Karnataka High Court
Abujar S/O Ismail Nalband vs The State By Kasbapeth Police Station ... on 17 April, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2026:KHC-D:5709-DB
CRL.A No. 100196 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 17TH DAY OF APRIL, 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
CRIMINAL APPEAL NO. 100196 OF 2023 (C)
BETWEEN:
1. ABUJAR
S/O ISMAIL NALBAND,
AGED 28 YEARS,
OCC: CHICKEN BUSINESS,
R/AT: NOORANI PLOT,
NEAR WATER TANK,
OLD HUBBALLI,
HUBBALLI PIN: 580 024,
DHARWAD DISTRICT,
(NOW IN CENTRAL PRISON DHARWAD)
Digitally
signed by
GIRIJA A.
BYAHATTI
2. ARIFKHAN
GIRIJA A. Location:
BYAHATTI HIGH COURT
OF
S/O MAHABOOBKHAN MANTRODI,
KARNATAKA,
DHARWAD
BENCH AGED 40 YEARS,
OCC: TATA ACE DRIVER,
R/O: 5TH CROSS,
NEAR SERVICE ROAD,
NOORANI PLOT, OLD HUBBALLI,
HUBBALLI PIN: 580 024,
DHARWAD DISTRICT,
(NOW IN CENTRAL PRISON DHARWAD)
...PETITIONERS
(BY SRI. K.L. PATIL, ADVOCATE)
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NC: 2026:KHC-D:5709-DB
CRL.A No. 100196 of 2023
HC-KAR
AND:
THE STATE BY
KASBAPETH POLICE STATION,
OLD HUBBALLI -
NOW REP BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
AT DHARWAD PIN: 580 001.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.PC.,
SEEKING TO SET ASIDE THE JUDGMENT DATED 16.03.2023
PASSED IN S.C.NO.65/2018, PASSED BY THE I ADDL. DISTRICT
AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI AND
SENTENCE DATED 18.03.2023, PASSED IN THE SAME CASE,
PASSED BY THE SAME JUDGE, CONVICTING THE APPELLANTS
FOR THE OFFENES P/U/S 120-B, 302, 201 R/W SECTION 34 OF
IPC SENTENCING IMPRISONMENT FOR LIFE AND TO PAY FINE
OF RS.25,000/- FOR THE OFFENCES P/U/S 120-B, AND 302 OF
IPC, FURTHER SENTENCING FOR 3 YEARS FOR THE OFFENCE
P/U/S 201 OF IPC, ORDERING SUBSTANTIVE SENTENCES OF
IMPRISONMENT SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.02.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2026:KHC-D:5709-DB
CRL.A No. 100196 of 2023
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS. JUSTICE GEETHA K.B.
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ) This appeal is preferred against the Judgment and Order dated 16.3.2023 passed by the Court of I Additional District and Sessions Judge, Dharwad, sitting at Hubballi in SC No.65/2018, wherein the appellants/accused Nos.1 and 2 are convicted and sentenced for the offence punishable under Sections 120B, 302, 201 r/w Section 34 of IPC.
2. For the offence punishable under Section 120B of IPC, accused are sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- each and in default of payment of fine, to undergo S.I. for 3 months.
3. For the offence punishable under Section 302 r/w 34 of IPC, accused are sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- each and in default of payment of fine, to undergo S.I. for 6 months. -4-
NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR
4. For the offence punishable under Section 201 IPC, accused are sentenced to undergo imprisonment for a period of 3 years and to pay fine of Rs.5,000/- each and in default of payment of fine, to undergo S.I. for 6 months. Brief facts:-
5. It is the case of prosecution that, deceased Pandurang Pawar was owning a poultry farm at Panjarpol Road, Anchatgeri and he was also owning a chicken shop at Padadayyana Hakkal, P.B. Road, Old Hubballi under the name and style of 'Hubballi Fresh Chicken'. Accused No.1, Abujar Nalaband, was running a Chicken shop in the name and style of "Chicken Point" near Nekarnagar Bridge and he was under heavy debt. The creditors of accused No.1 were repeatedly demanding repayment of the amounts due from him. In that background, accused No.1 hatched a conspiracy with accused No.2 to murder Panduranga Pawar, with an intention to rob the amount from him and utilize the -5- NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR same for clearing the debts, assuring accused No.2 that a portion of the amount would be given to him.
6. On 25.02.2018 at about 9.00 p.m., accused No.1 telephoned the deceased and asked him to come and collect the money payable for the chicken supplied to him. Accordingly, at about 9.30 p.m., deceased came to the shop of accused No.1, in his Tata Indica car bearing No.KA-25-Z-8261 and parked the car in front of his shop. When the deceased was sitting inside the shop and counting Rs.7,000/-, accused No.1 assaulted him with an iron spade on the left eyebrow, causing him to fall unconscious. At that time, accused No.2 pulled down the shutter of the shop. Accused No.1 again assaulted the deceased on the head with the iron rod twice, causing severe head injuries and profuse bleeding and committed his murder.
7. After committing the murder, both the accused shifted the dead body into the rear seat of the car of deceased and took Rs.56,000/- from a bag kept inside the -6- NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR vehicle. The accused then drove the car and abandoned it along with dead body in an open plot near Halegattur - Savanur City. Thereafter, they returned to the shop, washed the blood stains with water, wiped the floor with cloth and a gunny bag, and disposed of the blood-stained clothes and the weapons in an open area near Noorani Plot with an intention to destroy evidence.
8. PW.7 - Anuradha Pawar, wife of the deceased, lodged a complaint at Kasabapete Police Station on 26.02.2018 at about 1.00 p.m., as per Ex.P2, alleging that her husband, Pandurang Pawar was engaged in poultry business under the name and style 'Hubballi Fresh Chicken' at Panjarpol Road, Anchatgeri, and also running a chicken shop under the same name at Padadayyana Hakkal, P.B. Road, Old Hubballi. He used to conduct his business daily from about 9.00 a.m. to 10.00 p.m. On 25.02.2018, at about 10.00 a.m., as per his usual routine, he left his residence at Anchatgeri village to attend his shop at Hubballi in his Indica car bearing registration No.KA-25/Z- -7-
NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR 8261, but did not return home even after 10.30 p.m. She contacted him on one of his mobile numbers, which was found not reachable, and on another number, the call rang till about midnight, but remained unattended. Being apprehensive, she informed her relatives and efforts were made to trace him. On 26.02.2018 at about 12.00 noon, she received information from Kasabapete Police that a green colour Indica car was found parked in an open plot at Savanur city. At about 12.30 p.m., she along with her aunt (P.W.5/CW-14) proceeded to the said spot and found her husband lying dead in the rear seat of the said car. On enquiry, the police informed that they had received information at about 11.00 a.m. She lodged the complaint suspecting that her husband had been murdered by unknown persons, between 25.02.2018 at around 9.00 p.m. and 26.02.2018 at 11.00 a.m.
9. Based on the complaint-Ex.P2, PW23-Police Inspector of Kasaba P.S., Hubballi, registered a case in Cr.No.27/2018 at Kasabapeth Police Station, against -8- NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR unknown culprits for the offence p/u/s 302 and 201 IPC. He secured the finger print expert and dog squad to the spot, conducted spot mahazar and inquest mahazar, seized MOs.1 to 6 from the spot. The dead body was sent to KIMS Hospital, for post mortem examination. The statement of the witnesses were recorded. He collected the call details of the mobile phone of the deceased and found suspicious calls between accused Nos.1 and 2 and the deceased. On 8.3.2018, both accused Nos.1 and 2 were arrested and their voluntary statements as per Exs.56 and 57 were recorded. A mobile phone each and a cash of Rs.200/- was recovered from the accused. Incriminating materials viz., blood stained weapons, clothes, gunny bag etc., were also recovered. The blood scraping were collected from the shop of accused No.1. On completion of investigation, charge sheet was filed.
10. Before the trial Court, the prosecution in all examined PWs.1 to 23, got marked Exs.P1 to P64 and -9- NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR MOs.1 to 26. The defence of the accused was one of total denial, however, no defence evidence was led.
11. The learned Sessions Judge, vide impugned judgment and order convicted and sentenced the accused as stated supra, which is under challenge in this appeal.
12. It is the case of prosecution that accused No.1 was under heavy debt. His creditors were repeatedly demanding payment. In that background, he hatched a conspiracy with accused No.2 to murder Panduranga Pawar, with an intention to rob the amount from him and utilize the same for clearing the debts, assuring accused No.2 that he would give him some amount. In furtherance of the conspiracy hatched, on 25.2.2018, at about 9.00 p.m., accused No.1 secured the deceased to his shop and committed his murder by assaulting with an iron spade and iron rod, while accused No.2 closed the shutter. Thereafter, they abandoned the dead body along with the car of the deceased in an open plot near Halegattur-Savanur City,
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR after taking away Rs.56,000/- from the bag kept inside the car.
13. The case of the prosecution is based on circumstantial evidence. To establish the charges, the prosecution placed reliance on the following circumstances:
i. Homicidal death of Pandurang Pawar.
ii. Deceased as well as accused No.1 running chicken shops and accused No.1 was indebted.
iii. The calls made between the accused and the deceased prior to the incident.
iv. The report of the finger print expert.
v. Recovery of a blood stained shirts, blood stained gunny bag, blood stained broom, blood stained spade and iron rod.
vi. Blood stained scraping from the wall of the shop of accused No.1.
vii. Recovery of Rs.45,000/- from PW16, given to him by accused No.1 after the crime was committed.
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR viii. The report of FSL regarding the blood stains found on the incriminating articles.
14. Assailing the impugned judgment, the learned counsel for appellants vehemently contended that even accepting that the deceased died a homicidal death, the various circumstances relied on by the prosecution to establish the charges against the accused are not proved. The case of prosecution that the murder was committed for gain cannot be accepted, since a cash of Rs.55,900/- was found intact in the bag kept inside the car, at the time of conducting spot mahazar. The witnesses have stated that the deceased was wearing watch and ring and if the murder was for gain, accused would have robbed those articles. The recovery of so called incriminating articles are not proved. There is discrepancy in the finger print expert's report. The visit of the deceased to the shop of accused No.1 is not proved and the call records do not incriminate the accused as the culprits.
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR
15. The learned counsel contended that several persons were having financial dispute with the deceased and he was also a womanizer and therefore, some other person committing the murder is not ruled out. Accused are falsely implicated at the instance of one Manoj Hangal, an Advocate and a friend of the deceased, who had a grouse against accused No.1 and his father. He contended that the chain of circumstances are not proved beyond reasonable doubt and therefore, the accused are entitle for acquittal. Accordingly, sought to allow the appeal and set aside the judgment and order of conviction and sentence passed by the trial Court.
16. The learned counsel placed reliance on the following judgments in support of his arguments:
a) (1997) 10 SCC 44 Mohd. Aman and another v. State of Rajasthan
b) AIR 2022 SC 5273 Ramanand @ Nandlal Bharti v. State of Uttar Pradesh
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR
17. Per contra, the learned Additional SPP for the State contended that the prosecution by placing sufficient material in the form of circumstantial evidence has established the charges levelled against the accused beyond reasonable doubt. The finger print expert's report incriminates both the accused. The prosecution has proved the motive, and the recovery of incriminating articles from the accused. The call details shows that the accused have contacted the deceased prior to the incident. The prosecution has secured the certificate under Section 65B of the Indian Evidence Act, 1872 (for short 'Evidence Act').
18. The learned Additional Special Public Prosecutor contended that the Sessions Judge has appreciated the entire oral and documentary evidence on record and rightly held the accused guilty of the charges leveled against them. Hence, sought to dismiss the appeal.
19. There is no serious dispute to the cause of death. Ex.P33 is the Post Mortem report issued by the Doctor
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR PW.19 who conducted the autopsy. The following external injuries were noticed on the dead body:
1. Laceration measuring 7cm x 1cm x bone deep present over right fronto-parietal region, situated 9cm above right ear pinna.
2. Laceration measuring 6cm x 1cm x bone deep present over right side occipital region, situated 4cm below external injury No.1.
3. Abraded contusion measuring 3cm x 1cm present over middle of forehead.
4. Abrasion measuring 2cm x 2cm present over left side of face, situated 2cm below outer end of left eye.
5. Abrasion measuring 0.5cm x 0.5cm present over root of nose.
20. The Doctor has opined that the death is due to haemorrhage and shock due to head injury sustained. Hence, the prosecution has proved that deceased Pandurang Pawar died a homicidal death.
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21. Motive is attributed against accused No.1. It is the case of prosecution that, accused No.1 was running a chicken shop and he was under heavy debt. The deceased was owing a poultry farm and a chicken shop under the name and style of 'Hubballi Fresh Chicken'. Hence, in order to rob the money, accused No.1 secured the deceased to his shop on 25.02.2018 at about 9.00 p.m., telling him that he will pay some money towards purchase of chicken and when the deceased was counting the money, accused No.1 assaulted him with a spade and iron rod on his head.
22. In this case, it is not in dispute that the deceased was owning a poultry farm and a Chicken shop. PWs.2 to 7 have all spoken about the deceased owning a chicken farm and a chicken shop. Further, PWs.10 and 12 have deposed that they are working in the chicken shop of the deceased. PW.9 has stated that he was purchasing chicken from the chicken shop of the deceased.
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR
23. Accused No.1 was running a chicken shop in the name and style 'Chicken Point' in Nekarnagar. PW.4 has deposed in his evidence that the deceased owned a Tata- Ace vehicle and one Basavaraja Shivalli was the driver and they used to supply chicken to others. He has stated that the shop of accused No.1 was situated in Nekarnagar and he had supplied chicken to him on the date of incident. Similarly, PW.12 has stated that he was working in the shop of deceased and accused Nos.1 and 2 used to come to the shop for purchasing chicken. Even PW.7 has stated that accused No.1 used to purchase chicken from the shop of her husband.
24. From the above, the prosecution has established that accused No.1 was also running a chicken shop and used to purchase chicken from the shop of the deceased. Further, on the date of incident he had purchased chicken from his shop. Hence, they were acquainted with each other.
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25. According to prosecution, after committing the murder, the accused took away a sum of Rs.56,000/- from the bag kept inside the car. The said bag-MO.6 was seized at the time of spot mahazar. The contention of the learned counsel for appellants is that a sum of Rs.54,900/- was intact in the bag and if the accused had committed the murder for gain, then the said amount would have been robbed.
26. The learned Additional SPP contended that MO.6 has multiple zips. The amount which was seized at the time of spot mahazar was in one of the compartments of the bag and the possibility of accused not noticing the said amount in the said compartment is probable. There is some force in the arguments advanced by the learned Additional SPP.
27. In this case, the prosecution has examined PW.16 who has deposed about supplying chicken to accused No.1. He has stated that the accused was due a sum of Rs.75,000/- to him. The accused paid him Rs.45,000/- and
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR about 10 days later the Police came and recovered the said amount from him stating that the said amount was the proceeds of the crime. Ex.P27 is the photograph, Exs.P28 to 30 are the bills. In the cross-examination, PW16 has stated that accused No.1 used to purchase 20 to 40 chicken from him and he would make weekly payment of Rs.40-60 thousand and keep the balance amount due.
28. In the cross-examination, PW.16 has denied that the police have not seized a sum of Rs.45,000/-. Even though he has stated that Exs.P28 to 30 were written at the request of the Police, a perusal of his evidence clearly goes to show that accused No.1 used to purchase chicken from him and keep some balance and accused No.1 paid a sum of Rs.45,000/- to him and after 10 days the police recovered the said amount from him.
29. The incident took place on 25.02.2018. Accused No.1 was arrested on 08.03.2018. On his voluntary statement, a sum of Rs.45,000/- was recovered from
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR PW.16, exactly after 10 days from the date of crime. The said circumstances is therefore, proved against accused No.1.
30. The prosecution has examined PW.14 to show that accused No.1 had availed a loan of Rs.50,000/- from him through accused No.2. PW.14 is the brother-in-law of accused No.2. He has stated that accused Nos.1 and 2 are friends. Accused No.2 was running the vehicle belonging to accused No.1. In the year 2015, accused No.1 borrowed a sum of Rs.50,000/- from him and he issued Ex.P21. However, he was treated hostile by the prosecution as he pleaded ignorance about the arrest of accused No.2. In the cross-examination, he admitted that Rs.50,000/- was given to accused No.1 through accused No.2, in the month of June 2016. Though in the cross-examination conducted by the defence, he admitted that he received the amount borrowed by accused No.1 in 2017 itself, his evidence goes to show that accused No.1 used to borrow hand loan and even from him he had borrowed the amount.
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31. Prosecution is relying on the evidence of the finger print expert and his report. The expert is examined as PW.15. His report is marked as Ex.P25.
32. According to prosecution, on noticing the dead body inside the car, the I.O.-PW.23 secured the finger print expert to the spot, who collected the two chance finger prints from the Car. PW.15 has deposed that after collecting the finger prints marked as Q1 and Q2 and developing it, he compared it with the finger prints available in his office, but none of those finger prints were matching. Hence, he requested the police to send the finger prints of the suspected or arrested accused. In turn, the I.O., after the arrest of accused Nos.1 and 2, sent their finger prints. PW.15 has stated that the finger print marked as 'Q' matched with the right hand middle finger print of accused No.1 and the finger print marked as 'Q1' matched with the left hand index finger print of accused No.2. The letter issued by PW.15 is marked as Ex.P23, the letter written by the I.O., to PW.15 is marked as Ex.P24. The report of
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR PW.15 is Ex.P25. Ex.P26 is one more letter sent to the I.O., by the Assistant Police Commissioner, Finger Print Bureau.
33. The learned counsel for the appellants contended that there is discrepancy in the evidence of PW.15 and his report and therefore, it cannot be held that the chance finger prints collected from the spot are that of the accused. He further contended, even before PW.15 arrived at the spot, the door of the car was opened by someone and several people had already gathered, hence, no credence can be placed on Ex.P25, the report of PW.15.
34. PW.15 has deposed in his evidence as to how he collected the chance finger prints found on the car. In his cross-examination, he has stated that several people were present at the spot, but the police were guarding the scene of offence. He has stated, he could collect four finger prints, but two of them were not clear. The two chance finger prints were collected from the right and left door of the car. The suggestion put to him that the accused were
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR given glass of water and then the finger prints were collected from the glass has been denied by him.
35. PW.23-Investigation Officer has stated in the cross-examination that he did not enter the car by opening the window or the door. He has stated that there was no need to prepare any mahazar while collecting the chance finger prints.
36. The learned counsel for the appellants contended that as per PW.6, there were hundreds of people gathered at the spot and he saw the dead body after the police opened the car door. Hence, contended that the police had already opened the car door and several people present at the spot would have touched the car.
37. PW.6 has stated that hundreds of people were present at the spot and he identified the dead body after the police opened the door. However, he has not stated that before the finger print expert arrived at the spot, the police have opened the door of the car. None of the
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR witnesses have stated that people gathered there had touched the car. Hence, the contention of the learned counsel that the car door was opened even before the finger print expert arrived to the spot and several people gathered at the spot have touched the car, is without substance and cannot be accepted.
38. As per the report of PW.15, the finger print expert, at Ex.P25, the chance finger prints found on the car matched with the finger prints of accused Nos.1 and 2, which were sent by the I.O., after their arrest. The learned counsel for appellants contended that no proper procedure was followed while collecting the finger prints of the accused. Reliance was placed on a decision reported in Mohd. Aman and another v. State of Rajasthan (supra), to contend that the specimen finger prints were not taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of the Prisoners Act ('Act' for short).
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39. In the above decision, it is held that, under Section 4 of the Act, the Police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it is eminently desirable that they were taken before or under the order of a Magistrate.
40. In the above judgment, the Apex Court has not held that collection of specimen finger prints of the accused in the presence or by the order of the Magistrate is mandatory. In the said case, there were missing links between the identity of the articles seized and identity of the articles examined by the finger print bureau and non- production of the glass tumbler during trial, which persuaded the Court not to accept the evidence adduced in proof of the said circumstance. Further, the Apex Court felt unsafe to accept the evidence led regarding the sample foot prints, as were not taken before a Magistrate, observing that the science of identification of foot prints was not fully developed science. The Apex Court held that, the evidence
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR if found satisfactory, it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence.
41. It is useful to refer to Paras 30, 36 and 38 of a decision reported in ILR 2024 KAR 1560, in the case of K.Pooja v. State of Malur Police Station, rendered by a coordinate Bench of this Court.
"30. Comparison of chance palm print found on the wall with the palm print of accused No.1 is another circumstance which the trial court has relied upon and held to be proved. Placing reliance on the evidence given by PW12, the trial court has opined that PW12 being a finger print expert did not have any reason to depose that the chance print matched with the palm print of accused No.1. Refuting the argument of the defence counsel before the trial court that the evidence of PW12 and his opinion regarding matching of the palm prints was worth rejection as the chance prints were not lifted in accordance with Section 5 of the Identification of Prisoners Act, 1920, it has held that in view of the judgments of the Supreme Court in MOHAMMED AMAN V. STATE OF RAJASTHAN [AIR 1997 SC 2960],
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR SHANKARIA V. STATE OF RAJASTHAN [1978(3) SCC 435] AND STATE OF BOMBAY V. KATHI KALU OGHAD [AIR 1961 SC 1808], there was no bar for the police officials to take the palm prints of the accused for the purpose of investigation and therefore held that the chance print found on the wall was that of accused No.1.
36. In the case of SHANKARIA V. STATE OF RAJASTHAN (supra), a decision followed by the trial court, a specific question as to applicability of Section 5 of the Identification of Prisoners Act, 1920 has been discussed. It is clearly held that the police were competent under Section 4 of the said Act to take the specimen finger prints of the accused.
38. Given a close reading to Sections 4 and 5 of the said Act, a marked distinction can be noticed. If the Act necessitated obtaining of measurements in accordance with Section 5 only there was no necessity of having Section 4. Section 4 allows a police officer to take the measurements in the prescribed manner of a person arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. Section 3 deals with taking of the measurements and photographs of a convicted person. Therefore it is explicit from Section 4 that finger prints of only an
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR arrested, not convicted may be taken by a police officer during investigation. Section 5 comes into operation in a circumstance where a person refuses to allow his measurements to be taken by a police officer. In that event he may be produced before the Magistrate to obtain a direction to such person to give his measurements. Therefore the argument of Sri Hashmath Pasha cannot be accepted."
42. In light of the above, the Police were competent to take the specimen finger prints of the accused. It is nowhere contended or pleaded by the defence that the accused had refused to give permission to take their specimen finger prints. The contention of the learned counsel for appellants that the finger prints of the accused ought to have been taken before the Magistrate or by his order, therefore, holds no water.
43. In the instant case, we however noticed that though both accused Nos.1 and 2 were arrested on 08.03.2018, accused No.1 was arrested at 9.00 a.m., whereas accused No.2 was arrested at 11.30 a.m., as per
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR the evidence of I.O-PW33. The Expert-PW15, in his evidence has stated that the I.O., sent the finger prints (specimen) of the accused on 07.03.2018, which is a mistake. In the cross-examination, he has stated that Ex.P24, which is dated 08.03.2018 sent by the Police Inspector (I.O.) was received by him on 08.03.2018 at 10.30 a.m. Ex.P24 is the requisition sent to the finger prints bureau along with the specimen finger prints of the accused. If accused No.2 was arrested at 11.30 a.m., on 08.03.2018, question of sending his specimen finger prints to PW15 at 10.30 a.m., does not arise. Hence, insofar as accused No.2 is concerned, a reasonable doubt arises in the mind of the Court regarding collection of his finger prints, as stated by the prosecution. The said circumstance against accused No.2 cannot held to be proved beyond reasonable doubt.
44. The mobile phone seized from accused No.1 with SIM No.7337869043 was standing in the name of one Hazrath Ali. The mobile phone seized from accused No.2
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR with SIM No.7259977242 was standing in his name. The said mobile phones were seized under a mahazar Ex.P35. The evidence of the panch witness PW20 confirm the seizure of mobile phones marked as MOs.23 and 24.
45. PW22 is an ex-employee of Bharati Airtel Limited. He has furnished the CDR of the above two mobile phones. Ex.P52 is the certificate issued under Section 65B of the Evidence Act. PW22 has not been cross-examined. Hence, the trial Court has rightly held that his evidence remains unchallenged and unrebutted.
46. SIM No.9448867268 stands in the name of the deceased Pandurang Pawar. Ex.P51-CDR shows that on 25.02.2018, i.e., the date of incident, at about 20.58.12 hrs., accused No.1 made a phone call from SIM No.7337869043 to the deceased. Thereafter, accused No.2 also made a call to accused No.1 at about 21.05. Further, accused No.1 made a phone call to accused No.2.
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47. The learned Sessions Judge has held that the calls between accused Nos.1 and 2 reveals that they shared their thoughts and in furtherance of the common intention they committed the murder as per the conspiracy hatched by them. The said finding based on the calls between accused Nos.1 and 2 may not be proper, to conclusively hold that the calls were made between them in furtherance of the conspiracy hatched to commit murder. However, the case of the prosecution that accused No.1 called the deceased on his mobile phone asking him to come to his shop to collect the amount, prior to the incident finds support from the calls made by accused No.1 to the deceased at about 20.58.12 p.m.
48. PW6, working in the shop of the deceased has stated that he went for work at 7.30 p.m., collected money and gave to the deceased at about 8.30 p.m., and further stated that CW.23 (PW12) had also attended the work on that day. PW12 has stated that on 25.02.2018 at about 9.00 p.m., deceased left the shop in his car so as to go to
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR his house. At about 11.00 p.m., the wife of the deceased called him stating that her husband has not reached home. The said evidence of PWs.6 and 12 and the call made by accused No.1 to the deceased as per CDR shows that the deceased left his shop, at about 9 p.m. after receiving a call from accused No.1 at 20:58: 12 p.m., but did not go to his house. Hence, accused No.1 calling the deceased to come to his shop and deceased going to his shop, is probabilised.
49. The learned counsel for the appellants has contended that the alleged recovery of incriminating articles cannot be believed since, the recording of the confession statement of the accused under Section 27 of the Evidence Act and the recovery effected are not in accordance with law. In support of his contention he relied on the judgment of the Hon'ble Apex Court in Ramanand @ Nandlal Bharati v. State of Uttar Pradesh (supra).
50. PW23-I.O. has deposed that on 18.03.2018 he arrested the accused and recorded their voluntary
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR statements, seized two mobile phones and a cash of Rs.200/-. The accused made a statement that they will show the place where they committed the offence and also the place where they concealed the weapons and other articles. The accused led the panchas (CWs.3 and 5) and the police to Noorani Plot from where the blood stained full sleeve check shirt, blood stained full sleeve black shirt, blood stained gunny bag, blood stained broom, blood stained spade, blood stained iron rod and manure gunny bag (MOs.11 to 17) were recovered. Further, the blood scrapings were collected from the wall of the shop of accused No.1.
51. One of the panch witness i.e., CW3 examined as PW20 has deposed that he was called to the police station and so as CW5. Accused Nos.1 and 2 were present in the police station and they were shown by the police. From them, a mobile phone each and cash of Rs.200/- (MOs.23 to 25) were seized. The accused led them to Noorani Plot, near Mahakali Gudi, from where they produced the above
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR mentioned articles (MOs.11 to 17) kept in a bag. Further, accused No.1 took them to the Chicken Centre and showed the blood stains on the wall and the police collected the blood stained wall scraping powder-MO.18 and also a cash of Rs.8,000/- (MO.26) produced by him. He has stated about taking of photographs.
52. Ex.P35 is the mahazar in respect of seizure of MOs.23 to 25, two mobile phones and cash of Rs.200/-. Ex.P45 is the mahazar in respect of seizure of MOs.11 to
17. A perusal of both the mahazars goes to show that the voluntary statement of the accused were recorded in the police station in the presence of panchas, wherein they made a statement to show the above incriminating articles and subsequently the police and panchas were taken to the spot from where MOs.11 to 17 were recovered. Insofar as recording the confession statement and recoverey of the material objects under Exs.35 and 45, the same is in accordance with law.
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR
53. It is the case of prosecution that, after the arrest of accused, they led the police and panchas to Noorani plot, near Mahakali gudi and at their instance, seized two shirts, broom, spade, rod, gunny bag and a manure bag marked as MOs.11 to 17. Further, in the shop of accused No.1 blood stain scraping (MO.18) found on the wall was collected. A sum of Rs.8000/- (MO.26) was also seized from accused No.1.
54. PW20 is the panch witness to the above mahazar. He has supported the prosecution. PW18 is the Scientific Officer, FSL, Bengaluru. He has deposed about receiving the articles sent for examination such as, Shirt, banyan, blood stained swab, car seat cover, shirts, gunny bag, broom, spade, rod, a bag and a wall scraping powder. On examination he has issued a certificate-Ex.P32. He has stated that 'A' group human blood stains were present over all the articles. The articles are marked as MOs.4, 8 to 18 etc.
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55. It is the specific case of prosecution that accused No.1 assaulted the deceased with a spade and iron rod in his shop. The role attributed to accused No.2 is that he too conspired to commit the murder and when accused No.1 was assaulting the deceased, he closed the shutter of the shop. The presence of accused No.2 in the shop is not established. Further, as already held the conspiracy between the two accused is also not established by the prosecution beyond reasonable doubt. The motive is attributed against accused No.1. It is not shown as to what was the motive for accused No.2 to commit the murder. Seizure of case of Rs.200/- from accused No.2 will not lead to a conclusion that it was the proceeds of crime. The recovery of incriminating materials including the weapons (MOs.15 and 16) by itself will not incriminate accused No.2 in the alleged crime. A careful perusal of Ex.P45-mahazar goes to show that it was accused No.1 who confessed that the shirt worn by him was blood stained and with another shirt and gunny bag, the blood stains on the floor was
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR cleaned and the weapons were concealed in the open plot. As per FSL report, the shirt of accused No.1 as well as the clothes of the deceased were stained with 'A' group blood. Moreover, the evidence of PW20 goes to show that blood scraping was collected from the wall of the shop of accused No.1. 'A' group human blood stains were found on all the articles sent to FSL for examination, as per the evidence of PW18 and his report at Ex.P32. The articles include the clothes of the deceased as well as the shirt of the accused, the weapons and the blood scraping on the wall of the shop of the accused.
56. One of the contentions raised by the learned counsel for appellants was that the accused were falsely implicated at the instance of an advocate by name Manoj Hangal. Drawing the attention of the Court to the evidence of PW13, father of accused, the learned counsel contended that, there was political rivalry between the father of accused and Manoj Hangal and the said advocate was
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR present in the police station, hence, at his instance, police have falsely implicated the accused.
57. PW7, wife of the deceased has denied in her cross-examination that the relationship of the accused and Manoj Hangal, advocate was not cordial and for that reason, accused were falsely implicated at his instance. PW13 is none other than the father of accused No.1. He has turned hostile to the prosecution. In the cross-examination conducted by the defence, for the first time he has stated that there was political rivalry between himself and the said advocate. Except a vague statement, no material is placed to show any political rivalry between PW13 and the said advocate. The contention of the learned counsel, therefore, cannot be accepted.
58. It is contended that certain valuables like watch and gold were intact on the dead body and therefore, the case of prosecution that the murder was for gain is not proved. Attention was drawn to the evidence of PW6,
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR wherein, in the cross-examination, he has stated that the police gave watch, clothes and gold found on the dead body to complainant (PW7) wife of the deceased.
59. PW7, wife of the deceased has denied that her husband was wearing watch and ring daily. She has stated that only during function, her husband was wearing them. Even PW12, worker in the shop of deceased has denied in the cross-examination that deceased was wearing four finger rings, chain and watch everyday. PW6 and PW23 have not stated as to what was the gold found on the dead body. Hence, the contention of the learned counsel cannot be accepted. On the other hand, we find that against accused No.1, the prosecution has placed sufficient material in the form of circumstantial evidence, which connects him with the crime, beyond reasonable doubt.
60. Having carefully examined the entire evidence and material on record and for the forgoing reasons, we are of the view that there is sufficient oral and documentary
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR evidence against accused No.1 to convict him for the offence punishable under Section 302 and 201 of IPC. The conviction and sentence passed against accused No.1 by the trial Court for the above offence is based on the evidence and material on record and the same in accordance with law. However, as against accused No.2, the materials on record are insufficient to establish the charges against him. Accordingly, we proceed to pass the following:
ORDER i. Appeal is allowed-in-part.
ii. The Judgment and Order dated 16.03.2023 passed by the I Additional District and Sessions Judge, Dharwad, sitting at Hubballi in SC No.65/2018, convicting and sentencing accused No.1 for the offence punishable under Section 302 and 201 of IPC is confirmed.
iii. The conviction and sentence passed against accused No.1 for the offence punishable under Section 120-B IPC is set aside.
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NC: 2026:KHC-D:5709-DB CRL.A No. 100196 of 2023 HC-KAR iv. The Judgment and Order of conviction and sentence passed against accused No.2 for offences punishable under Section 120-B, 302, 201 r/w 34 IPC is set aside.
v. Accused No.2 is acquitted of all the charges. His bail bond stands cancelled. Fine amount, if any, deposited shall be refunded to him.
vi. Accused No.1 shall surrender before the trial Court within 30 days to undergo the sentence imposed against him for the offence under Section 302 and 201 IPC.
vii. He is entitled to the benefit of set-off.
viii. Rest of the order of the Trial Court is not disturbed.
Sd/-
(MOHAMMAD NAWAZ) JUDGE Sd/-
(GEETHA K.B.) JUDGE HB/TL- List No.: 19 Sl No.: 1