Karnataka High Court
Aravind S/O Suresh Hipparagi vs The State Of Karnataka on 27 January, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100456 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 27TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100456 OF 2019
BETWEEN:
1. ARAVIND
S/O SURESH HIPPARAGI,
AGE : 35 YEARS, OCC: MASON,
Digitally signed
by ROHAN
R/O JAMAKHANDI LAKKANAKERE,
HADIMANI T
ROHAN Location: HIGH
HADIMANI COURT OF
T KARNATAKA
TQ: JAMAKHANDI,
DHARWAD
Date: 2023.02.04
13:10:33 +0530 DIST: BAGALKOT.
2. FAREEJ
S/O NAJABUDDIN MALLIK,
AGE : 32 YEARS, OCC: COOLIE,
R/O SANAKALAKUTTI, TQ: KEKADA,
DIST: BHAGAPAT UTTAR PRADESH,
NOW RESIDING AT JAMAKHANDI,
TQ: JAMAKHANDI,
DIST: BAGALKOT.
...APPELLANTS
(BY SRI K.S.PATIL, ADV. FOR A1.
SRI VISHAL PRATAP SINGH, ADV. FOR A2)
AND:
THE STATE OF KARNATAKA,
BY CIRCLE POLICE INSPECTOR,
MUDHOL POLICE STATION,
REPRESENTED STATE PUBLIC PROSECUTOR,
A.G.OFFICE,
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CRL.A No. 100456 of 2019
HIGH COURT OF KARNATAKA,
BENGALURU.
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT DATED 05.11.2019 AND SENTENCE DATED 06.11.2019
IN SESSIONS CASE NO.51/2015 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS, BAGALKOT TO SIT AT JAMAKHANDI
CONVICTING THE APPELLANTS FOR OFFENCE UNDER SECTION
302, 201 R/W SEC.34 OF IPC, BY ALLOWING THIS APPEAL.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, G BASAVARAJA J., DELIVERED
THE FOLLOWING:
JUDGMENT
1. This Criminal appeal is filed under Section 374(2) of the Code of Criminal Procedure seeking to set aside the judgment of conviction dated 05.11.2019 and order of sentence dated 06.11.2019 in S.C.No.51/2015 passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi ("the trial Court" for short) convicting the accused for the offences punishable under Sections 302 r/w Section 34 of the Indian Penal Code. -3- CRL.A No. 100456 of 2019
2. Rank of the parties is referred to as per their ranks before the Trial Court for the sake of convenience.
3. The brief facts of the case are that:
3.1 Accused No.1 had borrowed a loan of Rs.2,00,000/- from the brother of complainant namely, Balu on 27.11.2014 by executing promissory note promising to repay the same within a week. As accused No.1 failed to keep up his promise, Balu was repeatedly demanding accused No.1 to repay the loan amount as he was in need of money for construction of his new house. Accused No.1 to get rid off him and from not repaying the loan, decided to take away the life of Balu and took the help of accused No.2, who is his friend by offering him Rs.30,000/-.
3.2 That on 28.01.2015, accused No.1 told Balu that his friend at Shirol will give him Rs.2,00,000/- and he will repay the loan of Balu -4- CRL.A No. 100456 of 2019 and went in a motorcycle driven by Balu bearing registration No.KA-29/H-4820 as a pillion rider and made Balu to ride the motorcycle on GLBC canal road on the cross road near Siddapur.
When they reached Shirol border, accused No.2 gave signal to stop the motorcycle. When Balu stopped his motorcycle, accused No.1 introduced accused No.2 to Balu that the person who agreed to give money is known to accused No.2 and made the accused No.2 also to sit on the motorcycle. When they reached the land in R.S.No.378 of C.W.19, accused No.1 told Balu to ride the motorcycle on the road running on the land of C.W.19.
3.3 About 11.30 a.m., accused No.2 assaulted Balu on his head with iron rod. As a result, Balu fell along with the motorcycle near the sugarcane field of C.W.19, then accused No.1 took the knife from accused No.2 that was given by him -5- CRL.A No. 100456 of 2019 and cut the neck of Balu and murdered him. Then threw the knife and iron rod used to murder Balu and destroyed the evidence of murder and thereby accused have committed for the commission of offences punishable under Sections 302 and 201 r/w Section 34 of IPC.
4. The jurisdictional Magistrate has taken cognizance of the offences against the accused. After filing the charge sheet, case was registered in C.C.No.548/2015 on the file of Senior Civil Judge and JMFC, Mudhol. After committal of this case to the Sessions Court, the case was registered in S.C.No.51/2015. Since from the date of arrest i.e., on 23.02.2015, accused are in judicial custody.
5. After hearing on charges, charges are framed for the alleged commission of offences against accused Nos.1 & 2. The same is read over and explained to the accused. Having understood the same, the -6- CRL.A No. 100456 of 2019 accused have pleaded not guilty and claimed to be tried.
6. To prove the case of prosecution, 20 witnesses are examined as P.W.1 to P.W.20 and got marked 51 documents as Exs.P-1 to P-51 and 9 material objects were also marked as M.O.1 to M.O.9. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. is recorded. Accused have totally denied all the incriminating materials appearing against them, but they have not chosen to lead any defence evidence on their behalf.
7. On hearing the arguments, trial Court has convicted the accused Nos.1 & 2 for the commission of offences punishable under Sections 302 r/w Section 34 of IPC, as under:
"The accused persons are sentenced to undergo life imprisonment for the offence punishable under Section 302 r/w Sec.34 of the Indian Penal Code and sentenced to pay fine of Rs.10,000/- each.
In default of payment of fine the accused persons shall undergo simple imprisonment for three months."-7- CRL.A No. 100456 of 2019
8. Being aggrieved by the judgment of conviction and order of sentence, the accused have preferred this appeal.
9. Sri.K.S.Patil, learned counsel appearing on behalf of appellants has submitted his arguments that the entire case of prosecution rests upon circumstantial evidence and admittedly there are no eye witnesses to this incident. The trial Court has failed to appreciate the evidence on record in a proper and perspective manner. The trial Court has committed an error in convicting the accused based upon the circumstantial evidence, when the prosecution failed to prove each and every incident for being chain of circumstances independently beyond reasonable doubt. The trial Court has presumed the motive of crime in the absence of positive evidence on record, which is illegal and bad in law.
-8-CRL.A No. 100456 of 2019 9.1 The genesis of FIR insofar as recording the same in the evening at 4.00 p.m. The delay in filing the compliant is not explained by the prosecution. The delay has nullified the story of prosecution. The best witnesses to the case of prosecution is C.W.10-Srikanth, who is not examined and this aspect manifestly cleared the fact that the prosecution has not brought incriminating circumstances on record. 9.2 In the initial statements of P.W.6 & P.W.7 there is no mention of last seen aspect, but the prosecution during the course of recording of evidence stealthily and seemingly positioned them as last seen witnesses.
9.3 Accused No.1 is a known person and his name is not disclosed to P.W.1, who at the time of lodging complaint was present. The trial Court failed to consider the improvements and non disclosure of entire materials by the -9- CRL.A No. 100456 of 2019 prosecution. As such, the sentence passed by the trial Court is unsustainable. 9.4 In respect of M.O.8 & M.O.9, there is no FSL report to connect these accused. Further it is stated that trial Court has not properly appreciated the evidence on record in proper perspective manner, but the trial Court has convicted the accused only on the basis of surmises and conjectures. Prosecution has failed to prove the guilt of accused and to prove the case beyond reasonable doubt. On all these grounds, sought for allowing this appeal. 9.5 To substantiate his arguments, the learned counsel for the accused has relied on the following decisions.
(i) 2022 SCC Online SC 1396:
(Ramanand Alias Nandlal Bharti Vs. State of Uttar Pradesh.)
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CRL.A No. 100456 of 2019
(ii) (2020) 10 Supreme Court Cases 166: (Anwar Ali and another Vs. State of Himachal Pradesh)
(iii) (2019) 7 Supreme Court Cases 678: (State of Rajasthan Vs. Mahesh Kumar Alias Mahesh Dhaulpuria)
(iv) 2014 Crl.L.J 470: (Lalita Kumari Vs. Govt. of U.P.)
10. As against this, learned Additional State Public Prosecutor appearing for the State has submitted his arguments that trial Court has properly appreciated the evidence on record in accordance with law and passed the impugned judgment of conviction and there are no grounds to interfere with the impugned judgment.
11. On hearing the arguments on both sides, we have carefully re-examined the entire evidence of the prosecution with relevant prosecution papers and also citations relied on by the learned counsel for the accused.
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CRL.A No. 100456 of 2019
12. We have carefully gone through the prosecution papers, order sheet of trial Court and statement recorded by the learned Sessions Judge under Section 313 of Cr.P.C. On going through the materials placed before this Court, following points would arise for our consideration:
(1) Whether the learned Sessions Judge has conducted a proper and fair trial as required under Code of Criminal Procedure, 1973?
(2) What order?
13. Our answer for the above findings are as under:
(1) Negative (2) As per final order
14. On the basis of complaint-Ex.P-1 filed by Ramesh S/o.Siddannavar, who is examined as P.W.1, the Sub-Inspector of Police, Mudhol has registered the case in Crime No.20/2015 on 28.01.2015 against unknown culprits (name and address not known) for
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CRL.A No. 100456 of 2019 the commission of offences punishable under Section 302, 201 r/w 34 of IPC and submitted the FIR to the Court as per Ex.P-40 on 28.01.2015 at 6.30 p.m.
15. On the next day i.e., 29.01.2015, the Investigating Officer has visited the spot and conducted spot panchanama as per Ex.P-4 and seized blood stained mud, plain mud and Hero Honda motorcycle CD 100. On the same day, the Investigating Officer has conducted the inquest panchanama as per Ex.P-2 in Question No.13 it has answered that accused not known. The Investigating Officer has obtained the PM report - Ex.P-35, which reveals that cause of death is due to shock, 60th Haemorrhagic and Neurogenic injuries mentioned from (1) to (5).
16. The remand application submitted by the Investigating Officer dated 23.02.2015 reveals that the Investigating Officer has arrested the accused Nos.1 and 2 and were produced before the Court at 10.30 p.m., on the same day, the court has passed
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CRL.A No. 100456 of 2019 an order to remand the accused to the judicial custody. After arrest of the accused, the Investigating Officer has interrogated the accused and recorded their voluntary statements as per Ex.P- 47 and P-48 and also took the signatures of accused Nos.1 and 2 on Ex.P-47 and P-48. Ex.P-48 reveals the name and address of the accused as under:
"Fareez, S/o. Najabuddin Mallik Age 28 years, Caste: Muslim, Occ: Coolie work, Resident of Sankalakutti, Taluk: Kekada, District: Bagpat, Uttar Pradesh.
Now resident of Jamkhandi, Choudaiahnagar"
17. Ex.P-48 reveals that Investigating Officer has typed the statement of this accused in Kannada language, which is stated to be explained to the accused in Hindi language and he has translated the contents of Ex.P-48 to the accused No.2 in Hindi language and took the signature of the accused on it. Therefore, it
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CRL.A No. 100456 of 2019 is crystal clear that accused No.2 do not know Kannada language.
18. The trial Court has recorded the statement under Section 313 of Cr.P.C. on 22.06.2017 in Kannada language. The answers given by the accused is also shown in Kannada language.
19. This certificate made by the learned Sessions Judge reveals that contents of the statement under Section 313 of Cr.P.C. is not read over and explained to the accused in the language familiar to him i.e., Hindi language. Though the accused has not stated the answers in Kannada language, learned Sessions Judge himself has noted the answers in Kannada language as if the accused has stated the same in Kannada language, which is not sustainable in law.
20. To fortify the same, the recent decision of Hon'ble Apex Court in the case of KALICHARAN AND OTHERS vs STATE OF UTTAR PRADESH passed in
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CRL.A No. 100456 of 2019 Crl.A.No.122 of 2021 on 14.12.2022, wherein it has mentioned about the importance of 313 statement in the criminal case trial in paragraph 22, which reads as under:
"22. Such a case was not at all made out by the prosecution in the evidence before the Court. The material brought on record by the prosecution witnesses (PW-1 and PW-2) is to the effect that Harpal Singh died due to injuries sustained as a result of an attack made by accused nos.1,3 and 4 on him by sharp weapons. These material circumstances brought on record against the accused on which their conviction is based were never put to the accused. What was put to the accused was not the case made out by the prosecution in the evidence. No questions are asked in the Section 313 statement about the post-mortem of the body of Harpal Singh. It is not put to the witness that the cause of death of Harpal Singh was due to haemorrhage and shock as a result of injuries caused by sharp weapons. Questioning an accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself. In paragraph 21 of the decision of this Court in the case of Jai Dev v. State of Punjab1, it was held thus:-
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"21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060 : AIR 1953 SC 468] . In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions 1 (1963) 3 SCR 489 reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all
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CRL.A No. 100456 of 2019 the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under Section.342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material."
(emphasis added)
21. In paragraph 145 of the well known decision of the Hon'ble Apex Court in the case of SHARAD BIRDHICHAND SARDA V. STATE OF MAHARASHTRA reported in 1985 SCR (1) 88, it was held thus:
"145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section
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313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration."
(emphasis added)
22. Following the principles laid down in the judgments referred to supra, it is crystal clear that statement of the accused under Section 313 of Cr.P.C. is valuable right of the accused and it is not an empty formality. Recording of statement of accused under Section 313 of Cr.P.C. is not a purposeless exercise. Where there is a perfunctory examination of Section 313 of Cr.P.C., the matter is required to be remitted to trial Court with a direction to retry from the stage at which the prosecution was closed.
23. With regard to accused No.1 is concerned, it is alleged by the prosecution that on 27.11.2014 accused No.1 as he was in financial problem has taken a sum of Rs.2,00,000/- from the brother of complainant and executed promissory note as per Exs.P-30 to P-33 promising to return the same within
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CRL.A No. 100456 of 2019 one month. As the accused Balu was constructing the house, he was in need of money and as such he started to press for return of money. To avoid paying Rs.2,00,000/- accused No.1 conspired with accused No.2 to kill Balu and promised him to a sum of Rs.30,000/-.
24. On 28.01.2015 accused No.1 took accused No.2 and dropped him on the road by the side of GLBC canal, thereafter telling Balu that he is going to receive Rs.2,00,000/- from somebody at Shirol village, took him on the motorcycle belonging to Balu and accused No.1 sat as pillion, taking canal road came within the limits of Shirol Village. Accused No.2 waved his hand and made Balu to stop the motorcycle. Accused No.1 informed the deceased that accused No.2 is his friend, he knows the person who is going to give him Rs.2,00,000/- and made accused No.2 to sit behind. At 11.30 a.m., while going through agricultural land bearing one CW.10, accused No.2 hit Balu over his
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CRL.A No. 100456 of 2019 head with rod as Balu fell down with motorcycle in the sugarcane field. Accused No.1 slit his throat with knife.
25. On perusal of Exs.P.30 to P-33 pro-notes reveals that on 27.11.2014, accused No.2 - Aravinda Suresha Hipparagi has executed four promissory notes of Rs.50,000/- each in favour of Balu, S/o.Goolappa Siddannanavar. All these promissory notes reveals that accused No.1 has put his signature on all these promissory notes - Exs.P.30 to P-33. One attesting witness has also put his signature on all the promissory notes. In these promissory notes, the accused has agreed to repay the amount on demand.
26. Accused No.1 has specifically denied the signature at Exs.P-30 to P-33 and also execution of alleged promissory notes said to have been executed in favour of the deceased. The order sheet pertaining to S.C.No.51/2015 dated 06.07.2017 reveals that accused No.1 chose to adduce defence evidence.
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CRL.A No. 100456 of 2019 The statement under Section 313 of Cr.P.C. of accused No.1 also reveals that accused has stated in answer to Question No.34 that he will adduce evidence on his behalf. The case was also posted for defence evidence on 27.07.2017. The order sheet dated 03.08.2017 reveals that accused No.1 had filed an application under Section 313(5) of Cr.P.C. r/w Section 233(2) of Cr.P.C. and another application also filed under Sections 45 and 73 of Evidence Act r/w Section 311A of Cr.P.C.
27. The application filed under Sections 45 and 73 of the Evidence Act r/w Section 311 of Cr.P.C. was dismissed and application filed under Section 311 r/w Section 233(2) of Cr.P.C. was dismissed, but the application filed under Section 313(5) r/w Section 233(2) of Cr.P.C. filed on behalf of accused No.1 was taken on record.
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CRL.A No. 100456 of 2019
28. In the written statement under Section 313(5) r/w Section 233(2) of Cr.P.C. the accused has stated as under:
"Herein the Advocate for the accused No:1 most humbly & respectfully submits as under:-
1. The accused No:1 never worked in deceased Balu Siddannavar's house who has not even obtained any permission from the local authority to construct building, one alleged is created for this case by the complainant party.
2. The accused No:1 never worked in deceased Balu Siddannavar house & has taken Rs.2,00,000/- cash from the deceased & executed 4 pro-notes of Rs.50,000/- each in the presence of scribe - Mallappa Kabnur or Sanjay Parappa Mudhol. That much of amount was never in need for this accused No:1
3. The accused did not know accused No.2 & he is neither his friend nor having relationship with him and this accused knew this accused No:2 only in police station.
4. The accused No:1 since beginning is left-
hand & he used to sign with left hand.
5. The accused No:1 specifically deny the signatures appearing in 4 pro- notes produced by the prosecution.
6. This accused No:1 submits that the I.O., has taken his mobile phone & the I.O., knew the engineer who is looking after the alleged building of deceased Balu Siddannawar. In alternatively, the accused No:1 submits that deceased Balu Siddannavar was not constructing any building & this accused was working as goundi therein.
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CRL.A No. 100456 of 2019
7. It is submitted that to prove the innocence, the accused No:1 is ready & willing to examine his signature with that of signatures appearing in 4 pro- notes. In this behalf separate application is also filed & prayed to provide the opportunity to this accused.
8. This accused No:1 further submits that he never has given any voluntary or disclosure statement & deny the alleged photos which are not admitted. The I.O., ought to have taken the finger prints on the alleged rod & knife prior to sending them to scientifically examining them.
9. It is now learnt, by the accused No:1 that deceased Balu Siddannavar was having extra material relationship with a woman of Shirol village. In view of this relationship deceased Balu Siddannavar might have murdered is suppressed by the complainant party as well as the investigation in this behalf was conducted and did not disclosed before the Hon'ble Court while filing final report. If the Hon'ble Court peruses the CD of the police/IO, truth may come out or from the mobile print outs of deceased Balu Siddannavar or his wife/Smt.Annapurna.
10. It is submitted on 23/2/2015 as per panchanama, the IO has seized white shirt of this accused No:1 from his house and it is alleged by this accused that for the said white shirt the police poured/sprinkled blood and created evidence against this accused is suppressed by the prosecution as well as panchas for the alleged recovery after lapse of 2-3 months. The alleged blood poured/ sprinkled white shirt has not been produced by the IO. One produced by the IO is not of the accused No:1 and it is specifically denied.
11. Therefore, it is most humbly & respectfully prayed that the Hon'ble Court may be kind enough to extend the benefit of doubt
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CRL.A No. 100456 of 2019 as the prosecution failed prove the guilt against this accused & acquit of all the charges leveled by the prosecution in the interest of justice."
29. Being aggrieved by the order passed by the learned Sessions Judge, accused has preferred Crl.P.No.101863/2017 against the order passed on IA filed under Sections 45 and 73 of the Evidence Act r/w Section 311A of Cr.P.C. The Co-ordinate Bench of this Court has passed an order on Crl.P.No.101863/2017 on 19.03.2018. In view of this order the impugned order passed by the learned Sessions Judge was set aside and petitioner was directed to file fresh application in accordance with law.
30. On 28.03.2018 accused has filed application under Section 313(5) r/w Section 233(2) of Cr.P.C. and under Sections 45 and 73 of the Evidence Act r/w Section 311A of Cr.P.C. along with the copy of order passed in Crl.P.No.101863/2017. Order dated 02.08.2018 reveals that learned Sessions Judge has
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CRL.A No. 100456 of 2019 rejected the application filed under Sections 45 & 73 of Evidence Act r/w Section 311A of Cr.P.C. and rejected the application filed under Section 311 r/w 233(3) of Cr.P.C. Being aggrieved by this order the accused No.1 has preferred Crl.P.No.101461/2018.
31. A perusal of order on I.A.No.1/2018 pertaining to Crl.P.No.101461/2018 dated 19.12.2018 reveals that further proceedings in S.C.No.51/2015 are stayed. Subsequently, on 27.09.2019 learned Single Judge has directed the trial Court to proceed with the case in accordance with law. Accordingly, case was disposed off on 05.11.2019. On 31.07.2021 the petition - Crl.P. No.101461/2018 came to be dismissed as having become infructuous, as the learned trial Judge has already passed the judgment in S.C.No.51/2015 on 05.11.2019.
32. A perusal of entire order sheet pertaining to S.C.No.51/2015 it is crystal clear that learned Sessions Judge has not provided an opportunity to
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CRL.A No. 100456 of 2019 accused No.1 to adduce his defence evidence. In paragraph No.7 of the impugned judgment it is observed by the learned Sessions Judge that the learned counsel for the 1st accused filed memo of retirement and the same is accepted. As per the request of the 1st accused for legal aid, Mr SKH is appointed as a counsel for 1st accused from the legal aid committee. As such both the accused are represented by the counsel appointed by the legal aid committee. The counsel appointed by the Legal Services Authority has not taken steps to adduce defence evidence of accused No.1, though he has specifically stated so while recording statement under Section 313 of Cr.P.C. Even trial Court has not recorded in the order sheet that defence evidence is taken as NIL.
33. Trial Court has observed in paragraph 17 of the impugned judgment that signature of accused No.1 on promissory notes - Exs.P-30 to P-33 tallies with
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CRL.A No. 100456 of 2019 that of the signature on the statement of accused No.1 recorded under Section 313 of Cr.P.C. Scientific examination of the promissory notes is not necessary, because this is not a money suit. We have meticulously observed the signature of accused No.1 on Ex.P-47 - voluntary statement recorded by the Investigating Officer dated 23.02.2015. We have also observed the signature of accused on the order sheet (which is endorsed on remand application dated 23.02.2015) and signature on the notice issued to the accused after arrest and alleged signature of the accused on promissory notes Exs.P- 30 to P-33.
34. The signatures are not consistent with each other.
The genesis of prosecution case is that accused No.1 has killed the deceased to avoid his liability of loan borrowed by the deceased on executing promissory notes, which are marked as Exs.P-30 to P-33. The entire burden lies upon the prosecution to prove the
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CRL.A No. 100456 of 2019 execution of promissory notes - Exs.P-30 to P-33. The Investigating Officer has not taken any steps to prove the signature of accused on Exs.P-30 to P-33 or to send the same to the handwriting experts. However, accused himself had filed an application under Sections 45 and 73 of the Evidence Act r/w Section 311A of Cr.P.C. to send the disputed signature on Exs.P-30 to P-33 for scientific investigation. Trial Court has rejected this application on two grounds; (1) the court can compare the disputed signature with the admitted signature of accused; and (2) only to drag on the proceedings accused has filed this application.
35. With regard to reasons assigned by the learned Sessions Judge on accused No.1 is concerned, we have gone through the signature of accused on arrest notice, remand application, voluntary statement and other documents and of the opinion that without the assistance of expert opinion, we cannot come to the
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CRL.A No. 100456 of 2019 conclusion that signature on Exs.P-30 to P-33 are signatures of accused No.1. Therefore, in our opinion it is necessary to obtain the report from the handwriting expert to ascertain the signature of accused No.1 on Exs.P-30 to P-33.
36. Though accused has challenged the order of learned trial Judge before this Court in Crl.P.No.101461/2018, same was dismissed on 31.07.2021 on the ground that criminal petition become infructuous as the learned Sessions Judge has already disposed of the Sessions Case No.51/2015 on 05.11.2019.
37. Admittedly, accused Nos.1 and 2 are in judicial custody since from the date of arrest, therefore, question of dragging the proceedings by the accused does not arise. Still the accused are in judicial custody, but the learned Sessions Judge has not observed the same and dismissed the application, which is not sustainable in law.
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38. During the pendency of proceedings before the trial Court on 28.03.2018 on behalf of accused No.1 the application filed under Section 311 r/w Section 233(3) of Cr.P.C. to recall C.W.4 and C.W.5 for further cross examination pertaining to white shirt recovered from the house of accused No.1 as depicted in 2 photos dated 23.02.2015, are examined on behalf of accused No.1.
39. A perusal of order sheet dated 13.12.2018 it is noted in the order sheet that application filed under Section 233 of Cr.P.C. is filed to direct Dr.P.S.Patil, Shri.Abhinav Surgical Hospital, Jamkhandi, to produce medical documents of accused No.1, who has been admitted at their hospital and also deposed in this regard.
40. It is the specific case of prosecution that accused No.1 with the assistance of accused No.2 have killed the deceased on 28.01.2015. The entire case is
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CRL.A No. 100456 of 2019 based on the circumstantial evidence. The accused No.1 has filed an application under Section 233 r/w Section 311 of Cr.P.C. to produce the documents issued by the concerned hospital to show that he had been admitted to the hospital at the relevant point of time, which is the material document to adjudicate the matter in dispute. Photocopy of the certificate issued by Dr.P.S.Patil, Sri Abhinav Surgical Hospital, Jamkhandi, is also produced by the accused. The learned Sessions Judge has not provided an opportunity to the accused No.1 to adduce his defence evidence along with the documents. Therefore, it is crystal clear that learned Sessions Judge has not provided sufficient opportunity to accused No.1, who is in judicial custody from the date of arrest.
41. On perusal of applications filed on behalf of accused No.1, we are of the opinion that to prove the defence of accused it is required to allow the applications filed
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CRL.A No. 100456 of 2019 by the accused No.1. Accordingly, it is just and proper to provide an opportunity to the accused No.1 to cross examine the prosecution witnesses as sought in IA filed under Section 311 r/w 233 of Cr.P.C. and it is also necessary to allow this application filed on behalf of the accused No.1 under Section 233 and Section 311 of Cr.P.C. dated 13.12.2018.
42. This Court has not appreciated or re-appreciated the evidence on record. This Court has not given any opinion as to the evidence of prosecution witnesses. Only on the basis of aforesaid lapses committed by the learned Sessions Judge and keeping in mind the decision of Hon'ble Apex Court, we are of the opinion that learned Sessions Judge has not properly conducted fair and proper trial in accordance with Code of Criminal Procedure, 1973. Hence, we answer Point No.1 in the negative.
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CRL.A No. 100456 of 2019
43. For the aforestated reasons and discussions, we proceed to pass the following:
ORDER (1) Appeal is partly allowed.
(2) Judgment of conviction dated 05.11.2019 and order of sentence dated 06.11.2019 passed by the I Addl. District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in S.C.No.51/2015, are set aside.
(3) Application filed on behalf of accused No.1 under Section 233 r/w 311 of Cr.P.C.
dated 13.12.2018, application filed under Section 311 r/w 233 of Cr.P.C. and application filed under Sections 45 and 73 of the Evidence Act r/w 311A of Cr.P.C., are allowed.
(4) Learned Sessions Judge is directed to provide an opportunity to accused Nos.1 and 2 to take necessary steps for appointment of handwriting expert as sought in IA filed under Sections 45 and 73 of the Evidence Act r/w 311A of Cr.P.C.
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CRL.A No. 100456 of 2019 and learned Sessions Judge is also directed to provide full opportunity for further cross examination of prosecution witnesses as sought in IA's filed before the trial Court and also to adduce the defence evidence on their behalf. (5) Accused Nos.1 and 2 are at liberty to file necessary list of witnesses to be examined on behalf of them.
(6) Accused Nos.1 and 2 are in judicial custody from the date of arrest i.e., on 23.02.2015, which is more than 7 years 9 months. Since the case is remitted back to trial court for taking fair trial, considering the period of detention already undergone by the accused, we feel that it is just and proper to release the accused on bail. Accordingly, trial court is directed to release accuses Nos.1 and 2 on bail on executing a self bond of Rs.1 lakh with 1 surety for the likesum to the satisfaction of trial court with reasonable conditions, which are required under the facts and circumstances of the case.
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CRL.A No. 100456 of 2019 (7) Registry is directed to transmit the records to the trial Court with copy of this judgment.
(8) Learned Sessions Judge is directed to dispose of the matter at the earliest, since the matter is pertaining to year 2015.
Sd/-
JUDGE Sd/-
JUDGE EM/DR List No.: 19 Sl No.: 7