Karnataka High Court
Sri D P Vittal Rao S/O Babu Rao vs State Of Karnataka By Sho on 1 June, 2010
Author: K.L.Manjunath
Bench: K.L.Manjunath
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED TI-Ixs THE 18'!' DAY or JUNE 2010'.
PRESENT
THE IiON'BLE MR. JUSTICE K. L. ._ I
AND
THE Ii0N'BLE MR JUSTICE K.
CRIMINAL AI>I=EAI.§:o. 222/.2007:
BETWEEN: I I I
SR1 D. P. VITTAL RAO, ._
s/0 BABU RAO _
AGED ABOUT_30aY-EAE;S ' '
HOUSE OF SRINEVASA 'MURTIIY "
MOUNT HF;ERA_S€HQOL--..__ " ' ' »
SARAIPALYA, B.A;NGALOR'Ej.- I "
""" . ...APPELLAN'I'
{BY SR1 :'--sI<INI\r}jxsA »I.Ij';--c:;';'1AIJVocATE FOR
M Is." 13 v' KI'1'T0O1?..___ASSOCIATES, ADVS. 1
' I - BY SHO
» IFIENNURMPOLICE STATION,
BAN
. .. RESPONDENT
(BY SI-3.' GIIVIBHAVANI SINGH, S.P.P. ) THIS CRL.A FILED U/S374 CR.P.C. BY THE ADV. TI-IE APPELLANT AGAINST THE JUDGMENT DT. 20.12.06 PASSED BY THE P.O., FTC-II, B'LORE CITY. IN I I '"'S.C.NO.999/05 ~ CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/SL302 OF IPC AND SENTENCING g/I HIM TO UNDERGO IMPRISONMENT FOR LIFE FOR THE OFFENCE P/U/S302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR THIS DAY, K.L. MANJU1'\TATH FOLLOWING:
JUDGME§EmiW The appellant aggrieved rlby conviction and order of sente'n_ce~--rof irnp.ris--on_"r_ne*nt"'for life S' dated 20.12.2006 passed'.=i'un,der2V""Section"~ 255(1) of Cr.P.C. by the Presiding' Court~II, Bangalore, the offence punishable VIPC, has filed this appeal.
2) VVW,'_VI'i1e Hennur Police filed a case be,fo§'reE__pBthe §{I""Ad_ditiona1 CMM, Bangalore, in The Additional CMM, Bangalore, considerirgg nature of the offence charged against the accused, by virtue of Section 209 of Cr.P.C., cornmitted the case to the Sessions Court, Bangalore, Before the Sessions Court, the accused pleaded not guilty and claimed to be tried. Accordingly, the case &/B has been tried by the Fast Track Court--II, Bangalore, against the appellant/ accused.
3) The brief facts of the case are as l The accused was residinggtwith' 'his._wife._"'a,I,;d"two'.
children in a rented house,bearing:No.41g,'..".Sa1'ai;ia,ljfav,V'-- Ashwathnagar, Bangalore. Thtefiaccused. suslaecting the character of his ficcordingylitotyvhim, his wife Sunitha was one Nagaraj.
On p.rn., the with his wife
Sunithza it intimacy with Nagaraj and assaulted on her head, cut her throat withéknife, stabbed Viwith knife on her face and other o:':;i:e'body and caused her death. Thereafter, the a.ccu'seCillavppitoached the Hennur Police Station, gave his as per Ex.P1, based on which, charge sheet .. Wasufileld against the accused
4) Since the appellant did not plead guilty, the 'prosecution in order to prove the case, relied upon the W evidence of PWS. 1 to 22, Exs. P1 to P23 and Mos. 1 to
10. The learned Judge after hearing the argt1nie_nt_s advanced by both the parties and consid{efirigV:' _ evidence 1et--in by the parties, fo_1fr.I1.u_late(;i"thafolioyvinglé '"~ points for his consideration.
"Whether the prosecution proves reasonable doubt that, .
i) The death' is
11) on 13;-os,2o05;"at iaboiit-avoo p.m., at 'Hdu.se-_=--__ No.'41;,_' Saraipalya, Asla.x§zathari«aga_r,._ " Bangalore City, " -Aacjcuséd in.tentior1a»}';"' caused the _ .deai;}f1.v_ofhisyVWife.S;mt. Sunitha ?"
Both_the'l'poir1ts'V--_vve-7ee'~~-held to be in the affirmative. V' the learned Trial Judge convicted the accused ' for life by the judgment and order dated The legality and correctness of the said judgment of conviction and order of sentence is qL1_esti0ned by the appellant/ accused in this appeal. W 6 the accused, in View of Section 25 of the Indian Evidence Act, the trial Court should not have___reiied upon Ex.Pl in order to convict the appe1lant,i,acti'used. Therefore, the judgment of conviction Trial Court is without application"of« rniridpasdiv the V C same has to be set aside. VHe that', Trial Court in Paragraphs44fi'c'%: 5 of--- has considered the bacigground" the 'cased and in Paragraphs» 7 to 30 has. the.AAdep_0sitions of each of the witnessesVp:p,exainined':by the prosecution and only in 'last iéaraiso, the reasonings have been recorded. ..tfial..-~Court to convict the accused. Accvording"toV'h_i_rn, in one para, without appreciation of theia evidelnce arid'"VWithout considering the effect of ijighe Indian Evidence Act, in order to rely wrongly convicted the appellant/ accused. pUnder,_.these circumstances, the learned counsel for the
-.,Vap§,iel1ar1t/accused requests the Court to set aside the a .._judgment of conviction and order of sentence. In order 8% 7 to support his arguments. the learned counsel has relied upon the following judgments.
i) AIR 1966 Supreme Court 1 19 [Aghnoo Nagesia Vs. State of Bihar ]
ii) 1990 Cr.L.J. 2289 [SC] (HEAD NOTEFB] V C [ Kishore Chand Vs. State of Himachalfijadesh } "
my 1990 (2) K.L.J. 242 Q-Bf' [Siddappa Vs. State of Kamgtalgal »_ , ' C
7) Relying upon the learned counsel for the appVe'lla;n_t the finding of the trial Court has tQ"be..set'asid_e "the judgment of convietion' which is not admissible in the eifidencle ..-~lSection 25 of the Indian encel l~ 8':*2 it it p.Srih.l'Gv;--Bhavani Singh, learned S.P.P. made .to'-support the judgment of the trial Court.
l'c.eordinlg:€t_oC::him, the appellant himself appeared before the polite and made a statement as per EXP} and it is adtnjitted by the other witnesses. Therefore, he contends ___that in View of the materials available on record, the 8 8 trial Court is justified in convicting the appeliant. In the facts and circumstance of the case, he requests the Court to dismiss the appeai.
9) Having heard the learned couI__1j's'ei«'--.' _ parties, the only point to be considered'-bifithisi Cou1*t*~. is,~ "Whether the judgment. of' conviction and the sentence imposed, by the tria} Court requires to be confirrneid-..o1*.._inodi1'ie_d or? set aside?" " ' " "
10] Thevundisputed 'that, the case was registered' eethe:""-appellant/ accused based on Ex.P1. E2;.P1 is be the statement made by the apfieiiaiit/ac.cuse§1__«éon 19.08.2005 before PW.1 and ' ;Which.v_statVe'ment is said to have been recorded between 6.00 p.m. on the same day, ie., on at I-Iennur Police Station. The case ireigi.stered was for the offence punishable under Section of EPC in Crime N0249/2005.
9/.0
11) PW.1 has depoged before the Court that Ex.P1 is marked through him. Though the prosecution has relied upon several witnesses to prove its as rightly pointed out by the learned counsel" _ appellant, the trial Court in Paragraphs 8 V. narrated the deposition of each~,c'f 3the V"-uritiiesaes examined by the prosecution. onl3f:"h'i.g,</nthesill last"
Paragraph, namely, Para--3l_;V"'the~reasonings are given by the trial Court. "'appropriate for us to extract Para~3_i* of the to appreciate the casellofi wh_iVch'flreads as under:-
L . "l~'romi_i: evidence on record, it beeornes Vclearv the accused committed the of his wife Sunitha, went to l surrender before the police, be no reasons to doubt the evidence of C PW}, P.C.--Thairimaiah, PW.2-- pp Rarnachandra, PW.3--Ravi, PW.l6--Abdul pg Khayum before whom the accused confessed 'A his guilty and admitted before them that he has committed murder of his wife Sunitha. I feel, this evidence is suffice to convict the 8/ 10 accused. I am aware extra--ju'dicial confession is a weak piece of evidence. This Weak piece of evidence is sufficient to convict' the accused if there is corroboratiori':i"or..iit;h:"
In the case on hand, the accn_sed_-'led witnesses and the Investigating'Qfiicerytohi§;.___: « f house produced blood' stained. knife-;'.i. .blood': ' stained shirt and which V was it concealed. In my opinionv,_ this independent circumstantial eviderice {$13 to warrant conviction of jvvevidence of PW.1 "413':\'iV-'.,"}--i.6.___:i1ispired my conf1dei_ice'- be_Vj--credib1e'._: No circumstance "1ia,.tu_re of confession are 7rn.ade--out th'is_'c'atse. I The medical evidence is' in" oonfor1nity"'w_ith""the voluntary statement _ of the accused=._ That statement is marked as U'nde_r«the same, he clearly admitted suspected immoral reiation between Nagara} and cut her neck with and killed her. Therefore, I hoid that ~ the death of Smt. Sunitha is homicidal. 'A accused intentionaily caused her death, the accused thereby committed offence punishable under Section 302 IPC. I answer 3"
1} the above points ~1 & 2 in the H affirmative. . . ..
12} On perusal of Para«~31. it is clear togusdthat the learned Judge has come to the conclu's«io_n.'__j:
EXP} is a weak piece of evidence and held-«.. that Ex.P1 is an extrajudicial :confesisio4n_an'd- such evidence, the accus=ed«.__canno,t be comet.-:d.t:
has aiso come to the COnC:lt:1vS-i.(:)Ii.V_»thali,' other cogent evidence is available"--.ti1en--_ onljr it evidence can be considered. But,_ witl1o'ut::'givin}g__ari3.* with regard to the"evid.et1ce"::f:f- thejvvitnes'se's to show that there is corroboration. is available to convict theaccusedgbygVholdingfthat the prosecution has proved of thxeaccused beyond reasonable doubt, the 'Trial convicted the accused based on Ex. P1. Tlqéereforeifvve are of the opinion that the trial Court has COIUfI}.i_tl€d serious error in convicting the accused solely '1'eIving upon Ex.P1 and without considering other i V. ._ gevidence let-in by the prosecution. <°/ 12
13) in addition to Ex.P1, if the trial Court---.phad considered the other evidence 1et--in by the and based on the evidence of the prosecntionuif _ it Court had come to the conclusion has proved the guilt of the ,accused,_ 'then -' an opportunity to scrutinize'Vthfie'case Vof.theV':prCo}secution.
Since such an opportijnity-'_VjisCi.'no't..V_ai}ai1ab1eVVtotthe Court to examine th€i._§udg1vne.:dtiotidtdhep We have no other ';§:u'd,C<g,ment is perverse, as priopder appreciation of the eVidence._ circumstances, We have set aside the judgr-ne_nt_of conviction and order of sentence ' and repniranded the matter to the Sessions Court with a "diredctivonfjto?'re--hear the matter and pass appropriate order in accordance with Iaw.
i5) Since we have set aside the judgment of "conviction and order of sentence on the ground that the W 13 trial Court has not considered and appreciated the entire evidence available on record, we are of the opinion that there is no necessity for us to consid_'erd'the judgments relied upon by the learned appellant, as the learned Trial Judge to the conclusion that Ex.P117Vis:'.--A.A_the evidence. Therefore, we thev..tri-alto re?' consider the mattervzmpd findfioiit to vxrhether Ex.P1 is admissible or not :"the:.le\f_idei§;ce 1et~ir1 by the prosecutionphasljproifedilthe accused beyond all reasonable--.d§gubt';m 'appropriate order. Sd/-9 goose Sd/-' JUDGE /2