Karnataka High Court
State Of Karnataka By Basavanahalli ... vs S P Prasanna on 24 June, 2011
Equivalent citations: 2011 (4) AIR KAR R 230
Author: N.Ananda
Bench: N.Ananda
-1- IN THE HIGH COURT 0:?' KARNATAKA AT DATED THIS THE 24?" Dg€';'¥"'€3'.I€'¢J'L'_T"E\EE.: , 1° PRESENT _ THE HON'BLE MRS$1;L$sTIcE'--N.ANAh3DA " THE HONBLE MR.Jfi'$frcE RAQ CRIMINAL. EQPEAL; I:I§;"1'55' 1 .2005 BETWEEN: _ _ State of Ka:n--ata§<.'a_by. I _ Basavanahalii_"PQI'i'C€:, b ..,Appe11ant (By Sri;'N';:3.,S%:mI3§i:1gi1*a11iaiah«,"'H€'C§P) " " S.P.Pra$a--:1_n*a.v A = V S / of Parvath a 'G0_\>'vda',=_ Ageffn about 2'1~yea1:'s, V Occi" AgAri«3u1ture,"" """ R/0. Shivafiahalli, V' B¢1'L:1: "}'3a'1'uk; " ..,aResponden1: /$«.§§':LS_1ié1nkarappa & Associates, Advocates) ' .. 'f'h_isVappeaI is filed under Section 378(1) <3: (3) Cr.P.C§, Aagiainstthe judgment/order datéd M.--»3~2005, passed by the ~ Principal Sessic:)n$ Judge at Chickmagalur, in ' S;»£'..%;\Io56/199?, acquitfing the respand€nt;/ ac<::,1s€d of all the g:harge.s levelled against him, This appeal having been heard and reserved far jucigmenf, an 27.05.2011, (taming on for prenouncement this day, V'S,Appa Rae J" 2:i€r1iV2r€d. the f0flowing:~ 2" JUDGMENT
This appeal is filed undet' Section Cr.P.C by the State of Karhataka Basavanahalli Police; against l:l1€vj;'tl'Clg111€I1'l;. b in S.C.N0.6/1997 on the file 01" llS'<°,esit)r:.s Chickrnagalur, whereby the -.s€:il.e acc'used.VVcl1,_af'ge'dafar the offence under Section 302 Il?C~xi}as lacAquitte'dvVI,1nIi§er Section 235(1) Cr.P.C.
2. The televan:t""faet:s appeal are as follows:- l H V i 4' l l "" H the daughter of PW2 2Plll7'.il..___Smt.Sidclagangamma who hails from Kai1il%.enahalli'i.iiiTaluk of Hassan District. The res}j.;>C>i1:lent~.ac»<:iiselcl 'hails from Shivanahalli. One is the Hélieand father of accused who also hails frern" Kaztikehahalli, the village in which the parents of deeeaseei _afre residing. The accused was in the habit of srisitifigthe house of grand father of deceased. At that time 1«;g_3§'.--aS alse visiting the house of parents of the deceased and lisecame very close to the family members of deceased, including the deceased whe hast attained puberty. ' 5 .14, , < J V} 5? ' "C/' M3 3 -
it} Some time prior to Gowri festival in the yearil 998$ eleceasecl Nagarathna left the house with persorial belongings stating that she would go her V' Sn:1t.Rajarnma's house situated at Sleve.nt«hanahalli,_"Sinee she did not return to her parents honse evenlvafter 44}. days,' her mother PW3 sent her hushiand PVV2-. to'VSa_Vanthanahallir PW2 went there and found cleicelased had n.ot.-g§one there. He returned baek toll 271'! Search of his daughter at Bangalorelas' Bangalaore along with some tovplearnlltailoring. There also he conld.VnotitraoeVehlsjtdanghterp,.}Thereafter, PW2 reported missing of PW4 Ramegowda. Both of them left to Bangalore of deceased but could not trace here . Howe\"fer_,V PW4 came to know from some known persons news iterriappeareel in papers about the death of a at Chikrnagalur. PW---4: sent word to PW2, 'who met E53/lyféll' at Javagal.
l .. It is also the ease of the prosecution that on 15-8« 2 §VVS} M,L.Harish, Manager of Padrnashree Lodge at Allfjhielimagalur noticed foul smell emanating from Room ll "HNo.lQ2 of the loége. It was revealeci to him that the occupants of the said roong which was taken on l2-8~l9Q6, '1; ,.-
.; 'Vi,'-K mate had not reperted at the reception abeut the inferrned PW} K.J.Venkatesh owner of the font smelt emanating from the te;:ekeetreein. informed Basavanahalh Police. De\:zen:ti'reipp'é3.,."'the"n Sub~Inspec:tor of Police, viéitexciiv the and eeeured panchas PWS 10 and l"7.V_and."t{/tfci' wentneétr the room along with PWS 1 and '7'to."9 fem.-net vAfettI_'_.3me11 emanating from the r0o:n;':¢¢:}§"§7Sf~1:§_} lock of the room and found' the cot. He obtained a Comp12:tint~ a Panehanama as per 'C'_.:ri.rne N0.151/ 96 for the offence under See'ti.env.302_ IPC 'against one Naveen in whose name thetgoetn was téiken____:5;nd filed FIR as per EXP13. Thereafter, ~ [fv€tt1Vt'i1€C3;..lfCv the lodge with staff and noticed M05 1 to 13 H infithe a carry bag MO 27. He seized the articles unete: he heanehanarna EZXPS and handed over the iilveetigéttion to PW23 C.K.Shashi-dhar, the CPI who came to epet. PW23 took-up investigation, heid inquest ever the "dead bedy under a eanehanama EXP9 and recorded the statements of PWS 7? 8, 9 and the Manager and room boy of the Iosige. Thereafter, he handed-over the dead body to PWM E:-E Police éilenstabte for post mertem. The phetegraphs x - gym; 6,»./Na, », at //x M5"
{cefleetively marked as M.0.l4} of dead body were taken by PVx!}7~K.R.Raju. PW~2O Medicai Officer cer1ciucte,et'a.post rnertern examination ever the dead body of the Since there was nohedy te claim the dead'V_"'bQd§{;' hurried. PW114 produced MOS tr) 24 were found on the body of the decease'd._before."_tP'A. 23; 84996 PW23 seized .ex.r>7 th'eci}e.dger Register ¢'if_£1{é ledges Thereafter he received" the post repert' E§r.P19. He forwarded MOS 24 to the examination.
iv} who showed MOs 1 to 2 and 4 identified them their statements were the deceased by seeing the photografjhflzshh 1-104996 PW28 arrested the acéifitscd' from T218. ____ house at Shivanahalli, recorded the ~ x;r 0}untar)y<ts<tate:hent as per Ex.P26 and recovered MO 23 the H eifthe room in the presence of panchas under a parrchaharria Ex.Pi2. Thereafter, he recorded the statemehts of PVVS 2, 3,5 and CW6 and further statements of am 9. On 3-10~1996 he seized M021 a long note "beak eerrtainmg the admitted Writings ef the deceased under
-9» the parents ef the deceased cannot be belie_v.er71__A'_:e't=s5;v atrtichieext must have been planted by the p{3hce_e.hjduc0h§fietich~._céir3rtct be based on discovery of_art:Zc«1es.'=--In 31,:-expert' of "thisj contention, the counsel 131aceiivr:eiiance jhthefitiechisicn in the case of MANI vs. [IL "reported in 2008 AIR sew 575. {ff the.tij.scovered articles were lying the dead body.
The said after 1.0 days of the incidentvfieietteifigspt the prosecution to prove the to the accused. Evidence of prosecutiwch. the corpse at night did not report tiull 10'"a«.m_._r:eXt day. In such circumstances, the ' Si1'prem_e'~tCo_t:'1't'he1d that it was a clear case for benefit of H t!eub't. cbserved that it was a weak kind of evidence and cdnyiction in serious matter cannot be based on ciiscevery of articles about 300 feet away from the dead body "eVfterAt11ore than 10 days of incident. "7. In the ease of SATTATIYA @ SATISH RIXJANNA IE<;AR'FALLA vs STATE OF MAHARASHTRA reported in 2008 AIR SCW 1186 the Hcmfbie Supreme Court while discussing the "last seen together" theory has ebserved that the 'J. '» .«. :~¢'~3'<,/' 1/ J /r /' « iO~- ll evidence of witrress is full {if contradictions arid r1.«::r_*L4'1.2s/fv':)';=i:h§,?"r;>f acceptance V'
8. Lastly, the learned counsel for thelaecu:sed'4_relied upon the decision in the case ifs SHIBU @ SHIV NARAIN reported:irjill2§lO8(2.)v_»_él.cqu~itlall"--~l:?l'Gu {SC} wherein the Supreme Ccurtehasvhobserved uflilallllthere no embargo on the Ap.pellaiell'€eiurl'r res.fiewirrg"veI.Ii.clVer1ce upon which an order of v".lLI.'lie High Court, as Court of firstgveppeal, go greater detail of evidence has resulted from the has to act with great 'care before ordering reversal of acquittal} l "
The 15:~o'sec!ut:on has relied on the following _ '<;ircu.rrie.tar\ces ":§:> prove the case against the accused :~ The accused had developed illicit intimacy *~§ei;:h deceased and had caused her pregnancy and V wariied to get rid of her, {ii} The deceased was last seen alive in the company of .--///V accused. =56 'ea-M' M".
{iii} On 12.681998 at 8.36' p.rn or $.00 phi. the aeeuseé had taken deceased to room n0.1O2 ef Pagirriegshree iodge at Chiekrnagahir and occupied roe-jrn"4b3j falsely representing himself as Naveen. b V' "
{iv} After commission of c>ffer1ee; aCe_iised"d.isappea:.1'ed frorn the lodge after Ioekingrireonir;Q:1=02 wji.theiiVt'reg:510rting"r. at the reception eoiinterf' (V) Reeevery of key Voluntary statement made (Vi) The foignd ti1e::Irjdge___register and standard (Vii) afu ah)' hdeéxéreloped intimacy with deceased Nagaraihnai Vfreiquently visiting her house in the absence Viiheruparients, In order to prove this circumstance, the examined PWS 2, 3, 4 and 5, PW-«2 E{:.'C3_.Ba_:sa*;eii*eiju is the father of the deceased. He has stated _that "the; accused used to visit their house new and then;
J£h8ifl"h€ is distantly reiated to him; one Mari Gowda is the .. .V_g:frand»father of the accused Whe hails from his place and accused used to go to his viiiage to see him; that the V is ,,.»«:~«, >' z / ii, fife / the evidence of P199320 Dr,S.K.Ramaeha:idra who autopsy over the dead body of the deoeasedoio shows that deceased was pregnant therefoi*e~.-the pr:0eess__of decomposition set-ir1 early. His eifideiieejjvfurther'-shouzs that protruding of the tongue and it beirrg eaughthrbteti>veenuVthe" , teeth may indicate that it magi/heh'oh aceoiiruoi oressure on the neck or due to sniotheriiiigh thereforeueiear from his evidence that the death of homicidal and deceased was eagrrying;pregriahéejfiat_the"tirhe of her death. C) ;fl:1e'i:_"'Vifi€Xi'i" relied upon by the proseeutiori 4thejde_eeasedVHWhi1e leaving her house had statedxthat ~tQv'he1' aunts house. Both PWS 2 and (parents)'V~.ha~*qeV"stated in their evidence about the l_eavii1g'the«'house saying that she would to go her ' at Sevarithanahalli. One Week thereafter PW--2 H see his daughter hut he was toid that deeeased "has not Visited the house of his sister-iridaw. Thereafter, PW~2 Went to Bangalore in search of his daughter thihitiing that she might have gone for learning tailoring work. ,V __i§3W~3 also stated that after Gowri festivat her daughter left the heuse te Sevarithariahaiii. At that time she Carried a Vanity , ,,Y« 3 ,/ ; V _, '\ /"
// "$4- bag, purse? bangies, tooth brush a pair ef clothes and she was Wearing an ankle: chain, a silver earmstud and'-.ai~g;e1d n0se~stud. PWV3 prepared rava iaddus and 5§T5_€x}:"_ daughter. As she did not return for abo_uvt----»0n'eV Week, she sent her husband PW~2 to bring the Went and returned back stating that._da:1ghtei"V*t-did get fed his sisters heuse. Thereafter' herd' went to Bangalore in Search 0vf;:da;_ughter_.'VA from tiriedevidence of PW2 to PW4, it is Clear iznetives to falsely implicate thefaergléed.
Tiigi'-. relied upon by the proseeutien body of the deceased was found in Roam No; "---i.__figdmashree Lodge situated at N arzjjsi'nghara0~ a it Read, Basavanahalii, Chikinagalur. te.¢'._the caee of prosecution, on i5~8~i996 PW~7 'Jeridg ef the iedge, informed the owner PW~i KQJ-;.Venkate:sh that foul smell is emanating from Room i§Iea10:2vv.e;eeupied by one Naveen on 128-1996 and there are V."'._'t'€.9i?{_"} Geeeupants in the said ream. Thereafter, PW~i _,e_P§n:>eeeded to peiiee station and informed about what had been told to him by the Manager. His evidence further ;,;,,'*x,/"K / ~15- shewe that pehee Visited the ledge, Secured feur persehs and in their presence the lock of Ream No.102 was brehetttepen under the panehahama Ex.P~1 and they f0und_jd'eaa3.t'_'h.eet3:V_ a lady lying on a cot. Thereafter he iodgesi... EX.P~2.
PW~? Veriu, the Mane.g'e;:..V0f i5adiriaehree':._:L"edge hash' stated that one of the 1'00mVAhei:f'vxVor1§ing.'ih -thAeH1edge came and informed about 102 and he informed the earhe tQ""P'iA5}':1 informed the police. eieng with PW~1, they broke o_p_eri end found the dead body of a with a bedsheet. PW--8 Jagadeetsh,"xxrofki.tig:..;§ boy in the lodge, also stated in his evidence ithgit' three days after the occupation of Room t' rhaie female, they noticed foul smeil and on epehiiigthe feezh in the presence of the police, they found a dezui he lady. By the evidence of PWs~1, 7 and 8? the preseeution proved that dead body of a lady was found in Ne.i€}2. The evidence of PW2 to PW4 regarding .'v.i_(::I€f1fifiCatiOI1 ef phetegraphe of deceased and articles of _j6..
deceased d€}€S net euffer from any discrepancy..3;n€i._their evidence has not been eiantrei/e1*teeL
e) (i) The next eireumste§nee""relied .; the prosecution is that the accused bltaiien 'deeeee'e'd;b:Vte.VV Padmashree ioeige at 8.30 p'.n'i--.._ei* 9.0.0 pin":
The accused took room the the name of one Naveen hailing 199t5. it In order to prove this circumstance; examined PWs- 7 and 8 --- the"?:{ie:t13ager V the iodge. In the evidence, rt;-.em'N0. 102 was aiiotted to one i\Iet\7e€3'I:V.1:"5V'i;r<:5:ih3 12-8»~1996 wherein two "room. After making entries in the re§is"'te'i*, the keys of the room to the roem they with Aaefltiireetion to take the customers to the room.
ae'enp_eii1.ts did not turn-up to intimate the vacancy. On the-foeni boy ef the iodge informed him abent the fan} sn_ieii~.e'manating from room Ne.102 and he informed the same 'to;PVv'~L whe in turn infnrmed the police. The poiice broke opened the door {if the YGQIH and dead body of a it .. _ was found. He further stated in his evidence that about one or <:>ne~and haif months iater, the peiiee 'nreught the 9.17- accused to the todge. He identified him as the person to whom room No. 102 was allotted on l2~8~1996. 01:1 xth,ett;c.iay he Came to know that the name of the accused From the evidence of PVVT, we find that. accused had occupied room 110.102 1r1_ the *hathe._:of.oVNj<iireeh:
The accused had afftxed his s,:1gna.tureA as Naveeiz. tr": the";to'dge=.% register. PW? has deposed thatthelean idehttfg/'tthe gfiersons who V had taken rooms if there 'behihdthevésame.
ii} PW~8 Jagadtsh a room boy of Padmashree the instructions of PW~7 he' to room 110.102 of of the room were a boy and V Padmashree lodge at about 8=80_ or asked him to take them to room g%_Xeeof<':iing.ty; the said pereons were taken to the ' srti-om key. PW?' opened the door and left them in 'jPW;7 had kept the look inside the room, gave the key' totthexoeoupahts and came out of the room. PW'? has 2 xdteposeet that three stays tater police came to Padmashree and opened the room. There was a dead body of a tady in that room. It was emanating foul smell and the dead booty was that of a tady. PW? has deposed thett the accused is the '_,~v,~,T;~./ ~ / 2
-185.
person Whom he had taken to reern net 102 aierng with a girl and left them in the men}. During eress~exaininati0n;PW?' has deposed that the age of the boy whe had lodge with a girl was 28 to 30 years. PW8 that _& it after two months, he had been suniimenetite T.=5aesa:r_anVahaiii. Police Station where he identified the hp-ers0n.b'whe1n"
taken to room ne;102 along \K?ifi1.E2."'giTi. During er0ss--exaniinatin'n', depeseci that he had not seen the aceusedhpfioi' accused in Basavanahalli.
The referring to this part of ex7iciven'ee*-hf PW8 had not seen the accused' was shown to PW8 in Basavanahalii-Pe1ig:e'._Sta;ti0n. Therefore, evidence of PW8 '~ regiafirding ig:1entifi'ea.tiQn of accused before Court is false. V\[V€§'i3:.1=€'..'I1(;¥t persuaded to accept this submission. The evideneve has to be appreciated by reading his entire eVicienee., ifhe question put to PW8 to elicit the answer is it iragne. "Above aii, evidence of identification before the eourt is the substantive evidence.
iii} PW-19 Devendrappa, the Sub inspector of Police of Basavanahaili Peiiee Statien has aepeseei that an i5~8»1996 V £20» , from that, he has tatieh another sample hand accused on six sheets as per EX.P_}..?, E3xs_--.'P%'1'E3--.d'to '1*7"Wez'e K "
taken under panchanama E2-:.Pw iv} PW423 C.K.Shashidhar, Ci1jc»Ie_V_A.Inspe'ctor».o'f Chikmagalur has deposed thétt~...:o:i1..t15a8"--1.996 étbofit' 12.15"
p.m he received information f1'o'1n.. ab<a:iu't-.aVAdEead body found in the lodge. recorded the statements of vPWs___7 register EX.P~7 from of PW--7. On 'deceased and PW»4 met him in his office. _ M05 1 to 20 and 24 to 26. On seeing theni,the3ftdedt1fted"'.the same as belonging to the deceased. 30~_9--.--19~96' recorded the statements of PWS 2 amid On 1V¥1Q--_1__996 he arrested the accused from his ,he.t1se _and, "on interrogation the accused gave Voluntary in that statement the accused has stated thhat-he would produce the keys of room No. 102 of the 'dodge which were thrown by the side of Basavahahalii tank He seized the keys MO»-23 in the presence of panch ....adtnesses under rnahazaz" EX«PD«24'a He has aiso stated that on 11--1i3-$996 he forwarded the disputed and admitted 5, s 6.
J;_V§3\'/xv,/\/NV')//' /
-22» V) PW-22 Syed Asgar Imam is the Handwriting and Document Expert at FSL, Bangalere. He has CGII1{}vEt_:I'a3§Zt'i;h€ admitted and disputed handwritings and accused. He has stated that en 14»m1»O~199_Ei''':1e: '* said documents for exatninat-ietng--ftfirn, Vthe '}:)y_.S.:Pt, Chtkmagalur, pertaining tet»e'C_nmeV"AE'5$<§'.151,-f'*£9vE'Eg:
further stated that after the satdfideeuifnents, he was of the Opinion ntartted as R1 to 18 and S-2 tn 12 person. His opinion is EX.;'P;£f?'AQfiandii-_th€:: is EX.P--21. He has also 17 are the standard the note book MO--21, he has:vfna1*ked signatures of accused as S2 to s-124(1Y10sV' gm; w:a;
learned counsel fer the accused submitted "'tha~*tf_ is an fliiterate. The standard handwritings saidato V.fnatre--"'been taken are not his standard Writings and ' VV"'therefefe-- the evidence of PW~22 and the reasons assigned by d' tutu E3x.P--21 in suppert sf EX.P~2O sptnion cannot be ..._b_-'etieved.
{ii i\.) L» E Pws ? <32 8 - the Manager and morn bay of Padmashree Lodge have eieariy siaied Vi:i.._ihaei1° evidence that at the time of taking accused put his signature as NaE'.ééiE: V def them have identified the §3,CiCA1;-.S4Cd.:afte19'--I1E;iKii{;}.s:' arrested by PW123. is signatdre" L' the accused, whichviveledarly faet that accused his name. as"Naveen." V At the Viime'bf'frami'i:g=.ei*iai'ge; "When charge was __ 't(3:.'2EiC'Qi1Sf§ii,:;'h€ pleaded not guilty and 'p1ii'h1is_ sighai_ii*re as Prasanna SP (Prasanna in initials SP in English). But, when his'si,aienieni was recorded under Section on 22»1~2005, he has affixed his ihumb impression on all the pages and did not his signature purposeiy.
(iii: .
the Vakaiaih filed in this ease, he has pui his signature as Prasanna SP? the name in Kannada and the initials in Engiish. We find from the conduct of accused that he affixed his signatures is the piea reesrd to the charges \,} TM ,// i M25- discredited on the grotmel that strolie.llourléllatltefll.ll "N" in lodge register, dettllfoijnrl signature in the lodge register arehot »fo'ur1--d*a;::".
exemplar sigr1atur'es:...r:1arl/tetl 15: to EXR17. Pwaz hasAld~e;3oseLi..oAthat elot...fozlnd after the handwrlartg be taken for examination; 'for' wrritirlg 'habits. ll. In l:h:E"C'1r:l'..§V_.(IltlSS:3j1OI]g made supra_,__V_We have held that accused exreirillc1l,i§ri:ri"g':trial'--.h-ati-- dlellbveratlely made an attempt to establish' that he :3z:v'asl"aIt-i1litera'te "lperson. Therefore, if the aCeusecl"'-_hae_l stroke after letter in exemplar sltgnVature blcahnot be a reason to discredit the
- /. evidéfice .55 PWQQ « rrrrr .. .
llxfieixir of all these, the contention of learned coonlslel for [accused that the accused is illiterate and the lrehstantlarcllyeritings obtained by the police Clo not belong to V' l..fhirfi;"eanr1ot be believed.
£3, At all stages and ever: before the trial also the aeeuseel made several attempts to screen from punishment by changing his identity from time to time. The ,s>.Nw«,, ~ 'A with innocence.
egg, piate of Room No.iO2 on the in_fo:tn1_ationVifieinizteerved V' accused. The iearned trial Judge"a'hal,siassignedi'uriteizfzahie reasons to disagree with 'é;he--~._opini'en furh_ished.VsV}oy the,"
handwriting expert. The Iearf1.Cié"~:t_riai faiied to notice the conduct The accused having affixed 'vhis sigI'iatLh«~e' and piea recorded has affixed LTM to the staternents $13 Cr.P.C,, to make it appeal: _ illiterate person. Therefore, circumsdtancesiproxijed prosecution are consistent with the ihypothesisse xiofviiguiit of accused and totally inconsistent ' 17',3ji;nA.i1'§}iew of the above discussion, we hold that accused. 'guilty of an offence punishable under section 302 it ~ AAV1PC.sforV"causing death of the deceased. 18, In the result, the appeal is aiiowed. The judgment of acquittal of the trial Court is set aside. Under section 235(2) Cr.P.C., the accused is convicted for an offence punishabie under section 302 IPC. The accused is sentenced to undergo imprisonment for iife and pay fine of Rs, 10,800/-- accused is _ 39 *4 in ciafault, :0 undergo 3.1 for three months, The entitled for set off under sectian 428 Cr.P.C. Q iffi W ,5 _f3§$G§%%?
MI" _ '