Babu vs State Through Mahagoan P S on 2 November, 2009

[Cites 6, Cited by 0]
Karnataka High Court

Babu vs State Through Mahagoan P S on 2 November, 2009

Bench: K.L.Manjunath, Aravind Kumar

IN THE mar; COURT (7):? * V' 

<;:H<:cU'1T BP3N(?_?{~{    
DATED THIS TI--H-3 ozwv 13Ay_ 'Cm N()"~.'EMBER: 2009
.f~Jﬁ{ESEm$f_ff-'  
THE HONBLE MR .;;'US*:?i*c:»Is ..}§L'§N&f[JNA'I'I~I
 %       
THE H(;r~; I\4E'f1J§ISTE€§E'ARAVIND KUMAR
CEem:1j;ALk% APPRf;s.L"'NQ§. ikom OF 2006
BETWEEN *51_ "' ' " "W
1. BABQ-V ~ fa .W*»*
S / 0'"-AMBRU" R1'{'T H QVD' 
A(3ED'")ABOi/}'i"' 45 'YRS "
goCcAGmL"' '

"ERfATj%ADKETANDE
ANAND3@)

'ru5,"VsB£TABA{;

' ;wfQgAzACHANDRATHoD
AGEDABOU?40YRS
RXNPMAHAGAONTANDE

~.GEH.BARGA H APPE)LLAN'}'S§

'*»1gygmLHEMALATHA{yaoRa,ADvQcATm

~m. STKNETHROUGH

MAMACEOAN P S .. RESPC)NDENT'

ffiy Smt : ANURADHA MDESAI, ADDL. SPF')

CEZLA FILED U/S 374 C}~?.P.C AGAINST THE? JUDCEEMENT
DT.31.3.i2006 PASSED BY THE [H ADDL. S.._}., GULBARGA EN
S,C.N(f}. 248/2005, CONVICTINQ THE APPELLAN'I'S-ACCUSED I



Pu.)

AND 3 F012 THE CDPFEJNCE E4'/U/S. 302, 201 E2 (gm mi: ., A
AND s;:m1;Ne:N<.; 'I'HF;M '12:; UNFJERAGO 1MPi2xs<3N:»zEm'_ »1:m'2

LEFE Am) ALSO PAY A FINE OF Rs;,;5»:»o:i>0/:,.. 1:._D.,-: U_:j¢.{)'e::%?<}<*;
$2.1' FOR 3 YEARS FOR THE QF'I7ENC,E Ff/U.,s'S. A802 09' I:?C:..Awe:3

F'UR"1'HER SE:m'ENc1N<3 'm11;MfI'0 LJN§')Ei'E2§."3O R.i._--.F()R :3 x--<_P;A,Rs~_
AND ALSO PAY A FINE OF' Eesxgooo/-- EACH I11,' *?g;>..EJ_ND_}:RGo_ »
12.1. P'<T)R ONE YEAR FOR THE'-v.C)E3'}?ENCE,_Pf!;j/S; ;33--§31'*oF IPC."

BOTH SENTENCES SHALL RUN C'.ONCE1)RRP§NTLY 5 '

This Criminal "Q11 f<)I'H1*1e'éu*ir'1g, this
day, K.L.MANJUNAT'I-I J. '--§tc1{1ei$:re:*e%_(:1..t;he_foHowing:--

  
The      under Section 374

    and cerrectness of the

_}t1dgeie:it--  III Add}. Sessions Judge,

(}u}eF3a1"ga; :3 2 1:ted 73 i;*3.7;2boe in S.C.N(>.248/2005.

 'he apgiéilhhts were A1 and A3 in the aforesaid

   have been convicted for the offer1<:es

p?;4;;{1is}'a2xL*éi:c: in"1der Sections 302, 201 1*/ W. Section 34 of

 {PC " {$314} the}; have been sermellced to mfxdergo
V A.i;1i'p1is01'A111A1e11'i. for life and :0 pay a fine of Rs.5,00{)/ --

each and in default. of paymer1t of ﬁne, the accused

shall undergo rigorous imp1'iso1'1mer1t. for 3 years for the
offence punishable under Section 302 and they have

been further' sentenced to undergo imprisonment. for 3

6/



3

years and to pa'; 8 ﬁne of {€232,000/;__  T' V'

default of payment of ﬁne t1'1ejsf $1123.45 1j;.r._1d-'s':1g;<.V)'-r:ig<j1'Qué:

'm1p1'iso11111ent for one year _ for t':1e"0i'I"e1'1<feL .p'ui1isif1éibIee=.

under Section 201 of {PC afic{ bo_t11 ihe Sef1teix:ces shall

run eor1cL11Ter1t1y.

3. The M_aI1agaQ1e1:'pQh;:e_e  sheet against
appellanteﬂ  arrayed as A2
allegillg     1.00 21.111. in the
 _d_eeeased Jayaehar1c1, accused
1 to   ' eommoI1 i11tention, murdered

dezgreéxsed Jaf,7.;§eha1'1d in the thrash yard of his land and

A 4:9' ::1i:'sap_pe.a1' the evidence of offence and to screen

 ._f;hQI11Sf§1'5.2'€Siffblll the offencze, they put the dead--body in

a:""gL1:.1ii3~¢v"E)ag and thrown it in Gunduri N ala Beiakota

AA ¢;a11k féu1<i that the e:1eaci~body of the deceased Jayaeharvd
 {Ends ﬂoated in the water a 111om,h's later. PW 1 ~ father

' of the deceased has lodged a n1issi1'1g eompiaint on

1.1.2005 at about 6.30 p.111. stating that his son
Jayachand is Inissing from his village from the evening

of 1'2.12.'2004. After the gumly bag was opened, the




,..

p0'm.I. No.2 against. A1 and A3 and ultimattzly,  
\z~.»'e1"e corzvicted for me offérxces c<>1nI11 it:(:<1iV'T'~.1VVi11dt:.1.t: V'

SCC{iO1'iS 302 and 201 1'/W.  

Hanmanth was acquitted.  _

7. Challerxging the:  and v<"JL'r1"'}{'C(i;v{I1€§$SVVVt)f the V

same A1 and A3 11avé;_i';)c:d  
8. We have heaxfd   the parties.
9.    Counsel for t;1'1€:
  though the prosrzcutjon

has  t§ov-"p;1:dve'i.§:§'~:hé3Qry, without corisiderixxg the

€iVi(1€1'lC€Of the Wim€:é;'3§:S" properly, on assumptions and

p,3%§§s'i.1r:1pt;ioi':s._V V évithoxxt there being any evidézxme of

» _V121tj,sc»§:'«J§§1*..Vnature against A1 and A3, solciiy on £116:

r  ba:siés  '<if--__'}';€s't seen :heo1'y' has w1"or1gIjy convi<:'Lc:d the

21ppe'i1a1:1ifs. '1'h(:refo1'c:, it is :'c:que:s1:,ed to re:--<::o1'1s'1dc":r the

AA '£5-zigtjre evid<::11<:e and ;'ev€1*sc the fmdings of the triad

 <:§§\,11't and acquit the appellants.

1.0. Accordmg to her, the case of £116: p:"ose<:uLic>1'1
was that, Al had illicit. rczlatmxxship Wm"; A3 who was the

wife of deceased Jayac1'1a11dV and Jaf¢ac11a1'1d had COIIIB to

W,



know of the illicit. relationship'= betwc;é;11'£113' "a"p'p'¢3.11a;:;:s;

and therefore in order' -:0 éo;iijr111e.""':h,c3_ir _:'j'i11i'Ci1: *.

r<-':1atioI1ship, the appc:11a1V1t;é i1.%§'»v'01f§1c:1;2'm: _':;3'{it  and to
the life of the <i<¢:<:¢:é3.:§, _cé':x=-1 _  Hfo Co1mnit
the mu1*d6:r of @116   of 12. 1.2.'20(f)4
in the    he was skzeping
after  crop from his land.
;Kcco1%(ii1_;§ né:x'€, day mamiizlgg the
111021161 pf J85? A3 abmlt, the Wh€1'€:abOL1[S

of 216:1' _s0na w.1;1é:1v1"'Jafaachand was not 866311 in the Village.

V ' .Sifi:V1i1é1"1},.?; ~wh.x::11 some of the viﬂagczrs questio1f1ed. A3, a

I  VV1T€33ij»'.. %i&*aS gi*:.z§%.i¢1 by A3 that deceased Jayac1'1a1'1c1 has Left

Viilagcz. t.;;L E5C1T1ﬁ)ay for pU{'p()S€ of wczrk where bar ezlder

 S01'1"is__4é;'(>1'ki1T1g,, Wiley} the; e~f:1(ic:r son of U16: d€()€i21S€d and

i:'1f<>1'1T11€:(i over phone: that J ay:a<:1f1a11:ii has not <:.0m€:

 ':0 B(}1I1béifx , a 111iss'u'1g itomplaini. was Iodgézd 1'); PW1 --

faﬂitfl' of the d(3f;)€3aS€d on 01.01.2005 and PW}  well
 his wife and ot;h<31* viﬂagers suspected the act of A1
and A3 in co.m1nit't;ing Ixlurciei" of J ayaCha1'1(1 (mly after

me: ck:ad--b<)ciy was found in a gum1}~' bag on I £.O1.2()O:3
<3/4



8

116231' Gtlmiori nala Bc1al<ot",a tank. I11:;1'1}<:cii,éti::§i'1jy'*3 

complaint was lodged 1%)}; the fafzhmjof .the  (Sr: V

11.0 1.2005 and thereaftex' ir1v<:5':~;tig§.Af;{4€i'€)1'1 

and aft€:1f C.OIidLICtiX'1g ii'1(11iL?$f'=p8I1C.I'18}"13111€i: 'acéused"

wczrc amwjst/5:({1 and  in  Is./ib. 13 was
1"<::c0vered from the  b'iT.Lg5a?}7a<:11aJ'1<1 which
was shown  ..;3.vv'11jf=.;;;iiaz.a1' was drawn
and E)()§S€i£§>Q1'%:€%5f%l.'     and furti'x<:r
inve$:;;2g:1t;Vi«§}'}.;it'    %f.h€ deceasézd S(3i"1'i for
fz1:?€1'1v€i1f' "  the RN Medical Colkrgcz,

(ﬁ}u1barga . and   con11;)1etLion of i1'1Lvestigatio11,

" <  (:c)1: ii:6::j:.gii;';,g f}':€it' 'A1 "and A3 had iﬂicit re1ati<)11ship amd

V *t,he':V_ "c()r'11. tii'xi_'t.tiLfc1 murdcn' and based on the 'last 36:61;

t;'h:§O1*§,~", .pr}Q€s%:<:L1ti01V1 has I6:a<1 evic1e1'1Ce.

" V151). Ac:<:ordi1'1g to the appellaxns' (zounsd most of

 V€:}_i»1é."'A: wit11€:s$<:~$ did most support. the Cast: of me

_,§:1"<)secutio1'1 r1a111ely, PW6 - Ambamm, PW8 - Meru,

PWIES ~ Ruplabai, PW16 ~ Gov'mdaV and PW}? ~
S}fi«?d'1'{'H}f)ai. All these: wimesses have tLm1c:d hostile and

inspite of c1"0ss-exami:'1ati0r1 by the Public Proséicutor,

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'whether the sessions court was justzﬁed   

and A3 based on 'circumstantialmevidence* gm; Vmarinly

relying upon the 'last seen theor;z)'?_"».:'--_V 

13. Having heard the 'eourxsel. Vf'c:.17t.b;e fjartiezs, V

Considering the 1*iVés}..V_' Aadexeaieieedvé by the
learned counsel   and
learned Ad(§.1.*':$ﬁIf'P,  .:.f0r'~.{1'ej_"t:) __efXe_n1iI1e the entire
evidence 

 is  fatller of the deceased.
ﬁs<:cto1"£i--i.:eV1'g {O V. his daug11ter--in--Iaw. 3W6 -

R11kI11abai" ié"'11iS..w'ife. PW5 (CW7) ~ Shivaram is

V'  1113  3:121  and "deceased Jayachand was resicling

   in  house situated in front of his house and

1'ie44xvas-1.Qé>4fkiT:'1g after agrieult;m'ai Iaﬁds and he was also

 a <:o0Lief A1 -- Babu who is known to I'1ii11 used tie come
"  'Lo. the: he1.1se Of the deceased from Madki Tarxda which is

_..ét a distance of 3 kms. from their Tanda. Aceordixig to

him, JanVacha1'1(1 was objecting A1 visi'ti11g his house
since he was aware of the illicit re1ai1'or1s1"1ip of A1 and

A3. Even after Such 0bj€'(3'CiO11S, A1 used to visit inspite

(V



 

of warning given by his son. Aeeorviizlg to.1'ti1i1, heet.___11a;sA

seen many times A1 visiting-.___the house of '};'«'a}5ac1tt1_a1'1(1. 

According to him, on the day the itleiderit, he was in
his lands. His son alohifre had V'r)e"e._r_:a_to.this lands to cut
sunﬂower and he saw"   euttizzg __s'-unﬂower from

his land. O31'  next  't1;1or:ﬁi11gfas it was a New

Moon Day (A:h.aifas_V.a)'Qtaxis-. xfrgrifeei went to his house to
take bath." at .§His "§}j¢ife"'qt1estioiied A3 --~ Seethabai about
the deeeased aJa;§*f eha.1:id.,."iit{'he1'1 it was 'mfom1e<:1 by A3

that he hadhgone-__to..}3onibay. Thereafter sunﬂower was

  CL1f:'33})§'E  Babu._..a1one with A3. He further stated in

'his ex_ami21at.ion~in«chief, in order to ﬁnd out the

wAherea'bo_1;_tsT:: of his son, he telephoned his people who

wézfe at Bomba_y. On enquiry, it was revealed that

  deceased had not gone to Bombay. Then he came to

0  that his son had not been to Bombay and iodged a

..-tnissilfxg complaint before the police on 01.01.2005.

Eight days after receiving the eomplaint, Seethabai was
made to sit in the police station by the Mahagaon police.

One month later, the dead~body of his son was found at

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13

Bellmte Kere. Thereafter it was ii\3f01m1ed 'Le-.hin1=  ~_

police that his son's body    to "

the spot and saw the   " statecf that on
the dead~b0dy he sax}:   _baI1iyan, Iungi
and u11de1wea_;'.' ,__T1'1er'e"'vv::§:::<g   the abdomen
portion of   a;i.d_ %a}:1!e   broken. He has
also    dead-body at the time
of ..._he [lodges a e0n1p1ai11t, as per
ex1'1ibit'Pf24§  gunny bag and other Mos.

  In»  CI'{)SS~CX81I1iI1atiO11, he has admitted

 £11713.  10 to 122 years deceased was residing

    about 2 years prior to  death he had

g1::(e:': 11$ Liiaﬁd to Ja_\;acha1'1d for Cultivation and all his

 $0113" afe residing separately. All the lands given to his

  'SQHS are simiatecl in differem; places arm thai: the:

__§}e(:eased was in the habit: of (:<)ns1nI1i11g a1<:oh::>1 8116 he

uvsed to quarre} wit1'1 the public. He admits that the
lands of Da111n1ur village was submerged in Belkota
tank and some of his 'Panda people had eorlstructed

house at Dammur area and his son had also

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17

same and on the day prior to £113 iii;ei(ie1i{*,  ::or'2L_LA'a1_6jt:éeg

with A3 was harvesting hi  land azad A3  her son V

wexe there along xviﬂi Otl1§317_:e§)Q1i€_;?§ 16:?  In
the after110or1, she -about her son's
whereabe uts. .TI'v11en:ét--   "A.:5".t11at Jayzmhand
had beeq   "JE1yae11a1e1d did not
retuI'I1ed€ {Q  §vith her husband tried
to  feople and mid out the
 p<31_;ts'  " Later she  deposed, in
regard 'i<eieA'r1t.iht}¢i1A'ig  dead~body of her son and the
V'  . A  w'--!r..1é';e1*1ezakefeelfl the dead--body of her 5011.

V    cross examinatjcm, she has deposed that
 ?1}:avi1'e1g recorded her stmemem; and that after
.eIa;72:ef"ﬁkan(1 5%; 'ted residing sepa1*ate1y with his wife and
 she was not showing any interest towards the
 f8II7ii1;V' of JE;1}'é3(3haI1d. ACc0rdiI1g to her, the in(:ide11t;
took place on a (lllatti Amavasya day (New Moon Day)
and A3 had been to Harkood temple in the evemng to

offer coconut and she returned on the same day. On

We



19

in his absence.
asssisfance to the ;)1'0secutiGi"1-_.___

24. PW?' is none    bI '§)U1€I7 of
Rukmabai ~ mother'  In §§t;1?i;/:1' words
PW? is the maternal tlnczieef 

  .«-§;;(3eh1'1§;"AL1  as hostile and
he has becnﬁi   Vlength by the Public
Prosecu t£)1'.w V  iiifiotii   :.(e,1i.eeite(1 from PW8.

  ,, " Malleshappa is a police
eo:1StatV)'lee§V£'1g)VVw_3LeV.'._p::'e$;e4nt at the time of e0I1duet'mg

p0s;«f§;{111<>1*!'eeI11. "FherefQre, there is no necessity for us to

. t1"aVer'$e.the"e\.fi<ien<:e of PW9.

  ---- Subhashchandra is the police sub»

I11s.3;)ectto1".f¢€I10 was working in Mahagaon police when

 PW} lfzgaéi lodged missing corrxpiailext  per exhibit P1
" azzdfwlm has received the C()II1plaiI1t as per exhibit P2

 ..  ;ifte1' the dead»body was traced.

28. The evidence of PW11 -- Revenasiddappa is of

me eo:1sequen<:e as he is ()1'1}.}.;' 21 constabke attached to

(V,

Therefore, 'his; --eyiidene-e  " __ 



Mahagaon police who carried the  t<3»._the" hezis-3e"*'0i'

CUM.

28. PW12 --- Dr.Rekhéi<ie;'tI1e   who

conducted autopsy 0"1'~:__t;he/deadgbédy of the "deceased.
According to this xvitnese,' she"§ias._i1€i'¢1ieed, (i) contusion

on OC()i}C)iI'a1§«   to 8 ems. On
clissectimii.   --Seen. (ii) Ova} shape
wou:j;d' be  measruing 701115 to
 ﬂlrough the wound gas ﬁll
ixltestirxes'-.;;>1'oth1§{e:i_ of abdomen. According to her,

bgjiiy was c:<)1i1'p1e.11§:lf¢ in decomposed state and she has

'  "£h;3,f"'v3Lr21I1gu1atio11 is ruled out by the expert

'--<)f)*i.21i0VI1.7.'f --. Aeeo1'<}ing to her injury on the head of the

cieeeaéed is quite possible if assauited with atly hard

AA zéizd blunt object even hinciside of the axe. Second

ji1e1}u1'y may be poesibie if a person is assaulted with a

" Sharp W€8}3()11.

C29. in the Cross-examination, she has admitted as
hereullderz

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' Injury No. 2 is not possibléj if  

portion of the axe as now shown tdme, butt? posﬁsibie 

if C: person assaulted with  ¢z§r1dV"b51'4u:2'1tV': olgjects like
30. PW13 »    enginceer who

has drawn  as'  ~ the placcz of

i11cid<::I1t.   inlpartance for $1516:

;)1i'0se{jtifi()I1..: H '

PW  who is 1'esidi11g opposite.

to this h<) us_é wc:f= J}:1yéi€:hand has been": examined to

  e:s{2;ii)1i§311  3:116: i'11£3ti§ve: for commission of ofT6:1}<:<-3.

 ' A¢::<>1'dVvi;V?zg:V'id'her, when Jaya(:ha1'1d was not seen, she

asked Aéﬁ- 'a:b§311t his whemabouts, it was informed to her

 by  iiijxat Jayachand had been to Bombay. Accordi1f1g
V. ii.o 'r1§:1', Jayachaxld often used to go to Bombav for 'T:~\)0ﬁf)
Work or for some other purfposes. She: has adz11Vit¥,e(l in

 £116 cr<)ss--exami11atior1 t.Ir*;;i: when Ja_Vac:hand used to go

to (.iii'fe:1'c:r1c9 places, he used to wear pant, shirt and

mufier and in land he used to wear 01113' lung': and
'5')/

baniyaxi. PW14 is 110116 other than t& close relative of



M'

22

de:<:eased Jayachaxld. A()COI'di1]g to her, 3.5:: f 

close relativi: of Jaychand's 1I1(>thc:1f - P\&'4'¥'--I§?_1:kiB.at;>ai..,V 

 PW15 ~-- Ruplabaj has"-,be:1%;I1 A. {:xéi.n1';r1_éd 

the relationship betweerl  and A3. .B1;: this-..xx7i1;1'V1ess~. '

has not supported tlgcé =;j)LA1"os'.,.<*§C1.z'?r,.i_Qr;J§ She has
b€'f:3I1 trteatczd as ho.§ti.1.:i:A'.j -.  '4§if¢'::;<§--re;;an1inatio1'1, she
has stated ti} __A1    "  the house of
ijayachaargci     admits, she was
not 1;.r1a';wiu1f1g3    between A1 and

    has also been e><:ami1'1€:d to

  rc12ifi0:.t.1s_1f;:xp between A1 and A3 and to ShOW

' ,.t .h231. J was last $6611 in the: land. But this

"wi"U'16:ss  also not suppor'te<i the: Case of the

p:'<).<,6CL§ti01'1 and he has beer} treated hostile. But

_r1<$t;hing <f:ou}d be s;ii<:it6:d in the CFOs$»exan'1i11ati.on.

34. Ac:<:ordi:'1g to PW16, it. is Seetabai ~ A3 wY1(> has
disclosed the n1issing of her husband to Mahagaon

police.

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 PW17 ~ Shanthabai is  itc)"=bé-.3}xléigfigbmu'

of the mild of .,Ja§.a'ac1'1a11d.».' -.__S11eVh.a'S bc:e.:i"§;::;3j;11iI;j§.edA to" ;

show that on the day of   '{i1e fg11id night
she 1'1ea1~(1 some: <)1"1<s:'V'Vx._»'_n2'1'e;1.i"',   has not
ventured to visit; t:11c:AvV_;V_)1a'_c_eL'V c_V>V»f it was night.
But there was'   t.0:i'cic:r1t;ify the voice of
the pe:1's€f)%1   '"{a(1i, Yadi" and her
ctviclféiiéé "    Vﬁrove the case of the
px:'(V>séC.L1:€io1Vi also b<~:<:11 treated as Ilostile.

_ .%  .A'..v{S):sa;"'y=9%:'LIT1a11(1si1"1g arid PW19 ~ Maruthi

 iméez s,tigatii*1'g--.1c<=:rs.

  Nqzaw with this background, we have to

"eiicimiVi1cVi-- ﬁgs,71716:1161' tilt: pIf'OS€ZCU{i()I'1 has pI"ov<':d the illicit

1*e12:.tiZ)t1SIVV1Vip beictween A1 amd A3 a11<1 whether' the

AA ;')::t;)se:<:ut;i<)r2 has furtlzésr ;)mvc:<i, on 2-1c:coum: of the: i1fii<:+i!i

 r'é:{21%;i<)11s1'1i}) b€:twc:6:11 A1 and A3 tflétjy had bat.c:}§1€:d a

' plan to (:.()mmi'z 1m.u'der of JayachaI1d and the Offiiﬂfjél

was cainnlittézd by then': on the mid night; of 12"? and.

13* of Dcsct-?111§i)€1' 20()4.
(,3/.



 

 

, ( ,.._ ...."..,.,.,,_...,.._m,.M.;..r .»- ~ / :-.

3?.  .
S.C.N0.248/2€j)O5 damd 31.(}3.'200(f> are Sci;

aside.

We c1ire»::t the Superir1t.e1:'1dé1it«r)f--,C<:m:'a3_ E?i*iso1'i',.

Guibarga, to set the appeﬂzmts ffcgz 't'c;yx't11'.vi'tj.}:;:,"iif" *;;l1€--y 'a1'é'--..

not rcquimd in a1'1y 0111531' 

If the :aLppé:11a,1"i:t:;~:A_ 1V1z3;¢é--V_   Vbvond, the:
se;am<:~: shall stand   --

Rctgistxfjv    the 0pe1*zm'v<:
portion  ;JV':;.§1iV1f'z;t:u1,1':<)rities fo1*'df';wit1'1V.

Sol / -
IUD GE

     Sd/~
 .....
'C 111??-' A
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Karnataka High Court

Babu vs State Through Mahagoan P S on 2 November, 2009

Bench: K.L.Manjunath, Aravind Kumar
