Karnataka High Court
Smt Savitri W/O Laxman @ Honnappa ... vs The State Of Karnataka By Acp Dharwad Sub ... on 13 January, 2011
Bench: K.Sreedhar Rao, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA CIRCUIT
BENCH AT DHARWAI)
DATED THIS THE 13th DAY OF JANUARY 2011
PRESENT
THE HON'BLE MR.JUSTICE K. SREEDHAR RAO
AND
THE HON'BLE MR. JUSTICE C.R.KUMARASWAMY
CRL.APPEAL NO.228/2008
Ciw. CRL.APPEAL NO.342/2008
CRL.APPEAL NO.228/2008
BETWEEN:
Smt. Savitri W/o Laxman
@ Honnappa Bajantri.
Aged about 25 years,
0cc: Primary School Teacher,
Rio 5th Cross.
Kalyan Nagar,
Dharwad. . ..Appellant
(By Sri. K. M. Shiralli, Advocate)
AND:
The State of Karnataka,
Through ACP.
Dharwad Sub-Division ... Respondent
(By Sri. G. Bhavani Siugh. S.P.P.)
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This criminal appeal is filed u/s.374(2) of Cr.P.C.. by
the Advocate for the appellant against the Judgcment dated:
23-01-2008 passed by the Prl. Sessions Judge, Dharwad C/c.
II Addl. Sessions and Spl. Judge, Dharwad In Spi. (SC & SI')
C.C. No.3/2006 convicting the appellant/accused No.2. for
-
the offence P/U/S.302 r/w Sec.34 of IPC.. and sentencing
him to undergo RI.. for life and to pay fine of Rs.l0,000/-
and I.D., to pay fine amount to undergo S.l., for a period of
one year for the offence P/U/S. 302 of TPC.
CRL.APPEAL NO.342/2008
BETWEEN:
Mahantesh
S/o Puttappa Neelanagoudar.
Aged about 25 years
1
0cc: Student and Pvt.. Service.
R/o Holesiragerl Village,
Tq: Harihar. Dist: Dhavanagere.
Now at ls1 Cross.
Kalyan Nagar.
Dharwad. ...Appellant
(By Sri. K. M. Shiralli, Advocate)
AND:
The State of Karnataka.
Through ACP,
Dharwad Sub-Division ...Respondent
This criminal appeal is filed u/s.374(2) of Cr.P.C.,
by the Advocate for the appellant against the
Jttdgerneni dated: 23-01-2008 passed by the Pri.
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3
Sessions Judge. Dharwad C/c. II Addl. Sessions and
ST) C.C.
Spi. Judge. Dharwad in Spi. (SC &
No.3/2006 --convicting the appellant/accused No.1,
for the offence P/U/S.302 r/w Sec.34 of IPC., and
sentencing him to undergo R.I.. for life and to pay
fine of Rs.10.000/- and 1.D., to pay fine amount to
undergo S.I., for a period of one year for the offence
P/U/S.302 of IPC.
These appeals coming on this day for final
hearing. C.R. Kumaraswamy. J.. delivered the
following:
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COMMON JUDGMENT
Crl.Appeal No.342/2008 is flied by the
appellant/accused No.1 U/s.374(2) of Cr.P.C. against
the Judgment of conviction dated 23-01-2008 passed
by the Prl. Sessions Judge, Dharwad. concurrent
charge of court of Spl. Judge, Dharwad in Spl. (S.C.
& S.T.) C.C.No.3/2006 convicting him for the offence
punishable U/s.302 r/w 34 of IPC and sentencing
him to undergo rigorous imprisonment for life and to
pay a fine of Rs.l0.000/- and in default. to undergo
simple imprisonment for one year.
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2. Crl.Appeal No.228/2008 is filed by the
appellant/accused No.2 U /s.374(2) of Cr.P.C. against
the Judgment of conviction dated 23-01-2008 passed
by the Prl. Sessions Judge, Oharwad. concurrent
charge of Court of Spl. Judge, Dharwad, in Spi. (S.C.
& S.T.) C.C.No.3/2006 convicting her for the offence
punishable U/s.302 r/w 34 of IPC and sentencing her
to undergo rigorous imprisonment for life and to pay
a fine of Rs.l0.000/- and in default. to undergo
simple imprisonment for one year.
3. Both these appeals arise out of Spi. (S.C. &
S.Tj C.C.No.3/2006. Therefore, these matters are
taken together.
4. The contents of FIR Ex-P-43 discloses that
Sub-Inspector of Police, Vidyagirl Police Station.
Dharwad. has registered a case in Crinic No
219/2005 for the offence punishable under section
302 read with Section 34 of Indian Penal Code
p.....
q
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against accused No.1 -Mahantesh Puttappa
Neelangoudra. resident of Kalyan Nagar. on the
complaint of shivananda Bajantri. Son of
Hanamantappa Bajantri. 39 Years. Primary School
Teacher. resident of Dannu Nagar. The occurrence of
the offence Is on 9-12-2005 at 14-30 hours. The FIR
was received by the learned Magistrate on
10-12-2005 at 4-30 am through Head Constable No:
568 of Vidya Nagar Police Station with a enclosure.
The enclosure is the complaint.
5. The contents of the complaint is as under:
The complainant has 4 brothers. They were living
separately. His second brother Honnappa @ Laxman
was residing at 5th Cross, Kalyan Nagar, Dharwad.
His another brother was living In Kaladgi. His 4"'
brother Chidanand is living in Danu Nagar.
6. His Second brother Honnappa. aged about 30
years. fell in love with Savitri and he married her in
the year 2001. They were residing at Kalyan Nagar.
€7
0
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They had one child aged about 2 ½ Years by name
Rachana. His younger brother was running a Dial
Center and Stationery shop in the name and style of
Rachana. In order to look after the shop he engaged
the services of Mahantesh Puttapa. He was residing
In the house of Honnappa and he was also taking
food there. He was studying In final year B.A. Degree
Course. His second brother's wife Savitri was
working as a Primary School Teacher at Banichi
village.
7. Its contents further discloses that on
9-12-2005 at 3-45 P.M. complainant was
participating in a meeting held at office of the Adult
Education. His colleague B.B. Sutar informed that
Hampamma through mobile phone informed him that
Honnappa's condition was serious. After receipt of
5;ti Cross.
the information complainant proceeded to
Kalyan Nagar. When he came to the house of his
brother Honnappa it was 4 p.m. Dead body of his
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brother was kept at veranda. There were Injury
marks found on the neck. Blood was clotted on the
stomach and palm. Then he enquired Mahantesh.
He told him that he came to the house at 2-30 p.m.
to take food and he tried to wake up Flonnappa but
he did not woke up. Therefore. he with help of his
friends shifted Honnappa to veranda. Then the
complainant telephoned to his brothers and also to
his sister. He also telephoned to Savitri. Then the
Savitri came to the house. Then Chandrakala and
Hanmantappa Bajantri examined the dead body at
11-30 pm. Then they suspected that Mahantesh
along with his friends might have committed this
crime.
8. Its contents further discloses that since
complainant found injury on the neck and palm. he
suspected that his younger brother has been
murdered by Mahantesh along with his friends on
2..
B
9-12-2005 at 14-30 hours. On the basis of the
suspicion he lodged this complaint.
9. The contents of the Charge sheet discloses as
under: -
That on 8-12-2005 at 11-30 pm accused No. 1
and 2 were having Illicit connection and in case if
this information is revealed to Savitri's husband, he
will obstruct the illicit relationship between them.
So in order to overcome this, they thought that in
case If they kill him. there will be no impediment to
continue the illicit relationship between them.
Therefore they both joined together and with the aid
of veil strangulated Honnappa and the deceased
belongs to scheduled caste and thereby accused
Nos.1 and 2 alleged to have committed the offence
punishable under section 302 read with Section 34 of
Indian Penal Code and also under section 3(2)(v) of
SC & ST (Prevention of Atrocities) Act, 1989.
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10. PW. 1 Shivanand Hanumantappa Bajantri
has deposed that his deceased brother was running a
STD Booth and Stationary Shop at Kalyan Nagar.
On 02-12-2001, his deceased brother married with
accused No.2. After his marriage, he was residing
with his wife separately. After his marriage, the
accused No.2 was appointed as a Teacher in a place,
which Is at a distance of 20 Kms. from Dharwad.
Daily she was travelling from Dharwad to attend the
School. Accused No.2 belongs to Nekar caste, which
does not come under the category of SC or ST. Two
years prior to his murder. his deceased brother
engaged the services of accused No. 1 to look after his
STD Booth. Accused No. I Mahantesh is Lingayat by
caste. which does not come under (he category of SC
or ST. While accused No. I was looking after the STD
Booth of his deceased brother, he was taking his food
in the house of his brother. On 09-12-2005 at about
3-45 pm. when he was attending the meeting in the
(0-
4
]0
Office of the Adult Education, he received a mobile
call from CW.20-Smt. Hampamma Madar that his
brother Honnappa is in serious condition.
Immediately he went to the house of his brother and
saw the dead body of his brother In the veranda. He
noticed ligature mark and injuries on his forehead.
He enquired the accused No.1 as to what happened.
He told him that he was not feeling well and when he
came to the house for meals, with the assistance of
his friends, he shifted his brother to the veranda. He
suspected that it was a case of murder and
immediately. he informed accused No.2 over
telephone by obtaining her telephone number from
accused No. 1. He also informed his maternal Uncle
Hanumantappa Bajantri and his sister Chandralekha
and his other relatives. All of them asked him to wait
till their arrival and not to shift the dead body.
Accused No.2 reached the house at about 5-30 or 6-
00 pm. CW. 12 and his wife and other relatives came
t.
S
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at about 11-30 pm. After their arrival, they
meticulously saw the dead body and noticed blood
clots on the left side of his chest, stomach, and a
ligature mark around his neck, Injuries on his
forehead and some abrasions on his face and it was
confirmed that he has been murdered. At that time,
he suspected that accused No. 1 was behind the
murder of his brother. He also observed illicit
relationship of the accused Nos. I and 2.
Immediately, he went to Vidyagiri Police Station and
lodged a complaint at about 3-00 am. on the
intervening night of 09.12.2005 and 10.12.2005. He
gave oral complaint, which was reduced into writing
as per Ex.P. 1. The Police conducted Inquest
Panchanama of the dead body In the presence of two
panchas i.e., CV.2 and 3. He identified the clothes
seen by him on the dead body of his brother. they
were pant, banian, underwear of his brother. By
seeing the ligature mark around the neck of his
1•
4,
12
it appeared to him that he has been
brother,
murdered by strangulation. Article Nos.2. 3 and 4
are marked as M.O.Nos.1, 2 and 3. Though the
sake
suggestion was put to this witness that for the
d Nos. 1
of money, he has falsely implicated accuse
the said
and 2 in the case, this witness denied
suggestion. He gave complaint against accused No. I
used
on suspicion on seeing his behaviour with acc
, Mos.1
No.2 prior to the incident. At no point of time
Police
to 4 were shown to him by the Police in the
Station after the incident.
11. PW.2-Umarsab Khadarsab Sagar, Is panch
witness for inquest and spot panchanama. He states
an
in his evidence that he saw the dead body of Laxm
and
and there was a ligature mark around his neck
from
blood clots on the left side of his body apart
Police
scratch injury caused by nail on his face. The
in his
conducted Inquest Panchanania as per Cx.P. IS
a.
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presence. He showed the spot of the incident to the
a as
Police, and the Police conducted spot panchanam
per Ex.P.13.
12. PW.3-Abdul Wahab speaks about recovery
M.O.4.
of veil, which was of Rose colour, marked as
house.
Accused No.2. opening the front door of her
and
showed the spot. She also opened the almerah
thereafter she produced M.O-4. Photographs were
also taken.
13. PW.4-James Manes Dara was panch witness
for seizure of clothes of the deceased. He states in
the
his evidence that he noticed the nail injuries on
left cheek of accused No.1. When he enquired
No. I as to how he sustained the nail
accused
he volunteered that at the time of
Injuries,
nd
strangulating deceased Laxman, in order to defe
s and
himself Laxman scratched on his face with nail
thereby he sustained injury. The Police prepared
C-..
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panchanarna in his presence as per Ex.P.22. The
evidence of PW.5-Shlvayogi Fakkirappa Bavikatti is
on the same line as that of PW.4.
14. PW.6-Chandralekha Huchchappa Bajantri
states in her evidence that PW. 1-Shivanand is her
elder brother and the deceased Laxman was her
younger brother. Her deceased brother married with
accused No.2, which was a love marriage. After the
marriage, accused No.2 was appointed as a Teacher
In a Primary School at Benachi near Alnavar.
Accused No.1 developed illicit relationship with
accused No.2, taking advantage of absence of the
husband of accused No.2 for his business purpose.
By seeing their behaviour he was ashamed. Later on,
she came to know from her elder brother Shivanand
the rumors about the illicit relationship of accused
Nos.1 and 2. The evidence of PW.7, PW.8, PW.9,
PW.1O, PW.1l, PW.12. PW.13. PW.14. and PW.15
S.;
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used Nos. 1
speak about the illicit relationship of acc
and 2.
PW. I 6-Baburao Bhlmarao Sutar was
15.
rwad City.
working in Zilla Saksharatha Samithi, Dha
2005 there
He states in his evidence that on 09-12-
sharatha
was a meeting in the office of Zilla Sak
Shivanand
Samithi, which was attended by him and
.. while he
apart from others and at about 3-20 pm
tacted him
was in the meeting. Hampamma Madar con
of Shivanand
over his mobile and stated that brother
Parashuram
by name Honnappa Is serious. PW. 17-
dropping of
Subbarayappa Subanavar speaks about
iti to the
PW. 1 from the office of Saksharatha Sam
spot of offence. PW. 1 8-SanJeev Yallappa Madiwalar.
is room mate of accused No.1. This witness has
turned hostile.
16. PW.19-Dr.K.Devendrappa. who conducted
examination on the dead body of deceased
P.M.
16
Honnappa © Laxman, Sb Hanamantappa Bhajantri,
aged 32 years, gave opinion that cause of death of
the deceased is due to asphyxia as a result of
strangulation. He also gave opinion with regard to
M.O.4, which was used for commission of offence. He
examined it and opined that death might have been
caused by strangulation with the aid of M.O-4. veil.
17. PW.20-Dr.Balappa Basappa Oni speaks
about the injuries sustained by accused No.1. He
states in his evidence that if a person is attempted to
kill by strangulation by another person, and If the
victim resists the same. such type of injury can be
caused.
18. PW.21-Dr.Mohan Hanmantarao Kulkarni
has given opinion with regard to ligature mark
and also gave opinion that wounds found on
the dead body of the deceased were
anti-mortem. PW.22-Allabaksh. [lead Const able
f.
A,
17
speaks about carrying of dead body of the deceased
to the District Hospital for P.M. examination. PW.23-
Anandkumar Nagappa Alawadi, kept watch on the
dead body.
19. PW.24-Gregory Subramanya X'vier turned
hostile. A suggestion was put to him that he went
towards his house and peeped into the window of the
bed room and he saw both the accused throttling
deceased Laxman with veil and in order to rescue
himself Honnappa @ Laxman was crying and accused
No.1 was instigating accused No.2 that they should
finish him and by saying so they intensified their act
and thereby they killed him by throttling, and he has
denied this suggestion.
20. PW.25-Basavaraj Shankreppa Ullagaddi,
Head Constable, carried complaint and FIR in Crime
No.219/2005 to concerned Jurisdictional Magistrate.
Ct
t
Pb
18
Dadapeer. He has
21. PW.26 is Tanaveer B.
t sh ift in g of th e dead body of the
deposed ab ou
azeez
fro m roo m to Hall. PT27.Abdtjl
deceas ed
ene of
drew a sketch of the sc
Fathesha Badabade.
,
nc e. PW . 28 -S an je ev Shivasharanappa Noola
occurre
e dead
ot og ra ph er. ha s ta ken photographs of th
Ph
of th e in cident. PW.29-Altaf
body and th e sp ot
.30-
m m ad , ca rri ed th e articles to the FSL. PW
Aha
operty
MC, furnished the pr
Basavaraj, SDA of HD
of
of ho us e pr op er ty standing in the name
extract
-
in S. Al ag od i, re sid en t of Kalyan Nagar on 08
Melw
pe r Ex .P .5 0. PW .31-Nazirahammad is
03-2006 as
g
hs ild ar . He ha s iss ue d caste certificate statin
the Ta
ngayat
at th e ac cu se d No . 1 belongs to Hindu Li
th
d ac cu se d No .2 be longs to Hindu Nekar
caste an
PW .3 2- Sh iv ap pa Fa kk irappa Doddamani is the
caste.
neer
!, wh o po in te d ou t th e spot to the PWD Engi
AS
PW . 33 -M an oh ar Ch anabasappa Yalavagi,
PW.2 7.
of
ks ab ou t re gi ste rin g the case U/s.302 nw 34
spea
4*
19
laint and FIR to the
IPC and forwarding the comp
.34 is Abduisab Sultan
Jurisdictional Magistrate. PW
further investigation of
Ghori, Dy.S.P. He took up
st panchanama of the
this càsê. He conducted inque
t of the witnesses, and
dead body, recorded statemen
for medical
sent accused No.1 to the Hospital
atm en t. He als o gav e req uis ition to PWD Engineer
tre
pare the sketch of the
to inspect the spot and to pre
opinion of PW. 19, as
spot of the offence. He sought
wh eth er blo od clo t fou nd on the dead body was
to
d he handed over
ante-mortem or postmortem an
se to PW.37-Basappa
further investigation of this ca
lice Inspector. PW.35
Sunpamallappa Angadi, the Po
a Deputy
P:t! Laxman Pas; 'He is working.as
rensic Science labnatory,
::. Dltectcir of Regional Fo
t absence,of poison n the
BegtuL fle speaks abou
Si 4.
ans Ka4*4sx,,
.:
pa
P*1i6-Yeliqp w
A.
lL, Beruen3
caflied t1Lt 'articles to Rf
dçpq$gd PW.36 to
Basapa Suanamaliappa Angath,
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RFSL, Belgaum with 3 sealed articles to hand over
the same for chemical examination.
22. The Sum and substance of the findings of
the trail Court Is as under:
The Trial Court mainly relied upon the evidence
of PW.1 and PW.6 to PW.14. regarding motive and
also illicit relationship between accused Nos. 1 and 2.
The Trial Court also relied upon the evidence with
regard to recovery of M.O.4-Veil. The Trial Court also
relied on the injury caused on accused No.1 on the
basis of Ex.P-37- wound certificate. The Doctor gave
evidence that death was due to strangulation as per
Ex.P.33. The death was occurred in the house of
accused No.2, where the accused No.1 was working
tinder the deceased. Taking into consideration of all
these. the Trial Court came to the conclusion that
accused Nos. I and 2 are guilty of the offence
punishable under section 302 of IPC. Feeling
it
21
. accused
aggrieved by the Judgment of conviction
No.1 and 2 have preferred these appeals.
the
23. We have heard the learned counsel for
and also the learned state public
appellants
We have perused the trail courts
prosecutor.
records.
l
24. It is the contention of the learned counse
improved
for the appellants that the motive is an
ught out
aspect and subsequently this aspect has bro
ial stage
on record by the prosecution. but at the init
nt. At the
it was not mentioned in the Ex.P.1 complai
first instance, P.M. examination was conducted
between 1-00 pm, and 3-30 pm. on 10.12.2005.
between
Inquest panchanama-Ex.P. 15 was conducted
the same
8-00 pm. and 10-00 pm. in the night on
secution
day. He further submits that the case of pro
is not genuine.
6'
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r supports
25. The learned state public prosecuto
er. He further
the impugned Judgment and ord
e on record to
submits that there is sufficient evidenc
lty of the offence
hold that accused No. I and 2 are gui
charged.
ration is
26. The Point that arises for our conside
impugned Judgment calls for
whether the
ve point is as
interference or not? Our answer to abo
under for the following reasons:
omnibus
The evidence of PW. 1 to PW. 14 are all
They only speak about illicit
statements.
accused Nos. 1 and 24 They do not
relationship of
of offence. It is
speak anything about the commission
the appellants
submitted by the learned counsel for
e in love with
that accused No.2 and deceased wer
Therefore, all the
each other and later they married.
d Nos. I and 2
relatives were unhappy and accuse
Therc is no
were falsely implicated in the crime.
: .--
(4
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chain of circumstances established to point out the
guilt of the accused.
27. We have carefully perused the evidence of
all these witnesses. At the first instance the
complaint was lodged on suspicion. The suspicion.
however grave, cannot take place of proof. In this
case, accused No.2 was in love with deceased
Honnappa and they married. Accused No.1 was
working under the deceased. Accused No. 1 was
having illicit relationship with accused No.2, and on
suspicion, they have been implicated in this crime.
The evidence of prosecution witnesses do not speak
about the involvement of the accused. They only
mention about illicit relationship between accused 1
and 2. The material brought out by the prosecution
is only about illicit relationship between the accused
Nos.l and 2. None of the witnesses speaks about the
24
involvement of the accused in the commission of
offence.
27. It is submitted by the learned counsel for
the appellants that post mortem examination was
conducted prior to inquest panchanama. We have
carefully perused the inquest panchanama and also
post mortem examination report. The inquest
panchanama discloses that inquest was conducted on
10-12-2005. between 8-00 am and 10-00 am., The
column No: 15 of the inquest panchanama reveals
that on 10-12-2005 at 10-00 am head constable
1860, as per the direction of Police Inspector, sent
the dead body to District Hospital, Dharwad. for post
mortem examination. The post mortem examination
report reveals that autopsy was conducted on 10-12-
2005 between 1-30 pm and 3-30 pm. Therefore it is
incorrect to say that autopsy was conducted earlier
to inquest panchanama.
4/
'C
25
amination of PW-1O he
28. During the cross-ex
th at him sel f, PW- I and Police
clearly ad m its
on
us se d to ge ther an d lodged the complaint
di sc
his
e witness. He states in
suspicion. PW-24 is the ey
nc e th at he th ou gh t it is a quarrel between
evide
such he returned to his
husband and wife and as
He did no t go to th e house of accused to see
house.
wa s go ing on th er e. He does not know the
wh at
appa. PW-24 has turned
cause of death of Honn
to th e sid e of pr os ecution. At the first
hostile
officer kept his opinion
Instance, PW-19 medical
ry
rensic Science laborato
pending for want of Fo
. Th e na me of ac cu sed No-2 is not found in the
report
FIR.
mainly relied on the
29. The Trail Court
nc e of ill ici t re la tio ns hip between accused Nos:
evide
7-
MO-4-veil and also Ex.P-
1 and 2. recovery of
sed No.1 to come to the
wound certificate of accu
th at ac cu sed are guilty of the offence
conc lus ion
4.
4----
26
charged. In this case there is a positive evidence to
the effect that the complaint was lodged on
suspicion. There is positive evidence to the effect that
after due deliberation, complaint was lodged. There
is improvement and omission in the evidence of
relatives of PW-1. Accused No-2 was not present at
the spot when the complainant came to the house of
Honnappa. Seizure of MO-4-veIl, evidence relating to
illicit connection and Ex.P-37-wound certificate of
accused No. I are all corroborating piece of evidence.
There is no evidence to support charge leveled
against the accused. The Finding recorded by the
Trail Court is not based on legal evidence. It is
based on surmises and conjectures. The prosecution
has failed to establish the case beyond all reasonable
doubt. Therefore we are of the opinion that the
Judgment of conviction suffers from infirmity and not
sustainable in law and therefore the same is liable to
be set aside
27
30. In that view of the matter. we pass the
following: -
ORDER
Both Criminal Appeals No.228/2008 arid 342/2008 are allowed.
The Judgment of conviction passed in Spl. (SC & ST) C.C.No.3/2006 on the file of II Sessions and Special Judge. Dharwad is hereby set aside.
The appellant/accused No.1 in Crl.A.No.342/2008 & the appellant/accused No.2 in CR1.A.No.228/2008 are acquitted and they are set at liberty, if they are not required to be detained in any other case.
Registry Is directed to communicate the operative portion of the order to the Trial Court as well as to the Jail authorities.
Sdf JUDGE UDQE 'uRN!