Indian Kanoon - Search engine for Indian Law

Karnataka High Court

Rekha @ Renuka Rajendra Umrani, vs State Of Karnataka on 25 August, 2011

 

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD

DATED THIS THE asth DAY OF AUGUST 

PRESENT

THE HON'BLE MR.JUSTIcEv.H:'B1.LLAPIéA:'3   

AND
ITHE HON'BLE MR. JUsT1C.f§"~A_RAL1 NADA-.RA..{J""" 

cRL.A.No.2753.,z.2'o.10..,L

cRL.A.No".--2754_/Em10.fj  

CRL.A.NO.2756./201:0.  ._ 

CRL-.A.NG'L'2'73'Z]'20.11 I .. "
In CrI.A.No.275€3/20  I  

BETWEEN:

I. Rekha @ II2A.e3f111ké1"V.F%Iét;;1'.éDIc.i'r_D4IUmrani,
Age 40 yearS«,.. " V   
R/0 CB1 Co1ony__CIhikD'<ii.

21V-_  V"F::;1kash Desai,
Agitr. 4?. 3«*<:ia'rs'~,» 
RD'/0A.KQj/arjra V§9;s,ahat Karard.

 \/isIia..I_ Prakzfisfi Desai,

 jKoyaV_n"a Vasahat Karard.

'Age 21 yéars,

....Appe1Iants

I   . Kati, Adv.)

' \._



 

M)

AND:

State of Karnataka,

SPP, High Court Building,
Dharwad.

Rep.by SPP for CPI Chikodi circle

(By Sri.\/'.M.Banakar, Addl.SPP)  ~

  0'

This Criminal Appeal is filed U/'s,iCl3'74(2)y.o--i.fAlCr:P.lClu'l V

seeking to set aside the Judgrnent of con_victi'o_r1"~ai'id
sentence dated 30.06.2010 p'as"s~ed by._ the i'j'TC--l,
Chikodi, in SC No.361/2009 anpd..t'hei*-eby conv_ict,e5d the
appellant Nos.l to 3 alo.1ig~..pwith other accused for the
offences punishable underCSecti5on "l09,"--..l20~B, 302,
201 r/W Section 149 of IPC -and'V"appe~l_larijt. l\_10s.l and 2
are sentenced to undergoV.i'i'ri1p:rison"men;tfor life for the
abatement of con.spi_ra--cy ¥an;d....tnu.rde_'1*..Voffldeceased and
to pay fine of ?4,E:,,0(;}0/--..each for feachmof the offences
and appellant?No.1'-3'""'a'ndVa-ccu_sed=_Nos.4 and 5 are
sentenced to unVde~rg;lo. inip'ris'onrn'ent§ for five years and
to pay a .~"fi'i1ee_"jof u'¥;'5,l0.0l0,/-- "each of the offence
punishablejunder'i.SeVc'tior1.._02-OlIPC and imprisonment
for life for"'._co4nsp_iracy '"m'1;i..rd.er and to pay fine of
?.5,000/- for each 0.f"tAheu"affence with default clause
and acquit the*aVppellant._Nos.l to 3 for the above said
offences and. set thern' at liberty.

Inert,gx'.1»No..2V7.54.fy/'Q 010

i"».y_BETw9r:E';.Ni:  0'

'I_Praveen Plrakash Shinde,
-...'z$gVged'-»about"  years,

, S'/'ollfiralaeash Thanaji Shinde,
FR/=3 lfoyanya Vasahat,

iV.$hi_n.de-- Niagara, Karad.

 {B_§{S'r'i'.i Ravi.\x'.Hosmani, Adv.)

 Appellant.

e 



 

AND:

State by Chikkodi Police,
Rep. By State Public Prosecutor,
High Court, Dharwad.

(By Sri.V.M.Banakar, Addl. SPP.)

...   Eden t.  B

This Criminal Appeal is 'Ii_1_e*:1. U/sv-.3"/'4_(2), a"n'd"-382
of Cr.P.C. seeking to set aside theJudgrrient'ea'ndi',Order
of the Fast Track Court--I,_ Chiko_ci_i:,'~i_n*S.C N"o;3_6 M2009
and acquit the appe11ant.fo~r_ the chAa:geVs'...¢

In cr1.A.No.2756/20.10  V
BETWEEN: it it B 4 I

Shri. Mahesh Sh.ariki3__r S'-,u'nd'e,'--  
Aged abOUtv"20"'}'€AéjfS,'QC'Ci".Si'C'TJd€fii1i}i
R/at H . No . 5, S. S{G.'r; a_Va.deu._C'h_aw1f,
Parashiwadix, Gtha'takofpar',__  it 

Mumbai - 86'  B _

(By, Sri. v_.r5C=:gh:QiAk .  . Ka'I'yan.a.shetty, Adv.)

AN'D:' it

  The Sitate-.iofi'iKa.:fna;=tiaka,
 its State Public Prosecutor,

i'7,AdvQcate iG.ei1era1's Office,
"--«Ei-igh'-~Court Circuit Bench Premises,
4: 1) haur»wa<i--.,_

. Q:i"B3}V'jsr§5viMeanakar, Add}. SPP.)

£;-»...3i'"'&~»»-w°*~v

.....Appe11ant.

...iRespo:r1der1t.



 

This Criminal Appeal is filed U/3.374(1) of 

seeking to set aside the judgement of conviction"ain--d'vv,y
order of sentence dated 30.06.2010 passed agai'n's«t[y'h.i:rn;_. 
by the presiding officer Fast Track Cou.rt~--l, C~lj.i"l{QCll',i*-iiI'l,. ii
S.C.No.36l/2009 and acquit him of all _t.he_j"~c_h'a_i*g.es "

levelled against him.

In Crl.A.No.2"/37/2011
BETWEEN:

Shrikant S/o Bemanna Ufnaran'i, " _' V 
Aged about 51 years, Occ:"'~l\/laniagiirig  A _
Director of Nanadi Ganga Sugar 'vFaetc,~~r_y',v 
R/o Yadooru, Tq: Chikl<od.i",*"-.:* *  V' 0'
Dist: Belgaum v   .   yj
 .....Appellant.

(By Sri.   
Circuitliaw AvF'l1"II'1':f,lj "Sr"i--..G-.M.B'h'a't, Adv.)

AND:

1. The Sta,te of Karnataka by its
_ CPI~€3.hvikl<odi ci'1'c,l_e__ynow represented
°'ByiState' Public Prosecutor,
._ ~I--.l_iig~}1_ C..ou~rt.,C'ir_cuit Bench,
" "DVhA'ar",aVd"<. "  

 Rekha @~l§e'.nuka Rajendra Uamarani,

Age:"40f"years, R/o CB1 Colony,

 Dist: Belgaurn.

   V"-ESi:1_ti.i.Naina Prakash Desai,

y_  Age': N42 years,
  _ R/lo Koyana Vasahat: Karad.

rwgmaewis



  _ anri' *  7ser1t:er1ce

(J:

4. Vishal S/0 Prakash Desai,
Age: 22 years,
R/0 Koyana Vasahat Karad.

5. Praveen Prakash Shinde,
Age: 21 yeas,
R/0 Koyana Vasahat Karad.
6. Mahesh Shankar Shinde,
Age: 21 years,
R/0 S.S.Gavade Chawl
H.No.5, Parashivadi
Ghatakopa Mumbai--86. . A 9
°--».,_.....Re'3pQrLder1ts

(By Sri.V.M.Banakar, Add1 '.*S1?PK_ K }

This Crimin'a1'~_A'p.peé11 i_s....'fi1'ed"13-,/Vs_,g372 of Cr.P.C.
seeking to enhar_1ee t§h"e._Vsentence_ofjg*respondent Nos.2 to
6 ofthe orden'dated"3o1ML2D1Q in=S.C.No.361/2009
passed by the Fast1Track'=C'o--u'rt__-I, Cihikkodi, herein to
capital punishment ":1?j.'e.,'".d'eaLhWpvunishment for the
offences p1::nishaVb}:e .._m2derV"S._ecti'ons 109, 120--B, 302,
201 r/w»secuon.149Ver1Pe:;g,

These Cr'in4r_1 i11a1 .Aj:;.p'ea"I's coming on for Further
Hearing At-his dVay,'*A'ral'i Nagaraj J, delivered the
f o'_U.Qwing:.§. A' '  V

mf§CbMMONJUDGMENT

._"A:r.g:he'se. four Criminai Appeals have arisen from

 -seizfrre "impugned Judgment and Order of conviction

«Listed 30/'6/2010 passed in

(.--...\$€"""»»~a=->~'~'<»s



S.C.No.36l/2009 on the file of the learned Presiding

Officer, Fast Track Court--I, Chikodi (hereina'fte~r_

referred to as 'Trial Court' for short). The saidS'e's*sV1en"si.-___

Case pertains to murder of one Rajendra,_.the_':'5cou.nger 

brother of PWs.1 and 11 and husb:and...oif}.i

Smt.Rekha. Accused Nos.2 and_'_3 are  

elder sister of accused No.1 Re1u{"h.ai'and sonrof: Acicused
No.2 Naina. Accused Nds'=.._4  strangers to

accused Nos.1 to 3 and also 

2.  A.1 to A.3 in
the said  and 2756 of
2010 are   .A'.4 and A5 in the said
Sessions Caisel Respee.t'iifi¢_:i:ja1I5it><3Hants in these three
appeals  legality and correctness of
  Order of conviction and

sente.n:c.e-  Vbgfiwthe Trial Court convicting them for

 offeiricesv_.p1tr1fisihabIe under Sections 201} 109; 12013

'4.i.i;:,;:4vi_'3o2 r/iN.,__Ai:Section 149 of IPC.

'.';_3.""cr1.A.Noi2'73?/2011 is filed by the

 co-.rni'p'E'ainant~informant in the said case narneiy PW].

 ""t



Shrikant Umarani the elder brother of the deceased

Rajendra Urnarani. In this appeal, he has s0ug4h;tt»-_fidr_

enhancement of sentence imposed on the 

accused in the said case.

4. One Shrikant Umaranlg 

complaint (Ex.P1) on ll/6/200V:9'~....hy 
alleging that his younger  the'l.:,._de_c§eased
Rajendra, was murdered was found
at about 02-00 a.rn..rQn  Dhaba
nearby Chikodi_ the limits of
Chikodi P.s.__  complaint PW34,
the ASI ofithe  the case in Crime
N0.250/2009' issued FIR as per
Ex.P31. :Afte.1*  investigation the said
 against all the accused

Nest}. to (who are respective appellants in

lv_i*'tlnese ap4pea.ls)_lA'j'fcr the offences under Sections 201,

~1l«l'.j';»-39','-».12oB  302 r/W. Section 149 of IPC.

 l:Z..":On appreciation of the oral evidence of

 to 38, the documents at E:<s.Pl te P62,

.,..a.

{...§,,%{~.~.'gM,...»~';.-



M.O.Nos.1 to 46 and also after considering the EXs.D1

to D17, the relevant portions of statements ofgie~-téhe

prosecution witnesses and other documents m__a"r'keid_'---f_o"r:_.v__'*_

the accused, by its impugned Judgment  the 

Trial Court convicted all the accused Nos;

the said offences and sentenced  

Various terms of imprisonrnenltt».._a'nd t<5~..p'a--,% Various
amounts of fine as stated..«_ing«'ith_e*i.1jn.p'ugned Order of

sentence.

6. As l'ga:thiered{j--Vlfiioirnl the charges
levelled againstgqlil.theiac'ciu'se..;{"'NO$il1 to 5 therein the

case of the?;pros_eeti.tVioii«.is'ais-.un.d_'er:

Acclusedv Sr.rnTt.Rekha @ Renuka,
beinggthe wi*fe_iH"oif the deceased Rajendra,
  ..pickii"mup quarrel with him
  he was doubting her
 the said quarrel used to
take_ pl_'aCe«ii"'prior to 10/6/20095 Therefore
*.,the aE:Vc_i§ised No.1 conspired with accused
Srnt.Naina, her sister and accused
 l'E_o'§'3':Vishal, the son of accused No.2 and

.._Ha_lfso accused Nos.4 and5 respectively,



 

IO

learned Counsel representing the appellant in

Crl.A.No.2'756/2010 (accused No.5) and 

Sri.Bhagvvan, learned Counsel representlng' _

umomnantpmn,u1crrAmw»2737/2011rorgnhaneenentput"

of sentence imposed on all the 

case, We have also heard' the_"*arg17,Ine.nVts loft

Sri.\/.M.Banakar, learned Addl.llVlS.l§lP Wholll1'-eprjejsellnitsllthe
respondent State in a1.1':\.,,th€ have
perused the impugned Order of
conviction and  materials
found in the  from the Trial

Court.

8. Havlng 'l"1.€V'c"'i':I.'AV{l  arguments of learned
Counsel for both t.he"side's, the points that arise for our

clonsideroatiolrl in..these appeals are as under:

lfn".:snfiahgflhe"n1a1courtisjusafiedin
 convicting accused Nos.l to 5 for the
offences punishable under Sections
n;V,2Ol,l09,l2O(B)and.3O2rjurSecfion
'1491Pc?

 



 

ll

(ii) If point No.1 is answered in the
affirmative, whether sentences

imposed on the appellants~accusecllid" 4'

12:

for the said offences require to

enhanced as prayed for 
informant cornplaiihulanltl" ._  -1'in__.V '--

Crl.A.No.2737/2011?

9. Learned Advocates:"'-t:epVr_esentlné their
respective appellants  s;tr.onVgLl.lA§r:l'*contend that
the circumstances of rnoti.x,I.e1,_ funds by
accused Nos.1  epvaljflnxejnt to accused
Nos.4 and 5,  and 4 in Praveen
Deluxe   of Cricket stumps
by accused ll'~lols*.ZA3l  have not been proved
by the pr_osecu'ti_or:..hfbelyonld reasonable doubt and
tlilelreforej5lco..nv1*0§i0nlHlollwtvhe accused for all the said

offerzcee"ca:r2«no»t"ube; sustained in law. They further

lllfiovntend' _that_the1s_ prosecution has also not been able to

 the '~fac;.ts that accused N033 to 5 purchased

 also food from the shops of PWs.l3 and 12

"llfre_s'pecte§vely shortly before the occurrence of the

'{f~»~..»,§""'°--.~.-«ea

 



incident and therefore on this ground also the

impugned Judgment and Order of conviction._ia.nid__

sentence cannot be sustained in law. They also_;'c'ont._'e~r__1d:..v_'*

that the evidence of PWs.2l and 22  

accused Nos.3 to 5 standing under 

near by the scene of offence shortly  then"

occurrence of the incident  not. been
believed by the Trial coin:  dark
night, it was almost   see them
while themselves;   While
contending so'? tihat'itheir respective
appeals deserveitio,_bie:if:'§;1é'lltj'f;e'd ainiidiiiiimpugned Judgment
and Order  is liable to be set
aside and  the appellants-accused

d.e"s.eVrve an o.ride__r of iétCq..1,.?_ittal.

  ii icoiitra, Sri.V.M.Banakar, learned

i'.T';?X'ddliSl5R__stron_gfi,vcontends that though there are some

"~di's.crepanciegs:'in the evidence of prosecution Witnesses,

ii'*--tih'egii'i'iria.,l :Court has rightly believed their evidence and

 its finding that the prosecution has proved

§t...,g'"*-=~,.....r.,.,.,r..r..i



13

beyond reasonable doubt all the circumstances and

that the proved circumstances form a complete_'vch-aiinv

pointing at guilt of all the accused for 

offences hence the impugned Judgment an.d"'Oro_aebr"'do*es 

not call for any interference in these apApAe'al'e»_..i 

11. Sri.S.G.Bhagwan, it-.,:VL:----..,]_'1earn'ed  'ofiunéiei
representing for the ineform.ai1.tw--a$~fl»g1»1antgfi in
Crl.A.No.2 737 / 201 1, whliiei' su'p_Pf§§.tih'e'I'  arguments
of learned Addl.SPPj=-conten"ds' regard to the
facts and  Trial Court
ought to hate  on all the
accused   under Section 302
r/W S€CtlOn'!'l 5l9  the sentence of
l1'Ilpl"lSOI11'3;'1'(;"«}'1_lZ. foxy-.v1i:fe.'llirnpolsed on them for the said
 hellllmodified by imposing death

penlaltjt  "  . it  

V -- l2.ul" SlsG.Bhagwan further contends that the

_'_i'lria'Zrt,;Co1,1flrtVfllhas marked inland letters, note book,

"~.lf.«feleéphltxnie"hills, calls list and certain other documents

 as-4l_4ll'm'aiterial objects' instead of marking them as

 ¢e

 



 

14

'exhibits 'P' series' which is contrary to Rule 16 of the

Karnataka Criminal Rules of Practice, 

therefore necessary direction need to be 

subordinate Courts in this regard.

13. The fact thai the deceased   

husband of accused No.1   he
met with homicidal death  n.ight..AAbeEtween
10th and 11th June 20o9'r--..§nd'i~g1fsgi.  dead body
was found near thevsaid   04-00
a.m. on  seen by PW]
complainant"  all not in dispute.
Besides §t'1uT§.,.',.._postmortem examination
report issueidfloiy  Officer, E3X.P3 inquest
paf1Chafl'a;'II1vg=_    VPW36 Investing Officer,
thatiiiitiie deceased Rajendra met with

horrii~cid._ali o;'nf'the said date, time and place, as a

iv_:"'riesuit of..._the.-i~n_jiiry sustained by him due to assauit on

 "admittedly, there is no direct evidence of

 eye Witnesses to the alleged incident of murder of



the deceased by the accused. Therefore, the case of the

prosecution rests only on the circumstantial eVid.eng:e,

On careful reading of the impugned judgrnent_;'_'i't"e.oVu:l_tl:_.___'*_

be seen that the Trial Court has not listed..th.e"fspe:ei«fic 

circumstances which the proseCu,tion_,,hj.als_ .s.ou.gh.t~v..__to.,s.Tf

prove. However, during the course of"sarguInenl-1;sVlof the"

learned counsels for the appel'ltapn'ts--aceu.s&eLiV':and the
learned Addl. SPP, it is found tthepnvllprosecudtlon has
sought to prove the following 

(i) Motive;-_ algle-g_edl'«a1gain_sltj-thelwaccused

for leomfniss'ion"-fvofl'vn1uiidler of the

deer: as ed. 'A xi: 

M'nbi1iiatio'n:_'~ funds by accused

|-no
spa

Nos'.tl__Vlland ._2A'.fo;q_ll..'tmaking payment to
Végjlaceacused' and 5 for committing

lrnfurdepr of thmeldeceased.

 accused Nos.3 and 4 in

l   Deluxe Lodge at Nippani from

V 2 oigolo a.m. on 04/06/2009 an 0545
 A.  plfn. on 05/06/2009.

 "Stay of accused Nos.3 to 5 in the

same Praveen Deluxe Lodge from

C~--~.$""'*-r=»....,...®



 

16

10~OO p.rn. on 08/06/2009 till O1»-00
p.m. on 09/06/2009.

,_.

(V) Stay of accused N0s.2 to :3 g;t'"'"
Shivasagar Lodge, Nippani, frdm  L"
07-10 awn. to 07-30w-p;n[ Vgnie"

10/O6/2009.

(vi) Accused N0s.3  
cricket stumps  VV
between O8~3O'"aV_nd .'O'§--'O:Q  fr0fn"x

Agrawalas Spordtés" Shdpiaf;  ,

(vii) Accused.--1:\:I'0--s.3 figtdo  iiquor

f1"0H1 _ .3111 e5:fs.': ar 'W:if1€  re ,. situate d

at AnkajL_b§'aE§n:'

 p.rn. on

(viii)Ave'cjd€-ed  food from a
DhabazugAnkafiJ$zabout10-00;;nL
_;¢n=10/0e¢2009.

m_A..c_vC*us.e«dq_'N0s. 3 to 5 being seen by
_'fdPfi%y211ahd 22 at about 1LOO pJn.
 0:1» ~1,O4j',e'C)6/2009 While standing under

.--s.
0}".
My
my 0 V

 kfamarind Tree near B.K. Coliege,

*a._Cvhsikk0di, £.e., shortly before the

 Jincident 0f murder of the deceased,

nearby the sasene of offence.

 ~%"



17

(X) Accused No.2 being seen by PW16

Police Constable at Kagawad Bus

Stand at about 12~OO mid 
between 10121 and 11th June 2Q.§')'9  

and she being seen by 

APMC check post after the  '--

(xi) Accused No.3 piclgciug  2 _
No.2 by about   S
11/06/2009 &pn1:h¢j§ape_nearthe_7
APMC check    V 

(xii) Recoveries   eixbhones
be1ong.i:h4g';;jT.e?co éi-.cciu's"ed'°No--s';v1----~:and 2,
scoo§ter"Vb_"----beIe?..;1gi'rijg_'u"€Oi« éiecsused No.3
and 'V"e.es'r1;»'1.:::'grid" .__:Vpi"e'c.es_~§V of mobile

1) e 1 o n_ gdihg .1; o" « .2; he _ d-e__c e as e d .

(xiii)Ar'1eestee of" V. Nos.1 to 3 on
A.-O8/O7.'/'2VO'OV9 adfzdvaccused Nos.4 and 5
gfmggog/o722ee9.

 circumstance motive: The motive

VV'.;--eIV1e_ged 'éi'gai'.ustv";the accused Nos.1 to 3 to conspire

yfogetdher,eforvvgetting the deceased murdered by accused

 is that, reiationship between accused No.1

  @ Renukzzz and her deceased husband

gxrxmufi



 

18

Rajendra were badly strained, as the deceased was

suspecting her character, In order to prove this rrioptii-ir_e~,.V_

the prosecution has relied upon the oral evi__dencfef----._Q'fi.-___V"_

PWs.l, 10, 11 and 23 and the documents----xar_:hi.Vcli~::are 

marked as M.O.No.35 the bond 

executed by Al in favour ofgher 

M.O.No.39 the four inland  and 37
the two notebooks toilQdr1tai.ii'~--,incrirninating

circumstances against Al. " _  l

16. PW1  who is
the elder   léiailendra has stated
in his evidence  someone that as the
deceased  , character of Al
Smt.Renu:l~:a,A. to get him murdered and
tlierle'fore" she  with her elder sister A2

Smtl;Nai,na&'léiidfifisiial, the son of A2. Except this

i',_T"'l*iearsajyi'-eVid.enee,iinothing more is deposed by PWI as

 ailegiiedimotive against the accused.

.l   ":PW1O Shankar Gurupad Rajarnane has stated

 evidence that during the year 2008 Al

i~ 



 

19

Sn'it.Rekha had left her matrimonial horne taking her

belongings and a panchayath was held in his presetnuce

as to the said incident, during which, 

confessed and assured that she would not  _i

thing in future. He has further 

said panchayath, A1 Smt.Re'1<:ha iexeieutecidit§1,i:'_hoii;.duit

indicating that she would  in
future. The said bond  On
careful reading of the  it could
be seen that the Further,
it is stated    id§o'cument that she
confessed  as to her leaving
in the  'assured the deceased
that she v_vou1xd"~.novtiift:pAe--a:t'~~--itihe same in future. It has

Cetne in._';t?heLeziideneevv----c--f«'PWs.1 and 10 that after she

eXieeAu't.ed----b0nd, she lived with the deceased

*»._m:hou*: any diff_er'ence of opinion between herself and

hthe'deceaisedg.

 r.«PW11 Shashiazant Bhimanna Umarani who is

h  brother of bath PW1 and the deceased has

{ 



 

stated in his evidence that during the year 2007 Al

Renuka had left her husband's house and ther4e..aiftleirV_

she returned home and confessed about 

incident and thereafter she lived with  

cordially. He has also stated abAou:t,.iJiAsj.hlieus»

M.O.No.35 bond.

19. PW23 Bharmuf is  on
whose evidence the  upon to
prove the motive alleged ll-le has not
supported the    it relates to
the said  witness by the
learned  getting him treated
hostile,  Al Rekha had left
her husbandfs  returned home after 7 or 8
 andlthien she executed the said bond

assuring that"~..shei'o'w.oulci not repeat the same in future

.V 20..il Fromilithe above evidence of PWs.1, 10, 11

4:  *ie*:__ isilclear that the evidence of PW1 is hearsay

  is the say {if pwie that A1 had left her

 hti..sil'b'a'nd's house in thi,' year 2008, the say of PWEI is

 W»«

«s.



 

IN)
I\)

panchanama. Though it is proved by the prosecution

beyond reasonable doubt that the said documents 

to be seized from the house of the deceased,_;n'one---of

the prosecution witnesses has spoken_.~Va»b_o"t1t"-~.:th.e

contents of any of the said docume:nts.:.,Ipt

by the prosecution that M.O.N.o..39 inl_ar;d  yverjeu"

written by accused No.1 to het1i.:._V'decea's'edV:'husband.
Further, the contents and 3*"/'v"Hthve two
notebooks are also not  known to
law. Though the  remarked, relevant
portions of   notebooks are not

marked.

22. During. the of arguments learned
Addl. SP1?§'r1a_s producetl English translation of some of
the  notebook. They are dated

15/bio]a~ooa;j«v..tpp9dfj2t/~2009 and 28/2/2009. Though the

'v.__A'contents*~«.__ofV_>th.e'se documents are not admissible in

""e.V'ide"nce, thesaid contents do not in any way disclose

 "an':,§li:1t;rirninating circumstance against either accused

 wife of the deceased, or any of other accused.

<'~<=-5m'*"""'



 

24

of funds by accused No:~;.l and 2 for paying the same to

the accused Nos/4 and 5 for committing murder 

deceased. In order to prove this circurnsta_n:c'e*l,.,'Vj_~§§lh_'§§
prosecution has placed reliance on the oral. of ii
PW31 Rarnesh and PW32 Manoj, 

their jewelry shops at lslampur ini"S_a'ng1i  

Maharashtra State and also thelidiocurn.eln't_s«l"at E}§s.P39
and P40 the receipts  to dbepen issiied by
PWs.3l and 32 for having pn1*c'haise--dVV.'g--o'ld.7~ornaments

from accused Nos:ll'ar5.'cl 2;

24.    jewelry shop at
Gandhi stated in his evidence
that on  had come to his shop
along "her lsistAer'.'lfe>rlV'selling four gold bangles and
   $630,000/-- and paid to her

a  on that day and paid the balance

iV.__li"a'mount*-..two_>daj;*s thereafter. He has further deposed
""-1th':a;_t"=accusedil' Nos.l and 2 are the same women who

tsaid bangles He has further deposed that

x""'*=z..,s..;=-~'x



E3X.P39 is the same receipt which was given by him to

the said women.

25. PW32 Manoj who has his jewelry  

same Gandhi Chowk in Is1ampur..~ha.s&ststepdefiniiiihis 

evidence that on 4/6/2009 two Worh«en::'_ihaid  to 

shop to sell one necklace andii_o"ne r1fig,:__1i¢x
the same for a sum of   to
them and that EX.P4O is -was given by
him to the said  accused
Nos.1 and 2  come to his

shop and sold ti'1e'::s2€.;id 

26.   the above evidence of
PWs.31 and  is th_ei'r'is,piecific say that E1Xs.P39 and
4__O,.&are vthievtxiro ofigi.n_;;__ip'receipts that were issued by

then} to»aVcct1se'd_hI*Jos.1 and 2 in respect of purchase of

 the giioid'-.o'rnvatif1Len'tsx from them. As to these documents

Vfpthepevidi.en.ce_po'f.iPW38 KR/.Sreedhar Rao, the CPI, is

4: i:e..4_reeiiorded the statements of PWs.31 and 32

 iatiithat time, he obtained from them EXs.P39 and

  deposed by PE%fs.31 and 32 if it is true that

 R
KO-vswé



they issued Exs.P39 and P40 receipts to accused Nos.l

and 2 at the time of purchase of gold ornaments...fr~o_rn_

them, the said receipts should have been 

police from the custody of either of accused--~N.o:'S...l1"~:é1Hd 

2, but not from the custody of PWsfi31   it
27. Both these 
originals, but not the <,rounterfo_i.ls:'~or=..c'arbo"n-copies of
the originals. The  produced
either the counterfoils  or the
carbon copies   shlojulldllilhlave been with
PWs.31 and these two original
receipts  of the person who
sold the gold  the said receipts. The
column  fohr"cessltorr1er's signature is blank in

blothl"thVe'"'said'receipts. Hfidded to that, if it is the case of

the  accused Nos.l to 3 had agreed to

 to la-c_cuv_s~ec_li]i\llos.4 and 5 a sum of €32 lakhs, the

"'«toft«a__ll"'»amount' under these two receipts is less than

 Absolutely no material is placed on record

.t;he__iprosecution to show that any amount of money

{f~=~...£"\---=««»=-



 

28

accused Nos.3 and 4 stayed in room No.202 of Praveen

Deluxe Lodge at Nippani between 0l-00 a.mV._t».on_V_

4/5/2009 and 06-15 p.m. on 5/6/2009 

accused Nos.3 to 5 stayed in the same l_odgii1gl 

10-00 p.m. on 8/6/2039 till 01~00l;gAp.ml,i 

In order to prove these eireurnst_anCels,_ the p_ro5seeutio;n "

has relied upon the oral evidenevedof PWi"9..U'ttvarnK§Bapu
Katti, the Manager  the  i.._1Q'd..iging  the
documents Exs.P18 and Pl-1_9   of the

registers. This PW'1'9g:j'l":as__ sta.t'ed'<. i..1"1~:_"'}7gj§_:'€Vid€I1C€ that

after rnidnightigl  on 4.6.2009,
A3 Vishal  to his lodging,
stayed in  vacated the room by
about 06-15   He has further deposed
   about 10-00 prm. they came

to0't..h'e;.ll'o=dgg*i.1jgt avith a third person and all the

.'l'<,_three 'pe'rsons'.l--l'stla3}ed in the same room No.202 and

_Vleyfac'agted roorn by 0':--00 p.m. on 0/6/2009. He has

i 'al4sof'de;5o.sed that one af them gave his name as Karan

A'-4"_V~Pa*ti§,i"a fictitious person, while staying in the said

a'-=~5"°"*-«~"'=~



 

room. He has identified A3 Vishai and A5 Mahesh as

Karan Patii. However, he has not identified in

evidence A4 Praveen. He has further deposedii{fth:a5t:_.vii'f

Exs.P18 and P19 are the extracts 

maintained in his lodging.

30. PW36 S.V.G:1:ish, thieiepi, has .s_ta.ted._:'ivn...hiis

evidence that during his inyfe_siitA'Lgg'ti_VQn..ihe.:V._A¢Qv]iiected
EXs.P18 and P19 from  Nippani.
PW19 has stated  that he had
issued a _TtJee_ei;y'eidii:advance amount
from the   'not take the same
from him.  is that EXs.P18 and P19
are said toiibeithe  the register maintained
by the Igicigzrt,   has not been produced
 ihiiiii;iiiiexp1anation is given by PW36

Inveestiga.tirig'~...Officer, as to why he ceuld not get the

iii"'i§:')'riginai'---..regj.s'tei1i'.Further, either the carbon eepy or the

"'i.--iik::(:tinte1ff0i1-ttbf the reeeipt given by ledger to the

"=aeeused_~_eustomer are also not produced. Since

 and P19 are said to be the extracts of the

ge-=...§'*v*'""'-M"



 

register which is not a public document, no evidentiary

value couid be attached to these documents. 

registers should have been produced 
prosecution. Further, though it is the 
prosecution, as deposed by PW19,f::

took the room by falsely giVih_g 

Patii, entry in these documeni't..:.i'sh_owitthedfnaiterie of
Vishal P. Desai who is   being
so, it cannot be held   proved
beyond reasonable'iidoubte Nos.3
and 4 stayed   O1-00 a.m. on
4/6/2009   and that accused
Nos.3 to 5 :"s.tay:ed  from 10-00 pm.
on 8/6/2009  9/6/2009. Therefore, we
 toAAi'ho--.é.d.«'that the prosecution has not

been 'a.hI"e-.,to._pro've'"these 3"' and 4th circumstances also.

31,'  further case of the prosecution that

 N"os_i.7~3 to 5 together stayed at Kuber Hotel,
ii'-'.iMé.raL§x,"V.o_n:';9/6/2009 between 04-30 pm. and 08-00

 Ir}; order to prove this circumstance, it has relied

 "'



 

upon the oral evidence of PW17 the Manager of the said

Hotel and the document EIx.Pl6 extract of 
maintained in the said Lodging. This 
stated in his exarninationdn-chief that 
some three persons came to his 

not remember the time of their _comi'ngi'to thei.Lioidigirijgif

He has further deposed that   alciculsed
Nos.3, 4 and 5 as the  come
to his Lodging and stayedi  that day.
Though he has   by the
learned Public?'iiii§te'tting him treated
hostile, nothin'g.u;is:   in support of the
prosecutiorijkg   EX.,Pl6 is the extract
of the registers  Lodging given by him.
 uneed'l'es..:.s;...t'o say that the prosecution has

fa.i1.edv.to»es't_abl:ish' this circumstance also.

 'l'he_ii<j5th circumstance is that the accused

 to Sustayed at Shivasagar Lodge, Nippani, from
 to o7~3o prn. on 10/06/2009 i.e., on the

 of the incident. In order to prove this circumstance

<:"*~--+'7'°'"'""""



 

the prosecution has relied upon the oral evidence of

PW18 Ashok, the Manager of the said Lodge. He"

stated in his evidence that on 10/6/2009 at  

10 am. four persons came to his lodge and_.one_:'foVfi Vi"

gave his name as Kamn Patil and, he_Hgavi'e; 

rooms bearing Nos.2(;2 and thatv--i-t.a.oict1se;di'i

Nos.2 to 5 herein were the sarnei'zi.o'i1r peirso:"r1s'i.  has
further deposed that vitih_e.flrQ.omsiiihyiiiabout
07-30 pm. on the same  is the
extract of the register'  in the said

Lodging. "signature of this

PW18.  inflhiiisiiicross examination
that EX.P1';"_dio.i_es  signature and that he
does not i<'novv"'<whoVfiVS--_ig;r?._ed~.--ii":the said document. As to
eviden-.»t.r.e«'of PW36 Investigating Officer

is thatih~e1eoi1'ie'c.t:ed_ the same during his investigation

 thei"'Manaigjer5' of the said Lodging. This document

 also co;)3i?'A..of the register. The Investigating Officer

i'ihas..:3notii"given any expianation as to why the original

 

.i"ii'_'~reg«i-stier"could not be produced. Therefore no

:;"-$"°"'"*'"""



 

evidehtiary value couid be attached to this E3x.Pl7'

also. Besides this, cotinterfoil or carbon copy of

receipt issued by the lodger to the accused 

of their stay in the said rooms on the said da.te_:"are'-also 

not produced. Therefore, we are consAtrair;_ed_'to*hogld..,_gf

that the prosecution has notgibeen ia--b_1ie-- to _p;-we .thii{isi"i

circumstance also.

33. The 6th cireurixsitaneei_rvel'i'egidAiiupori by the
prosecution is that acc:u'sod::"N'os'»._3ipurchased

cricket stumps_ p.m. on

9/6/2009 from   at Miraj. The

prosecutiori  PW15 Mohan in order to
prove this  stated in his evidence
that duriifrg  vziyluily 2009 police had brought
 pjergson  that he had purchased

 the said shop. He has further

i',:"'d'eposed'--..that hejrcould not say as to who purchased the

 stuirapis from his shop. Though this witness has

7«be*eh' crosis examined  the learned Public Prosecutor,

getting him treated hostile, he has denied the

,g;----§"'='*"'*§..»w*



 

34

suggestion put to him that on 8/7/2009 his statement

was recorded by the police as per Ex.P12 to the 

that accused Nos.-4 and 5 purchased cricke_t§'_Ws'tii;'1n:1fi.

from his shop during June 2009. Therefore;-~vi}e~,a'fe of 

the opinion that the prosecution 1;as:..:.%i§.1é4'::.5---.§ro.x;_e,,.'

this circumstance of purchaseoof c'r_ic'1<:et stiump hgyii

accused Nos.3 to 5 :"or comrr1Ri't.tii'n.g rriurdef  the

deceased.

34. The 7th iibe proved
against the   at about
09-30 pm. occurrence of the
incident) acicusedip"51"os._._:it?Vto~:$Vpurchased liquor from the
wine shopiif_oif  :_ii:"ii(:_iuhendrappa. The next
circumstahicecpp(siitihf-.Vh§§0.i;gh't "to be proved against the
 A~a2ccuisii*idiNos.3 to 5 purchased food at

 pm. on the same day i.e., on

i'v.:ii'1VG:/6/2O'Q_9. _':1"1_{iiI!:E"'(AIii€I' to prove these circumstances, the

""p§r'e.se'eutiohgiias relieté upon the evidence of PW13

 and PW}?/3 Mahadev. PW13 has stated in

':S:s.i:V§y;aence that at about 0930 p.m. on 10/5/2009

 --mw



 

K.aJ
U!

accused Vishal (A3) casne to his wine shop along withi
two others and purchased beer from his shop. 
further deposed that on 8/7/2009 the 
to his shop the accused Vishai and two 
that time he identified the 

further deposed that an 19/V1>/,2O1(i)Haigain the.':Vpo1ii;:ei.'i

brought to him the acwused  andi"o_th'e--t' persons
and asked him VVhCth€:'  theiviisavid two
other persons. He has   that he
identified accused"t\to1's.4::i__an§d.:..~'5  two other
persons who   along with the

accu sed Vi shai .  if 

35. PW  stated in his evidence
that he havsppa iii3hvab'a'1Avnkaii under the name and
  and that on the night of

 Vishai (A3) and two others

 to   and took with them 'biryani'. He has
"~K'z.'i4:i;iL'1"_?;Vi'V1'¢.'3I' defm__s*ed that on 8/7/2009 the CPI brought to
 the accused Vishai (A3) and two other

 and he identified accused Vishai only at that

a---.4r'°---we



 

 

36

time. He has further oeposed that on 19/1/2010 the

CPI again brought to him three persons 

identified them as Vishal (A3) and 
and 5. Both PWs.12 and 13 have identified.hie':iore.::tihAeiv'
Court during evidence that accused 

the Very same two pezsoris who were broug.h--t.hyi their

police along with A3 'Vishal.  hasiimhis
cross examination that  on
19/1/2010 the police had:'hrVou'_gtihat _-to"'ih_'iisi_'.~Dhaba the
accused, but he;   hame of the
accused Vishaiito his Dhaba on

8/'7/2009.1"

36.  the"ahzwe_4ie~yViiidience of PWs.12 and 13 it
is clear that thie'-.acciL::;ed Nos.3 to 5 were shown to
A~aboutm:;ix months after the occurrence

of  subsequently they identified the

 ace-useVd*bveIfore the Court on 24/4/2010 i.e., more
 8jori'3,_.i:'months aéter the accused were shown to
ioyfithe police. Admittedly accused Nos.4 and 5

i'iW'€,'.tf('.,'>V'__I--i1Ot known to thaese PWs.12 and 13 at any time

C% 



 

37

prior to the occurrence of the incident. If it is the say

of PWl2 Mahadev that all the accused Nos.3 to 

shown to him by the CPI at his Dhaba on 
the case of the prosecution, as deposed 
that accused Nos.4 and 5 were 

police on 9/7/2009 at i3ornba_VVr._'_If exiiidence 

believed, there could  no  for*.th"e*.l':police to
take accused Nos.4  No.3 to
the Dhaba of PW12 on   identified
as the very  from the
Dhaba ofpw12=i'["  ii i V. 4'

37. It is   Hon'ble Supreme Court
in the case o£V_lVIohianié;§§Ghzrtfidram Gehani vs. State of

Maharasr.gn»aA, reiaortledl znl'AI.R 1982 so 839, as under:
  Paria  __Thu:~;, as Shetty did not know
"'th'e'__ap'pe'il,an.t'vliefcre the occurrence and no
Test Identification parade was held to test

'this power of identification and he was also

 the poiice before he identified

'the-Jiappellant  Court, his evidence

becomes absoluéely valueless on the

 %M



 

(«J
00

question of identification. On this ground

alone, the appefiant is entitled to be

acquitted. It is rather surprising that this  

important circumstance escaped the

attention of the High Court while 
very great stress iin criticisingfthe'evitienegf.

of Dr. Heena when her eviden4ee::_W'as ti-"1'.J'..C-.V t "

and straightforward.

38. Further, in itsi*ater_7deeisiopnpin the ease of

Manna vs. State (NCT of Delh~if_,  2003 SC

3805 the I-Ion'b}~e'KS:iig)re_me Observed as

under:

'I'he_ norrnati i"s_tha't testimony of a
witnessgvivho 'dotwé b_n"a_t"'know an accused

fronéybefore and'i::eir1tifies him for the first

i"tirn"e  the Cour: as a person who had

A~..pa.rticipaetedf._in she commission of the

crirne, ~ Without holding a previous

i"~.identifi.V_oation parade does not carry much

K A ' iijwe.igj:.i;'it.



 

39

39. In View of the above principies laid down by

the H0n'b1e Supreme {Jiourt in the said decisionsi.,ie»-w'e_V

are of the considered opinion that no value 

attached to the identification of accused  by 

PWs.12 and 13 in the Court as the very' 

who purchased liquor ggvom they :fO(i$;Ci'.,i

in the Dhaba' of PW12 wn the saiiVd..:d~at'e and i&'itiiVhe.i:i§.e., a
few hours prior to thv   of
murder of the deceased  it is
clear that the   n'eitIh'e.e_.!1t:i.fiaib1e to prove
7"! and 8*"   

40. 'Ifhe_  relied upon by the
prosecution  that'vaefus4e'd_ii\iios.3 to 5 were seen by
PWs.21 and 22 st=andi}:gii'under a Tamarind Tree near

B'i,.vK.iQ.g1V1e'ge}:,j'Chii':odi, it{'3., near the scene of offence by

about. :i.toesoupuitmj is/5/2009 i.e., shortly before the

i',ioe<:urren--c'e of rniurder of the deceased. Of these two

.i.i.;;i;;;4;;;_'e»sses, "ngmeiy PW:~:.2l and 22, PW22 Baiu is the

«Vi4ii'hiu--syha_'rid'  PW21 Vijajua and he has turned hostile to

'tiihevjproisecution. He has stated in his evidence that at

e""*§wM'



40

about 11-00 p.rn. on that day he and his wife, PW21

Vijaya, were moving on his motorbike on Chi1V<o_dci_V

Ankali road near B.K.Co11ege and at that 

three boys standing near B.K.Co11ege 

observe their faces and therefore]he_.ca.n"11o't_'i--den't..i_fy,_f

them if shown to him. Though  cro'§;su't

examined by the learned Pub'IVi"'c::'Prhosedcutfierh;  has
denied the suggestion ;3vd4t'*V.¢_to  "stated
before the Investigating;  as
per E3X.P21 that  saw on that
day standing  accused Nos.3
to 5. 'V  in his cross
examinatiofijn prosecution.

41.  who was riding the

rrtoto'r::ync"le hast"Ashtatedvwtthat he cannot identify A3 and

A5 as the 'three gevrisons who were standing at the said

  the Wife of PW22, who was

"~«--fr:1'e.yi'h.g with,__PW22 as gillion rider on his motorcycle,

 in her €Vi€1i"f1C€ that she could observe the

"t'e'a,tVure§s of one of the said three persons in the light

€___fi_b§"'°'\.»->*=a.,,='



 

ill

that fell from the heat: lights of the bus which came

from behind the motorcycle and that he was A3 Vishalfl

but she could not identify two other persons.__S'he«ij_ha_s

further stated in her evidence that sin.ce.,._:iaciC'u:sed 

Vishal was known to her, she could  

witness (PW21) claims to harge idelntified 

while she was moviixg on tihi'c_:l'm_otoroyicle'l  her
husband, as pillion  light "of the
headlights of the bus  the
motorcycle while§~tli:e_},s:oo_te;~i.wasVii:rri--o*:Ii_nVgi on the road.
Therefore  vi.:t--olii'--i,§b'elieve as to the

identity of A3imVias:l:'£,al {:0

42. F'uii1'..ther,is.hle'«V.A{'PgWQg"1'}"ihas stated in her cross
examination that V-thle"réec'eased was also known to her
al'ndil'their'ei'oir'e,  abouiitii 11-O0 p.rn. on the next day,

sheilFhlladlli'be'e.n"it~o:}~th:.% house of the deceased for

i',_T"attendin=g__ the fianeral and at that time she did not

 beiiorte anyone about she seeing accused No.3

 with two other persons on the previous

 also casts doubt on the evidence of this

grigeww



 

42

PW2l in her eXarnination~in~chief that she Could

identify the accused Vishal as one of the said 

persons. Having regard to this nature of evi_d;'e'n'oe*--.._of:_.v 

PWs.21 and 22, we are of the opinio_n~--.V.t:h.at"--i.:::theT

prosecution has not been able flptop_Apr:oife

circumstance also.

43. The 10th ané llth  rieiléedvvviiupon
by the prosecution are ._Was seen by
PW16 Police Constable  by about
12-00 midnight4_Vb,eti2i.f'e:.e.':i_:lO'€*% :jil.Vll\%ii:"Jlune 2009 and
she was dropped check post and
thereafter dither up from APMC
check post his  the same was seen

by PWl4,:.th.e p¢'1?s.§nVo':s duty in the said check post.

 _V PW16,:"Police Constable has stated in his

 evideln-Ce.-.:':hVatiu.'d1l'ii:l"n.§ the night between 1031 and llth

V7fyJune 2059,  on patrolling duty at Kagawad and

'.H.tll::~at.l,.ibetween'.12.0O midnight and 1.00 am. he saw A2

 sitting alone at Kagawad Bus Stand' He has

 ifu.rlt'i1'e:'r deposed that Of": seeing her so sitting there, he

«<"*'*-.§i\w°'flv



 

asked her why she was sitting there, to that, she told

him that she was Waiting for her son for going to 

He has further deposed that he told her 

place was not safe and then took her  

wheeler and dropped her at APMC   4'

45. PW14 Panduranga  .  at
APMC check post has stated that by
about 11--OO pm. on  Constable
brought a woman   dropped
her there and   post. He
has further  thereafter one boy
came there  and took the said
woman withkthéirn  further deposed that
while  sitting in the check post,
  over her mobile phone and

washwsayingd'thatV*fJ'aZakai} Jalaltai'. This witness has

'v.__A"identifie---d a_e~eu_S}eAd No.2 Smt.Naina as the said woman

~.rd'.ié::vi1.dV'at:eused__«No.3 Vishai as the said boy.

  On careful reading of the cross-«exarnination

 and 14} it eouid be seen that nothing is

<"%""""""°"""



 

44

brought on record to disbeiieve their evidence. PW14

Panduranga has admitted in his cross--eXaminati_o_rn_V_

that he did not state before the 
investigation that when the said woman  
the check post, she taiiqed to 

phone saying 'Jalakai, JalakaVi"..'_Tho'u.gh thisvtarriodunjltsiivt

to an improvement, it does not""g.o'i'to :h'e..r"'ot;':e of the

prosecution case. Ther:e'fore_;Ai _hold that the

prosecution has proved beyondi.r"reaso.n.ab_iveif-doubt this .

circumstance th,3.v;;"'g:rVji§cus=edg  at about
11-00 p.m. or  by PW16 Police
Constable  that he brought
her to  accused No,3 took
her on his twoiiiwheelier  same was seen by PW14

t:h'e~pers_oh  duty Aa't~t7r:»e' check post.

is-.47'._;~ two circumstances are arrest of

1'vfaccused=,Nos..~1  on 88/07/2009 and accused Nos.4
 on 0.9/_t')7/2009 and also recoveries of two mobile
.,b:e1onging to accused Nos}. and 2, seizure of

 scooter belorrging to accused No.3 and also

.q 



 

seizure of ash and pieces of mobiles belonging to the

deceased. PW36 CPI has stated in his evidence 
arrested accused Nos.1 to 3 respectively 
Renuka, Srnt.Naina and Sri.Visha1 on 
about 08-00 a.m., and that he  

and 5 respectively Praveen an»d_4Mah'eA_sh= at  

on 9/7/2009 at MUIHbé,:i and matermgaieaathan this
factum of arrest of the said ac_fcu_sed._ olirytthoseiiirelevant

dates is not in dispute.

48.  his evidence
that he seized   two mobile hand
sets from htoVuvsV§2..iV_g.fi:'f.'theT"d,ec.eased and that the same
were producieddibeforei No.2 Smt. Naina
and he as per EX.P9 in the
  in respect of seizure of the

sarrie...:i   deposed that he seized under the

  M.O.No.4O the scooter belonging to
.._ri'.j'a-vc«c_u"sed  Vishai and that he also seized
 and 46 respectively ash and pieces of

 phone belonging; to the deceased under the

ȣ'" 



 

46

panchanarna Ex.P1O in the presence of the very same

panch viz., PW5 Balasaheb. This PW5 panch has stated._

in his evidence that the said articles were seized"'byj_'th__e

CPI in his presence under the said panchan.arna's_. 

49. Though PW5 Panch 

Officer have been cross eXamih_e"d.__at 'r:e'sVp:"ct
of seizure of the said articles,Ag_.nxo'thin_gg   on
record to disbelieve th€13said5.?Vteiid1§"fiéa?3.;,d'Th€1'€f01"€: We
hold that the 'fiprove 12th

and 13th circumgstancdes. ~. 1

50°   firosecution that
accused Nohs_i1" 'to  for getting the
deceased rnuurderedd "Vhfring some persons and
pvursvuanfligthou?'the V.'s'a'idV______a.greement they hired accused

N¢'s,4Vfanpa.,_5.s~«£§'om Mumbai and the said accused

 cornrr.1i=tAted  of the deceased during the said

V7__nig--ht. Itdéhhisvtyvevléhl settled that the essence of criminal

{..co:rs»pi';"acy is an agreement to do an illegal act and

'*.'*._su._cfh ha-greernent can be proved either by direct evidence

 ora:h'y'circumstantial evidence or by both, but direct

{"'*"'=§¢%w'¢3



 

47

evidence is rarely available. It is also settled that in

case of conspiracy in which the prosecution relies...otnly,_

on circumstantial evidence to establish _.<;ri'In.i_'11--.al

agreement between accused persons to _cvam'rn,it"~.c:the

alleged offence, it is necessary for,the.ypj:*o's»e.'cu't.io'n'ntou,o.l

prove and establish such circuinstanlc.es'as would lead V

to the only conclusion of e'"X.is'tencel'-.olf"':cri'rninal

conspiracy.

51. In the in.stvant:.'ca's«é}  prove the
alleged CO1'1SplI'.a,Q§~;.§lv/"  to 3, the
prosecution  the circumstance
Nos.2 to 5,  by accused Nos.l
and 2 for making  Nos.4 and 5 for
committinggv thelzldeceased; stay of accused
 4E'7in:VPraveelnHlleluXe Lodge at Nippani from

o1wd'e.y 'V'.;;}ngf';--i..g;1{jj.d4/as/2009 till 0615 p.In. on

of accused N()St3 to 5 in the same

 DelL:_i§e Lodge Srom IO-O0 p.rn. on 08/06/2009

 on O9,/S6/2009; stay of accused N032

't.o"'-5at_§ShiVasagar Lot:Eg;e, Nippani, from 07-10 am. to

<'"'"==-r""""""""m"



 

48

O7~3O pm. on 10/06/2009. While considering each of

these circumstances, we have arrived at the conclusi_o'n._

that the prosecution has not been able to pro§ze"'an'y.._:oi':_.vi

these circumstances.

52. Further, prosecution has   

Exs.P44, 45 and 46. E:<.P-45 isltrhex calls-sh:lis_ti'pei15tain,ing
to the cell phone No.'94228483fé§,:__whichl 'oel_on_ged to
accused No.3 and  pertaining to
the cell phone No.'9422§3.42:.6'3g9l,l'~lisaid to be
belonging to   pertaining
to the cell   belonged to the
deceased   pertaining to the cell
phone  said to be belonging to
accused§\Io._1.  Elenuka. Referring to these calls
  Counsel for appellant-

vvilrilvi't'iiflV,:l.¥'i.No.2737/20l1 strongly contends

litiliat EX';-P45.-eavil4:l'si list pertaining to the cell phone used

""ll-Thy.__la;'ccusecl-iio.3 Vishal, EX.P46 calls list pertaining to

l"=thel.i'c.Ae'll,_phone used by accused No.2 Naina and Ex.P-44

 pertaining Eo the cell phone used by the

€:,_,..,'=§.§""'e-...,=a--»«



 

49

deceased Rajendra and Ex.P4'?' calls list pertaining to

the cell phone used by accused No.1 Smt.Rekh.ai»._:i@_V

Renuka and numbers of incoming and outgoi_:j"g"cc'a.It.ls:_.Vix

from these mobile phones few days 

incident of murder of the deceased clearly.estalo'l'i_sih..'t.he,__Tf

factum of criminal COE'lSpl1"aCy,--'l7)€tVVCVt3I1"'3CCUS't?ClviNiOSi:1iv'

to 3.

53. All the said seized from
the residence of the v'dec:e'a's:eid'&  No.1,
being his wife,    fact that
accused   of the deceased,
accused N022  of accused No.1
and accusediiiN_oi.3  No.2. In View of
this close:'I"velatiiorr-isfiio he'tvsteen accused Nos.l to 3 and
   was quite natural for these

accused-to .hay'e conversation with each other and also

 the---..__dec~ea_sfed. From this fact alone, it cannot be
'<--«i.iii11'feir'red thiiatlaccused Nos.l to 3 together conspired to
i"--co':rirnAi't.,rIiurder of the deceased. It is pertinent to note

 absolutely no material whatsoever is placed on

{_____fl_§-'s..,..~.c..



 

record by the prosecution to show that there was any

kind of cornmunication, either written, or Verbalvpcyer

telephone, between any of accused Nos.1 

either of accused Nos.4~ and 5 at any time, l>e:'fO_r§' 

or after the occurrence of incident of irnu._rde'1'=._of.Vx;he__ A'

deceased. Therefore, even though t'l1:e'V«seiz1.1feAiof the7

said cell phones and the detailis"i'e».i:n'the  calls
list are not in dispute,   estaihliisih any
circumstance constitutingwanpiapéirfeeifiéfi;Viifibetween the
accused to commitirnj"x:'de__r  the criminal

conspiracy a1le'gecli"'ag"a'i=nst'=fhe" acacused.

54.   conspiracy, the other
material relied :'h'}'i:_iit'h:pe"Jprosecution is the hand
sketch   has M.O.No.42. Though this
  isA~.sfiaidiitoiiihave been seized under Ex,P8

 Investigating Officer in the

ii""presenic~e_  as panch, from the house of the

" 'i-iiidpccetapsed, 'nothing is spoken to in his evidence by PW36

i"'Vlnv:estigaiting Officer as to the details of the said sketch

 author. No rnaterial is placed on record to show

 



 

51

that this hand sketch was prepared by any of the

accused Nos.1 to 3. This being so, it cannot 

that this hand sketch is legally admissiblej_'"'in--«'.f_'tlh_e:..v:l_"«

evidence. Therefore, we are of the considered'fopinion 

that this hand sketch is also of inoj

prosecution to prove the criminal c"o_n'spiracVc§*~alleged"

against the accused.

55. It is Well settle"c14t.hat' which rests
completely on the  eVv,.l'dence, the
prosecution is.  reasonable
doubt, all relied upon by it
and, all   should point at the
guilt of the  observed supra, the
prosecutipn  "able to prove the relevant
 motive alleged against the

accused- for.':"c.Vorn'.1ni"ss£on of murder of the deceased;

;VV'--:,,,/it}>1Obi1iZAa't.iOrl'~.Qf':""fundS by accused Nos.l and 2 for

 to accused Nos.4 and 5 for committing

"=tnuprlde':*..o_f--' the deceased; stay of accused Nos.3 and 4 in

"fil3"i*:a;V_C_¢ah Deluxe Lodge at Nlppani from C}l--OO a.rn. on

@m 



 

"WfOr.__"'»o'ur corisideration in these appeals,

O4/O6/2009 till O6~15 p.m. on 05/06/2009; stay of

accused Nos.3 to 5 in the same Praveen Deluxe I,».ocdge_V

from 10-00 p.m. on 08/06/2009 till 01.00

09/06/2009; stay of accused Nos.2 to 5 

Lodge, Nippani, from O7--1O a.m.f_

10/O6/2009; accused Nos.3 to;5'_ beiingiiseen 

and 22 at about 1100 p.m.  10/06,/"20'09.°;§wVh11e
standing under a Tamarind  thevxsciene of
offence. Therefore, other  are held
proved by the  beyiondfirie:as.o_rifé1i31e doubt, do
not form  guilt of the
accused   cifiairigeei_W1e'Vfle1ied against them.
Therefore, iizveiare  opinion that the
Trial Cour'; cuoifr1.niitVtfle}:E ii::_eriious error in convicting all
W' '1?CC?4oj§:¢'3\..o/.:N©os.1? "{:'o~.:.=3....ror an the offences with which
th éy ts.:tio"oad_   ed  .

  while answering point No.1 raised

9

in the

i"--.a}:f'i.r'2v7,L:tizgne' and againsst the prosecution, we hold that

 Appeals fiied by the respective accused in

 '



 

53

the said Sessions Case deserve to be allowed and the

impugned Judgment and Order of conviction'...panid.s_

sentence is liable to be set aside and

appellants~accused deserve an order of acqu~it»t--ail~..V 

57. Since we have arrived at i"the:,_colnclLis'ion_tl:_a«t_.

the criminal appeals filed  respective!aiccusseld
deserve to be allowed and__ the   and
Order of conviction and  to be set
aside, Cr1.A.No.27'37_./20:1"1"*h--vvhi'c.h._   by the
informant in   Viz., PWl
Shrikanth  ittoiiivibevliiidiisrnissed as being
devoid of  We do not proceed to
Consider  advanced by
Sri.S.G.Bh'ag_vvanl,  Cllvounsel for the appellant in
 enhancement of sentences

imposed;-on..:}E'i_§"resp~ective accused in the said Sessions

'v.__ll'C'ase.

l:g:5'8i;e..4_.Before closing We would like to observe that

 "Court has cernrnitted irregularity in marking

 thieiidoicurnents as 'Material Objects' instead of marking

€» 



 

54

them as 'Exhibits'. Chapter-VII of the Karnataka
Criminal Rules of Practice, 1968, provides for 

and Trial before Magistrate or Courts of Sessio_1f{s;"--«iR11:1_e 

13 of the said Rules reads as under:

"13(1) The exhibits relied  b'3r..iitKl.¢   

prosecution shall be marked aslE_Xl'.P-1;:P§p2.,__

P--3 ete., those relied uponlllbgilllthe accused 
Ex.D--1, D--2, D--3; et.~c:, and't*h_:ose'n.marl{e'dl as

Court Exhibits as EX':Cl~p.l.,l'.C--§2; 

(2) wh4<:j:mer;'é"p§§jr:ic~1¥;»--_pr  'Exhibit
for the props-ecu}t'iior1.this isetparaftvelllglfl'marked as
an   ~th'eflaflp'r:osie'»pution, such
separate"t'popi*jtioh:fi.;5hal.lp"be indiclated by giving
a sub,_A--numbelr.;:*-_.:ei,gl.";.:"'EX.P»1(a), Ex.Pm1(b),
Ex.P--1(le}__ and so":en:_l"'=.§l\7'lienever any portion

or a_docunient.Ve';:;hiivbit"ed for the prosecution

 is _i"é:;qu_i'1*epd bj/""th__e__p.defence to be marked as

:Ade.fe11ce.ipeXhibit, such portion shall be given

Ea .._sepa:r~at'e p"nVu~mber indicating that it is a

dlefeneeppeltlizitlbit like Ex.D--1, Ex.D-2, and so

on;llas""thelcase may be. The same rule shall

ill"-Jii11"11,1.t€t'CllS'iiII'1L1taI1CiiS apply when marking

l"l.p'o_rt:i.;3ns of deffencepexhibits or Court

'' exhibits".



 

55

59. Further, Ruée 16 of the said Rules reads as

under:

"16(a) When an article produced   

Court is admitted in evidencpepzpbit s1i'al'l----.:l3€V"" V
marked by the Ciourt thus;  

etc.

(b) A list of such a'f't.1ic'l.es ad"m:i'tte'd lg V 
evidence shall be pr,6.pared:"i:'l'n,E7d'i'm N0a.'5vv-and
be signed by the 'l-_Qr{_'lg/létgjstrate. The
articles shall be erltpefecl   the
order in whlch:.c:they:;are   V

(c)  Ne-""_. a{"ti.cjl'ei:f«,uaVJh:ich?  V has been
admitteldv   returned or
destrcyyed~ L1VVrv1"'ti{l'~.._f['V§';e_"p_eli'"§Qd for preferring the
appealllhpasexpilz-Qfd b-xfuhtil, if an appeal is
prefetredfthe  been disposed of".

  plsgzin reading of Rules 13 and 16 of

Karhlatéilka  Rules of Practice, 1968, it is clear

that a  produced by the prosecution shall
 'te_.beVV"'marked av; E:xs.P1, P2, P3 and so on and
"Objects are produced, the same should be

 V  as M01, M02; WEO3} etc,,.

§..,_.::ewW



 

61. In the present case the Trial Court has

marked the documents such as telephone 

list, notebooks, inland letters, etc., as 
Objects' instead of marking them as 
series'. If the documents are 

Objects, they will be kept along  other-V..airticles'*

such as the clothes cf the deicieiasedgic~10it'h~es.iiofWthe
accused, and the weagiovris.,us5diii:.ifiii<§}l.i§'~~.C0mtniiSisiOn Of
the offence etc., and, in   difficult
for the Court to   Besides
this, the  il\ki3a'terial Object may
loose the  thieyiiiiare not included in
the recordsi'_oif.i_thei:c:a':§t:e'.'v.ii_.i.:Th:ie..refore, we would like to
impress u_poniit"he that the Documents and
the..VMat.ei*ia§l_::Objects'sirzail have to be marked, either on

behalf.'of.Tthei'p'r.o.se_cution or on behalf of the accused,

 any fcase, in strict compliance with the
F.._Ru1es  16 of Karnataka Criminal Rules of

i.'~P4rac*t.iice;«--.sl968, referred to supra.

,;.,....r...,§"°"'"""'



 

62. For the reasons aforesaid, we pass

following;

ORDER

the cr1.A.No.27e3/2010 £i:ied"_"~._i;'y_ accused Nos.1 to 3 in Sessions »Qas'e"

No.361/2009 on the filie-,?'o.f the._:1'eaj':>né;1'"'i Presiding Officer, CouVr't--"l"i, Chikkodi, Cr1.A.Nos.iQi'7'-.i5:4iiand 2010 filed respecti'>'iei'Vy and 5 therein are the impugned J ud gn1'e"n t. 'fa; =iif3 ii dates di 3 O / O 6 / 2 O 1 0 passed' convicting and sentencing all th_<rftcc.1i'sed Nos.1 to 5 therein isV_~'1€tere'byV set""as_i__d.e. All the accused Nos.1 'tVo"5V i:he~rei_n"are hereby acquitted of all the ofie.ncesifipozniishable under Sections 201, 'V and 382 I'/W Section 149 IPC. Since aéi the accused Nos} to E3 (H) U are in prison, they shali be set at iiberty 6""W{~"\,-»'"""

" :1: sdiniése d".

58

forthwith, if they are not required to be detained in connection with any other case, Fine amount, if any, paid by the accused in compliance with the impVu.g__ned"--._' Judgment and C>:*der of sentence,'j.sh_aH_' refunded to the respective? accu's"e_d'.* (111) Since :heA__ Crl. of accused are hereby"'a.a1lrotv_edV :v'.ar1d':.A:':i'1npugned Judgment and_ and Sentence _ L'N'5:;'2'737 / 2 0 1 1 filed case viz., PW1 seeking enhanceumdentd imposed by the Tria§i"Court-»aVo'n the accused is hereby ' (tvji.L:OVpe'rative portion of this judgment shafdhe eommunicated forthwith to the Trial "'Vc_Cm;nrt:dd"and also to the Jail Authorities eoncerned for their information and hdveompiiance.

wévfi 59 Further, registry shall communicate to all the Criminal Courts in the State through the respeVo't.illve. Principal District and Sessions Judges by copy of para Nos.58 to 61 of this i°4or3"l information with the observations made" the':jein'.a__ "

The documents which ar_e"'~.irnarkved Court as Material Objects andp___f£fl1viCho_V are «phtairied in these appeals shall be""--plae--ed:.j_':.alori'gii'iwith original records in the Sessions V Original iof be placed in Crl.A.No.2VTSi3','AC?iA:Cl:pl "'agt:-op3.?"tii'e"reof in each of other appeals. l l at /2% i , géafézfw 3:? {£3 Max/vgi;/is i