Karnataka High Court
State Of Karnataka vs Murali on 23 April, 2010
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
IN THE HIGH COURT OF KARNATAKA, "
DATED THIS THE 23RD DAY OF APR1i;j,~~.:g0:j_.Q O'
pREsENw
THE HON'BLE MR. JLIs_T1cf«:KO.S.OR.EED'HAi§ "
_ V _ 'I '
THE HON'l'3iLE" MR4." 1.3.v.O PiNTD
cr1.A; No.' Life" O_.E'U2004;_
Cr1.A. Nqs; 'S1'?/2Q044'85'l,/'2(jO3_;__'38/2004, 68/2004
Crl.A. No; V
BETw*EEN:"{g
STATE OF " '
BY PEEINYA POLICE S_'1ATiON,
BANGALOREVCJIY. ' *
(13?:.s:12__;1' cg. BIr§A'JANI.SINGH, SPP]
APPELLANT
'AGED. 18 YEARS,
RV/O.NO.5O8. SESHADRI RAO BUILDING
NEAR AMBEDKAR ANGANAVADI.
SHIVASHANKAR BLOCK, HEBBAL,
BANGALORE -~ 24.
C. MAHESHKUMAR,
S/O. C.N. HIREMATH.
AGE: MAJOR,
i
TO
R/AT NO.1554.~,
OPP. SHALINI BAR.
1ST CROSS ROAD.
CHAMUNDINAGAR, R.T.NAGAR.__
BANGALORE. : ' '
3. A.M.MAHESH@PUT1fU,_
S/O.A.V.1\/IOHAN, I
AGE17 YEARS. I " .
R/AT.NO.C~35, P 31 T QUARTERS,
KAVAL BYRASANDRA, " '
RT. NAGAR POST; _ '-
BANGALORE -- 32.
4. K.P. KR_1SHN.AKI;IMAR; V
S /O. B} SBASH.IKUMAR,_ . ;. V
AGE:;18f.Y~'EA'R:S. " "
R/AT-ANOJQ4, . I.
.ISTC.Rc?SS RT. NAGAR,
NEAR IIq'ST1T*LITE=.ETENNIS CLUB,
GANESH IBLOCK, R.T;NAGAR,
BANGALO'RE'-f'32'.'*«--._> "
_V - -_ -~ RESPONDENTS
[BY SR: G. SIIRESH, ADVOCATE FOR R1) -
{BESR1 HASHNUXTH. PASHA, ADVOCATE FOR R2)
. {R3 SERVEJQ)
' SEBASTIAN, SR. COUNSEL, FOR R4)
A ' THIS CRL.A IS FILED U/S. 377 CR.P.C. BY THE SPF'
FOR THEj..STATE PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO ENHANCE THE SENTENCE IMPOSED
BY THEXADDL. CITY S.J., B'LORE, IN S.C.NO.252/99, DT.
" 17.12.2003 - CONVICTING THE RESPONDENTS/ACCUSED
* _ FOR THE OFFENCE PUNISHABLE U/SS443 R/W SEC. 34
{OF IPC, 326 R/W SEC. 34 OF IPC, 304-II R/W SEC. 34 OF
IPC. 394 R/W SEC. 34 OF IPC AND SENTENCING THEM TO
PAY A FINE OF RS.1000/-- EACH I.D., TO PAY THE FINE
AMOUNT TO UNDERGO R.I. FOR TWO MONTHS FOR THE
OFFENCE PUNISHABLE U/S. 448 R/W SEC. 34- OF IPC
AND FURTHER SENTENCING THEM TO UNDERGO R.I. FOR
C'?/.
- .(I3Y'S'R1:CLBHAVANTSINGH. SPP)
A PERIOD OF 3 YEARS EACH AND TO PAY FINE OF
RS.10,000/-- EACH 1.33., TO PAY FINE AMOUNT TO
UNDERGO R.I. FOR SIX MONTHS FOR THE OFFENCE
PUNISI-IABLE U/S. 326 R/W SEC. 34 OF IPC AND
FURTHER SENTENCING THEM TO UNDERGO R.I. FOR A
PERIOD OF FIVE YEARS AND TO PAY A FINE OF RS.5000/--
EACH I.D., TO UNDERGO RI. FOR SIX MONTHS FOR THE
OFFENCE PUNISHABLE U/S. 304-11 R/W SEC. IPC
AND FURTHER SENTENCING THEM TO UNDERGAOI FOR
A PERIOD OF SIX YEARS AND TO PAY_§'.A"~«F_I-NE
RS.5000/-- EACH AND I.D.. To PAY THE FINE fT0*
UNDERGO S.I. FOR SIX MONTHS EoR~.--T1siE 'DEFENCE.
PUNISHABLE U/S. 394 R/W SEC; 34 OF IPC'.~j AL1.;'..TBE 3
SENTENCES SHALL RUN CONCvURRENTL'{;'v..._
STATE /APPELLANT PRAYS THAT"-THE_ 'ABOVE'
BE ENHANCED SUITABLY._*
CR.L.A. N0. 517 OF 2004:-
-
STATE 'DE KAIL\IA"1'AKA,a_ _ '
BY PEENYA POLICE..S'i'A'I'ION,
BANGALORE. CITY. '
~ ' APPELLANT
" I
1:-._
' "S/L0.' RAMAIAH,
AGED 18 YEARS,
--. R/O.N0.508, SESHADR1 RAO BUILDING.
NEAR AMBEDKAR ANGANAVADI,
SHIVASHANKAR BLOCK, HEBBAL,
BANGALOREZ4.
2. C. MAHESHKUMAR,
S/O. C.N. HIREMATH.
AGE: MAJOR.
%
R/AT.NO.1554, OPP. SHALINI BAR, w
1ST CROSS ROAD, CHAMUNDINAGAR,
R.T.NAGAR, BANGALORE.
3. AM. MAHESH @ PUTFU,
S/O. MOHAN A.v., .--
AGE 17 YEARS, V
R/AT.NO.C-35, P & T QUARTERS,
KAVAL BYRASANDRA, '
R.T. NAGAR POST, ''
BANGALORE -
4. K.P.KRISHNAKUIvIAfR, »
S/O. D. SI:LASHIKI.IMAR,' ' "
AGE ISYEARS,
1ST CR(__)SS};~RQAD, R,I*;'NAGAR, *
NEARVINSTI-TUTE-IFENNIS
"
-
' RESPONDENTS
(BY SR1 PASHA, ADVOCATE FOR R2]
FILED U/S378 (1) & (3) CR.P.C BY
_ 1, _ST.A'1':E..,P.P. FOR THE STATE PRAYING THAT THIS
' "COLI?RT MAY BE PLEASED TO GRANT LEAVE TO
'FILE _ ,AI\iI__ APPEAL AGAINST THE JUDGEMENT
DT.3.7':1,,2,'2003 PASSED BY THE X ADDL. CITY S.J.,
.. B,'__LORi£., IN S.c.NO.252/99 -- ACQUITTING THE
"RESPONDENTS/ACCUSED FOR THE OFFENCES
;PUNISHABLE U/S.302 AND 307 R/W SEC. 34 OF IPC. THE
APPELLANT/STA'I'E PRAYS THAT THE ABOVE ORDER MAY
1313 SET ASIDE.
6%,
- ~ ., A(B":'ISR'1j HHAVANII SINGH, SPP]
CRL.A. NO. 1851 OF 2003:-
BI3'I'WEEN:-
C. MAHESH KUMAR,
S/O. C.N. HIREMATH,
AGED ABOUT 22 YEARS, I
STUDENT OF DIPLO1vIAIN"_* ~ .
INFORMATION TECHONOLOGY (I\IIm, .
R/AT. NO.1554, OPP: SILALINI_BAR;._
157' CROSS ROAD, "
CHAMUNDINAGAR.
R.T. NAGAR POST.
BANGALORE, - v_
[NOW IN JUDICIA-L CIJSTODY-«CENTRAL PRISON).
.. APPELLANT
[BY SR1 HAsHMA'II'<I PASHA,..A.DVOCATE)
STATE'. OF KARNATAKA,IIHYIII
BY PEENYAIC POLICE STATION,
BANGALORE-CITY, '
[RE',P;v BY LEARNED STATE PUBLIC PROSECUTOR).
~ ' « V RESPONDENT
CRL.A IS FILED U/S. 374(2) CR.P.C. BY THE
'ADVOCATE FOR THE APPELLANT AGAINST THE
JLIDGMEN3' DT. 17.12.03 PASSED BY THE X ADDL. CITY
S.J.,. B'LORE, IN S.C.NO.252/99 -- CONVICTING THE
APPELLANT/ACCUSED No.2 FOR THE OFFENCES
"PUNISHA13LE U/S448 R/W SEC. 34 OF IPC, 326 R/W SEC.
* '34..0F IPC, 304-11 R/W SEC. 34 OF IPC AND 397 R/W SEC.
334, OF IPC AND SENTENCING HIM TO PRAY FINE OF
I I __?RS.1,000/-- 1.D., TO PAY THE FINE AMOUNT, TO UNDERGO
" R.I. FOR TWO MONTHS FOR THE OFFENCE PUNISHABLE
U/S. 448 R/W SEC. 34 OF IPC AND FURTHER
SENTENCING HIM TO UNDERGO R.I. FOR A PERIOD OF
THREE YEARS AND TO PAY FINE OF RS.10,000/~ EACH
%/
' .BANGALO'RE _ 32.
I.D., TO PAY FINE AMOUNT TO UNDERGO R.I. FOR SIX
MONTHS FOR THE OFFENCE PUNISHABLE U/S4....32.ST~R/W
SEC. 34 OF IPC AND FURTHER SENTENC1N_C.VHI_M
UNDEROO R.I. FOR A PERIOD OF FIVE TO F,A'1'.
A FINE OF' RS.5,00()/- I.D., TO UNDERGOF.R.I..fFOR'SIX'
MONTHS FOR THE OFFENCE FUN1SHASLE_jj~U/S. «S04;-1I~,
R/W SEC. 34 OF IPC AND FUR'1fI~iEiR"SENTE_NCH'J_G HIM TO T
UNDERGO R.I. FOR A PERIOD OF SIX FEARS. ANBV:TQ":'?1fl1Y
FINE OF RS.5.000/- EACH I.D., TO PAY THE FINE AMOUNT
TO UNDERGO RI. FOR SLK MONTE-IS"FORH. OFFIENCEVM»
PUNISHABLE U/S. 394 R/w_*S_EC. "S4 OF<I_FC.., 'ALL THE
SENTENCES SHALL RUN<._ ' CONCURRENTLY. THE
APPELLANT/ACCUSED. PRAYS ..THAT_ THE ABOVE ORDER
MAYBE SETASIDE; .. " A.
CRL.A. N0. 33 OF 2001;; '
KP. :§RISHNA.«v;<UMAR<._
AGE: ':22 YEARS,~f .,
S /O. V; SASHI RU1vI'AR;'---.. _ "
R/O. No.14,-I
RT; NAOAR, I * " '
OANESHA I3LO'CI.<:, ....
APPELLANT
"'(I3'}r' SEBASTIAN & ASSTS., ADVOCATES}
4..uID I
STATE 'OF KARNATAKA.
.. " B'{._PEENYA POLICE STATION,
" 'BANGALORE,
-{BY GOVT. PLEADER,
V "HIGH COURT BUILDING.
' BANGALORE-1}.
RESPONDENTS
{BY SR1 G. BHAVANI SINGH, SPP]
(£6/,
THIS CRLA IS FILED U/S374 CR.P.C. BY THE
ADVOCATE FOR THE APPELLANT AGAINST =._THE
JUDGMENT D'I'.17.12.2003 PASSED BY X ADDL.".CI7E'Y_S,J.,
B'LORE, IN S.C.NO.252/99 -- CONvICTINO..__E'
APPELLANT/ACCUSED No.4 FOR OFFENCES~.'
PUNISHABLE U /S443 R/w SEC. 34 OF IPC', 326 R/W SEC,
34 OF IPC, 304-11 R/w SEC. 34 OF~I.1?C ANDV3S44R/w;SEC.
34 OF IPC AND SENTENCINC; HIM ~--,T"O "PAY '--F£NE,__OF '
RS. 1,000 /-- I.D., TO PAY THE FINE AMOEUNT-,_"'1'O' UNDERGQ
R.I. FOR TWO MONTHS FOR THE"-()F'FENCE7lPUNISP;IABLE4
U/S. 443 R/W SEC. 34 OF' 1150..AND'SE1\ITENC'IN'GV»HIM TO
UNDERGO R.I. FOR A PERI"OD'=OF THREE -YEARS EACH
AND TO PAY FINE OF RS,.},Q','0O0.;[-- I.D'.~,--..TO_flI>AY FINE
AMOUNT TO UNDERGO RI. FOR. SIX MONTHS FOR THE
OFFENCE PUNISHABELLZU/S.§--,326--,R[W SEC. 34 OF IPC
AND FURTHER SENTENCINGHEM.--TOI_§~N_1j:ERGO RI FOR A
PERIOD OF FIVE f1EAF;S 'AND TOf=I>AY A FINE OF
RS.5,000/- I~v.DI««.,._fl'*O UNDERG'O FOR SIX MONTHS FOR
THE OFFENCE P:UNI"SH;A.BLE"U'/S. 30441 R/W SEC. 34 OF
IPC AND .FUR;TH_ER S.EN.TE.N;CING HIM TO UNDERGO RI.
FOR "A I2ERIOD.V"4OF'».ISIx"FEARS AND TO PAY FINE OF
RS.5,0oQ /-,I.D.';. TOPAY. THE FINE AMOUNT, TO UNDERGO
R.I. FOR*--SIx MONTHS...-~FOR THE OFFENCE PUNISHABLE
U/S." 394 R;'w"SEC; 34 OF IPC. ALL THE SENTENCES
SII;ALL,'RUN CONCIIRRENTLY. THE APPELLANT/ACCUSED
, - A PKAYS THE ABOVE ORDER MAY BE SET ASIDE.
OF 2004:»-
A.Mf
E AS.E:17 YEARS,
' 'vs/.0. A.V. MOHAN,
"ZR/AT NO.C--35, P 3: T QUARTERS,
KAVAL BYRASANDA.
R.T. NAGAR POST.
BANGALORE 560 032,
APPELLANT
(BY SR1 C.V. NAGESH, ADVOCATE]
AND:-
THE STATE OF KARNATAKA,
BY THE STATION HOUSE OFFICER,
PEENYA POLICE STATION,
BANGALORE CITY.
(BY SR1 G. BHAVANI SINGH._SPP)
RESP'ON.D'E.NT
THIS CRLA IS FILED"--vA.T};IS 3T4~{2)'vFCR.F';=C"i3Y THE
ADVOCATE FOR THE APF,EL1,ANT" «. AGAINST THE
JUDGEMENT DT. I7;.12.200'3' FASS'ED BY THE X ADDL.
CITY S.J., BANGALORE" 1N'.'S.C..N"O,'>252»/99, CONVICTING
THE APPELLANT-ACCUSED --. 'No.3. FOR * THE OFFENCE
P/U/S. 448 R/AW 34 IPC, _3v26-R/_w 34 IRC'. 30441 JR/W 34
OF IPC AND 33.4; R/W::34_, OF IRCA-N_D' SENTENCINC HIM TO
PAY FINE OF 1.000;? I.D1..3..TO'UNDERGO R.I. FOR 2
MONTHSf1*HF;_ Or'?-FENC_E_P'LlPJ1SI{ABLE U/S. 448 R/w
SEC. 34 IPC_AN1T) SENTENCINC HIM TO UNDERGO RI.
3 YE.ARS._AND PAY. F*1N'E-uO'F RS. 10,000/-- I.D., TO
UNDERGO " 'FOR.V'S__ MONTHS FOR THE OFFENCE
PUNIS}1HBLE'» VU,'_S.2, R/W SEC. 34 OF IPC, AND
FURTHER SE'.NTENC'.?.NG HIM TO UNDERGO R.1. FOR 5
Y_EARS'AND TO...._RAY A FINE OF RS. 5000/-- 1D,, TO
_UNDE"R'OO~,_R.I. FOR 6 MONTHS FOR THE OFFENCE
,PU.NISH;AB«LE.._U/S. 304--II R/W 34 OF IPC AND ALSO
SENTE'N.C"INVG,..HIM TO UNDERGO RI. FOR 6 YEARS AND
'TO-PAY FINES' OF RS. 5000/-- I.D., TO UNDERGO R.I. FOR 6
THE OFFENCE PUNISHABLE U/S. 394 R/W
34 "OF IPC. ALL THE SENTENCES SHALL RUN
CONC-URRENTLY. THE APPELLANT--ACCUSED PRAYS THAT
.. ABOVE ORDER MAY BE SET ASIDE.
These appeals are coming on for hearing this day,
_ RAO, J ., delivered the following:
4/
JUDGMENT
One Smt. Parvatharnrna is the Puttashetty -- PW3 is the brother gth-.e if Leelavathi -- PW1 is the wife, of PW3A.f'}'.he said gt}:-ersonls 'Were all residing together in the Vfheionging to one Nanjundaiah ~-- which is one of the row of were residing in the said rovy. (for short R1) in cri.A.No.Esi'e;("0éi"-"i§§__ No.1 {for short A1}. The Appeiiantsf; 1 /03, Crl.A.No.38/04, No.2, Accused No.4 and AccusedRi\Ioh.3 [for A4 and A3] respectively before Court'. « ..... .. v _v2'.«_ was the neighbour of PVV3. A1 is studying VVA3_'¢o Ii-évffare friends of A1. PW-4 is the minor child of PVV1, 'age'd".Varound 2 years at the time of incident. Al was it "quite friendly with the members of the family of PW3. On
t)9;f)1.1999 around 7.30 p.rn., PW1, PW4 and the deceased "were in the house. PW3 had gone out on work. A} visited PW}. and the deceased. He had chat with them and he was given coffee, afterwards he came out. to 10 minutes, A1 came back along with A2 that he has forgotten his cap iniltheblhouseg. A1 it gagged PW1 with his hands and told companions One of the accused assau1te(':I"c<]?:'V§}'»'»1 with side of the neck, the other telling the PW1 to open Almerahg. 1:; of assault fell unconscious. V t V V
3. PW1 found that her hands were__was gagged with a kerchief. She also found .her'V._au:nt dead. The Almirah was open. 'I'hef:' articles in the Aiinirah were helter«s1«:e1ter. The Valuable _a"fitic1<2?§§'inh'the were found robbed. She went to open 'V'out:'..found that it was bolted from outside. PW1 tapped thveldoor. One Komala »»~ PW6 (neighbourefl came and AA openeédthe door. With the assistance of neighbourer, PW3 informed. PW1 was taken to Raghavendra Nursing MEI-Iome for treatment. The police recorded the statement of PW1 in the Nursing Home at 9.30 p.m. as per Ex.P.} which is registered as FIR.
«P.
4. The PM report of Parvathamrna.u'disclos'es- the death is due to asphyxia as a»res_u1t throttling and the death is honiii&cid'a1:'0V Raghavendra Nursing Hom'e.__'The wound. cei:tifi«cate...o:f PW'? as per Ex.P.21 discioses thatV_s_h.e,_has sustained as many as 11 injuries both incisedand.glacera'tedninj.uries on the neck, forearm and dcrsum.V.*i"1'ie. in_1uries are «stated to be grievous in nature.
ffhedttiiii-IO. 'Visited tthesvcene of offence conducted the inquest.' finger print expert. The chance ilrints Kin..."-7"the knob of the Almerah. The plidtographs ar'e.ta..1«:en. At the time of inquest the blood ' V..st.1inedV'~toWei,.._the blood stained nylon rope and a banian "which was jiying at the scene are seized under Inquest Rem. 0 0 A1 to A4 are arrested on 10.01.1999 in the night Agaround 4.00 a.m. At the voluntary instance of Al, the blood stained clothes i.e., one Jeans pant -- 1\/1.0.62, one shirt - M.O.63 and one cap -~ M.O.64 are recovered under
-- Ex.P8.
7. At the voluntary inéstanoe 2 M.O.1, one pant -- M.O.6Er, _4and2'one= shirVt~?--A recovered under EX.P9.
8. At the in.s"t'ance'<of"A--~3',. gold' ornaments and other valuables which to M.O.15 under _maha:za:':._ '_<
9. _ x12it'Vt.he4.vol:inta'1-gr instance of A-4, blood stained pan, blood gold jewels M.O.56 to M.O.61 respectively are 'recovered under mahazar EXP7. The above 2 " witnessed by PWIO and CW7.
bloodstained articles are sent to FSL for examiriaticnt. F'SL report is marked at Ex.P.18 and serologist Areportwis marked at EXP28. A-2 to A-4 are strangers to it The Taluka Executive Magistrate conducted the TI _.:%parade on 22.02. E999 vide Ex.P.29. PW1 has identified A2 to A4 in the TI parade.
Cg/_ 13
11. The material Witness examined by the prosecution are PWi-- complainant cum injured witness. PW3, husband of PW1 speaks to the post .i"n.cident circumstance and identifies M.O.i0 to ~ at the instance of A3 as the articles belonging to':_the_m:.VV the child Witness son of PW1 whe"'testtfiee1 ts j't1ee ineidertt. PW10 is the mahazar witness for the :1fieooVeri'es;'_-.pvZ[1'£?t:"isVft11epV doctor who has treated and iivound' certificate as per Ex.P;22. the 'i'e'iLGV§register of the iviospitalfs.._rnarked"-.tat. Ex.P22{b}. PW16 is the Asst. Directonof FSL report as per Ex.Pi8. PW21 is _Sci'entificw Officer who conducted serological ieiéarriiinatifont and issued report as per Ex.P28. PW22 is the " efV"i;'3}:iéecutive Magistrate who has conducted 'I'.I. Parade; -- Nagendra Rao is the Finger Print Expert. His Areport.~;_IA§x.P.27 discloses that chance prints found at the 'scene tally with the fingerprints of A3.
12. PW24 is the ID. who registered the FIR, conducted the investigation and filed the final report. All the C7!/.
above said witnesses have testified to ti1e.'.p'V'.:n'ateria1 circumstances, which incriminate the gu_i1t__,o'fV,th~e:"a.ccusedu and have supported the case of the proésecntion; "
13. The following are the infcriitiinatingvg circurnstaizce' ; relied upon by the prosecutiovntto prove't.h_ei of each of the accused:--
Accused No. 1:-
1. A1 is §acCp_ia_inted with P'.?ifi":.an.d_VVV}1er family. PW} has named Al attribiiting; overt acts of assault.
2. V'.,Th'e'i'ecoVreiy"of blood stained T--shirt -- M063 and one Jeans ,-- afthe Jxfroiuntary instance of A1.
Aceused No.2;: " "
if _iThe--.identification in T.I. parade by PW1 and at the Vwroiiiiirtggxryvninstance of A2, blood stained knife --- 1Vi.O.}, blood 'stained 'I'--shirt -- M.O.65 and M.O.66 are recovered. Accused No.39 xl___ He is identified in the TI. parade by PW1. Q2. His fingerprints are found on the knob of Almerah.
3. The gold ornaments and other valuables--M.O.V1"0_ to 15 were recovered from the possession of A3. The"'PlWi_3l"'-has identified the articles as belonging to his family.j"" « f '
4. The evidence of fingerprint expert -- prove it the said circumstance.
Accused No.4:-
He is identified in paraded The bloodstained pant and_.":s.hir--t are,ll.I'eco've~red at his instance. The gold jewelleries lar--e;--r'ecoVered from his possession at »l'volunta1ry"instanceZ
- M.O.2, towel -- M.O.5, bloodstained -bar1~i__an._--: 'Mf.O.9 were found at the scene. They weiiée seized at"«the.ytime of inquest and sent along with ' gbloodvsvtained'clothing of the accused persons to the ESL. The andlfiejrologist report discloses that bloodstains on all lillarticlesll are of 'O' group blood.
15. The trial Court on the basis of above evidence, Algconvicted A1 to A4 for offences U/s.30-4 part --II {PC for causing death of Parvathamma and further convicted them for the offence U/s.-448, 326 and 394 r/W. 34 of IPC.
16.
E6 The State has filed two appeals. One appeal is filed against the acquittal for offence 304 IPC and another appeal is filed seeking enhancement of sentence for the offence U / s.302 of IPC.
17. appearing for A4 made the following subn1i_ss'i-ons:tot:_asfsailuA Sn' Torny Sebastian, the learned seniorcounsel the order of conviction.
.__cond.ucted is a farce exercise. VT'lac'.;_phoi.ogra'ph--sp of to A4 were published on '---_'§¥;;p1"* "§.:7anu--a1fy' 1999" in Prajavani and on 17th lJa'n1,1_ary in I-Ii--Bangalore. The TV channels '1ad~aiso'i't.ele.cast the episode showing A2 to A4. 4' PW'-._3 admits that he had seen the photographs in the riewspapers and also telecast in the TV 4 channels.' _T1'1€ PW--1 that she had not seen the photographs in the paper and the telecast and that she was not informed of the said fact by her husband is an artificial version.
iv} PW--1 does not give the physical features of A2 to A4 in the complaint. Further states that when she was admitted in hospital, the police visited her, but she was not in a position to tell the description of A2 to A4 to them.
PW4-- son of the deceased admits that he has seen the telecast in the TV and his father has recorded the telecast. The evidence of PW-4 is 1 vi} vii}
viii) ' .s and 'cu':tings.
discrepant and artificial and he witness.
Pw--3 admits that hehas.seen"the"e.pljotographsu ' u in the newspapers and also seen ''th'e--._tele£:_ast:but ' says that he has notshowh' the~.ph.0tographs'--to Pw-1. The said version is artificialfix . A V The integrity of TIV"para,de is "doubtVi"ul.:';:
The recov'e1y of blootie'-s'tain'ed clothing from Al to A3 is a c"onco.ctedi,c:ircuj;i1stance. PW»16 is the Asst. Director of 'V FSI.2«.._ "f3he_ states that she analyzed :1"1"artic1es.p;sent by the 1.0. She scraped tl1e«.i1fiferim_inatirig 'matejrialsffrom the articles and 'cut5f°some'« of the frpieces for sending it to Serologist,"'--QCaic.uAtta;--.b The records otherwise 'rV.Vdis€:!_.ose t_hegarti€',l__es were never sent to Calcutta. xElevei*1"'a.rtieles were immediately returned after e'2:aminatio.n" by PW-- 16.
There "is no""irr1rnediate examination of scrapings V _ It is only a day before the recording' of evidence of PW--21, the examination of scraping and cuttings is done and report is asent to the Court. The latches and belated examination of cutting and scrapings create a serious doubt about the veracity of the V A --- Serologist report.
The evidence of PW--1 With regard to photographs is discrepant. In the complaint she says that she was held by Al and one of the persons stabbed her and the other two attacked the deceased. But in the evidence she gives a twist to the theory that all the four attacked PW} and also the deceased.
J0/-
18.
in the FIR, PW--1 states that Al alonelat the first instance and after drinkj'n'g»coffee:_. he went away. Thereafter, together in the first instance, " after~..d.1jinlA<fnig coffee they went "aw'ay" and .come__'«back immediately two others. W V "
Sri Hashmath Pash:a-and' sfi 'Lankesh adopted the arguments of Sri G.Suresh for A1 made the additional s1;br111ss1oi1.s';t, which are as follows:
1} "i~..RaghVavcndra* Nursing Home discloses that in ._the hiistoryyygcolumnl; injuries are by assault at lllrggister at EX.P22 of V7f3Q._yp;m;~by~-]\/iurali and other with a knife. The narne"i'.oi'~l\/lurali is struck off in the history L l ~ col'Umn.' contents of the Admission register create serious doubt about the involvement of thelaccused in the incident because of ttalnpering.
~ accused were arrested on the same day and ,T..i". parade with inordinate delay was held on 22.2.1999 which dents credibility of T.I. parade.
Sri Bhavani Singh, per contra, argued that the AAr:.ircunistances of T.I. parade and the recovery evidence 'suggest that blood stained cloths of the accused tally with
-V-"the blood group of PW1. The fingerprint found at the scene %/ he 'carr1e'- "ba'ck'» 4_ immediately with three others, in the "
evidence, PW1 state.s""that he and Aéjcaine ' on the handle of almirah would clinehingly ;_.the guilt of A3. The death of Srnt. Parvathamma. is by smothering. The death is causedpéinptentiionafilly..andalso the injuries are caused which are Capable of-it-;ca.1:1singy}deathop in the ordinary course. Hence';"i'th'e accused have been convicted U / s.302 of ~. of IP('3H'forVV attempting to cause murder of lesser sentence U/s.304~II of 'is is to be modified.
The is inadequate and Calls: d d of TI parade is seriously
ehalplengedaby It is in the evidence that on 1,_i';3'.1.i999_ in i5r'aja1Iani and on 22.1.1999 in 'Hi--Bangalore' ' of A1 to A4 are published. It is also not A1 to A4 are shown in the TV telecast on 1(i.O.1:'1.V9§IQ. PW3 admits that he has seen the telecast and 2 .. it aiso the photographs in the newspapers. However, he states not show the photographs to PW1. It is argued that H PW4 admits that PW3 has recorded TV telecast. Therefore, the say of PW1 that she has not seen the telecast and AK 20 photographs of A2 to A4 prior to T1 parade version and to be rejected.
21. When accused apfivstranger 2-the eyewitness/victim, the I.O.,'immediately after arrest the accused would get through Executive Magistrate orelehprove thevidentity of the accused. The 1.0. should identity of the accused till" If there is any material 'eyewitness/victim had access to see the of the evidence of TI parade becomespél doub.ti"ul" believed. The evidence of identification» oiftthe accused in a foolproof T.I. parade is one " . ouflthebstrorigest circumstances to prove the guilt. development of technology has vigorously energitzedv the visual and print media. The competitive over it » active media to churn out the News 24X'? keeps sniffing and behind the police. The incidents of crime are sensationalized as a news for lucrative commercial pursuit. The Police Officers who are publicity crazy fall prey to the ab 21 temptations of press and part with the information of the half--done investigations. Many a time, the names of the police officers are quoted in the news items as a source and they also appear in the visual media. The hasty disclosure of the evidence collected in half done dangerously harm the investigatior}: /flhe vvill have a , scope for tampering and hushing ,-up: the 'evidence. ":'7E"i€ Service Conduct Rules governing th'e,_P'ol.ice eO'fTg:ers wliollarel. public servants does not to give press inte1y'i'evvs.,. in public capacity. The breachof._the_ rulei'---attracts a disciplinary action. The hasty part*i.r1g' iVnvAesti'gation of half done investigation and p._i}iil3licatio,n of suchmiinvestigation as a news by media would ' ;.aii1ount"to'-interfering with the administration of justice and Svvould to contempt of court.
it The Supreme Court in M.P.Lohia Vs. State of lwelslt Bengal reported in AIR 2005 SC 790 has made the _ .:l"o1lowing observations:
10. Having gone through the records, we find one disturbing factor, which we feel is 22 necessary to comment upon in the interest of justice. The death of chandni took place on 28th February, 2002 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipaVtory'r._V bail was disposed of by the High Court of Ca_lc_u:tta",;~ "
on 13.02.2004 and special leave petition' . pending before this Court. Even, then an"articleV'l'ias., appeared in a magazine callédjj.
"Doomed by Dowry" written by one based on her intervie.w"~V..of farniivy "'of"""'the deceased. Giving versio4n".,:oj",_the .'i':agedy E and Vekttensiiielyuifguotirighthe cf the deceased as to 'version case. The facts narrated therein are aii.:mate.rials that may be used in the _ -- forthcoming. "trial this case and we have no " hesitation 'that---tlliis type of articles appearing in the would certainly interfere with the of justice. We deprecate this and caution the publisher, editor and the journalist who were responsible for the said article against in such trial by media when the issue is subjudiced. However, to prevent any further issue being raised in this regard. We treat this matter as closed and hope that the other concerned in journalism would take note of this displeasure 23 expressed by us for interfering with administration of justice.
24. In the light of the above observationsgathered' be no second opinion that hasty H;3arting..«of.; the police officials which has interests of investigation and 'vstieh publication. ofzvinformation by the media would vamountt'to~.e_o--ntempt ofcourt. We direct the Director General of _e_Po1'icei*Horne-.Secretary to take disciplinary _a.ctio.n ag'ainbst'..t11.e';Soli_ce' o.ffi'cers who give press inteiviews "atppeai-'...__ in f visual media revealing the information reiatin tderifine.
The«...,media may have right 'to information ' ,.V'r"elatingi tofffinvestigation, but only after the investigation is " eahjdfthrough the material in the charge sheet, filed the court and not by oral information from the police V. if officials.
26. We find that the evidence of PW4 is to be out- rightly rejected on the ground of a child witness not competent to testify. On the date of the incident PW4 Was JK 24 aged around 2 years, on the date of the evidencelgfiaged around 5 years. The evidence is recorded a*ln1ost._'ahGut'"13*.p years after the incident. It is incredible testify as an eyewitness to the inci'dent_.l'llhellway in the PW4 has answered the questions in " the' crossleiiaminatiorii V shows that the child ;__has absolutely_Vpno .properVp,rhaturity to understand and answerthe has answered all the suggestions put I V'af'i'1rmative Without proper undei¢sta:n:d.ing.:_' are by the imprudent condVuctVl'o£.tne f'3:iiE:li'c~.P1'osecutor in tendering the witness bef0re'_th.e_ court «aspanylegrevntness. Therefore no part of the evidence tor: PW4; 'can bejconsidered as valid evidence either support of the prosecution or the defence. it " W1 emphatically says that she has not seen the iphotogrnphsl in the newspaper and nor seen the telecast. Thereis no ground to disbelieve her veracity. Since, there is 'snort.-'material on record to show why PW}. should falsely Héimplicate A1 to A4, if somebody else has committed the offence. It is true that in case of appreciation of evidence of "III. parade the witnesses who are expected to identify the culprits should not be prompted in any manner parade. It is because if such prompting takes evidence of identification in T.l. parade' be believed but that should notlbe rule under all circumstances.,V The" Videntiiication. of the accused by the Victirn/witnesslyin the " need not necessarily be rejected" they are prompted prior to T1 parade, if the victim witness could indelible memory.
The by the police may be be a ground to reject the tesytinionyh d it the evidence states that it was A1 and A#£'on_j..first occasion, later on they came with two 'other In the FIR, she has stated that Al Visited first'.,VI?A'urther in the FIR she has stated two of the accused r.as'saulted and two attacked the deceased. But in the evidence she states all the four attacked her and also the deceased. These discrepancies are only minor in nature and 26 5 cannot go to the root of the matter to disbelieve theversion of PWl regarding incident and the guilt of A1 to A/in =
29. With regard to the recovery evi_denc.e;"l stained clothes is recovered fromjAl;"A2 b rope, a towel and blood stained l:ani--an were found ,_at.Vti'1e scene and seized at the Smt.' Parvathamma is an asphyxia-'dehathl'vrithotit'spillvvvof a blood. PW1 was attacked forearm, palm and dorsurn 'and she l1eavi13tlvi'blee'disngV§. Her evidence also discloses acvc_t1's.ed -'tried to strangulate her with nylon A2l"-assaulitedfhler with knife. The blood stained clc{th"es., nylon _l_rope,V'banian and towel are sent FSL along l3lood'*s_tained articles are recovered at the instance of A ._ The FSL report discloses that all the eleven articlefs '11 A bloodstains.
it -.350. PWl6 -- Addl. Director of ESL in her evidence ll --..V"s.tates that she had "scrapped the incriminating material from some of the articles and the cuttings were sent for serological examination to Calcutta. The said evidence appears to be 4/, 27 inadvertent evidence without reference to _,'_I'lie evidence of PW21 discloses that he conducted examination about two days prior tothise'vid'eArice'*be.fore p_th.e Court. The evidence discioses reminders were".Lis'sui'edlbyvtheiy 1.0. for production of Serologlishtii before was almost delay of mo1~e_ "in "conducting serological examination cuttings. The delay was of FSL. On his orders fi1ev"::'p.scraplngs and cuttings and issued evidence. The FSL report and serologistlreport that blood stained clothes of A1, 'A2 stained articles like knife, nylon Etowel and b.anian. All of them is 'O' blood group. This ' involvement of the accused and their guilt. Tlie above facts may disclose that there is an elelnient of latches on the part of ESL authority in not " examining the articles promptly. But the delay on the part of lithe FSL need not be a ground to reject the veracity of the evidence of PWI .
28
32. The A1 is familiar to PW}. A2 to*'**i'-\.l4;.:a:_re' familiar. But they are identified in TE paradeitylvfne Vb blood stained clothes and articleslhlfrorrié corroborate the version of PW1 and~--Aclinching1y.to pr(5ve'¢h'e» guilt. In so far as A3 is concervrieidthe go1d__a1'ticlesv_MtV)s 11 to 15 have been seized an'd_«_recoylered._they are identified by PW3 as belonging to their fingerprint of A3 is also at:;: the would clinchingly establish the or A3; V fl33_i $5.';-fig--?;l':€gaS'{§iii..$h€d by the reasoning of the trial Court for an offence U/s.304~II of IPC.' it is a clear'c'aseV'where accused persons trespassed into intention to commit robbery, in that deliberately smothered and throttled S1nt.Parayathamma resulting in death by asphyxia. They AA attacked and assaulted the deceased with knife on the neck other parts of the body. The said conduct would clearly « iestablish the guilt under Sec.302 for causing death of Parvathamma and Section 307 of IPC for attempt to cause 4/ 4 - 9 1i9.lSR'_I ,*iaién_= 29 the death of PW1. Besides the accused are also guilty U/s.394 and 448 r/w 34 of IPC.
For the reasons and discussion made above, the appeals of the State are allowed. A1 to A4 arepclonyicted U/Ss.802, 307, 394 and 448 r/w 34 IPC. -Ia_._._r"et_v sentenced for life U/53.302 of IPC and alsofor» life U/s.307 of IPC. They are convic-ted 'ana...'5efite1:u;_es;Vlio rigorous imprisonment for p__eriod7of"lO 9. IPC, two years for offence U/ of_IPC.'-. * V"l'dhe"apipeals'i of tliefaccused are dismissed. 'If accused«.'are"'o_n*--.ba.il, they have to be arrested and committed .to*serv.e the ' sentence.
' , 24/Soap/aorio
--« ORDERS ON 'BEING SPOKEN T0' v.__C'o1ir1sel for respondent No.4 -- accused No.4 (for short AA A4) in..--the appeal by the State has brought to the notice that, 9' date of birth of A4 is 15.4.1981. The date of commission of offence is 9.1.1999 and that A4 was aged about 1.7 years 8 months 24 days on the date of commission of offence. The counsel for A4 relied on the decision of Supreme Court in l 30 HARIRAM Vs. STATE or RAJASTHAN reported in (2010) 1 scc (cm) 987 and STATE (NCT OF DELHI} AND AN€§THi{:R re"po1'*ted._.: in We {2.fo1'o}"::2 SCC (Cm 1274: to contend; that, «A411"wou1d,1..'c_i;»'13: fentitiecii benefit under the Juvenile [Care and Pijotection of Children} Act, 2000 effect frorn 1.4:.2001.
2. The decision Court in the said case. juvenility of the accused" :is. the basis of date of com1:'niss_ion1V1ofV--offence:1_f:an_Ci-- with reference to the date the Juveni1e..J:ustice- came into force w.e.f. 1.4.2001. " 3. The "'p.1jvo1VVijsior1s of Section 2K, 2L, 7A 2-/w Section 20 Act would make it clear that, whenever the ._ date of commission of offence is less than 18 years..'_on-orfbefore 1.4.2001, he would be entitled to benefit .. underethe J uveniie Justice Act.
4. In this case, the prosecution version itself would disclose that, A4 was a juvenile as on the date of commission of the offence. Therefore, further enquiry with regard to 31 determination of the age is unnecessary. The sentence imposed in this appeai against respondent i.s_e'é:_ aside and he is directed to be sent to Juvenile v~».j:L'1.StiC:€ Board' V. b who shall deal with the case in aceordarieé: = d .' En respect of the other»ac,c_:L1sed;.vthe order 4eon\_§iction" ; and sentence imposed is confirmed.
Registry is direVcted-- to jiidgrnent to the Director General of Secretary for strict compiianceoi" i-i?1..;"Jara 24.
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