Karnataka High Court
Shredar S/O Manjappa Haldaldar vs The State Of Karnataka on 30 June, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100475 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100475 OF 2019 (C)
BETWEEN:
1. SHREDAR
S/O MANJAPPA HALDALDAR
AGE: 29 YEARS,
OCC: HOTEL EMPLOYEE,
R/O: CHOUDESWARI NAGAR,
RANEBENNUR,
DIST: HAVERI.
2. BASAVARAJA @ BASYA
S/O BHASHSAB SHEKHA
AGE: 34 YEARS,
OCC: HOTEL EMPLOYEE,
R/O: ADAVI ANJANEYA BADAVANE,
RANEBENNUR,
DIST: HAVERI.
...APPELLANTS
(BY SRI. RAVI B. NAIK, SENIOR COUNSEL FOR
SRI.M.L.VANTI, ADV.)
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CRL.A No. 100475 of 2019
AND:
1. THE STATE OF KARNATAKA
BY PSI OF RANEBENNUR TOWN P.S.,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION PASSED IN S.C.NO.10/2015 BY
THE II ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI
SITTING AT RANEBENNUR FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 364, 302, 404, 201 READ WITH SECTION 34
OF IPC BY ITS ORDER DATED 05.11.2019 AND 07.11.2019 AND
ACQUIT THE APPELLANTS OF THE OFFENCES WITH WHICH
THEY HAVE BEEN CONVICTED AND SENTENCED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
ON 08.06.2022 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY
M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
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CRL.A No. 100475 of 2019
JUDGMENT
1. Present appeal by accused Nos.1 and 2 aggrieved by the judgment and order dated 05.11.2019 passed in S.C.No.10/2015 on the file of the II Additional District and Sessions Judge, Haveri sitting at Ranebennur (hereinafter referred to as 'the trial Court') by which the appellants/accused Nos.1 and 2 have been convicted and sentenced:
i. to undergo rigorous imprisonment for a period of five years each and pay fine of Rs.5000/- each for the offence punishable under Section 364 read with Section 34 of IPC and in default of payment of fine, to undergo rigorous imprisonment for six months;
ii. to undergo rigorous imprisonment for two years each and to pay fine of Rs.3000/- each for the offence punishable under Section 404 of IPC and in default of payment of fine, to undergo rigorous imprisonment for three months;
iii. to undergo rigorous imprisonment for one year each and to pay fine of Rs.2000/- each for the offence punishable under Section 201 of IPC and in default of payment of fine, to undergo rigorous imprisonment for one month;-4- CRL.A No. 100475 of 2019
iv. to undergo life imprisonment and also liable to pay fine of Rs.5000/- each for the offence punishable under Section 302 of IPC and in default of payment of fine, to undergo rigorous imprisonment for five years.
2. Brief facts of the case of the prosecution is that; one Leelavati-wife of Laxman Pujar, a retired school teacher was related to accused No.1. Accused No.1 had taken her two gold bangles weighing 40 gms. and had availed the loan by pledging the same. On his failure to repay the loan, the financier had forfeited the said gold bangles. The said Leelavati had asked accused No.1 to pay Rs.1,00,000/- in lieu of the said gold bangles. The said Leelavati was repeatedly demanding and insisting accused No.1 to pay the amount. The accused No.1 with an intention of getting rid of the said Smt.Leelavati, on 16.10.2014 at 12 noon had called her to come near Vijaya Bank, Ranebennur promising her to pay the amount. Accused No.1 had told the said Leelavati that he would send an auto rickshaw with accused No.2, who would bring her to the bank. Believing the words of accused No.1, said Leelavati went with accused No.2 around 1:00 p.m. When they reached Renuka -5- CRL.A No. 100475 of 2019 Floor Mill near Vijaya Bank, accused Nos.1 and 2 made the said Leelavati to sit in a Maruti Swift D-zire Car belonging to the father of accused No.1 and drove away. At about 02:00 p.m., near Ranebennur bypass road, accused No.2 upon the direction of accused No.1, with gloves on his hands strangulated and killed Leelavati. Thereafter, both the accused removed gold ornaments from the dead body of Leelavati and pledged the same with M/s.Manappuram Finance for Rs.75,000/-. Further accused Nos.1 and 2 with an intention of concealing and destroying the evidence, threw the dead body of Leelavati in the land bearing Sy.No.129/B near Guttal-Mylar road.
3. On investigation of the matter, the respondent- Police filed charge sheet against the accused for the offences punishable under Sections 364, 302, 404 and 201 read with Section 34 of IPC. The prosecution examined 37 witnesses as PWs.1 to PW37 and exhibited 114 documents marked as Exs.P1 to P114 and marked 10 material objects as MOs.1 to 10. After completion of evidence of the prosecution, the statement of the accused persons were recorded under Section 313 of Cr.P.C. The accused persons denied the incriminating evidence but did not lead any defence evidence.
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4. The trial Court on appreciation of evidence, passed the impugned judgment and order convicting the accused for the offences punishable under Sections 364, 302, 404 and 201 read with Section 34 of IPC and directed them to undergo imprisonment as stated above. Being aggrieved by the same, the appellants/accused are before this Court.
5. Sri.Ravi B Naik, learned Senior counsel appearing for Sri.K.M.Shiralli, learned counsel for the appellants-accused reiterating the grounds urged in the memorandum of appeal submitted that;
a. The trial Court erred in convicting the appellants based on the evidences of PWs.3, 4, 5, 6, 11 and 13 who apart from being relatives of the deceased and interested witnesses, are the hearsay witnesses. The prosecution failed to corroborate their evidence by producing acceptable and cogent evidence. b. That PWs.1, 2, 8, 9, 10, 17, 20 and 22, the witnesses to the mahazars and seizure of the material objects have turned hostile making it extremely improbable to believe the case of the prosecution.
-7-CRL.A No. 100475 of 2019 c. That mere motive circumstances may not be sufficient to convict the appellants. That the prosecution has failed to establish, its last seen theory. The veracity of the recovery process doubtful. The prosecution failed to establish the chain of events beyond reasonable doubt. d. He relied upon the judgment of Apex Court in the case of Ravinder Singh @ Kaku vs. State of Punjab in Criminal Appeal No.1307/2019, decided on 04.05.2022 and submits that the trial Court without taking into consideration of the aforesaid aspects passed the impugned judgment and order convicting the accused thereby resulting in grave miscarriage of justice and hence, sought for allowing of the appeal.
6. Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the order passed by the trial Court submitted that;
a. The recovery of dead body and the gold ornaments were at the instance of the accused and the same has been proved by oral and documentary evidence leaving no room for any doubt in the case of the prosecution.
b. The fact of pledging of gold with Manappuram financiers was exclusively within the knowledge of -8- CRL.A No. 100475 of 2019 the accused persons, which has been successfully established by the prosecution.
c. That though some of the witnesses have turned hostile, their testimony cannot be discarded in its entirety as the part of the testimony which supported the case of the prosecution has been satisfactorily established by corroboration with other acceptable evidence.
d. That there are no grounds warranting interference with the judgment and order passed by the trial Court. Hence, sought for dismissal of the appeal.
7. Heard the learned counsel for the parties. Perused the records. The point that arises for our consideration is:
"Whether the trial court on the facts and in the circumstances of the case is justified in passing the impugned judgment and order, convicting and sentencing appellants/accused for the offences punishable under Section 302 and 201 of IPC".
8. Admittedly, the case of the prosecution is based on circumstantial evidence. The case of the prosecution succinctly put is;
-9-CRL.A No. 100475 of 2019 a. Accused No.1 having taken the gold bangles weighing 40 grams from the deceased had pledged the same with a financier and on his default to repay the loan, the same were forfeited.
b. That the deceased was insisting accused No.1 to pay Rs.1,00,000/- in lieu of the gold bangles and to get rid of the same, accused No.1 had intended to kill the deceased.
c. That in furtherance of his intention, he had asked the deceased to come near Vijaya Bank, assuring her the payment of money and had told her that accused No.2 will bring her in an auto rickshaw.
d. That when the deceased reached near Renuka floor mill near Vijaya bank, accused Nos.1 and 2 kidnapped her in a Swift D-zire car.
e. Accused Nos.1 and 2 took the deceased on the Ranebennur bypass road and at about 2.00 p.m., upon the directions of accused No.1, accused No.2 killed the deceased by strangulating her by his hands.
f. That accused Nos.1 and 2 took away gold ornaments from the dead body of the deceased and pledged the same with Manappuram finance for Rs.75,000/-. g. Thereafter threw the dead body in a land near Guttal-Mylar road.
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CRL.A No. 100475 of 2019
9. In order to prove the above circumstances, the prosecution though examined 37 witnesses, of which, some of them have turned partly hostile and some have turned completely hostile. The witnesses who are related to the deceased and the official witnesses, have supported the case of the prosecution. The case of the prosecution largely revolves around the recovery of dead body and the gold ornaments made at the instance of the accused who provided the information in their voluntary statement. In this background of the matter, we need to ascertain if the trial Court was justified in passing the impugned judgment and order. Cause of death:
10. It is imperative to ascertain if the death is homicidal and if so, the cause of the death. In this regard, the prosecution has examined PW24, the Doctor who conducted postmortem on the dead body of deceased. The postmortem report is marked as Ex.P71. The said witness has deposed that when he conducted the autopsy of the dead body, it was in a semi-decomposed state. That he found the compression mark on the neck and impression of beaded neck ornament present
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CRL.A No. 100475 of 2019 over the front and lateral portion of the neck. That the epidermis of skin had peeled off at most places. Contusion on the right and left side of the neck and scratch injury on right great toe and little toe. That on dissection of the neck, the strap muscle below the contusion showed blood extra vexation, fracture hyoid at junction of body and greater cornea on the left side. The said witness has spoken about his final opinion regarding the cause of death as per Ex.P74 which is as under:
"Final opinion: Death of Smt.Leelavati Laxman Pujar, 75 yr. is consistent ē external compression of neck (strangulation) & the lesions seen over body are because of advanced decomposed state (time since death 36 to 60 hrs) resulting in discoloration, decomposition, distention & disfiguration of body."
11. The said witness in the cross-examination has stated that in the case of death by strangulation and/or hanging, the nature of fracture of hyoid bone is relevant and that in his report at Ex.P71, he has not stated if the fracture of hyoid bone was 'inverted' or 'reverted'. However, he has denied the suggestion that since the nature of fracture of hyoid bone is not mentioned in the report, it would be difficult to state if the cause of the death was due to hanging or strangulation
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CRL.A No. 100475 of 2019 except suggestions disputing the contents of Ex.P71 which have been denied by the witness nothing has been elicited to doubt the opinion of PW24. Thus, it can be safely inferred that the death of the deceased-Leelavati was a homicidal.
12. Having found that the death of deceased-Leelavati was homicidal, it is necessary to ascertain if the same was caused by the accused as contended by the prosecution. Complaint:
13. PW3-the son of the deceased is the complainant in this matter. The complaint is at Ex.P48. He has stated that on 16.10.2010 when he returned home from his shop at 02:00 p.m. for lunch, his mother was not at home and he enquired with his sister-PW4 who was at home, to which, she informed him that about 12:00 noon, the deceased had gone out with one Basavaraj-accused No.2 in an auto as Shridhar-accused No.1 had to give her money. Since she did not return home even after 05:00 p.m., he had called her on mobile but there was no response. He enquired with his relatives and learnt that his mother had not gone to any of their houses. Thereafter, as informed by his sister-PW4, he went to the house of Shridhar-
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CRL.A No. 100475 of 2019 accused No.1 at Choudeshwari Nagar. On enquiry, accused No.1 had told him that he had not sent for his mother and he is not aware of her whereabouts. That the response of the accused No.1 was suspicious. That since his mother did not turn up and he suspected that on account of financial transaction, accused Nos.1 and 2 might have called his mother and hidden her somewhere, he lodged the complaint on the following day. That the said complaint was written by PW15.
14. PW3 apart from reiterating the case of the prosecution as narrated above has also identified the jewellery last worn by his mother and which were seized by the Police from Manappuram Finance. He has also identified the mobile phone of his mother which was thrown by accused No.2 near Kottureshwara Matt. He has further spoken about cheques for Rs.1,80,000/- drawn on Federal Bank, signed by the accused dated 26.05.2014, which was later found by him in the locker of the deceased on 27.10.2014. In the cross-examination, it is suggested that after the retirement, deceased was doing money lending business. Suggestions have been made with regard to the close relationship of accused No.1 with the deceased-Leelavati. As seen above, PW3 is a complainant and
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CRL.A No. 100475 of 2019 had gone to the house of accused No.1 on the date of the incident and identified the material objects seized by the Police and handed over the cheque found by him.
15. It is not in dispute that accused No.1 was closely related to the deceased. This probabalizes the proximity which the accused was having with the deceased. Motive and last seen:
16. PW4 is the daughter of the deceased. In her evidence, she has narrated the incidents in the same line as that of PW3. She has stated that she learnt from her mother about the accused taking her golden bangles and was refusing to return the same. She has spoken about Basavaraj-accused No.2 coming home at about 12:00 noon on 16.10.2014 and taking her deceased mother in an auto on the pretext of accused No.1 calling her to the Bank to pay her the money. She has identified the dress which the deceased was last wearing and she has also identified accused No.2 who had taken her. She has spoken about PW3 enquiring regarding the whereabouts of her mother and subsequent searches and lodging the complaint and further investigation by the Police.
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CRL.A No. 100475 of 2019 She has identified the jewellery of her mother recovered by the Police during investigation.
17. It is extremely pertinent to note that PW4 is the only witness who claims to have last seen accused No.2 taking her mother on the date of the incident. She has also spoken about her mother wearing the dress which was found on the dead body. She has identified the jewellery seized by the Police. Nothing has been elicited in the cross-examination to discredit the version of this witness. Her evidence is natural and remained unimpeached.
18. Further PW5 is the wife of PW3 and daughter-in-law of the deceased. She has spoken about Shridhar-accused No.1, being her relative and about he frequently visiting the house of the deceased. That on 16.10.2014 she learnt about her mother-in-law going out with Basavaraj-accused No.2 on the instructions of accused No.1. She has called up accused No.1 and enquired about her mother-in-law. She has identified the jewellery which was seized by the Police during investigation.
19. From the above evidence of PW4 and supported by PW5, the relationship and proximity which the accused had with
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CRL.A No. 100475 of 2019 deceased, is proved since the evidence of PW4 last seeing deceased going with the accused No.2 has not been disputed, same stands established by the prosecution.
20. Learned counsel for the appellant has submitted that PWs.3, 4 and 5 being the relatives of the deceased are the interested witnesses and their version cannot be relied upon. He has further stated that PW4 had apparently seen only accused No.2 on the date of the incident and she has not spoken anything about accused No.1. Thus the prosecution has failed to establish the motive circumstances and the last seen theory. In this regard, it is relevant to note that merely because witnesses are related to the victim, they cannot be termed as interested witnesses. The Apex Court in the case of Bhaskar Rao vs. State of Maharashtra reported in (2018) 6 SCC 591, has laid down the position of law with regard to appreciation of the related witness in the matter:
"32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26)
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"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
33. In Masalti v. State of U.P., (1964) 8 SCR 133:
AIR 1965 SC 202: (1965) 1 Cri LJ 226], a five-Judge Bench of this Court has categorically observed as under:
(AIR pp. 209-210, para 14) "14.... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine;
whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between
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CRL.A No. 100475 of 2019 such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397: AIR 1965 SC 328 (1965) 1 Cri LJ 350], this Court held that evidence of an eyewitness who is a near relative of the victim, should be closely scrutinised but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195: 2005 SCC (Cr) 1213: 2005 Cri LJ 2199], this Court observed that: (SCC p. 227, para 6) "6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
35. The last case we need to concern ourselves is Namdeo v. State of Maharashtra [(2007) 14 SCC 150:
(2009) 1 SCC (Cri) 773], wherein this Court after observing previous precedents has summarised the law in the following manner: (SCC p. 164, para 38) "38.... it is clear that a close relative cannot be characterised as an "interested"
witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the
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CRL.A No. 100475 of 2019 real culprit and falsely implicate an innocent one."
(Emphasis supplied) As regards the deposition of PW4 regarding she having last seen the deceased with accused No.2 on 16.04.2014, it is necessary to note the proximity of she having last seen them and the time of the death of the deceased being very close, without there being any intervening factors, the same has to be accepted. As held by the Apex Court in the case of Bodhraj vs. State of Jammu and Kashmir reported in (2002) 8 SCC 45, "the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible."
21. In the light of the aforesaid legal principles and considering the other facts and circumstances of this case, as discussed hereunder, the testimony of PW4 appears to be natural, probable and reliable with regard to she having heard from her deceased mother about the accused No.1 taking her gold bangles which were forfeited by the financiers for his default in repayment of loan and thereafter accused No.1
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CRL.A No. 100475 of 2019 dodging the deceased on his promise to pay the amount in lieu of the bangles as well as with regard to PW4 having seen the deceased last with the accused No.2 on the date of the incident. There are no circumstance of any ill will or enmity between the witnesses and the accused. It is the weight of the witness that matters and not the count of witnesses. There is nothing to doubt the evidence of PW4.
Recovery of dead body of deceased Leelavati and other incriminating evidence:
22. The prosecution has recovered the dead body of the deceased Leelavati, gloves used by accused No.2 to strangulate her, mobile phone of the deceased, jewellery of the deceased which were taken by the accused Nos.1 and 2 after killing her and pledging the same with the Manappuram Financer and also identified the places of incident upon the information and the details provided by accused Nos.1 and 2 in their voluntary statement at Exs.P111 and P112.
23. PWs.1 and 2 are the witness to panchanamas, hand sketch and are also seen in the photographs taken while drawing the panchanamas which are as under:
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a) Ex.P1 - seizure mahazar drawn while seizing Samsung mobile, blank cheques issued by Vijaya Bank, a debit card of Federal Bank, driving licence and cash of Rs.16,650/-
b) Ex.P2 - spot panchanama, the place of incident.
c) Ex.P3 - Hand sketch of the place of the incident.
d) Exs.P4 & P5 - photographs which were taken at the spot of the incident, where Leelavati was kidnapped.
e) Ex.P6 - spot panchanama of the place where the dead body of the deceased Leelavati was recovered.
f) Ex.P7 - map of the place where the deceased was murdered
g) Ex.P9 - inquest panchanama
h) Ex.P10 - the map of the place where the dead body of the deceased was recovered.
i) Ex.P11 - photograph taken at the place where the dead body was found.
j) Ex.P20 - hand sketch
k) Ex.P26 - mobile recovery panchanama
l) Ex.P27 - the spot of mobile phone recovery
m) Ex.P31 - Vehicle seizure mahazar
n) Ex.P32 - sketch drawn while seizing the vehicle
o) Exs.P33 to 40 - photographs Though the aforesaid witnesses have identified their signatures and their presence in the photographs referred to
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above which were taken while drawing the spot mahazar and seizure mahazars, however, have pleaded their ignorance regarding the contents. Therefore, the said witnesses have been considered hostile by the trial Court. In the cross- examination by the prosecution, both the witnesses have stated that they are the respectable members of the society and that they would not sign on any blank documents/papers. PW1 is a civil contractor and a social worker while PW2 is member of Ranebennur Municipality and also an LIC agent. Considering the admission of the witnesses with regard to their signatures on the aforesaid mahazars and their presence in the photographs, their plain denial with regard to the contents of panchanamas and they being the panch witnesses would lead to an inference that both the witnesses are trying to favour the accused persons. Their evidence to the extent of their admission supporting the case of the prosecution needs to be accepted.
24. PW7-Jayamma is working as Aaya in Guttal Hospital. She is witness to the inquest panchanama at Ex.P9, who has also identified the photographs-Exs.P11 to P19, P51 and P52 taken at the scene of the offence. The said witness has completely supported the case of the prosecution. In the cross-
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CRL.A No. 100475 of 2019 examination, except stating that she is not aware as to who recorded Ex.P9 and that she was not aware of the owner of the land where the dead body was found, nothing has been elicited to discredit her evidence regarding recovery of the dead body.
25. PW8 is a panch witness to Ex.P31-vehicle seizure mahazar and Ex.P32-the sketch. The said witness though has identified his signature on Exs.P31 and P32 has pleaded his ignorance about their contents. However, the said witness has identified he being seen in the photographs at Ex.P33. He has also stated that accused persons are also seen in the car. In the cross-examination, the said witness has admitted that he signed Ex.P31 on 18.10.2014 and he had gone to the Police Station at 06:30 p.m.
26. PW9 is also a panch witness to seizure mahazar- Ex.P53 and has admitted his signature thereon and has identified himself in the photographs-Exs.P54 to P56. The said witness has also admitted his signature found in the slips on MOs.4, 5 and 6. The said witness has been treated as hostile. In the cross-examination, the said witness has stated that he is working as a pigmy agent in Basaveshwara Urban Bank. He has
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CRL.A No. 100475 of 2019 deposed about his responsibility in issuing the receipts to the customers of the bank on receipt of the amount and also with regard to the maintenance of ledger sheet. He has also deposed that he would not sign any document without verifying the contents of the same. However, when it comes to deposing with regard to the Mahazars referred to above has turned hostile which clearly indicates that he is deliberately favouring the accused.
27. PW10 is another panch witness to Ex.P53-seizure mahazar, who though admitted his signature on the said document found in the slip on MOs.4, 5 and 6. The said witness has been treated as hostile. In the cross-examination, the said witness has stated that he has studied up to SSLC and does business. In the cross-examination by the defence counsel he has stated that he being the social worker frequently visit the Police Station and inconsideration of which he has signed the exhibits and the slips in the police station. The tenor of deposition of the said witness clearly suggests that he is deliberately suppressing the truth.
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CRL.A No. 100475 of 2019
28. PW12 is a witness to the seizure mahazar at Ex.P49 drawn while seizing a cheque for Rs.1,80,000/- produced by PW3 before the Police Station on 27.10.2014 and has identified his signature on the said mahazar and the said cheque is marked as Ex.P50. The said witness has supported the case of the prosecution.
29. PW16 is a witness who has spoken about testing the gold ornaments on 16.10.2014 between 04:00 to 05:00 p.m. but has pleaded ignorance about the weight and measurement of the said gold ornaments. He has also spoken about drawing up of panchanama at Ex.P53 at Manappuram Finance and photograph taken as per Ex.P56. The said witness has been declared as partly hostile. In the cross-examination, by the Public Prosecutor, the said witness has admitted that he was called by the Police to Manappuram Finance on 18.10.2014 at 05:00 p.m. and that after examining the gold ornaments he mentioned their weight and value. He has also admitted that the said gold ornaments were produced by the Manappuram Finance and that the panchanama was drawn at that time.
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CRL.A No. 100475 of 2019
30. PW17 is an auto driver in whose auto the deceased was allegedly taken by accused No.2 on the instructions of accused No.1. The said witness in his chief-examination has stated that he parked his auto in the Sangam Circle auto stand of Ranebennur. The said witness has turned hostile.
31. Learned counsel for the appellants referring to the panch witnesses who have turned hostile as noted above vehemently submitted that their testimony cannot be relied upon. The Apex Court in the case of C.Muniyappan vs. State of Tamil Nadu reported in (2010) 9 SCC 567 has referred to the legal position in appreciating the testimony of the witnesses who have turned hostile.
"81. It is settled legal proposition that:
"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
(Vide Bhagwan Singh v. State of Haryana43, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka45 and Khujji v. State of M.P.46 SCC p. 635, para 6.)
82. In State of U.P. v. Ramesh Prasad Misra47 this Court held that (at SCC p. 363, para 7) evidence of a hostile
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CRL.A No. 100475 of 2019 witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra 48, Gagan Kanojia v. State of Punjab49, Radha Mohan Singh v. State of U.P.50, Sarvesh Narain Shukla v. Daroga Singh51 and Subbu Singh v. State 52
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some e omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.
85. It is settled proposition of law that even if there are some omissions. contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental a abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (Vide Sohrab v. State of M.P53, State of U.P. v. M.K Anthony Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, State of Rajasthan v. Om Prakash 56, Prithu v. State of H.P., State of U.P. v. Santosh Kumar and State v. Saravanan59.)"
(Emphasis supplied)
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32. Thus, in the light of the aforesaid principles laid down by the Apex Court in assessing the evidence rendered by the witnesses who have turned hostile, this Court is of the considered view that it is within its power to accept such portion of the testimony which supports the case of the prosecution and which appears to be dependable. On a careful perusal of the aforesaid deposition and the contents of the exhibits pertaining to the said deposition and corroborations of other available material evidence, we are of the considered view that the prosecution has established the case with regard to recovery of dead body and seizure of material objects referred to therein.
Regarding the account maintained by accused No.1 and his transaction with Manappuram Finance:
33. As could be seen from the case of the prosecution, the matter begins with accused No.1 pledging the gold bangles weighing 40 grams and borrowing loan thereon and ends with the accused No.1 pledging the gold jewellery which was taken from the dead body of Leelavati for Rs.75,000/-. This is a very strong circumstance which the prosecution needs to establish to complete the chain of events. The prosecution has examined
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PWs18, 35, 36 and 37 who are the managers/employees of different branches Manappuram Finance Company at Ranebennur.
34. PW18 is the Manager of Manappuram Finance Company, Gouli Street, Ranebennur. The said witness has stated that they lend loan against gold and also deal with foreign exchange. The said witness has initially pleaded ignorance about accused No.1 being their customer and he borrowing gold loan. He has stated that he would not be able to state about the gold loan transaction which the accused had with their company without looking to the documents. However, in the further chief-examination recorded on 23.10.2018, the said witness has admitted that the statement of accounts produced by the prosecution belonged to accused No.1 and that accused No.1 has been their customer for about one year since 2014. Referring to the photograph at Ex.P69, the said witness states that the same pertains to handing over of the document dated 16.04.2014 concerning the accused and that the same pertains to gold ornaments. The said witness has stated that he has produced the account extract regarding pledging of gold with their company for Rs.38,000/- on
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CRL.A No. 100475 of 2019 18.09.2014. The said document is marked as Ex.P93. He has also produced account extract pertaining to pledging of gold for Rs.33,700/- with their finance company on 26.06.2014 marked at Ex.P94. He has also produced account extract pertaining to pledging of 19.7 grams of gold for Rs.38,000/- with their company on 19.08.2014 marked at Ex.P95. He has also produced account extract pertaining to pledging of 39.5 grams of gold for Rs.76,500/- with their company on 19.08.2014 marked at Ex.P96. He has further produced account extract pertaining to pledging of 3.2 grams of gold for Rs.5,500/- with their company on 07.07.2014 marked at Ex.P97.
35. The said witness has further stated that he was working on 16.10.2014 at Manappuram Finance situated at Gouli Street, Ranebennur, but he does not remember if on 16.10.2014 accused No.1 had borrowed gold loan. The said witness however admitted his signature on the panchanama at Ex.P53. He states that as the Police had asked him to sign he affixed his signature and that he had not read the contents of Ex.P53. He has identified the gold ornaments namely golden ear ring with two plates and one matil and a gold chain and a finger ring and admitted that same was pledged by the accused
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CRL.A No. 100475 of 2019 with them for Rs.75,000/-. Referring to the receipt at Ex.P69, the said witness has stated that the material objects marked as MOs.4 to 6 are similar to the one shown in photograph but the remark was not tallying with Ex.P69. The said witness has identified his signature on the letter dated 18.10.2014 issued by the Investigation Officer as per Ex.P98 and has stated that the gold ornaments at MOs.4, 5 and 6 are the one referred to in the said letter. The said witness has also identified the signature on the letter dated 21.10.2014 issued by the prosecution. The said witness was considered hostile. In the cross-examination, the said witness has admitted that as per the receipt shown in photograph at Ex.P69, a sum of Rs.75,000/- was given as loan for a period of 180 days expiring on 03.04.2015 and that the said loan was given on 16.10.2014 at about 14:35 hours. That the said loan of Rs.75,000/- was given to accused No.1 on the said date. He also admits that the receipt found in the photographs Ex.P69 to be that of accused No.1. He admits that on 18.10.2014, the Police had gone to Manappuram Finance alongwith accused No.1, panchas, gold examiner and had asked him to produce the gold ornaments mentioned at Ex.P98. However, he denies having produced the
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CRL.A No. 100475 of 2019 gold ornaments as per MOs.4, 5 and 6 between 05:15 and 06:00 p.m. He admits the photographs at Exs.P54 to P56 were taken at that time.
36. To a question, that on 05.09.2018 a notice was issued asking him to produce 14 accounts before the Court, he has answered that he has produced the documents available in his branch and that the said 14 accounts pertains to Manappuram Finance, Ranebennur and 5 accounts pertains to their branch and the remaining do not pertain to their branch. He has further admitted that the Investigation Officer had issued a letter dated 21.10.2014 as per Ex.P99 and he has given information as sought for. He has denied producing the gold ornaments at MOs.4 to 6 from his company as per the requisition dated 18.04.2014 as per Ex.P98. He has denied the suggestion that apprehending that he might be arrayed as accused in the matter for having received the stolen gold ornaments, he is lying about the production of gold ornaments at MOs.4 to 6 which were stolen by accused No.1 from the dead body of the victim. He has stated that since accused No.1 had not repaid the loan, they have forfeited the gold pledged against the loan transaction shown in five accounts as per the
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CRL.A No. 100475 of 2019 rules of the company. The statement of the said witness has been marked as Ex.P100.
37. PW34 is the Branch Manager of Manappuram Finance, Gouli street, Ranebennur, who has stated that upon the requisition dated 25.10.2014 by the respondent-Police, he had given information with regard to the account details of accused No.1 as per Exs.P102 and 103 dated 05.01.2015.
38. PW35 is an employee of Manappuram Finance, P.B. road branch, Ranebennur, who has spoken about receiving the requisition dated 25.10.2014 from the police regarding the account details of accused No.1 and she having given such details as per Ex.P104. She has further stated that the jewellery referred to in the said document has been auctioned as per Ex.P105.
39. PW36 is the Branch Manager of Manappuram Finance, Halageri branch, Ranebennur, who has spoken about receiving the requisition dated 25.10.2014 from the police and having given information as per Ex.P108. He has further stated that the item shown in the said document has been auctioned as per Exs.P109 and P110.
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CRL.A No. 100475 of 2019
40. A close perusal of the deposition of these witnesses read in the light of the documents referred to above, it appears that the accused No.1 has had continuous transaction with Manappuram Finance at its aforesaid branches. The case of the prosecution that the accused had pledged the gold bangles weighting 40 grams which were forfeited and auctioned for his default in repaying the loan stands established. Further case of the prosecution that on 16.10.2014 the accused had pledged the jewellery MOs.4 to 6 for Rs.75,000/- at about 14:25 hours i.e., after commission of offence also stands established. The evidence of these witnesses is corroborated with the evidence of PW16 who has admitted having examined the jewellery marked as MOs.4 to 6 at Manappuram Finance on 18.10.2014 at 05:00 p.m. i.e., just about two days subsequent to accused pledging the same and availed the loan as above, leads to irresistible conclusion that the pledging of gold ornament by the accused on the date of incident and recovery of the same at the instance and upon the information given by the accused in their voluntary statement has been proved by the prosecution successfully establishing the link in the chain of events leading up to the conviction of crime.
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CRL.A No. 100475 of 2019 Regarding cheques found by PW3:
41. As noted above, PW3 in his chief-examination has stated that he traced a cheque of Rs.1,80,000/- dated 26.05.2014 bearing No.100100005 from the account No.2111000010661 bearing the signatures of the accused drawn on Federal Bank, Ranebennur and produced the same before the Police on 27.10.2014 which is marked as Ex.P50. The prosecution has examined PW32 who is the Manager of Federal Bank, Ranebennur who has spoken about the accused holding the said bank account and the said cheque at Ex.P50 having been issued by the Bank. He has also stated that on 04.06.2014, accused No.1 had issued a letter regarding he having lost the cheque book. Nothing has been elicited by the defence to discredit the evidence of this witness. This circumstance further establishes the fact of accused having had transaction with the deceased.
Other Witnesses:
42. The prosecution has produced other witnesses namely PW19 is a retired Superintendent of Railways who has spoken about the accused visiting the canteen run by one
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Manju. He has also spoken about accused No.1 seeking financial assistance of Rs.10,000/- from him over phone and he paying Rs.5,000/-. PW21 is a witness who has spoken about his acquaintance with the accused and his father and they frequenting his grocery shop. PW22 is a witness working in Railway Canteen run by father of accused No.1. He has also spoken about the accused No.1 visiting the canteen. PW13 is relative of the deceased. He is also a hearsay witness. PW14 is a neighbour witness who has turned hostile. PW15 is the brother-in-law of PW3, who is the scribe of the complaint at Ex.P48. PW6-Dr.Suresh Poojari, the elder son of deceased who has spoken about he receiving call from PW3 about missing of his mother and subsequent search and enquiry made by them. He has identified the mobile and the jewellery of his mother. The said witness is also a hearsay witness.
43. PW23 is the Investigation Officer who has spoken about arresting accused Nos.1 and 2 on 18.10.2014 upon instructions of CPI and conducting body search of the accused and drawing panchanama in that regard. He has also spoken about seizing a Nokia mobile set, two cheques of Vijaya Bank, a debit card of Federal Bank, a driving licence and cash of
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CRL.A No. 100475 of 2019 Rs.16,650/- from accused No.1 as per the panchanama at Ex.P1. The said witness has identified the mobile set as per MO7, the Vijaya Bank cheques as Exs.P64 and P65, debit card as per Ex.P66, driving licence as per Ex.P67, cash of Rs.16,650/- as per MO8. He has also spoken about recording of voluntary statement of the accused during the investigation by CPI, narrating commission of offence and showing the scene of offence and the place where the dead body was thrown. The said witness has spoken about drawing up of the spot panchanama and seizure of material etc.
44. PW25 is the Assistant Engineer who has drawn two sketches of the scene of offence, as per Exs.P76 and P77. PW26 is also the Assistant Executive Engineer who has prepared the sketch of the spot where the dead body was found as per Ex.P78.
45. PW27 is Manager of Vijaya Bank who has spoken about furnishing of CCTV footage in the form of CD as per the requisition of Police at Ex.P79. The CCTV footage in the form of pen drive was handed over to the Police on 21.11.2014 with a letter at Ex.P80. The said pen drive was marked subject to
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CRL.A No. 100475 of 2019 objection regarding compliance of Section 65B of the Indian Evidence Act. The said pen drive was played before the Court in a laptop and the witness has identified all the recordings been done in their bank between 12:00 and 02:00 p.m. of 16.10.2014.
46. PW28 is the RTO, who has issued certified copy of 'B' register as per Ex.P84. PW29 has spoken about the test conducted before the forensic laboratories as per Ex.P72. PW30 has spoken about issuing extract of document pertaining to the land in Sy.No.129B belonging to one Byanappagouda S/o. Fakkeragouda as per Ex.P86. PW31 is a witness who has spoken about the father of the accused seeking car finance of Rs.5,56,000/-. He has further stated that on 17.10.2014 a sum of Rs.22,000/- was deposited into the account of the father of the accused.
47. PW33 is the PSI who has spoken about receiving the complaint and registering the FIR on 17.10.2014 as per Ex.P48 and Ex.P101 respectively.
48. PW37 is the further investigating officer who has narrated the entire process of investigation, drawing up of
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CRL.A No. 100475 of 2019 mahazar, seizing of material objects, preparing sketch and about recording the statements of the witnesses. He has been cross-examined in detail. In the cross-examination, the said witness has admitted that he has not produced certificates required under Section 65B of the Indian Evidence Act with regard to the CDRs at Ex.P113, pen drive and the photographs.
49. The evidence of the aforesaid witnesses has supplemented the case of the prosecution. However, learned counsel for the appellants/accused relying upon the judgment of the Apex Court in the case of Ravinder Singh @ Kaku supra submitted that in view of non-compliance of Section 65B(4) of the Evidence Act, that the evidence in the nature of pen drive and the photographs cannot be relied upon. It is necessary to note that even as rightly observed by the trial Court there is sufficient material evidence produced by the prosecution in establishing the chain of events leading up to the commission of offences charged against the accused. Even in the absence of evidence which requires compliance of Section 65B(4) of the Evidence Act, the prosecution has been able to establish its case beyond reasonable doubt. There may be few errors, omissions and defect in the case of the prosecution but
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CRL.A No. 100475 of 2019 however the same would not result in dislodging the case of the prosecution. As seen above there is definitely a ring of truth in the case of the prosecution and the errors are not so vital to weaken the case of the prosecution.
50. The accused except simply denying the case of the prosecution have neither discredited the case of the prosecution nor have led any evidence in their defence. The gold loan transaction which the accused No.1 had with Manappuram Finance, pledging of bangles and other gold jewellery recovered by the Police was in his exclusive knowledge. The accused has not given any explanation in this regard.
51. For the foregoing reasons and analysis, this Court is of the considered view that the prosecution has established the guilt of the accused beyond reasonable doubt. The appellants have not made out any grounds warranting interference with the judgment and order passed by the trial Court. Hence, the following:
ORDER The appeal is dismissed.
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The judgment and order of conviction and sentence passed in S.C. No.10/2015 on the file of the II Additional District and Sessions Judge, Haveri (sitting at Ranebennur) is confirmed.
Sd/-
JUDGE Sd/-
JUDGE KGK/RSH