Karnataka High Court
Chandrakala W/O. Karibasappa vs The State Of Karnataka on 21 November, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017,
CRL.A No. 100019 of 2017,
CRL.A No. 100022 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRL.A.NO.100137 OF 2017
c/w
CRL.A.NO.100022 OF 2017
CRL.A.NO.100001 OF 2017
CRL.A.NO.100019 OF 2017
CRL.A.NO.100137 OF 2017:
BETWEEN:
1. KARIBASAPPA S/O PATREPPA
AGE: 40 YEARS,
OCC: HOTEL BUSINESS,
R/O: HARAPANAHALLI ROAD,
KIOTTUR, TQ: KUDLIGI,
DIST: BALLARI,
(ALSO R/O: MIRAKORANAHALLI,
TQ: HADAGALI.
...PETITIONER
(BY SRI.S.S.YADRAMI, SR. COUNSEL FOR
SRI. GIRISH BHAT, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
BY KOTTUR POLICE,
REP. BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
-2-
CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017,
CRL.A No. 100019 of 2017,
CRL.A No. 100022 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO ADMIT THE APPEAL AND CALL
FOR RECORDS AND SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 05.12.2016 PASSED BY THE LEARNED III
ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI SITTING AT
HOSPETE IN S.C.NO.5045 OF 2014 IN OFFENCES UNDER
SECTION 109, 120-B, 302, 394, 397, 411, 450 R/W SECTION
34 OF IPC AND FURTHER BE PLEASED TO ACQUIT THE
APPELLANT OF ALL THE CHARGES LEVELLED AGAINST HIM.
CRL.A.NO.100022 OF 2017:
BETWEEN:
1. SANTOSH N B,
S/O LATE N B REVANNA,
AGE: 33 YEARS,
OCC: DRIVER,
R/O: WARD NO.1 KOTTUR,
TQ: KUDLIGI,
DISTRICT: BALLARI.
...PETITIONER
(BY SRI. K L PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH KOTTUR PS,
BALLARI,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO ADMIT THE APPEAL AND CALL
FOR RECORDS IN SESSIONS CASE NO.5045 OF 2014 ON THE
FILE OF HON'BLE III ADDL. DISTRICT AND SESSIONS JUDGE,
-3-
CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017,
CRL.A No. 100019 of 2017,
CRL.A No. 100022 of 2017
BALLARI SITTING AT HOSPETE AND ALLOW THIS CRIMINAL
APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 5.12.2016 AND SENTENCE DATED
7.12.2016 PASSED BY THE HON'BLE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BALLARI, SITTING AT HOSPETE IN
SESSIONS CASE NO.5045 OF 2014 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 109, 120 B, 302, 394, 397 AND
450 READ WITH 34 OF IPC AND ACQUIT THE APPELLANT OF
THE OFFENCES PUNISHABLE UNDER SECTION 109, 120 B, 302,
394, 397 AND 450 READ WITH 34 OF IPC.
CRL.A.NO.100001 OF 2017:
BETWEEN:
1. CHANDRAKALA W/O. KARIBASAPPA
AGED 27 YEARS,
R/O. HUCCHHAPPA SHASTRI HOUSE
VALMIKI CIRCLE, BALLARI ROAD,
HOSPET
...PETITIONER
(BY SRI. GIRISH S HIREMATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PUBLIC PROSECUTOR
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN
S.C.NO.5045 OF 2014 ON THE FILE OF HON'BLE III ADDL.
DISTRICT AND SESSIONS JUDGE, BALLARI SITTING AT
HOSPETE AND ALLOW THIS CRIMINAL APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DTED
05.12.2016 AND SENTENCE DATED 07.12.2016 PASSED BY
THE HON'BLE III ADDL. DISTRICT AND SESSIONS JUDGE,
BALLARI SITTING AT HOSAPETE IN S.C.NO.5045/2014 FOR
-4-
CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017,
CRL.A No. 100019 of 2017,
CRL.A No. 100022 of 2017
THE OFFENCES PUNISHABLE UNDER SECTION 109, 120-B,
302, 394, 397 AND 450 R/W 34 OF IPC.
CRL.A.NO.100019 OF 2017:
BETWEEN:
1. KUMAR M. S/O MANJUNATH M.,
AGE: 30 YEARS,
OCC: GOLDSMITH,
R/O: MAVINKERI COLONY,
BHADRAVATHI,
SHIVAMOGGA.
...PETITIONER
(BY SRI. SHRIKANT T PATIL.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY CPI KOTTUR CIRCLE
KOTTUR POLICE STATION,
BALLARI,
R/BY S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
Digitally
signed by
ROHAN
HADIMANI
ROHAN
HADIMANI T
Date:
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
T 2022.11.22
10:03:11
+0530
374(2) OF CR.P.C. SEEKING TO THE ORDER OF CONVICTION
AND SENTENCE PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE BELLARY SITTING AT HOSPET IN
SESSION CASE 5045 OF 2014 DATED 05.12.2016 BE SET
ASIDE FOR THE OFFENCE PUNISHABLE UNDER SECTION 411
OF IPC AND CONSEQUENTLY ACCUSED NO.4 BE ORDERED TO
BE ACQUITTED IN SESSIONS CASE 5045 OF 2014.
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CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017,
CRL.A No. 100019 of 2017,
CRL.A No. 100022 of 2017
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, G
BASAVARAJA J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The Crl.A.No.100137/2017 is filed by the Accused No.1 - Karibasappa, S/o Patreppa; Crl.A.No.100022/2017 is filed by the Accused No.2 - Santhosh N.B.; Crl.A.No.100001/2017 is filed by the Accused No.3 - Chandrakala and Crl.A.No.100019/2017 is filed by the Accused No.4 - Kumar.M. 1.1. The Crl.A.No.100019/2017 was preferred before the learned Single Judge by the Accused No.4. However, the learned Single Judge of this Court passed an order dated 07.02.2017 directing the registry to place the appeal before the Division Bench along with the connected matters. -6- CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 1.2. All the four criminal appeals are filed under Section 374(2) of the Cr.P.C. to set aside the judgment of conviction dated 05.12.2016 and order of sentence dated 07.12.2016 passed by the III Addl. District and Sessions Judge, Ballari (Sitting at Hosapete), in S.C.No.5045/2014 for the commission of offences punishable under Sections 109, 120B, 302, 394, 397, 411 and 450 r/w Section 34 of IPC and acquit the accused/appellants from the alleged commission of offences.
2. Appellants/accused Nos.1 to 3 have been convicted for the commission of offences punishable under Sections 302, 394, 397, 450, 109 and 120B of IPC and sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to pay a fine of Rs.5,000/- each with in default to undergo simple imprisonment of 6 months. -7- CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 2.1. Further, they are sentenced to undergo imprisonment for 5 years and to pay a fine of Rs.2,000/- each with in default to undergo simple imprisonment for 2 month for the offence punishable under Section 394 of IPC; 2.2. Further, they are sentenced to undergo imprisonment for 7 years and to pay a fine of Rs.3,000/- each with in default to undergo simple imprisonment for 3 months for the offence punishable under Section 397 of IPC; 2.3. Further, they are sentenced to undergo imprisonment for 6 years and to pay a fine of Rs.2,000/- each with in default to undergo simple imprisonment of 2 months for the offence punishable under Section 450 of IPC; -8- CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 2.4. Further, they are sentenced to undergo simple imprisonment for 2 years for the offence punishable under Section 109 of IPC; 2.5. Further, they are sentenced to undergo simple imprisonment for 2 years for the offence punishable under Section 120(B) of IPC.
3. Accused No.4 - Kumar has been convicted for the commission of an offence punishable under Section 411 of IPC and sentenced to undergo simple imprisonment for 2 years for the commission of offence punishable under Section 411 of IPC and set off is also given under Section 428 of Cr.P.C. as he was in custody for 22 days.
4. Parties are referred to as per their ranks before the trial court.
-9-CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 BRIEF FACTS OF THE CASE:
5. Complainant - Shambhavi (P.W.1) is a school teacher in Alboor village, Hagaribommanahalli Taluk, residing in Basaveshwar Nagar, Kottur with her parents - deceased father Javali Rajanna, a retired teacher, mother-Soubhagyamma (P.W.3), her brother's son and her children by name Preetham and Pratham, who is an infant; P.W.10 - Kedarnath, husband of the complainant is serving as Assistant Executive Engineer in GESCOM, Koppal; C.W.10 - Virupakshi another son of deceased Rajanna was serving in ITI College, Dharwad; P.W.4 - Savithramma was working as maid servant and she was residing along with her son - Kotresh (P.W.9) in the ground floor of the house of deceased Rajanna. 5.1. The complainant - mother of an infant aged 5 months, had hired the car of accused No.2 - Santhosh on a regular basis for pick-up and
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 drop-off to school at Ulboor at 9.30 a.m. and 4.30 p.m. The accused No.1 - Karibasappa was running a hotel on the property of P.W.12
- Ram Gopal @ Ranganath. The accused No.2
- Santhosh was driving the car of complainant and accused No.3 - Chandrakala, who is the second wife of accused No.1 is a relative of accused No.2 - Santhosh; C.W.17 - Vidya is the first wife of accused No.1 and P.W.11 - Rudresh is running a pan shop at Harapanahalli road by the side of accused No.01's Hotel. 5.2. One week prior to the alleged incident, the accused Nos.1 to 3 had hatched a plan to commit robbery in the house of deceased in the absence of other family members. 5.3. That being so, accused Nos.1 to 3 on 05.08.2013 at about 9.30 a.m. while the
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 complainant and her mother had gone to Ulboor School along with the child of complainant to attend the duties, accused No.1 received the information regarding the same from accused No.2 and accused No.3 who kept watch on the outside of the house, went to the house of deceased-Rajanna under the guise of giving wedding invitation card and criminally trespassed in his house and asked water from the deceased Rajanna. When the deceased Rajanna had gone to kitchen to bring the water, accused No.1 assaulted him with a knife on his neck, chest and abdomen by gagging the mouth and between 10.00 a.m. to 10.30 a.m. he committed the murder of Rajanna and snatched the golden chain and other golden ornaments weighing 186 grams and silver articles weighing 290 grams along with cash of Rs.25,000/- from the almirah, committed
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 robbery and escaped from the houses of deceased. Later on changed the blood stained clothes and sold the said ornaments and articles to accused No.4 - Kumar, goldsmith of Bhadravathi and knowing it to be stolen, he purchased the golden ornaments and silver articles by paying Rs.75,000/- and thereby accused Nos.1 to 3 committed the offences punishable under Sections 109, 120B, 394, 450 r/w Section 34 of IPC and accused No.4 committed the offence punishable under Section 411 of IPC.
5.4. Further, P.W.4- Savithramma, maid who saw the dead body of the deceased, rushed to inform P.W.8-Shambhavi, a neighbour of the deceased, who in turn told P.W.1-Shambhavi at 11.30 a.m. via phone. Thereafter, the complainant called the accused No.2 and
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 returned to the house, where she saw the murder of her father. Later, she intimated to her husband and her brother about the incident and filed a complaint before P.W.25 - Gururaj, the then PSI of Kottur Police Station at 2.00 p.m. on the same day. Said PSI registered the case in Crime No.100/2013 of Kottur Police Station and submitted FIR to the Court.
6. After investigation, the Investigating Officer has submitted a charge sheet against the accused for the alleged commission of offences. After taking cognizance, the case was registered in C.C.No.146/2013 against accused Nos.1 to 4.
7. Accused Nos.1 to 3 were produced from the judicial custody and accused No.4 appeared before the Court through his counsel and he was already on bail by virtue of order passed by the learned Sessions Judge, Ballari, in Crl. Misc. Petition No.605/2013
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 dated 31.08.2013 and thereafter, accused No.3 was released on bail on 14.08.2015 by virtue of order passed by the learned Single Judge of this Court in Crl.P.No.101068/ 2015 dated 07.08.2015 and accused No.1 and 2 were released on bail by the trial court on 07.01.2016 and on hearing both sides, trial court has framed charges for the offences punishable under Sections 109, 120B, 302, 394, 397, 411, 450 r/w Section 34 of IPC. Same has been read over and explained to the accused in the language known to them and the accused have pleaded not guilty and claimed to be tried.
8. To prove the case of prosecution, in all 27 witnesses were examined as P.W.1 to P.W.27 and 38 documents were produced and marked as Exs.P-1 to P-38 and 53 articles were marked as MO-1 to MO-53. On closure of prosecution side evidence, a statement under Section 313 of Cr.P.C. is recorded as to the
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 incriminating evidence appearing against the accused. The accused have denied the evidence appearing against them, but they have not chosen to lead any defence evidence on their behalf.
9. On hearing the arguments of both sides, trial court has convicted the accused Nos.1 to 3 for the commission of offences punishable under Sections 302, 394, 397, 450, 109 and 120B of IPC. The accused No.4 is convicted for the offence punishable under Section 411 of IPC. Being aggrieved by the judgment of conviction and order of sentence passed by the trial court, accused Nos.1 to 4 have preferred these appeals.
SUBMISSIONS OF SRI.S.S.YADRAMI, LEARNED SENIOR COUNSEL FOR SRI.GIRISH BHAT, LEARNED COUNSEL FOR ACCUSED NO.1 - KARIBASAPPA IN CRL.A.NO.100137/2019:
10. Learned counsel for the appellant No.1 submits his arguments along with the grounds of appeal urged in
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 the memorandum of appeal. The main contentions urged are as under:
10.1. The trial court has not considered the inconsistent events stated by the complainant and the evidence of P.W.1.
10.2. The conviction is passed on the evidence of interested witnesses. Absolutely, there is no material produced by the prosecution to show that the appellant was involved in the commission of crime. There is no nexus to show that the appellant has committed the offences. This aspect was not properly considered by the trial court.
10.3. The prosecution has failed to prove the genesis of the incident with cogent and reliable evidence. The prosecution's case is based on circumstantial evidence and the
- 17 -CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 prosecution has failed to establish the circumstances that would connect the appellant to the chain of links for having committed the offence.
10.4. The only witness examined by the prosecution is P.W.11 - Rudresh, who has stated that on 14.08.2013 he saw accused Nos.1 to 3 near KEB Office and the hotel was closed, which nowhere establishes conspiracy nor any link with the accused. Merely because the accused were near the KEB office, it does not lead to draw the inference to constitute the offence under Section 120B of IPC. There is not even a single witness regarding the presence of accused Nos.1 to 3 near the house of deceased and no witness has spoken about this aspect on the alleged date of incident. The house of deceased is in the first floor of
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 the building situated in the main road and the ground floor is occupied by P.W.4 and P.W.9. The evidence of P.W.4 is treated as hostile and that, P.W.9 is a tutored version, since they were prime suspects by P.W.4 and P.W.5. The evidence of P.W.1 and P.W.3 is hearsay and their evidence is full of imagination; even the trial court's finding that accused hatched a plan, is also based on imagination and the evidence of P.W.10 to P.W.15 is of no evidentiary value to support the case of prosecution.
10.5. Further it is submitted that P.W.4- Savithramma, deceased's very tenant who lived on the ground floor of the deceased house, has not supported the prosecution case. P.W.4 and P.W.9 were the prime suspects and the police sniffer-dog has gone
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 from the scene of the offence up to the house of P.W.4; as such, the indictment of appellant and others by the police is based on a tainted and concocted investigation.
10.6. Insofar as the voluntary statement of the appellant and other accused leads to recovery, it is pertinent to look into the evidence of P.W.6 and in the cross examination he has clearly admitted that accused has not stated anything before the witnesses and this witness has stated that the knife and clothes were brought by the police, which provides room for planting of things by the police and indictment of innocent appellant/accused.No.1. Thus, reasoning from paras 14 to 21 of the impugned judgment is purely based on hypotheses, imaginations and surmises.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 10.7. Further submits that there are exaggerations, material omissions and contradictions and improvements in the evidence of prosecution witnesses, which creates major doubts in the case of prosecution and the evidence of official witnesses. P.W.17 to P.W.27 being official witnesses, their evidence does not inspire confidence. Further, it is submitted that when there is not even a single eyewitness nor even the last seen together, the prosecution has utterly failed to prove the case by linking the chain, which is absent and hence, appellant is entitled to the benefit of doubt and a clear acquittal from the case.
10.8. During the cross examination, the statements of P.W.1 to P.W.27 provided incoherent and contradictory answers. The learned Sessions Judge has picked the evidence and
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 conveniently undermined that part of the evidence, which augments the case of the prosecution. Same is not sustainable under law. With all these grounds, learned counsel has urged for the acquittal of accused No.1. 10.9. To substantiate their contentions, learned counsel for the appellant/accused has relied upon the following judgments:
(a) (2003) 12 SCC 377 - MOUSAM SINGAROY AND OTHERS vs. THE STATE OF WEST BENGAL
(b) (2009) 17 SCC 273 - MANI vs. STATE OF TAMILNADU
(c) (2014) 12 SCC 133 - PRAKASH vs. STATE OF KARNATAKA
(c) (2003) 2 SCC 202 - STATE OF U.P vs. ARUN KUMAR GUPTHA
(d) Crl. Appeal No.64/2022 - RAMANAND @ NANDALAL BHARATHI vs. STATE OF UTTAR PRADESH - Disposed on 13/10/2022
- 22 -CRL.A No. 100137 of 2017
c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 SUBMISSIONS ON BEHALF OF THE ACCUSED NO.2 - SANTHOSH N.B IN CRL.A.NO.100022/2017:
11. Sri.K.L.Patil, learned counsel appearing for accused No.2 reiterated the grounds of appeal urged in the memorandum of appeal and has submitted his arguments that;
11.1. The conviction is based on the evidence of the interested witnesses and there is no nexus to show that appellant has committed the offence. The Investigating Officer has not recovered any articles at the instance of accused. The prosecution has failed to prove the genesis of the incident by cogent and reliable evidence. The prosecution has failed to prove the circumstances to connect the appellant for having committed the offences. 11.2. Further, it is submitted that no document has been produced to show that the complainant
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 had hired the vehicle of this appellant nor has the prosecution produced the driving licence of the appellant to show that he was a driver by profession. The call records produced by the prosecution are not of much importance because the cell phone was registered in the name of one Nagarathna and the prosecution has not examined said Nagarathna to prove that her cell phone was used by the appellant herein. No articles or incriminating materials are seized from the custody of the appellant. As such, there is absolutely no evidence or nexus to show that the appellant was involved in the commission of crime. This aspect of the matter was not properly considered by the trial court. On all these grounds, he sought for allowing this appeal.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 SUBMISSIONS ON BEHALF OF ACCUSED NO.3- CHANDRAKALA IN CRL.A.No.100001/2017:
12. Sri.Girish S. Hiremath, learned counsel for accused No.3 has adopted the arguments of Sri.S.S.Yadrami, learned Senior Counsel for appellant No.1. SUBMISSIONS ON BEHALF OF ACCUSED NO.4 - KUMAR.M IN CRL.A.NO.100019/2017:
13. Sri.Shrikanth Patil, learned counsel appearing on behalf of accused No.4 recapitulating the grounds urged in the memorandum of appeal has submitted his arguments that;
13.1. Accused No. 4 is charge sheeted for the offence punishable under Section 411 of IPC. The said charge is not proved by producing cogent evidence by the prosecution. 13.2. It is submitted that the learned Sessions Judge placed reliance on the voluntary statement given by accused No.4, produced at
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 Ex.P-32, which is not proved by the cogent evidence. Even if the Court holds that accused No.4 admits the guilt, same is erroneous and cannot be believed to convict the accused No.4.
13.3. Further, it is submitted that to prove the charge under Section 411 of IPC the evidence given by P.W.6 - Deveshi, P.W.7 - Veerendra and P.W.13 - Prakash are important witnesses. P.W.6 - Deveshi is the recovery pancha, who accompanied the Investigating Officer to the place of accused No.4 on 11.08.2013 and MO-1 to MO-35 were recovered from the custody of accused No.4. This witness is treated as hostile by the prosecution and Ex.P-15 - recovery panchanama is said to be drawn on that day. Therefore, trial court relying on this witness
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 has drawn an inference regarding the recovery of stolen articles from the custody of accused No.4, which is not sustainable under the law. 13.4. Further it is submitted that the voluntary statements of accused Nos.1 to 3 are not proved and the mandatory compliance of Section 27 of the Indian Evidence Act, 1872, are not complied with. Hence, the entire recovery proceedings are vitiated. 13.5. The evidence of P.W.7 and P.W.13 to prove Exs.P-14 to P-16 - panchanama, Exs.P-18 and P-19 - photos, are not sufficient. Keeping reliance on such inadequate evidence, conviction of accused No.4 is illegal and is not sustainable in law. The voluntary statement of accused Nos.1 to 3 produced at Exs.P-29 to P- 31 are not proved as per the requirement of
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 law. Hence, conviction of accused No.4 is bad in law.
13.6. Further, he has submitted that trial court has not properly appreciated the evidence available on record and convicted accused No.4 for the commission of offence punishable under Section 411 of IPC, which is not sustainable under law.
13.7. The learned Sessions Judge has not appreciated the evidence in proper perspective manner. On all these grounds, he sought for allowing this appeal. 13.8. To substantiate his arguments, he relies on the following judgments:
(i) (2003) 12 SCC 377: MOUSAM SINGA ROY AND OTHERS v. THE STATE OF WEST BENGAL
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c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017
(ii) (2009) 17 SCC 273: MANI v. STATE OF TAMIL NADU
(iii) (2014) 12 SCC 133: PRAKASH v. STATE OF KARNATAKA
(iv) (2003) 2 SCC 202: STATE OF UTTAR PRADESH v. ARUN KUMAR GUPTA SUBMISSIONS OF ADDL. STATE PUBLIC PROSECUTION V.M.BANAKAR FOR THE STATE:
14. The learned Addl. State Public Prosecutor submitted his arguments that;
14.1. The trial court has properly appreciated the evidence in hand, as the entire case is based on circumstantial evidence and the prosecution has successfully placed its best evidence before the trial court, which was rightly appreciated and concluded with the conviction of the accused.
14.2. With equal emphasis, the learned Addl. State Public Prosecutor urged before us that in the
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 present case, the prosecution has succeeded in establishing beyond a reasonable doubt that deceased Rajanna was murdered for gain by the accused persons. The motive behind the murder is clearly established by the prosecution papers.
14.3. The learned Addl. SPP invited our attention to the sworn testimonies of P.W.1 to P.W.5 and P.W.17 to P.W.27 in support of aforesaid contentions and submitted that the chain link from the genesis of the alleged offence is proved. However, by ignoring the minor inconsistencies that can be made out by meticulous reading of Ex.P.1 compliant, statements given before Investigating Officer under Section 161 and the evidence of witnesses. It is to be imbibed that in a case of circumstantial evidence, on which the
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 prosecution relies, must be consistent with the sole hypothesis of the guilt of accused. It is not expected that in every case depending on circumstantial evidence, the law relating to circumstantial evidence, should be set out in the judgment. 14.4. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the alleged recovery of stolen items from accused No.4 and the presumption which can be drawn about their guilt under Section 114 of the Indian Evidence Act, 1872.
14.5. The learned Addl. SPP drew our attention towards 313 statement, in which the accused has not given satisfactory explanation as to the possession of stolen items of the deceased family.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 14.6. The trial court has rightly observed in para 37 of the judgment of conviction that the contradictions and omissions pointed out by the defence counsel are not going to the root of case of the prosecution and the accused cannot be permitted to take undue advantage of mistakes committed by the Investigation Officers. The evidence as a whole has to be considered instead of relying on technicalities.
14.7. Another strong contention taken by the State is, proving the involvement of accused No.1 in the commission of alleged offence by FSL report - Ex.P.27 along with the opinion of doctor. The evidence of P.W.9 - Kotresh states that he saw accused Nos.1 and 2 about one day prior to the incident near the house of deceased. It is submitted that
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 P.W.11 Rudresh, a pan shop owner, has stated that he saw accused Nos.1 to 3 talking to each other near KEB office on 04.08.2013 at 5:30 p.m. and P.W.12 Ram Gopal, the owner of the building, has also stated that he saw the accused persons near the KEB office at 5.00 p.m. 14.8. The closure of hotel of accused No.1 on the alleged incident day and the presence of accused No.3 at 8:30 a.m. on the same day, clearly shows the intention that all three accused persons conspired and planned to rob the house of deceased. The alleged weapon and invitation card shows the preparation for commission of the offence. The blood stained clothes and recovery of robbed items from accused No.4 clearly establishes the murder for gain.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 14.9. The learned Addl. SPP for the State urged that the impugned judgment does not call for any interference as accused did not offer any explanation for the valuable gold jewellery and silver items recovered. Hence, learned Addl. SPP prays for dismissal of the appeals preferred by the accused persons. DISCUSSIONS AND DECISION:
15. The case on hand is built on circumstantial evidence.
There are series of decisions of Hon'ble Supreme Court propounding cardinal principles to be followed in cases in which the nature of evidence is circumstantial. It is not practicable for us to recapitulate all the decisions rendered by the Apex Court except for stating essential ingredients as noticed and observed in the case of STATE OF U.P. vs RAVINDRA PRAKASH MITTAL reported in (1992) 3 SCC (Cri) 300. The ingredients of
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 circumstantial evidence approved by the Hon'ble Supreme Court in paragraph 20 of the decision rendered in the case of DR.R.P.MITTAL (supra), are reproduced herein below, which reads thus:
(a) the circumstances from which the conclusion is drawn should be fully proved;
(b) the circumstances should be conclusive in nature;
(c) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence;
(d) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.
15.1 Keeping in mind these cardinal principles, let us re-appreciate the evidence put forth by the prosecution. As per Ex.P-1 -complaint, the complainant-P.W.1, who was on duty as a school teacher in Ulboor Village, received the information from P.W.8 - Shambhavi, who
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 was approached by the maid - Savithramma (P.W.4) to inform the complainant about the alleged incident via phone call on 05.08.2013 at 11.30 a.m. 15.2 On receiving the information, P.W.1 called accused No.2, whom the complainant had hired for pick-up and drop-off to her working place. The accused No.2 reached the place along with P.W.3 -Soubhagyamma after half an hour, picked her up from school and reached Kottur residence where the alleged incident is said to have occurred. 15.3 On a thorough reading of evidence of P.W.1 to P.W.5 and P.W.7 to P.W.13, the prosecution has clearly established the motive, intention and preparation for the alleged commission of the offence. The trial court has rightly observed that evidence of P.W.11-Rudresh,
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 P.W.12-Ramgopal clearly shows that both witnesses noticed the hatched conspiracy and movements of the accused before the incident. The accused.No.1-Karibasappa who runs a hotel with his wife-accused No.3 have plotted the commission of offence with the help of accused.No.2-Santhosh, who obviously knew the family members and their daily routines, being the driver of hired car of complainant - P.W.1.
15.4 Further, the trial court on going through the evidence of P.W.26 - Doctor Linge Gowda, Scientific Officer, RFSL, Davanagere, appreciated the contents of Ex.P-27 - FSL report and has safely come to the conclusion that death of the deceased Rajanna is a homicidal one.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 15.5 As vehemently urged by the learned Addl. SPP for the State, the most important thing is the recovery of weapon, blood-stained clothes (M.O.31 to M.O.40 and M.O.42 to M.O.53) and the stolen materials (M.O.1 to M.O.30 and M.O.41) from accused persons. The evidence of P.W.25 and P.W.27 - witnesses, as appreciated by the trial court in paras 29 and 30 of the impugned judgment, the commission of alleged offences by the accused persons is murder for gain. In MUKUND @ KUNDU MISHRA & ANOTHER vs STATE OF M.P. reported in (1997) 10 SCC 130 the murder and robbery were committed in the course of same transaction. The murder was committed in the night intervening 17th/18th of January, 1994. During next night, the appellants were arrested and some of the stolen articles were
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 recovered from the possession of the appellants. There was no eye-witness of the murder and robbery. It was contended before the Court that even if it was assumed that the articles stolen from the house of the deceased were recovered from the appellants, at best it could be said that they had committed the offence under Section 411 of IPC, but not the offences of murder and robbery for which they were convicted. Rejecting the contention, the Supreme Court interalia observed as under:
"If in a given case - as the present one - the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder."
15.6 In GULAB CHAND vs STATE OF MADHYA PRADESH reported in AIR 1995 SC 1598, the murder and robbery took place in the
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 night intervening 23rd/24th of April, 1979. The stolen articles were recovered from his possession on 27th April, 1979. It was held that such close proximity of the recovery was an important time factor which should not be lost sight of in deciding the case. Noticing that the accused before the court was not affluent enough to possess the ornament recovered from him and considering the recovery of the stolen articles from his possession and he having sold some of them immediately after the murder and robbery and no plausible explanation for lawful possession of the articles having been given, the Court was of the view that murder and robbery were integral part of the same transaction and therefore, the presumption was that not only the appellant committed the murder of the
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 deceased but also committed robbery of her ornaments.
15.7 Section 114 of the Evidence Act, 1872, to the extent it is relevant, reads as under:-
"Sec.114. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration The Court may presume-
(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for is possession..."
15.8 It is to be considered that the presumption permitted to be drawn under Section 114 of the Evidence Act, 1872, in a case where the theft and murder are committed in the course of the same transaction, will, to a large extent, depend upon the time gap between
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 the murder and robbery and the recovery of stolen articles. If the ornaments or other articles belonging to the deceased are found in the possession of a person soon after the murder and robbery, a presumption of that person being involved in the incident of murder and robbery can be safely drawn. In this case the alleged incident is said to have been happened on 05.08.2013 at about 10:00 a.m. to 10:30 a.m. and the recovery was between 10.08.2013 and 11.08.2013.
16. The circumstances proved against the appellants lead to an irresistible conclusion that they were party to criminal conspiracy to commit murder of late Javali Rajanna and also to commit robbery of various valuables from his house. They also shared a common intention to commit murder and robbery and the murder of Rajanna and robbery of his house
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 were committed in furtherance of that common intention. The circumstances proved against them are totally incompatible with their innocence and it would be safe to conclude that, in all human probability, they both were involved in the transaction, during the course of which not only the robbery of various articles was committed from the house of late Rajanna, but they also murdered him so as to facilitate the robbery. In any case, on the basis of evidence produced during the trial, they are liable to be convicted for being a party to the criminal conspiracy to commit murder of Rajanna and robbery from his house for which all of them were duly charged.
17. We have carefully examined the omissions and contradictions in the evidence of prosecution witnesses pointed out by the learned counsel for the accused, particularly with regard to the seizure of
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 properties at the instance of accused under Section 27 of the Indian Evidence Act, 1872. In this regard, we have gone through the decision of our Hon'ble Apex Court in Crl.A.No.1066/2009 [MALLIKARJUNA AND OTHERS vs STATE OF KARNATAKA], in which it is held that in a large number of cases, merely because the panch witness has turned hostile, is not a ground to reject the evidence if the case is based on the testimony of the Investigating Officer alone. In the instant case, there are some discrepancies in the evidence of panch witnesses, but it is not the case of defence that the testimony of Investigating Officer suffers from any infirmity or doubt. Apart from this, there is no enmity between the accused and the Investigating Officer. The prosecution has placed cogent, corroborative and convincing evidence before the trial court and on appreciation of evidence in a
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 proper perceptive manner, the trial court has convicted the accused.
18. In the light of above discussion, keeping in mind the decisions and the observations made in the judgments relied on by both sides, we find no illegality or material irregularity in the impugned judgments. The appeals filed by the appellants are without merits and are liable to be dismissed. The impugned judgment of the trial court is upheld. The conviction under Sections 302, 120B, 450 r/w Section 34 of IPC and order of sentence are maintained in respect of accused Nos.1 to 3.
19. With regard to the offences under Section 397 and 109 of IPC are concerned, the trial court has convicted accused Nos.1 to 3 for the commission of offence punishable under Section 397 of IPC and sentenced to undergo imprisonment for 7 years and
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 to pay a fine of Rs.3000/- each in default to undergo simple imprisonment of 3 months. The accused Nos.1 to 3 were also convicted for the commission of offence punishable under section 109 of IPC and sentenced to undergo simple imprisonment for 2 years.
20. The facts and circumstances of this case will not attract the provisions of Sections 397 and 109 IPC. However, the trial court has convicted the accused, which is not sustainable under Law.
21. The trial court has convicted accused No.4 for the commission of offence punishable under Section 411 of IPC and sentenced him to undergo Simple Imprisonment for 2 years. The trial court has properly appreciated the evidence and convicted accused No.4 for the commission of offence punishable under Section 411 of IPC, but with regard
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 to sentence imposed by the trial court is concerned, it has imposed the sentence for 2 years simple imprisonment and the offence punishable under Section 411 of IPC is punishable with imprisonment for 3 years or fine or both. The trial court has observed that accused No.4 is not entitled to any leniency for his release on probation for good conduct, but, the trial court has not assigned any reasons in this regard.
22. We have perused the prosecution papers. The age of accused No.4 was 30 years at the time of the commission of offence; he is a goldsmith by profession and a resident of Bhadravathi, Shivamogga District and he has not been convicted in any case prior to present one. Considering the nature and gravity of offence and also the mitigating circumstances, we are of the opinion that it is just and proper to modify the sentence for 22 days of
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 imprisonment, which is already undergone by the accused in judicial custody and with a fine of Rs.20,000/-.
23. For the aforesaid reasons and discussions, we proceed to pass the following:
ORDER (1) The appeal filed by accused No.1 in Crl.A.No.100137/2017, appeal filed by accused No.2 in Crl.A.No.100022/2017 and appeal filed by the accused No.3 in Crl.A.No.100001/2017 are partly allowed.
(2) The judgment of conviction dated 05.12.2016 and order of sentence dated 07.12.2016 passed by the trial court in S.C.No.5045/2014 for the commission of offences punishable under Sections 302, 394, 450 and Section 120B of IPC are confirmed.
(3) The appeals filed by accused Nos.1 to 3 in respect of offences punishable under Section 397 and 109 of IPC, are allowed.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 The accused Nos.1 to 3 are acquitted for the offences punishable under Sections 397 and 109 of IPC.
(4) The appeal filed by accused No.4 in Crl.A.No.100019/2017 is partly allowed. (5) The judgment of conviction for the offence punishable under section 411 of IPC is confirmed.
(6) The sentence passed by the trial court is modified as under:
(6.1) Accused No.4 shall undergo simple imprisonment for 22 days and pay a fine of Rs.20,000/-, in default of payment shall undergo simple imprisonment for 3 months.
(6.2) Accused No.4 shall be entitled to
set off under Section 428 of
Cr.P.C. the period of incarceration undergone by him pending trial.
(7) The Registry is directed to furnish the copy of judgment to the accused/appellant Nos.1 to 4 at free of cost.
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CRL.A No. 100137 of 2017 c/w CRL.A No. 100001 of 2017, CRL.A No. 100019 of 2017, CRL.A No. 100022 of 2017 (8) Accused Nos.1 to 3 are directed to surrender before the trial court henceforth for undergoing the remaining part of jail sentence. Trial court is directed to take all necessary steps to commit the accused Nos.1 to 3 to jail for undergoing remaining part of jail sentence.
(9) Accused No.4 is directed to pay a fine of Rs.20,000/- before the trial court. (10) Registry is directed to transmit the records to the trial court along with the copy of this judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE DR List No.: 3 Sl No.: 1