Karnataka High Court
Smt Savitha vs State Of Karnataka on 25 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.596/2016
C/W
CRIMINAL APPEAL No.104/2016,
CRIMINAL APPEAL No.1348/2018
IN CRIMINAL APPEAL No.596/2016
BETWEEN:
SMT. SAVITHA
W/O LATE RAGHAVENDRA
AGED ABOUT 28 YEARS
OCC: HOMEMAKER
R/O GUNDOORU MOOLE
VILLAGE BASAVAPURA TALUK
HOSANAGAR DISTRICT
SHIVAMOGGA-577 418
...APPELLANT
(BY SRI.PRAVEEN.C, ADVOCATE)
AND
STATE OF KARNATAKA
THROUGH RIPPANPETE POLICE STATION
HOSANAGAR TALUK
DISTRICT SHIVAMOGGA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
2
HIGH COURT BUILDING
BANGALORE-560 001
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT CONVICTION DATED
16.12.2015 AND ORDER OF SENTENCE DATED 18.12.2015
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE
SHIVAMOGGA SITTING AT SAGAR IN S.C.NO.167/2013 -
HOLDING THE APPELLANT/ACCUSED NO.4 GUILTY OF THE
OFFENCES P/U/S 302, 120(B) R/W 34 OF IPC AND ETC.
IN CRIMINAL APPEAL No.104/2016
BETWEEN:
PARASHURAMA S/O NAGESHAPPA
AGED ABOUT 20 YEARS
OCC. TILES WORK
R/O VILLAGE AYANOOR KOTE
TALUK AND DISTRICT
SHIVAMOGGA-577 426
...APPELLANT
(BY SRI. T.C.PRABHAKARA , ADVOCATE)
AND
STATE OF KARNATAKA
REPRESENTED BY RIPPONPETE
POLICE STATION, SAGARA
SHIVAMOGGA DISTRICT-577 426
THE REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560 001
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
3
THIS APPEAL IS FILED UNDER SECTION 374 (2) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT DATED 16.12.2015,
PASSED IN S.C.NO.167/2013, BY THE 5TH ADDITIONAL DISTRICT
AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR AND
CONSEQUENTLY ACQUIT THE ACCUSED NO.3/APPELLANT HEREIN
FROM THE CHARGES LEVELLED AGAINST HIM AND ETC.
IN CRIMINAL APPEAL No.1348/2018
BETWEEN:
SRI. CHATHRAPATHI NAIKA @ AKASH
AGED ABOUT 25 YEARS
SON OF SRI. DEVARAJA NAIKA
OCCUPATION: LABOURER
RESIDENT OF CHAKKAMATHLI DODDAMATHLI
POST: MANDAGATTA-577 202
SHIVAMOGGA TALUK AND DISTRICT
...APPELLANT
(BY SRI.H.SHASHIDHARA , ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR
RIPPONPETE POLICE STATION
HOSANAGARA CIRCLE
HOSANAGARA-577 418
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS APPEAL IS FILED UNDER SECTION 374 (2) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 16.12.2015 AND 18.12.2015 IN
S.C.NO.167/2013 ON THE FILE OF THE COURT OF V ADDITIONAL
4
DISTRICT AND SESSIONS JUDGE, SHIVAMOGA, SITTING AT
SAGAR AND THEREBY ACQUIT THE APPELLANT FROM ALL THE
CHARGES FRAMED AGAINST HIM AND GRANT SUCH OTHER AND
FURTHER RELIEFS DEEMS FIT.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A.No.1348/2018 is filed by accused No.1- Chathrapathi Naika, Crl.A.No.104/2016 is filed by accused No.3-Parashurama and Crl.A.No.596/2016 is filed by accused No.4-Smt.Savitha. Accused No.2- Srirama has not filed any appeal.
2. All these three appeals are filed against the impugned judgment of conviction and order of sentence dated 16.12.2015 made in S.C.No.167/2013 on the file of the V Additional District and Sessions Judge, Shivamogga, sitting at Sagar, convicting accused Nos.1 to 4 for the offence punishable under Sections 302 and 120B read with Section 34 of IPC.
5
3. It is the case of the prosecution that complainant- PW.1, father of the deceased lodged a complaint as per Ex.P.6 against unknown persons and stated that he is the resident of Basavapura Village, Hosanagar Taluka. Deceased Raghavendra is his 3rd son who had a love with accused No.4- Savitha of Doddlimane of Koduru and out of love, their marriage was solemnized about 11 years back at Bengaluru and out of the wedlock, they have two children namely Pavan and Sahana and they were residing together at Basavapura Village. The complainant and the deceased Raghavendra were doing coolie and Carpenter work and was also doing milk vending business for supplying milk to Basavapura Dairy. Accordingly, on 01.04.2013, the deceased Raghavendra had gone to supply milk to the dairy and not returned on that night and he was murdered in the land adjacent to their house. His daughter-in-law Savitha-accused No.4 had seen the same on the next day morning at about 7.00 a.m. and informed the people. One Srinath of 6 Basavapura Village had informed this fact over phone to one Halappa, who is nephew of the complainant because at that time, the complainant had gone to his sister's house at Mavinahole and he returned and came to know that someone had killed his son, thereby lodged a complaint. The jurisdictional police after investigation filed the Charge Sheet against accused Nos.1 to 4. The learned Magistrate has taken the cognizance of the offence and since the offences are exclusively triable by the Sessions Court hence Magistrate has committed the case to the Sessions Court as per Section 209 of Cr.P.C.
4. When the matter came before the learned Sessions judge, the learned Sessions judge secured the presence of the accused persons, framed the charge for the offence punishable under the provisions of Sections 302 and 120B read with Section 34 of IPC and read over to the accused persons in the language known to them i.e., Kannada. The accused persons have denied the charges 7 leveled against them, pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution about the guilt of the accused persons 1 to 4, the prosecution examined in all 20 witnesses as Pws.1 to 20 and marked material documents at Ex.P1 to Ex.P42 and the material objects as Mos.1 to 21. After completion of evidence of prosecution witnesses, the statement of accused persons as contemplated under the provisions of Section 313 of Cr.P.C. were recorded explaining the incriminating circumstances in the evidence of the prosecution witnesses. The accused persons denied all the incriminating circumstances, but did not chose to adduce any evidence on their behalf.
6. Based on the aforesaid pleadings, the learned Sessions judge framed two points for consideration: 8
a) Whether prosecution proves beyond all reasonable doubt that on 01.04.2013 at about
7.45 p.m., to 8.00 p.m., in the land of Cw.1 at village Basavapura coming within the limits of Ripponpete police station, accused No.1 to 3 at the instance of accused No.4 attacked deceased Raghavendra with choppers with an intention to kill him in the background of previous enmity between accused persons and deceased Raghavendra in respect of illicit relationship between the wife of Raghavendra accused No.4 Savitha and accused No.1 Chathrapathi, with a common intention while deceased Raghavendra was returning from dairy accused No.1 assaulted him with Chopper on his neck and accused No.2 assaulted, with Chopper on his neck and hand, accused No.3 assaulted with Chopper on his hand and with an intention to cause his death and thereby caused his death amounting to murder and thereby committed an offence punishable U/Sec.302 r/w Sec.34 of IPC?
b) Whether prosecution proves beyond all reasonable doubt that accused Nos.1 to 4 on the 9 above said date, time and place have hatched a plan for criminal conspiracy to kill Raghavendra and to commit an offence punishable with death or life imprisonment and thereby committed an offence punishable U/Sec.120(B) r/w Sec.34 of IPC?
c) What order?
7. After considering both the oral and documentary evidence on record, the learned Sessions judge answered the points in the affirmative holding that, the prosecution has proved beyond reasonable doubt. On 01.04.2013, at about 7.45 to 8.00 p.m., in the land of Pw.1-Nagendrappa complainant at Basavapura village coming within the limits of Ripponpete police station, accused Nos.1 to 3 at the instance of accused No.4, attacked the deceased Raghavendra with choppers with an intention to kill him in the background of previous enmity between accused persons and deceased Raghavendra in respect of the illicit relationship between accused No.1 and accused No.4 with a common intention, 10 while the deceased was returning from the milk dairy, accused No.1 assaulted with chopper on his neck, accused No.2 with chopper on his neck and hand, accused No.3 assaulted with chopper on his hand and with an intention to cause death thereby, committed an offence punishable under Section 302 read with Section 34 of IPC. Further, the finding that accused Nos.1 to 4 have hatched a plan for criminal conspiracy to kill the deceased Raghavendra, thereby committed an offence punishable under Section 120B read with Section 34 of IPC.
8. Accordingly, the learned Sessions judge by the impugned judgment of conviction convicted the accused Nos.1 to 4 under the provisions of Section 302 of IPC and to undergo imprisonment for life (i.e., they are to remain in prison until their death) and imposed a fine of Rs.40,000/- on accused No.1, Rs.25,000/- on accused Nos.2 and 3 and Rs.50,000/- on accused No.4 with default clause and convicted accused Nos.1 to 4 for the offence under Section 11 120B of IPC, rigorous imprisonment for a period of 2 years and fine of Rs.20,000/- each with default clause. Hence, the present three appeals are filed by accused Nos.1, 3 and 4. Accused No.2 has not filed any appeal against the impugned judgment and order of conviction passed against him by the trial Court.
9. We have heard the learned counsel for the parties.
10. Sri.Shashidhara, learned counsel for accused No.1 in Crl.A.No.1348/2018 contended with vehemence that the entire case of the prosecution is based on the circumstantial evidence and there is no link from the beginning till the completion of investigation and there is no evidence with regard to illicit relationship between accused Nos.1 and 4. He would further contend that the investigation started only on 02.04.2013, though the incident occurred on 01.04.2013. He would further contend that the delay in recording the 12 statement of the witnesses under Section 161 of Cr.P.C. has not been explained by the prosecution. The evidence by Pws.1 and 3 with regard to the motive cannot be relied upon as Pw.1 is the father and Pw.3 is the sister of the deceased. They are naturally interested witnesses and cannot be relied upon. He would further contend that the prosecution has not produced any material for conspiracy under Section 120B of IPC, nor recovery is proved. In the absence of any material or recovery at the instance of accused No.1, the impugned order passed by the trial Court cannot be sustained.
11. He would further contend that the police have filed charge sheet against accused under the provisions of Section 302 and 115 read with Section 34 of IPC. However, without discussing about altering the charge under Section 115 to 120B IPC and without assigning any reasons, the charge was altered by the trial Court. Thereby the punishment imposed by the trial Court for the offence punishable under Section 120B of IPC cannot be sustained. 13 He further contended that the prosecution has not produced any call details to show that accused Nos.1 and 4 have any contact either before the incident or after the incident. Even though the investigation also not stated about the same, the fact remains that the prosecution have not produced any Certificate as contemplated under Section 65B of the Indian Evidence Act. Thereby, the impugned judgment of conviction passed by the trial Court against accused No.1 cannot be sustained and thereby, he is entitled for acquittal in the present criminal appeal.
12. In support of his contention, learned counsel has relied upon the dictum of the Hon'ble Supreme Court in the cases of
(i) Surendar Kumar vs. State of Uttar Pradesh reported in AIR online 2021 SC 238 in paragraphs 16 and 22
(ii) State of Uttar Pradesh vs. Sunil reported in 2017(4) ALJ 99 in paragraphs 14 and
15. 14
(iii) Md.Younus Ali Tarafdar vs. State of West Bengal reported in AIR online 2020 SC 1057 in paragraphs 13 to 15.
13. Sri.Praveen.C, learned counsel appearing for accused No.4 in Crl.A.No.596/2016 contended that the conviction against accused No.4 is only on the basis hearsay evidence of Pw.1. With regard to motive, none of the witnesses whispered against accused No.4. He would further contend that Pw.3 evidence suspects conduct of accused No.4 and evidence of Pw.9 recovery at the instance of accused No.1. Pw.15 the owner of the jewellary shop was also examined. None of the witnesses have whispered anything about accused No.4. He would further contend that in the absence of any material both oral and documentary evidence, the conviction against accused No.4 under Sections 120B and 302 read with Section 34 of IPC cannot be sustained. Ex.P18 and Ex.P19 the seizure mahazar recorded on 26.04.2013 at the instance of accused No.1 reveals that 15 the ornaments are pledged by accused No.1. Pw.15 is the owner of the jewellary shop who stated that Ex.P16 and Ex.P17 belongs to his shop and accused No.1 had come to his shop to pledge the ear studs. The ornaments were pledged on 31.03.2013 and the incident was occurred on 01.04.2013, thereby there is nothing against accused No.4 as alleged. He would further contend that Pw.15- a goldsmith has deposed only against accused No.1. Pw.9 who is witness to the seizure mahazar deposed about recovery of MO.18- mobile of accused No.4. Pw.7- mahazar witness who deposed about recovery Mo.7. Ex.P19 shows that admittedly accused Nos.1, 2 and 4 were arrested on 26.04.2013. Accused No.3 was arrested on 29.04.2013. Exs.P1 to 24 were marked on 26.04.2013. Therefore, he submits that the very conviction order passed by the trial Court against accused No.4 cannot be sustained.
14. In support of his contention, he relied upon the dictum of the Hon'ble Supreme Court in the case of Surinder 16 Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence reported in AIR 2018 SC 3574 at paragraphs 6 and 14 and in the case of R.Vijaykumar vs. State by Mahadevapura Police, Bangalore reported in ILR 1994 KAR 491 in paragraph 6 to the effect that particularly with regard to most of material circumstances of the accused giving information under Section 27 of the Evidence Act leading to the discovery of fact practically no evidence was given in this behalf by the investigating officer cannot be relied upon. In the case of Basheera Begam vs. Mohammed Ibrahim reported in 2020 11 SCC 174, paragraphs 189 and 195 to the effect that on circumstantial evidence.
15. Sri.T.C.Prabhakara learned counsel for accused No.3 in Crl.A.No.104/2016 contends that the impugned judgment of conviction and order of sentence passed by the trial Court convicting accused No.3 for the offence punishable under Sections 302 and 120B read with Section 34 of IPC is 17 erroneous, contrary to law and cannot be sustained. He would further contend that according to the prosecution, the incident was occurred on 01.04.2013, whereas accused No.3 was arrested only on 29.04.2013, there is inordinate delay in recording the statement. He would further contend that Pw.10, Pw.11 and Pw.18 were turned hostile and have not supported the case of the prosecution. He would further contend that Ex.P24-seizure mahazar where recovery of Mo.19-chopper, Mo.20-shirt and Mo.21-half pant and blood stained clothes of accused No.3 is not proved. On the basis of voluntary statement of accused No.3, the trial Court proceeded to convict the accused No.3 which is impermissible. He would further contend that the prosecution has not produced any material document to prove the conspiracy between accused Nos.1 to 4 to eliminate the deceased. In the absence of any material document to prove the involvement of accused No.3 in homicidal death of the deceased, the impugned judgment of conviction and order of 18 sentence passed by the trial Court against accused No.3 cannot be sustained. Accordingly, he sought to allow the appeal.
16. Per contra, Sri.Vijayakumar Majage, learned Addl. SPP while justifying the impugned judgment of conviction and order of sentence passed by the trial Court in all these appeals contended that motive with regard to the illicit relationship between accused Nos.1 and 4 spoken to by Pw.1-father of the deceased and Pw.3 who is the sister of the deceased. He would further contend that Mo.7 belongs to accused No.4 which was pledged by accused No.1 in the shop of Pw.15. Pw.15 and Pw.1 identified the same and Pw.15-owner of the shop examined as per the said fact. He would further contend that the recovery of the weapons Mo.13-chopper and blood stained clothes of the accused No.1, Mo's 10 and 11 at the instance of accused No.1 as per Ex.P18-seizure mahazar. The witnesses of seizure mahazar Pws.17 to 19 supported the case. He further contended that 19 though recovery of Mo.14-chopper from accused No.2 and blood stained clothes from accused No.2, the accused No.2 has not filed any appeal against the impugned judgment of conviction.
17. He further contended that recovery of Mo.19- chopper and blood stained clothes of accused No.3 and Ex.P24-seizure mahazar tallies with the blood stained clothes of deceased i.e., Mos.5 and 6. The evidence of Pw.20-FSL Officer clearly depicts that the accused persons involved in the homicidal death of the deceased. Pw.8-sister of accused No.1 admitted in her evidence that the two SIM cards are belonging to her and are not belonging to accused No.4. Ex.P18 shows the mobile/SIM belonging to accused No.1. Ex.P22 SIM card belongs to accused No.4 was seized from the possession of the accused. The same was spoken to by Pw.7 and Pw.9. The same was spoken to by Pw.14- Investigating Officer. He would further contend that there is conspiracy between accused Nos.1 to 4 to eliminate the 20 deceased. Mere non-production of Certificate under Section 65-B of the evidence Act, is a mistake on the part of the Investigating Officer and cannot be a fatal to the case of the prosecution. He would further contend that the learned Sessions judge considering the entire oral and documentary evidence has come to a definite conclusion that the homicidal death has proved and the involvement of accused Nos.1 to 4 under homicidal death of the deceased has been proved, thereby, he sought to dismiss the appeals.
18. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present appeals are:
(a) Whether the Appellants/accused have made out a case to interfere with the impugned judgment of conviction and order of sentence convicting accused Nos.1 to 4 under the provisions of Section 302 of IPC?
(b) Whether the accused persons have made out a case to interfere with the impugned judgment of 21 conviction order passed by the trial Court under the provisions of Section 120B of IPC in the facts and circumstances of the case?
19. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire oral and documentary evidence including the original records carefully.
20. The gist of the complaint by Pw.1-Nagendrappa as per Ex.P6 is that, the deceased Raghavendra is his 3rd son. The accused No.4 and his son were in love. Thereafter, their marriage was solemnized about 11 years back at Bengaluru and out of the wedlock, they have 2 children by name Pavan and Sahana. The complainant, deceased Ragavendra, Accused No.4 and two children were residing together and they were doing coolie. Deceased Raghavendra and Pw.1 were doing coolie and carpenter work and also doing milk vending business. On 01.04.2013 at about 7.00 p.m., Raghavendra had gone to supply milk to the diary and not 22 returned. Thereafter, on the information given by one Halappa, nephew of complainant because at that time complainant had gone to his sister's house at Mavinahole and came to know somebody has killed his son, thereby, he lodged a complaint on 02.04.2013 at about 11.45 a.m., The same was registered in Cr.No.76/2013 for the offence punishable under Section 302 of IPC. It is also not in dispute that after investigation, the jurisdictional police filed charge sheet against accused Nos.1 to 4.
21. This Court being the Appellate Court, in order to re-appreciate the entire oral and documentary evidence on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
(i) Pw.1-Nagendrappa is the father of the deceased and the complainant who lodged the complaint as per -Ex.P6, reiterating the averments made in complaint, he deposed that accused No.4 Savitha asked him to go to Brahmeshwara 23 village, where his elder sister Nagamma stays. Hence, he had gone there and in his absence his son Raghavendra had gone to supply milk to the dairy in the evening. On the next day, his sister had received a phone call from someone about murder of the deceased. Thus, he went to the spot and found injuries on the neck, cheek, hand and other parts of the body of the deceased. He further stated that his son was harassing and beating Savitha accused No.4 as he had come to know that she was having illicit relationship with accused No.1- Chathrapathi Naika. He further stated that accused No.4 Savitha with an intention to marry accused No.1 instigated accused Nos.2 to 4 to kill her husband, deceased Ragavendra, and she gave them details for the purpose identification; Mo.1-milk can, Mo.2-mobile, Mos.8 and 9 two milk dairy cards and Mo.3-slippers, Mo.4-hand bag, Mo.5-Ash colour pant, Mo.6-Black colour T-shirt, Mo.7-ear studs. In the cross examination, he has stated that after 15 days of the murder, police called him to the police station. Again after 15 24 days when first visited police station he has not known as to who has committed murder. Second time when he visited to the police station, his daughter-in-law Savitha-accused No.4 was in custody. During the said two times he had not told to the police that accused No.4 had relationship with accused No.1. Witnesses did not know and he came to know about the same, only from the police. He supported the case of the prosecution.
(ii) Pw.2 Kum.Veena who is a close relative of accused No.4 and the daughter of Pw.1 and sister of the deceased has given all the information and she has scribed the complaint and read over the contents of the complaint to PW-1. She further stated that she has identified the said complaint-Ex.P6 as well as her handwriting. She has signed the complaint as per Ex.P6(b) after the signature of PW-1 as per Ex-P6(a). She has identified the milk can, slippers of Raghavendra and she did not go near the dead body out of fear. Thereby, she cannot say how the clothes was on the 25 dead body. She identified the slippers-Mo.3, milk can-Mo.1 and mobile-Mo.2. She deposed that police has not called her in time after 2013 and she was not aware of the cause of murder of deceased Raghavendra. There is no cross examination of Pw.2.
(iii) Pw.3-Janaki is the co-sister of accused No.4 Savitha who deposed that herself and her husband residing separately beside the house of deceased Raghavendra. The said Raghvendra was doing coolie and supplying milk to the dairy and there was a quarrel between him and his wife - accused No.4. She further deposed that when they were living together both Savitha and Raghavendra were cordial but thereafter when they were separated, they started to quarrel and fight among them. She further deposed that on 01.04.2013, the deceased Raghavendra had gone to supply milk to the dairy. Upon returning and at that time Pw.1 had gone to Brahmeswara to the house of elder sister. On the date of the incident, accused No.4 Savitha came to her house 26 and told her that her husband had not returned and she had no currency in her cell phone and asked her to make a call. Accordingly, her husband had called to deceased Raghavendra, but his phone was switched off. Then, accused No.4 came along with children to stay and when she insisted she came to her house. Accused No.4 said that they will stay night there itself and accordingly, slept there. She would further deposed that on the next day morning, when they woke up, accused No.4 did not go to her home and Pw.3 went to start electric motor by the side of the wetland to fetch water. At that time, accused No.4 followed her and after switching on the motor, they sat near a small plant then, they came back. Accused No.4 asked her to accompany her to open the door of her house as she was scared. Then, they went there and accused No.4 opened the door of her house and started cleaning the front yard. Though she could see the dead body from the said place she questioned her as to whether the milk cattle visible in the land belonging to her 27 family or not so that she could see the place of murder. Before she could see the said milk can, accused No.4 started telling that her husband was murdered by somebody in the said land. Then she went to the said land found injuries on his body. She further deposed that she came to know accused was murdered Raghavendra. She also stated that accused Nos.1 and 3 were use to visit the house of Raghavendra many times. She does not know the reason for quarrel between them. In the cross examination, she deposed that she had told the police that when she returned to home, after Savitha opened the doors of her house, she had sent her son to call her and her husband. When they went and asked her, she told that when she was cleaning her cattle shed she remembered the milk can as well as her husband, went further to see the direction in which her husband had gone and found a milk can in the land and hence, she called her. The said portion of the statement is marked as Ex.D1. In the cross examination she further 28 deposed that she has stated before the police that accused Nos.1 to 3 were visiting the house of the Raghavendra in his absence. Nothing has been elicited to disbelieve her statement. Accordingly, she supported the case of the prosecution.
(iv) Pw.4-Nagaraja was a worker in the dairy of the Basavapura has stated regarding the said deceased Raghavendra had supplied milk to dairy on that day and relevant entry in the registry. Ex.P8 and Ex.P9 belongs to the deceased Raghavendra and accused No.4-Savitha and supported the case of the prosecution.
(v) Pw.5-Nagalingappa deposed that he know deceased Raghavendra, he died about 6 or 7 months ago being murdered in his land. He had seen the dead body who was injured on the left face, neck and left hand. Ex.P1 to 5 are the photographs of the dead body. After 15 days of the murder police had brought the accused persons stating that 29 they had committed the murder of Raghavendra. Firstly the police have arrested the accused No.1 and then they have arrested the accused Nos. 2 and 3 and they have brought them to the place of the incident. He identified Ex.P1 to P5 which are the photographs of the dead body of the deceased Raghavendra and accordingly, he supported the case of the prosecution.
(vi) Pw.6-Ganapathi Krishna Naik stated that deceased Raghavendra was murdered on 01.04.2013 at his land. Police had recorded inquest on the dead body as well recorded mahazar at the place of murder. He has signed the same and he has identified the signature on Ex.P11-mahazar. He identified the signature on inquest and the same is marked as Ex.P14 and signature as Ex.P14(a). He would further depose that Puttappa and Lokesh had signed the mahazar. Police had taken the photographs of the dead body which were marked as Exs.P1 to P5. There was milk can, a mobile, slipper, a bag which were seized by the police and he 30 identified the same which were marked at Mos.1 to 4. The learned public prosecutor is permitted to open the seal of the two containers after finding the same intact with seal. He identified the container with blood stained soil which is marked as Mo.8. He identified the container with ordinary soil, which is marked as Mo.9. In the cross examination, it is stated that there were no weapons at the place of the incident, and he has supported the case of the prosecution.
(vii) Pw.7-Puttappa is resident of Kadegadde village who deposed that he know Gunduru mole which is 2 kms away from his house and he had seen the dead body of Ragavendra who was murdered on 01.04.2013 and the same was came to his notice on 02.04.2013 and the deceased was murdered in his land only. He went to the place of murder after hearing the news. Police had visited the place and taken photographs in his presence which were marked at Ex.P1 to P5. Police had recorded the mahazar at the said place and seized the steel milk can, mobile, slipper, yellow colour bag, 31 soil with blood stains and sample dry soil and two dairy cards. He identified the same and were marked as Exs.P8 and P9 and Mos1 to 4, 8 and 9. Police had taken my signature on the paper slips to affix the same to the articles seized and he has identified his signature on Ex.P10, which supported the case of the prosecution. In paragraph No.5 it is specifically stated that accused No.1 from his house had taken him to Ayanur stating that he had pledged the ear studs of accused No.4-Savitha at a jewellary shop at Ayanur and stated that they were given to him by accused No.4- Savitha. He had taken Pws.6 and 7 to Sri.Krishna Jewellers at Ayanur. The owner of the shop had got the said ear studs which he had kept at a different place and handed over the same to the police. The owner of the shop had told that he has paid money to the accused No.1 for the said ear studs but the police told him that it was irrelevant and he should hand over the same. Police had recorded the mahazar and taken his signature. He can identify the same which were 32 marked as Ex.P.19 and Ex.P19(a). He identified the ear studs which were marked as Mo.7. He further deposed that accused No.1 had shown the chopper at the cattle shed, handed over the same to the police which were marked as Mo.13. From there, accused Nos.1 and 2 had taken them to a village called 'Kote' stating that they have kept choppers which were used for committing the offence. When they went there, there were no such choppers, it was in somebody's house. Then, they all went to that house and accused Nos.1 and 2 handed over the chopper which was kept on the top of the toilet. Police seized the same and marked as Mo.14. He further deposed that he has identified the night pant and T- shirt which were marked as Mos.15 and 16, he has turned hostile to the case of the prosecution. But in the cross- examination by prosecution he stated that accused No.2 had told them that he would hand over the clothes which he was wearing at the time of offence. He would further depose that accused No.2 had handed over Mos.15 and 16 to the police 33 and police seized the same in his presence which contained blood marks. He further told that the clothes produced by accused No.1 were stained with blood. He also handed over his mobile phone with SIM card to the police. He also admitted that he himself and another pancha namely Raghupathi had gone to the police station and accused No.1 had taken them to the place of murder first, then, to his house and later, to Sri.Krishna jewelers shop at Ayanur. Police have videographed the said events. Looking to the lengthy cross examination made by the prosecution he has not given any evidence to disbelieve his presence during the spot seizure mahazar stated supra. Thereby, he strongly supported the case of the prosecution.
(viii) Pw.8-Latha who is none other than the sister of the accused. She has not supported the case of the prosecution. She has stated in the cross examination that she has two SIM cards of Airtel company and stated that she had not given SIM card to accused No.1, he only had taken 34 her mobile. Police had taken the SIM card from her. Further she admitted that it is the duty to protect and save her brother accused No.1 and she is prepared to protect him at any case.
(ix) Pw.9-Devaraj who is one of the pancha who deposed to the police that he and CW.18-Noorulla had come on 26.04.2013 for recording the mahazar to the Ripponpete police station in committing murder of husband of accused No.4 by accused Nos.1 to 3. At that time, accused No.4- Savitha was in police custody who narrated the murder of her husband. Police have seized Mo.18 and SIM card. She supported the case of the prosecution.
(x) Pw.10-Suresh who is also pancha to the spot mahazar who deposed that on 29.04.2013, police called him along with Cw.19 to the police station. At that time, accused Nos.1 to 3 were in police custody and enquired to show the spot, accordingly, they went in jeep. As per the decision of 35 accused No.3 went to the spot which is near the house of accused No.4-the land belonged to deceased Raghavendra. From there, they went to the house of father-in-law of accused No.3 at Thyajavlli, wherein, accused No.3 had produced Mo.19-chopper from the new toilet. Police seized the same which had blood marks on it. He would further depose that he had identified the mahazar with his signature as per Ex.P24. He identified the T-shirt produced by accused No.3 which was marked as Mo.20 and it bears the signature. He also deposed that Mo.20-T-shirt was stained with blood and half pant produced by accused No.3 is marked as Mo.21. He further deposed that Mos.20 and 21 were sealed covers and opened after the seal was found intact. He further deposed that there were 2-3 persons in the police station. In the cross examination he had denied that it is not true to suggest that he signed the mahazars at the police station, Basavapura is 15 to 20 kms from Tyajavalli. Arasanala is about 30 kms from Tyajavalli. Only accused No.3 was 36 handcuffed at the police station by the police. Accused No.3 had taken them with the police. The other accused had not come with them. He told that accused No.1 had shown the place of murder on the previous day to the police. Further he stated that there were two stones slabs made to use as toilet. When the chopper was removed from below the said stone slabs, the police had taken assistance of three persons to remove each of the stones. The pit was half full with nigh soil. Mo.19 was in the middle of the night soil and straight. He further denied that it is not true to suggest that Mo.19 was kept by the side of the septic pit. It is true to suggest that in the mahazar it is scribed as standing to the wall of the septic pit. He further deposed that they had gone inside the house but only accused No.3 and police went inside. There was only a girl at the house. When police enquired the said girl, she said that she did not know anything. If suggested that accused No.3 had neither shown any place or weapon or clothes but the police had planted them and recovered. She 37 further denied that it is not true to suggest that she had signed the mahazar at police station. Thereby, she supported the case of the prosecution.
(xi) Pw.11 who is the owner of the house, who deposed that accused No.3-Parashuram had hidden chopper in the lavatory outside his house. He also deposed that police have seized seizure mahazar as per Ex.P24. In lavatory of his house, accused No.3 produced chopper from the lavatory before the police. Police seized the same. He identified Mo.19 shown to him which is the said weapon. In the cross examination, he deposed that the stone with which he had closed the lavatory weighted about 25 to 30 kgs. Police had already removed the stone slabs before he went to the place. The entire waste water of my house was being stocked in the said lavatory pit and even the rain water was stocked in the said pit. It is not true to suggest that though he know nothing he is deposing falsely at the instance of police. He further denied that it is not true to suggest that neither the 38 police had come to lavatory nor Chatrapathi had shown Mo.19. Thereby he supported the case of the prosecution. Nothing worthy has been elicited from the mouth of the witnesses during the course of cross examination to disbelieve their evidence.
(xii) Pw.12-Jayanaika is a person who had sold bike- Mo.12 to one Girish for Rs.8,000/- but he had paid only Rs.4,000/- and had agreed to pay Rs.4,000/- at the time of transferring the bike. Hence, RC was not transferred to the name of Girish. Girish told him that he had handed over the bike to one Chatrapathi i.e., accused No.1. In the cross examination he has stated that he has not stated this fact before the police. He had not seen accused No.1 earlier and seeing him for the first time in the Court, thereby, supported the case of the prosecution.
(xiii) Pw.13-PSI Shashikanth, Pw.14-Police Inspector Ramachandra Naik, Pw.17-Police Inspector Ganapathi 39 deposed regarding their part in the investigation and thereby, supported the case of the prosecution and they identified Exs.P6 and P7. Pw.13 was not cross examined. Nothing has been elicited by Pw.14 who disbelieved his statement.
(xiv) Pw.15-Prashanth, owner of the Sri.Krishna Jewellary shop at Ayanur. He deposed that he know accused No.1 before the Court who is Chatrapathi. He had come to him to prepare the jewellary for his sister and therefore, he know him since about 3-4 years. Exs.P16 and P17 are pledged chits containing signature of Pw.7 belonging to them. Accused No.1-Chatrapathi had come to him on 31.03.2013 and handed over a pair of Lakshmi ear studs to pledge the same. He had paid Rs.7,000/- to him. After some time, police had come along with accused No.1-Chatrapathi and enquired him whether accused No.1 had pledged the jewellary to him. He accepted and handed over the pair of ear studs pledged by accused No.1 to the police and police 40 seized the same. Mo.7 is the said ear studs. Police recorded the mahazar to which he had affixed his signature which is identified and marked as Ex.P19-seizure mahazar. In the cross examination he has specifically stated that accused No.1 had received Rs.2,000/- and later, Rs.5,000/- on two different dates. The police had not seized the original book of Ex.P16 which contains the carbon copy of the original. In the cross examination he has denied the suggestion that 'it is not true to suggest that accused No.1 had not come to his shop and pledged Mo.7'. Further denied that 'it is not true to suggest that neither the police came nor he had handed over Mo.7 to the police'. Further denied that it is not true to suggest that he had signed the mahazar at police station and deposing falsely at the instance of police out of fear. Thereby, he stood his defence. Nothing has been elicited in the cross examination of Pw.15.
(xv) Pw.16-Dr.Anilkumar would depose that on the request made by Ripponpete police on 02.04.2013 to conduct 41 the autopsy of deceased Raghavendra, aged about 30 years in Cr.No.76/2013, he noted five major injuries on the dead body in Ex.P36-post mortem report wherein, he found cutting of spinal cord in the base of the skull. Other parts were intact. He has collected the clothes on the body to be sent to FSL. He opined that cause of death is due to shock and hemorrhage as a result of injuries to the vital organs. The time from death to the post mortem was approximately 24 hours. Accordingly, issued Ex.P36. He identified Exs.P1 to P5 belonging to the dead body. He also seen the choppers sent to him which were marked as Mos.13, 14 and 19. He opined that the assault with the said weapons could cause injuries on the person. He identified his signature on the opinion at Ex.P40. The same is marked as Ex.P40(a). In the cross examination, he had denied the suggestion that he had not examined any weapons but he had obliged the investigating officer in issuing Ex.P40. 42
(xvi) Pw.17-Ganapathi, CPI of Hosanagar Circle who was working between November 2011 to July 2013 would depose that on 02.04.2013, he took up further investigation from one Shashikantha Naik-Pw.13, PSI, visited the place of incident, secured the panchas conducted part of investigation to draw mahazar-Ex.P11 and found a pair of red colour hawai slipper, a mobile of red colour belonging to G-Five company, a yellow colour cotton bag, a milk steel can, two cards issued by Basavapura milk produces society and identified Mos.1 to 4, 8 and 9 and also Exs.P8 and P10. He further deposed that in the presence of panchas, he recorded inquest as per Ex.P14. He recorded the statements of the Subramanya, Umesh, Suvarna, Nagaraja and he had gone to the place of the incident photographed and videographed. The photos were marked as per Exs.P1 to P5 and videograph is at Ex.P41. He prepared hand sketch of place of incident-Ex.P42. He directed the PC 889 to take the dead body to the hospital. Accordingly, he arrested the accused. He recorded the 43 statements of Ashok, Srinivas, Raghavendra, Rajendra, Harish and Santhosh. Thereafter, he has transferred investigation to PSI, Hosanagar. Nothing has been elicited in the cross examination of Pw.17 to disbelieve the statements made in the examination in chief.
(xvii) Pw.18 the villager of Thyajavalli, deposed that Shivappa Bisetappa is the father in law of accused No.3- Parashurama. About 2 years back police have brought accused No.3-Parashurama near the house of the said Shivappa and took his signature-Ex.P24. He doesn't know what are the contents. In the cross examination, he has admitted that house of Shivappa and one Chandrappa are adjacent to each other and said Chandrappa had dig a pit for toilet and accused-Parashuram took the police there but he has denied the accused persons produced chopper from the said pit. He further stated that Parashurama have produced his blood stained clothes from the house of Shivappa. He further stated that the Parashuram is the son-in-law of the 44 Thyajavalli village. He has not committed any mistake and therefore, he has not signed any false documents and Shivappa is good at him. He further stated that when the police came to the village, about 25-30 people had gathered. By the time he reached, everything was over and he just signed the mahazar and supported the case of the prosecution.
(xviii) Pw.19-Raghupathi is also one of the seizure pancha who deposed that on 26.04.2013 police have called him as pancha to accused-Chatrapathi house and he was with the police at about 1.45 p.m., and produced bike, SIM card, chopper and one receipt and his blood stained clothes before the police in his presence. Accordingly the police seized the same under the mahazar Ex.P18. He further deposed that they came to the village of Ayanur. At that time, accused Nos.1 and 2 were there and accused No.1 showed the jewellary shop wherein he has pledged the ear studs. Police have seized before him under seizure mahazar 45 Ex.P19. Accused No.2 took them to his house and produced blood stained clothes and chopper kept on the toilet is also seized by the police and same is marked as Ex.P20. Nothing has been elicited in the evidence of Pw.19, who supported the case of the prosecution.
(xix) Pw.20-Dr.Lingegowda would depose that on 28.04.2013, Ripponpet Police in Cr.No.76/2013 seen 14 items in sealed cover and on medical examination of Mo.5- Ash colour pant, Mo.6-Black colour T-shirt, Mo.8-blood stained mud, Mo.9-plane mud, Mo.10-pant, Mo.11-shirt, Mo.14-chopper, Mo.15-night pant, Mo.16-shirt, Mo.19- chopper, Mo.21-half pant and after considering the examination, he has issued report Ex.P39A. Except item No.2 and item No.8, all the other items were blood stained and he identified Mos.5, 6, 8 to 16, 19 to 21. No cross examination was made.
46
22. The oral and documentary evidence of aforesaid witnesses and voluntary statement of accused Nos.1 to 4, recovery of chopper used for the commission of offence at their instance. It is necessary that prosecution has to prove the case to establish the motive for commission of the offence. According to the prosecution, motive for the offence is illicit relationship between accused Nos.1 and 4 and ill- treatment to accused No.4 by her husband deceased- Raghavendra knowing their illicit-relationship. The prosecution witnesses in categorical terms deposed about the illicit relationship between accused Nos.1 and 4. Pws.1 and 3 have specifically stated and deposed about the way in which the accused No.4 conducted herself on the date of incident. Though there is no independent evidence produced by the prosecution to prove the alleged illicit relationship, the records and call details of accused Nos.1 and 4. There is no certificate with regard to whether the following numbers i.e., 8971050539, 7760067892 were used by the accused No.1 47 and accused No.4 respectively and there were exchange of many calls before the incident occurred. The learned Sessions judge after appreciation of the materials on record, has come to a conclusion that conspiracy between accused Nos.1 to 4 to eliminate the deceased is proved. But the fact remains neither the call record details as per Ex.P30 nor the evidence of call details clearly depose there was conspiracy between accused Nos.1 to 4 to eliminate the deceased.
23. The fact remains that in view of the mandate of the provisions of Section 65B(4) of the Indian Evidence Act, 1872, in any proceedings where it is mandatory to produce a certificate to give an evidence in the form of Electronic Record. But in the present case, no certificate is produced as held by the Hon'ble Supreme Court in the case of Anvar.P.V. vs. P.K.Basheer and Others reported in (2014) 10 SCC 473, paragraphs 16 and 24 held as under:
"16. It is further clarified that the person need only to state in the certificate that the same is 48 to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and 49 announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."
24. Admittedly, the prosecution has not examined the authorized person who has issued call details and no such Certificate is produced which is required under the provisions of Section 65B(4) of the Evidence Act. In the absence of same, the said material Ex.P30 cannot be accepted. Our view is fortified by the dictum of the Hon'ble Supreme Court in the 50 case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal reported in (2020) 7 SCC 1, wherein, the Hon'ble Supreme Court at paragraphs 51 ,52, 73.1, 73.2 and 73.3 has held as under:
"51. On an application of the aforesaid maxims to the present case, it is clear that though Section 65B(4) is mandatory, yet, on the facts of this case, the Respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third-party over whom the Respondents had no control, must be relieved of the mandatory obligation contained in the said sub- section.
52. We may hasten to add that Section 65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases 51 where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.
73. The reference is thus answered by stating that:
73.1. Anvar P.V., as clarified by us hereinabove, is the law declared by this Court on 52 Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated 03.04.2018 reported as Shafhi Mohd. V.State of H.P., do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer"
happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last 53 sentence in Anvar P.V. which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. does not need to be revisited.
73.3. The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers."
25. Thereby, in the absence of Certificate, the conviction passed on the CDR could lead to injustice. Thereby, though the prosecution pleaded to prove conspiracy 54 of non compliance of mandate provisions of Section 65B(4) of the Act, conspiracy alleged cannot be accepted.
26. As already stated supra, the motive is illicit relationship between accused Nos.1 and 4. The same was spoken by Pw.1-father of the deceased and Pw.2-sister of the deceased. Mo.7-ear stud belongs to accused No.4 was pledged by accused No.1 in the shop of Pw.15. Mo.7 was identified by Pw.1. The evidence of Pw.15-Prashanth clearly depicts that he is the owner of the Sri.Krishna Jewellary shop, at Ayanur and he knows accused No.1-Chathrapathi, who was present before the Court. He further stated that he knows the accused since 4 years. Exs.P16 and 17 pledged chit and a chit containing signature of Pw.7 belonging to shop. He had issued the same to accused No.1-Chathrapathi, who had come to him on 31.03.2013 i.e., one day prior to the incident and handed over a pair of Lakshmi ear studs to pledge the same. Accordingly, he paid Rs.7,000/- to him and thereafter, the police came along with accused No.1 enquired 55 him about the pledge by accused No.1. He accepted and handed over the pair of ear studs pledged by accused No.1 to the police, who seized the same as Mo.7. Police recorded the mahazar where he signed as per Ex.P19. In the cross examination he has categorically stated on oath that accused No.1 has received Rs.2,000/- and later Rs.5,000/- on different dates. Police have not received the original of Ex.P16, but received the carbon copy of the original. He specifically denied the suggestion that accused No.1 had not come to the shop to pledge Mo.7. It is not true to suggest that neither the police came nor he has not handed over Mo.7 to the police. He further denied the suggestion that it is not true to suggest that he had signed the mahazar at the police station and deposing false at the instance of the police swearing them. The evidence of Pw.15 clearly deposes that Mo.7 belongs to accused No.4 pledged by accused No.1 in the shop. It is also not disputed that the investigating officer recovered the weapons Mo.13-chopper and blood stained 56 clothes, Mo.10-pant, Mo.11-shirt from accused No.1 as per Ex.P18-seizure mahazar. The seizure mahazar witnesses Pws.7 and 9 in categorical terms deposed that accused No.1- Chatrapathi from his house has taken to Ayanur stating that he had pledged ear studs of accused No.4-Savitha at Sri.Krishna Jewellary shop at Ayanur and stated that he shall give to him by accused No.4-Savitha. He had taken to Sri.Krishna Jewellary at Ayanur. The owner of the shop had kept them in a different place and handed over the same to the police. The owner of the shop had told that he had paid money for the said ear studs, but the police told him that it is irrelevant and he should hand over the ear studs. Hence, he handed over the same to the police.
27. He further deposed that police had taken accused Nos.1 and 2 to a village called Kote stating that they have kept choppers which were used for committing the offence. When they went there, there were no such choppers; it was in somebody's house. Then they all went to that house and 57 accused Nos.1 and 2 handed over the chopper, which was kept on the top of the toilet. Police seized the same and marked as Mo.14. They told that they had washed the chopper at the water tank of the village and had kept the same over the toilet. He identified the said mahazar and marked as Ex.P20 and P20(a). He further deposed that after opening the seal, there were night pant and T-shirt. Police had packed the Mos and he had signed on the slips. The said night pant and T-shirt were marked as Mos.15 and 16. He further admitted in the cross examination that it is true to suggest that accused No.2-Sriram had told them that he would hand over the clothes he was wearing at the time of offence and he would show the same. Accused No.2 handed over Mos.15 and 16 to the police and they were seized in his presence which contained blood marks. He also admitted that it is true to suggest that accused No.1-Chatrapathi was stained with blood. He further admitted that it is true to suggest that he had handed over his mobile phone with SIM 58 card to the police. It is true to suggest that he had signed the slip which he kept in the said phone. Police told them that they had located the accused as offenders on the basis of the mobile calls. He further admitted that it is true to suggest that immediately he and another pancha Raghupathi had gone to the police station. It is true to suggest that accused took them to his house. It is true to suggest that then he took them to Sri.Krishna jewelers at Ayanur. It is also admitted that it is true to suggest that police had videographed the said events. Pw.9-police deposed that police called him and Noorulla-Cw.18 for recording the mahazar on 26.04.2013 to Ripponpete police station. It was about murder of husband of accused No.4-Savitha by Chatrapathi and others. Savitha-accused No.4 was in police custody. She had a mobile with her and she narrated about the murder of her husband. Police had seized the said mobile and marked as Mo.18. There was an Airtel SIM in the said phone. He further deposed that it is not true to suggest that 59 no mahazar was drawn in his presence by the police but he had signed at the instance of police and deposing falsely. He further deposed that it is not true to suggest that accused No.4 was not at all in the police station.
28. The material on record clearly depicts recovery of Mo.14-chopper from the accused No.4 and blood stained clothes of accused No.2. Admittedly, accused No.2 has not filed any appeal against the conviction. Recovery of blood stained clothes of accused No.3 and Ex.P24 blood stained clothes of deceased Mos.5 and 6. The FSL officer-PW.20 deposed about the same. It is also relevant to note that Pw.8-sister of the accused would depose that she is ready to give explanation to protect her brother. Ex.P18 seized from accused No.1. Ex.P22 seized from accused No.4, the same position was spoken to by Pws.7 and 9 stated supra. The recovery of the choppers from the accused Nos.1, 2 and 3 as per mahazar Exs.P18, 20 and 24, Mos.13, 14 and 19 chopper recovered at the instance of accused Nos.1, 2 and 3 spoken 60 by the mahazar witnesses and specifically stated by the investigating officer. The prosecution is discharged from burden about the involvement of the accused Nos.1 to 3 in the homicidal death of the deceased, it is accused persons who have to explain how their clothes were blood stained apart from recovery of choppers from them stated supra.
29. In section 313 of Cr.P.C. statement, all accused have denied in toto not offered an explanation. In the absence of same, adverse inference has to come against accused Nos.1 to 3 as held by the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2019) 14 SCC 438, in paragraphs 11 held as under:
"No explanation is forthcoming from
the statement of the accused under Section
313 Cr.P.C. as to when he parted the
company of the victim. Also, no explanation is
there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is 61 expected to come out with an explanation, leads to an adverse inference against the accused."
30. It is well settled that on recovery of the blood stained clothes from the accused, the accused has to explain how their clothes were stained with blood. Our view is fortified by the dictum of Hon'ble Supreme Court in the case of Nana Keshav Lagad vs. State of Maharashtra reported in (2013) 12 SCC 721, paragraph 27 held as under:
"27. The other submission made on behalf of the appellants was with reference to the human blood found in the clothes worn by A1 and A4. It was contended that the prosecution failed to satisfactorily establish through any independent evidence about the bloodstains found in the clothes of A1, as well as the appellant in Crl.A.No.1010 of 2008. In that respect instead of reiterating the details, it will be sufficient to refer to the conclusion reached by the Trial Court, while dealing with the said contention, which are found in paragraph 63. The relevant part of it reads as under:62
"63. In the present case, the evidence of API Padwal in this respect is not seriously challenged or shattered. After all the accused are arrested under Panchanama and at the time of arrest panchanama of accused Nana blood stained clothes were seized. It is not in any way contended or for that matter even whispered that I.O.API Padwal was having any rancor against the accused or he was motivated or interested in one sided investigation with the sole object of implicating the accused. As a matter of fact, the investigation in this case appears to be totally impartial. When it was transpired that two accused by name Sandeep and Ganesh, the juvenile delinquent have not taken part in the assault, their names were deleted from the prosecution case by filing report U/s 169 of Cr.P.C. Therefore, here the investigation as proceeded impartially and it is also not even for the sake of it, is suggested to API Padwal that, no such blood stained clothes were recovered from the accused Nana, moreover, as per the settled position of law, there is no presumption in law that a Police Officer acts dishonestly and his evidence cannot be acted upon. Therefore, here the evidence 63 of API Padwal is sufficient to prove the recovery of the blood stained clothes of the accused. His evidence also goes to prove that, all these articles blood stained clothes etc., were sent to C.A. and as per the C.A. report Exh.61 the blood was detected on the clothes of the accused and deceased and this blood was human blood.....In the present case, though the C.A. report, Exh.61 shows that, the said human blood was of group "B", C.A. report Exh.62 about the blood sample of the accused states that, the blood group could not be ascertained as the results were inconclusive, moreover, there is no C.A. of the blood sample of the deceased to prove that, he was having blood group "B". However, the fact remains that, the stains of human blood were found on the clothes of accused Nana and he has not explained how this blood stains were on his clothes and therefore, as observed in this authority, it becomes one more highly incriminating circumstance against the accused."
In fact, as rightly noted by the Trial Court, it was for the appellants to have explained as to how the clothes worn by them contained human blood. 64
In Section 313 questioning, no explanation was forthcoming from the appellants. In these circumstances, the said contention also does not merit any consideration.
31. The materials on record clearly depict that the case of the prosecution is that there was illicit relationship between accused Nos.1 and 4 and thereby accused No.4 has given her ear studs to accused No.1, in turn accused Nos.2 and 3 and hatched a plan to eliminate the deceased so that he could continue his relationship with accused No.4. The same was spoken to by the prosecution witnesses in mahazar witnesses. The medical evidence of Dr.Anil Kumar clearly depicts the homicidal death of the deceased. He further stated that he had noticed five major injuries on the deceased and further stated that inner parts of the body, after dissecting it, found cutting of spinal chord in the base of the skull. Other parts were intact. He had collected the clothes on the body to be sent for FSL. The cause of death is due to shock and hemorrhage of injuries to the vital organs. 65 The time since death to the post mortem was approximately 24 hours. Accordingly, issued Ex.P36-post mortem report. Nothing has been elicited in the cross examination of Pw.16- Doctor.
32. The involvement of the accused Nos.1 to 3 in homicidal death of the deceased apart from the evidence of Pws.1, 3, 7 and 9 and accordingly, recovery of the material objects Mos.13, 14 and 19-chopper as per seizure mahazar, Exs.P18, 19, 20 and 24, the accused persons have given voluntary statement. It is true that based on the voluntary statement, conviction cannot be imposed on the recovery made. Apart from the medical evidence, the other corroborated evidence also proved the involvement of the accused persons in homicidal death of the deceased. EX.P36- post mortem report clearly depicts that there were 5 injuries on the deceased which reads as under:
66
Injuries:-
1. Deep chop wound on the (R) side of the neck, below the skull. It was sharp and tailing absent. The skin tissues, muscles including the vertebrae was cut. The Jugular vein and the carotid artery was cut. Blood seen drenched both sides of the neck and shoulders. The measurement was 15cm in length, 3 cm in width and 5 cm in depth. The wound was bony deep.
There was slight abrasions and brusing at the edges. There was mass distraction of the underlying structures of the neck. The depth of the wound was same throughout the wound. The cranium base was depressed and his neck seen almost separated.
2. Injuries: Deep gash injuries incised of same degree extending from the (R) eye to the base of the neck in oblique manner was measuring 28 cm in length 6 cm in width and 4 cm in depth.
Wound was gaping and bony deep and underlying structure visible. Edges was sharp, tailing absent. All the tissue, facial muscles, 67 facial artery, vein, nerve was cut. Face was drenched with blood and blackened in colour.
3. Injuries: Incomplete amputation of the (L) hand between middle 1/3 and lower 1/3. There was fracture of both the ulna and radius bone. Chop wound measures 2.1/2" x 1" x 1.1/2".
4. Lacerated wound between 2nd and 3rd finger extrintic with abrasions surround nail crushed.
5. Deep cut in the post side of the hand (L) side measuring 3" x 1.1/2" x 1"
- The blood stained cloths sent to FSL, Davanagere for the want of interpretation and reconstruct details of the crime.
33. The FSL officer who was examined as Pw.20 specifically deposed that on 28.05.2013, Ripponpet police station in Cr.No.76/2013 sent 14 items in a sealed cover and he examined the same. Except item Nos.2 and 8, all other items were blood stained accordingly, issued Ex.P39-FSL 68 report. The report clearly depicts that item No.1-mud, item No.3-one pant, item No.4-one T-shirt, item Nos.5 and 6 one innerwear (kacha) and one kathi, item No.7-one T-shirt, item No.9-one kathi, item No.10-one T-shirt, item No.11-one night pant, item No.12-one kathi, item No.13-T-shirt, item No.14-one chaddi stained with human blood. Item Nos.1,3,4,5,6,7,9,10,11,12,13,and 14 were stained with blood.
34. Apart from the evidence of prosecution witnesses, there is voluminous medical evidence. Recovery of the choppers at the instance of accused No.1 along with blood stained clothes of accused Nos.1 to 3 which clearly depicts that they have involved in the homicidal death of the deceased.
35. Though the prosecution proved the conspiracy between accused Nos.1 to 4 to eliminate the deceased supported by evidence of Pws.1,3 and 14-investigating 69 officer and call details records-Ex.P30, the fact remains as already stated that for want of certificate under Section 65B(4) of the Act as mandated, the conspiracy cannot be proved. The fact remains the accused Nos.1 to 3 involved in homicidal death of the deceased has been proved beyond reasonable doubt. The entire recovery proceedings and mahazar drawn no way in all the witnesses neither the statement deposed voluntary statement deposed the involvement of accused No.4 in the homicidal death of the deceased except she has conspired, thereby the imposition of accused No.4 under provisions of 302 of IPC cannot be sustained. The material on record clearly depicts that though the prosecution failed to prove the conspiracy for want of production of certificate under Section 65B(4) of the Evidence Act otherwise documents placed on record depicts there was conspiracy. Unfortunately, the investigation officer has not obtained Certificate nor examined the author to issue Ex.P30-call details. Thereby it is the mistake on the part of 70 the investigating officer to facilitate the accused Nos.1 to 4 to escape from offence under the provisions of 120B of IPC.
36. Further, it is the case only charge of conspiracy under Section 120B of IPC. It was necessary to establish that there was agreement between the parties for doing unlawful act and it is very difficult to establish direct evidence at all for the same time in the absence of any evidence to show meeting made between conspirator for concealing the committed act, it is not possible to hold any person guilty for the offence under Section 120B. But in the present case charge was not only 120B, but also Section 302 read with Section 34 of IPC against the accused persons. Though the conspiracy not be proved based on the alleged confession statement of the accused or in the absence of certificate under Section 65B(4) of the Act, even though the prosecution proved the conspiracy between parties by the oral and documentary evidence, in view of the mandate of Section 65B of the Act, they are technically escaping from 71 the clutches of the law to the case on 120B of IPC. The other evidence on record clearly depicts that they are involved in the homicidal death of the deceased under the provisions of Section 302 of IPC.
37. For the reasons stated above under Section 302 of IPC by the appellant in the present appeal has to be answered affirmative holding that trial Court was justified in convicting the accused Nos.1 to 3 under the provisions of 302 of IPC as accused No.2 admittedly has not filed any appeal against the impugned conviction order passed by the trial Court. The second point raised in the present appeal is answered in negative holding that though the prosecution has proved conspiracy in view of the evidence of prosecution witnesses both oral and documentary, the fact remains that they have not produced the Certificate mandate under Section 65B(4) of the Evidence Act, thereby it is not safe to convict the accused persons under the provisions of 120B of IPC. It is also relevant to consider at this stage that, while 72 convicting accused Nos.1 to 4 the learned Sessions judge proceeded to sentenced them to undergo imprisonment for life i.e., they should remain in prison until their death. But that is impermissible in view of the provisions of Section 302 of IPC. Accordingly the sentence to that extent has to be modified.
38. In view of the above, we pass the following:
ORDER
(i) Crl.A.No.1348/2018 filed by accused No.1 and Crl.A.No.104/2018 filed by accused No.3 are hereby allowed in part.
(ii) The impugned judgment of conviction and order of sentence passed by the trial Court convicting the accused Nos.1 and 3 for the offence punishable under Section 302 of IPC and sentencing them to undergo imprisonment for life with fine of Rs.40,000/-73
and Rs.25,000/- respectively is hereby
confirmed.
(iii) The impugned judgment of conviction
convicting the accused Nos.1 and 3 for the offence punishable under Section 120B of IPC and sentencing them to undergo rigorous imprisonment for 2 years and to pay fine of Rs.25,000/- each is hereby set aside for want of Certificate under Section 65B(4) of the Evidence Act.
(iv) Accused Nos.1 and 3 are hereby acquitted for the offence punishable under Section 120B of IPC.
(v) Crl.A.No.596/2016 filed by accused No.4 is hereby allowed.
(vi) The impugned judgment of conviction
convicting accused No.4 for the offence
punishable under Section 302 of the IPC and 74 sentencing her to undergo imprisonment for life with fine of Rs.50,000/- is hereby set aside.
(vii) Accused No.4 is acquitted for the offence punishable under Section 302 of the IPC.
(viii) The impugned judgment of conviction
convicting accused No.4 for the offence
punishable under Section 120B of IPC and
sentencing her to undergo rigorous
imprisonment for 2 years and to pay fine of Rs.25,000/- is hereby set aside for want of Certificate under Section 65B(4) of the Evidence Act.
(ix) Accused No.4 is hereby acquitted for the offence under section 120B of IPC.
(x) Accused No.4 shall be released forthwith, if not required in any other case.75
(xi) It is made clear that the impugned judgment of conviction under Section 302 of IPC is only imprisonment for life with fine imposed by the trial Court.
(xii) The bail bonds, if any, in respect of accused No.4 shall stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE NS