthe D1 'for that night on
14.2.2005. On the intervening.'nigipitief the accused persons insists be te:g Vce-operate'iitiitn...tl1ém.te'centmit the theft. When D3 refused to caused murder of D3 in the bathroonéy"A'..t;y :stirengul'atio'n.l' Later' D1 and D2 are killed by assaultingwith it V4 .
4&2 Ffrakash shettyn:--'Pwi is the grandson of the D1. on the the labourers comes to work as usual. They foundtne doorsi_e.ti':e closed. When they peep through the window they 'found a'rgdVD2 were dead. They informed PW2 son of D1. One '»F_'ral:kashg Shetty PW1 grandson of D1 comes to the scene later on Heft-odged'complaint Ex.P1 before Bantwal rural police against unknown as culprits. The police conducted the inquest. The post 1 mortem report disclose that, death of D1 and D2 is due to haemorrhage and shock on account of multiple injuries. The post mortem of D3 disclose that, death is due to asphyxia on account of strangulation, death is homicidal.
5. The accused persons are arrested on Investigating Officer records voluntary statement e'f"A1~ * . at his voluntary instance wrist watch ..belonhged" to"Vi32A recovered from PWf3 arrack sho;:_1__venc;ior_rThe M.O.8 belonged to D3 is recoverediéiifroriahis imge mahazar Ex.P22. The voluntary staternent of reeerded as p'erEx.P30. The choppers M.O.3 and M.O.4 are ~'a~tv.tiie'jve'iuntary instance of A1 and A2, which wa;gty1'concealed"in the"ba'throorn of the house of D1. The voluntary'_statemeiitVioi-- recorded at Ex.P30. At his voluntary instance, the 'one'silveri.w'aiet"'t.hiead M.O.9, Ear Stud M.O.10 are recovered frorn"th_i§ shop of pawn broker to whom A2 had soid. T' he 'v.o'i'unta.ry«staternen't'"of A3 is recorded at Ex.P31. At his voluntary i_ns'tan'Ce.:"h._a|f-burnt. plastic jars are recovered from perlapu school. Pwflhiidentvifited pair of chappals M.O.28 and Nylon bag lVi.O.11 are "seized his house. Bloodstained shirt and pant ix/i.Os.26 and 27 A fare' sei7,ed from his house. PW2 has identified that M.O.7 is belonging ' toA"D2,'AM.O.8 is belonging to D3 and M,Os.9 to it is belonging to D1. two choppers were lying at the spot, they were seized and 3%
8. The PW-13 is the arrack shop vendor. His evidence disclosed that A-1 gave M.O.7 - wrist watch as a barter for purchasing the liquor and that the same was seized by the Police at the voluntary instance of A-1. PW-15 is the panch witness to therecovery rnahazars. His evidence disclose that at the vo|unt_ary 'in'sta;nce"»..of accused persons, M.Os.1 and 2 werepyseized f'r'or'n -- .th=e"'spot, and "
M.Os.3 and 4 were seized from the bathroom of?the._reside'n'c§g...of"£he D-i. M.O.7 was seized from the arr-ack shop of arid': r 10 were seized from the pawn brokershop of' The witness specifically states that at'thep,.vol1_}ntary' -«i.nsta'n.ce of a pair of chappals, ladies wrist shir't'~a.n'd:'..'pa-nt were recovered from his house. fitltfteiloluntarjv i'nsta'nce'of=A-2:,' nylon bag and pair of chappalsflvverelreoovered. voluntary instance of A-3, half-burnt plastic jarswere to" whom M.Os.9 and 10 said to have been sold hasaturyned. ".i1os'ti|e""and does not suppori the prosecution «case;-1':'i°\/ii'--.22--5 the Investigating Officer, who effected the V*.rec'overies'---at t.h'e.,:voluntary instance of A-1 and A-3 as stated above. Postrnorten'irep_nits of D-1, D--2 and D-3 at Exs.P14, P13 and P15 Arr_especti'velyt_show that the deaths are homicidal.
The trial court on the basis of above evidence, convicted A-1 for the offences for which they were charged. All the three
-'accused have filed separate appeals.
'K
10. On thorough scrutiny of the incriminating evidence of PWs- 2, 13, 15 and 22 against A-1, we find that the recovery of watch -- M.O.7 belonging to D--2.' would clinchingly estabiish the guiltf:df»eA»1. PW--2 in the evidence specifically identifies M.O.7 belonging to D--2. PW--2 is a frequent visitor to the farnthouse K * is also associated with the agricultuialhactivity, -;'lnV:"the._Vcross?r- examination of PW--2. it is eticited that watch"l_ilte is found. There is nothing elicited intfie:et.tidence'--.of' I'?Xi\it;2VvtcT'disbe|ieve'VV his veracity. with regard to identificotichygof belorrging to 13-2, the evidence of PW--15 'disclosed - M.O.8 was recovered fromttte_hott'seV'of':té.~1.:{ t«.E:3titrt.11V-aisle'identifies M08 as the watch belortginyg ev'idence:o1V'PW~22 investigating Officer wo..uld--.corrotjoratetthétr.version of PW--13 and 15 with regard to recovery ofslt/f.4Ol.t7t at"thetVgvcl:ur;.ta4ry instance of the accused. All the t deaths_;fhave taken' place simultaneously at the same place and at the A'-'1._tbeing in possession of the incriminating article has failed to explain to exculpate himself. in _ that view o_€'t'ite§matter, the order of conviction recorded against A-1 is sound andproper.
11. With regard to A-2, the prosecution case disclosed that, is --~ silver waist chain and M.O.10 - rotted gold ear stud were " seized from the shop of PW~19. The evidence of PW-T5 is vague with regard to recovery of M.Os.9 and 10. PW45 does not specifically mention from which accused l\/i.Os.9 and 10 were recovered. However, he makes a reference that he recovered the same the shop of PW--19. PW--t9 has turned hostile and does _ prosecution case. PW--22 alone testified toytyhe fact' 2 10 are recovered at the voluntary instarice the PW--i9. However, if the evidence of P_W--t5" is scrutin.isedi the", witness specifically states that nylon recorded at the voluntary instance of does notimake specific reference to the recovery of 'voluntary instance of A2. The recov"eryg;rp'uVnch._ witness rwayédoes not corroborate the prosecutionve_rsio'n',:"'cn he specifically mentions that we_re'recovered. There appears to be serious 'lapse :1 H the investigation. PW--22 ~ Investigating O'ificer.adrniA1si' that finger print experts were summoned ~-to and they' teekthe photograph of the chance finger prints in it is not explained by the prosecution as to what happened'to"V-tite..ichance finger prints, whether the finger prints of the 'accused. persons were taken and sent for comparison. The evidence it iifivniitthiatygregard is incomplete. Except the discrepant evidence with ' regardito recovery of the chappals and nylon bag, there is no credibfe " "evidence adduced by the prosecution to prove the recovery of M.Os.9 and 10 at the voluntary instance of A2. Therefore, A--2 would be entitled to benefit of doubt.
12. With regard to conviction of A-3, it is prosecution that, 8-3 was planted by A-3 three months prioirhfoi 0' incident for committing robbery. It is also the -case' of _,the~VIprose4cutionu 0' that, A4 to A-3 came for coolie work in thepviiilage, since there no. bus facility, they camped in the fart'.-thotise of"Df1; the.' investigating Officer has not recorderiihe"istatereentswofyiiany of tin. persons to prove the fact th'at«'A.1\--.t9 and stayed in the farmhouse of or-t,,_ Therese: tatterap_t.:rrt1ad'e by investigating Officer to exarrtine. the farm work of D4 or prove their stay in the farmhouse of 'ttitglt.t.__ investigation appears to have been done in hair.hearted~htah'Ane'r'.i-{yrtth regard to A-3, we find that there is absolutely... not vaulxuei of" incriminating material adduced by the iviprogsecutiorr aganinst It is only voluntary statement and recovery , rpfhalféiburittflplastVic:~jars nearby the school, which has no incriminating value and ~no4j'.r'e|evance to motive are put forth. In that view of the R"K_V"=rnatter," conviction recorded against A~3 is set aside. A-3 is . , , '"_acquit:1ed.
13. Criminal Appeal Nos.'l752/2007 and 1207/2006 are allowed. Appeliants in both the appeals (A-3 and A2) are to be set
15. free forthwith, it not required to be detained in any other case. Cri.A.No.474/2008 stands dismissed.
In Cr|.A.No.474/2008, fees of the Amicus Curiaeisv Rs.7,000/--. The State shall pay the fee of the Amicus '-it fV"«'lI' t trims