Karnataka High Court
Dilip Kumar vs State Of Karnataka on 13 February, 2024
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 313/2022 (C)
C/w
CRIMINAL APPEAL NO.1305/2019 (C)
CRIMINAL APPEAL NO.1307/2019 (C)
CRIMINAL APPEAL NO.1350/2019(C)
CRIMINAL APPEAL NO.593/2020 (A)
CRIMINAL APPEAL NO.1035/2020 (C)
CRL.A.NO.313/2022:
BETWEEN:
DILIP KUMAR
S/O RAJEGOWDA
AGED ABOUT 24 YEARS
R/AT OLD HOUSE NO.443
LAKSHMIKANTHA NAGAR
BEHIND EWS QUARTERS
Digitally signed HEBBALA, MYSORE - 570 016 ...APPELLANT
by PRABHU
KUMARA (BY SRI MOHAN KUMAR D, ADVOCATE)
NAIKA
Location: High
Court of AND:
Karnataka
STATE OF KARNATAKA
BY ADUGODI POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 12.06.2019 PASSED BY THE LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
S.C.NO.744/2014 CONVICTING AND SENTENCING ACCUSED NO.5
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120B, 396,
397, 302, 201 OF IPC.
CRL.A.NO.1305/2019:
BETWEEN:
SRI AMITHKUMAR @ BUTTA
S/O DEVILAL SHARMA
AGED ABOUT 26 YEARS
R/AT HOUSE NO.91, SHARDADEVI NAGARA
RAILWAY LAYOUT, BHOGADI
MYSURU - 570 001 ...APPELLANT
(BY SRI MOHAN KUMAR D, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ADUGODI POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 12.06.2019 PASSED BY THE
LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-57) IN S.C.NO.744/2014, CONVICTING AND SENTENCING
THE APPELLANT/ACCUSED NO.7 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 396, 397, 302 AND 201 OF IPC.
CRL.A.NO.1307/2019:
BETWEEN:
SRI SRIDHAR P S
S/O DEVARAJU
AGED ABOUT 31 YEARS
R/AT HOUSE NO.1104
4/10TH CROSS, E AND F BLOCK
RAMAKRISHNA NAGARA
MYSURU - 570 022 ...APPELLANT
(BY SRI SATYANARAYAN S CHALKE, ADVOCATE FOR
SRI BHARATH K, ADVOCATE)
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
AND:
STATE OF KARNATAKA
BY ADUGODI POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 12.06.2019 PASSED BY THE LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-57) IN S.C.NO.744/2014 CONVICTING THE
APPELLANT/ACCUSED NO.6 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 396, 397, 302 AND 201 OF IPC.
CRL.A.NO.1350/2019:
BETWEEN:
SRIRANGA ABHISHEK @ ABHISHEK
AGED ABOUT 30 YEARS
S/O JAGADISH
R/AT NO.5127, 8TH MAIN, 7TH CROSS,
2ND STAGE, VIJAYANAGAR
MYSORE - 570 017 ...APPELLANT
(BY SRI MAHESH S, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ADUGODI POLICE STATION
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 12.06.2019 PASSED BY LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-57) IN S.C.NO.744/2014 CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 396, 397, 302 AND 201 OF IPC.
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
CRL.A.NO.593/2020:
BETWEEN:
SMT. SUSHEELA
W/O LATE K B UDAY RAJ SINGH
AGED ABOUT 61 YEARS
R/AT NO.224, 3RD A MAIN ROAD
OMBR LAYOUT, CHIKKA BANASWADI
BENGALURU - 560 043 ...APPELLANT
(BY SRI H.JAYANTH POOJARY, ADVOCATE FOR
SRI U S YOGESH KUMAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ADUGODI POLICE STATION
BENGALURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 02.11.2019
PASSED BY LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
AT BENGALURU (CCH-57) IN S.C.NO.744/2014 C/W
S.C.NO.772/2016 AND DIRECT THE SAID COURT TO RETURN MO.1
TO MO.4 TO THE APPELLANT HEREIN.
CRL.A.NO.1035/2020:
BETWEEN:
KIRAN
S/O BHIMANAIKA
AGED ABOUT 28 YEARS
R/AT ANGARAHALLI VILLAGE
DUDDA HOBLI, KAMMARAGHATT
MANDYA DISTRICT - 571 405 ...APPELLANT
(BY SRI MOHAN KUMAR D, ADVOCATE)
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
AND:
STATE OF KARNATAKA
BY ADUGODI POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX,
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 12.06.2019 PASSED BY LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
S.C.NO.772/2016 CONVICTING THE APPELLANT/ACCUSED NO.3
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120B, 396,
397, 302, 201 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals arise out of the common judgment and order passed by the LVI Additional City Civil and Sessions Judge, Bengaluru (CCH-57) in SC No.744/2014 and SC No.772/2016 against accused No.1 & 3 to 7. Accused Nos.1 and 4 to 7 were tried in SC No.744/2014 and accused No.3 was tried in SC No.772/2016 on the basis of the charge sheet filed by Adugodi police in Crime No.103/2014 of their Police Station for the offences punishable under Sections, 120B, 396, 397, 302, 201 IPC.
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2. Crime No.103/2014 of Adugodi police station was registered on the basis of the complaint filed by Susheela, W/o Udaya Raj Singh who was examined as PW.1 in SC No.744/2014. Initially the case was committed against all the accused i.e., accused Nos.1 to 7 to the Sessions Court which was registered in S.C.No.744/2014. Accused Nos.2 and 3 absconded. Therefore case against them was split up. Case against accused No.2 was registered in S.C No.1018/2017 and case against accused No.3 was registered in S.C.No.772/2016. For the purpose of convenience, the parties are referred to according to their ranks before the trial Court.
3. On trial, the trial Court by the impugned judgment and order convicted accused Nos.1, 3 to 7 for the charges for the offences punishable under Sections 120B, 396, 397, 302, 201 IPC and sentenced them to various terms of imprisonment and fine as per the table below:
Sl. Convicted Sentence Fine Default No. for Offences amount in sentence U/s Rs.
1 120B IPC RI of 6 months 5,000/- SI of 2 months 2 396 IPC RI of 10 years 10,000/- SI of 1 year 3 397 IPC RI of 3 years 5,000/- SI of 3 months 4 302 IPC Life Imprisonment 1,00,000/- SI of 3 years 5 201 IPC SI of 1 year 5,000/- SI of 2 months -7- NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020
4. The trial Court directed to release MOs.1 to 4 to PW.1/complainant after the appeal period. She filed application before the trial Court for release of custody of those properties. The trial Court by the order dated 02.11.2019 rejected the said application on the ground that the matter is pending before this Court in Crl.A.No.1350/2019. Challenging that order complainant/PW.1 has preferred Crl.A.No.593/2020. The particulars of the appeal numbers and appellants in the above cases are set out in the table below:
Sl. Criminal Sessions Appeal
No. Appeal Case No. preferred by
No.
1 1350/2019 744/2014 A1
2 1035/2020 772/2016 A3
3 313/2022 744/2014 A5
4 1307/2019 744/2014 A6
5 1305/2019 744/2014 A7
6 593/2020 744/2014 & PW.1/complainant
772/2016
Since the evidence in S.C.No.744/2014 is more
comprehensive, exhibits and the witnesses are referred to henceforth as stated in S.C.No.744/2014. -8-
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5. The trial Court though in the judgment says that it recorded common evidence, the records show that accused No.2 was secured after examination of PWs.1 to 5 in S.C.No.744/2014. PWs.1 to 5 and 39 in S.C.No.744/2014 were not examined in S.C.No.772/2016. For the purpose of clarity, comparative chart of the witnesses and exhibits are extracted below:
Annexure-A Witnesses Comparison Sl.
N S.C No. 744/2014 S.C.No.772/2016 o. 1 PW.1- Smt. Susheela 2 PW.2- Smt. Lakshmamma 3 PW.3- Smt. Sudha Mohan 4 PW.4- Rajendar Singh B.R 5 PW.5- Anantha Simha 6 PW.6- Iliyaz Khan PW.1- Iliyaz Khan 7 PW.7- Naveen Kumar PW.2- Naveen Kumar 8 PW.8- Sharavan Kumar PW.3- Sharavan Kumar 9 PW.9- Bharath PW.4- Bharath 10 PW.10- Satheesh PW.5- Satheesh 11 PW.11- Umadevi PW.6- Umadevi 12 PW.12- Prasad PW.7- Prasad 13 PW.13- Narayanswamy PW.8- Narayanswamy 14 PW.14- B.H. Singh PW.9- B.H. Singh 15 PW.15- Vijetha Singh PW.10- Vijetha Singh 16 PW.16- Deepu PW.11- Deepu 17 PW.17- Irfan Pasha PW.12- Irfan Pasha 18 PW.18- Ramdas PW.13- Ramdas 19 PW.19- Dr. Ramesh PW.14- Dr. Ramesh 20 PW.20- C.S. Nagalakshamma PW.15- C.S. Nagalakshamma 21 PW.21- Manjunath Singh PW.16- Manjunath Singh 22 PW.22- Sukumar Singh PW.17- Sukumar Singh -9- NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 23 PW.23- G. Somashekaraiah PW.18- G. Somashekaraiah 24 PW.24- Nanjunda Swamy PW.19- Nanjunda Swamy 25 PW.25- Dr. Arif PW.20- Dr. Arif 26 PW.26- Dr. Mohan PW.21- Dr. Mohan 27 PW.27- Prem Singh PW.22- Prem Singh 28 PW.28- K.G Kumar PW.23- K.G Kumar 29 PW.29- G. Raveendra Kumar PW.24- G. Raveendra Kumar 30 PW.30- Sharanappa PW.25- Sharanappa 31 PW.31- K. Anandh PW.26- K. Anandh 32 PW.32- Purushotham PW.27- Purushotham 33 PW.33- Manjunath PW.28- Manjunath 34 PW.34- S.N Subhash Chandra PW.29- S.N Subhash Chandra 35 PW.35- Basavaraj.S Hadapad PW.30- Basavaraj.S Hadapad 36 PW.36- Somashekar PW.31- Somashekar 37 PW.37- Manoj Kumar PW.32- Manoj Kumar 38 PW.38- Sudheer. S PW.33- Sudheer. S 39 PW.39- Dr. Chandrashekar Exhibits Comparison Sl. S.C No. 744/2014 S.C.No.772/2016 No. 1 Ex.P.1- Statement of PW.1 2 Exs.P2 to 5- Photographs 3 Ex.P6- Statement of PW.2 4 Ex.P7- Statement of PW.3 5 Ex.P8- Spot Mahazar 6 Ex.P9- Statement of PW.5 7 Ex.P10- Mahazar Ex.P1 8 Ex.P11- Statement of PW.6 Ex.P2 9 Ex.P12- Statement of PW.7 Ex.P3 10 Ex.P13- Mahazar Ex.P4 11 Ex.P14- Statement of PW.8 Ex.P5 12 Ex.P15- Statement of PW.9 Ex.P6 13 Ex.P16- Statement of PW.10 Ex.P7 14 Ex.P17- Mahazar Ex.P8 15 Ex.P18- Spot Mahazar Ex.P9 16 Ex.P19- Spot Mahazar Ex.P10 17 Ex.P20- Statement of PW.12 Ex.P11 18 Ex.P21- Statement of PW.13 Ex.P12 19 Ex.P22- Mahazar Ex.P13 20 Ex.P23- Statement of PW.16 Ex.P14 21 Ex.P24- Mahazar Ex.P15 - 10 - NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 22 Ex.P25- Statement of PW.8 Ex.P16 23 Ex.P26- P.M Report Ex.P17 24 Ex.P27- Wound Certificate Ex.P18 25 Ex.P28- Inquest Mahazar Ex.P19 26 Ex.P29- Report Ex.P20 27 Ex.P30- Wound Certificate Ex.P21 28 Ex.P31- Spot sketch Ex.P22 29 Ex.P32- letter to the police Inspector of Ex.P23 Adugodi Police Station 30 Ex.P33- FIR Ex.P24 31 Ex.P34- License Certificate 32 Ex.P35- Registration Certificate of Edelweiss Company 33 Ex.P36- Edelweiss Company 10 Agreement and 2 visiting cards 34 Ex.P37- Edelweiss Company Rental Agreement. 35 Ex.P38- Five rent copies 36 Ex.P39- Instruction slip Book and Demand Details Book 37 Ex.P40- Report of PW.36 Ex.P25 38 Ex.P41- Report of PW.57 Ex.P26 39 Ex.P42-P.F.34/2014 dated 25.03.2014 Ex.P27 40 Ex.P43- Statement of A-2 Ex.P28 41 Ex.P44- Statement of A-3 Ex.P29 42 Ex.P45- Mahazar 43 Ex.P46- FSL Report 44 Ex.P47- Sample Seal
6. The case of the prosecution in brief is as follows:
PW.1 Susheela and her husband Udaya Raj Singh had inherited M.O.1 antique diamond necklace worth about 18 crores and M.O.2 another diamond stone. After the retirement of Udaya Raj Singh they were residing in Wilson Garden area. PW.1 and Udaya Raj Singh intended to sell M.Os.1 and 2 and out of the proceeds of the same they intended to construct orphanage/community centre.
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 Therefore, they were negotiating for sale with several persons. Accused Nos.1 and 2 had incurred huge loss in their business which they were running in Mysore. To overcome their financial distress they decided to make money by any means. They came to know about PW.1 and Udaya Raj Singh possessing valuable antique jewellery. Accused Nos.1 and 2 conspired with other accused to rob the same from them. To gain the confidence of the couple, Accused Nos.1 and 2 got themselves introduced to Udaya Raj Singh and represented that they will arrange for the sale of M.O.1 for a handsome price. In the guise of such business and in execution of such conspiracy to commit robbery accused Nos.1 and 2 on 25.03.2014 at 11.00 a.m. went to the house of Udaya Raj Singh in the cars belonging to accused Nos.1 and 2 viz., KA-09 MA 1351 and KA 09 MA 2147. They represented to Udaya Raj Singh that they are bringing customers at 2.00 p.m. and he should secure the necklace. Accordingly at 2.00 p.m. accused Nos.1 to 7 came to the house of Udaya Raj Singh. Accused No.7 stood outside keeping a watch. Accused Nos. 1 to 6 entered into the house. On Udaya Raj Singh showing them the photo of
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 M.O.1, accused asked him to get M.O.1. On the instructions of Udaya Raj Singh PW.1 brought and handed over the same to him. Accused Nos.1 to 4 made the show of examining MO.1. At that time on the signal of accused No.2 accused No.4 grappled Udaya Raj Singh and the other accused also gripped him. Accused No.2 stabbed Udaya Raj Singh with knife. Accused Nos.3, 5 and 4 also again stabbed him with knives. When accused No.4 was gripping victim Udaya Raj Singh, bit the finger of accused No.4. After assaulting Udaya Raj Singh, the accused robbed M.O.Nos.1 and 2. On seeing the incident PW.1 raised alarm. Accused No.6 dragged her to the room. Accused No.3 assaulted on her neck with a surgical blade. When she fell down due to bleeding injuries, accused robbed her Mangalya chain. When the pet dogs of the victim started barking and people started gathering, all the accused climbed the building, concealed the weapons under the flower vase and ran away. When the accused were running away from the spot, PW.1 came out and raised alarm, the people gathered and chased the accused. Even patrol duty Police joined them and apprehended accused Nos.2, 4 and 5. Accused Nos.1, 3, 6 and 7 escaped. In the process of
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 escaping mangalya chain of PW.1 was lost. PW.2/the neighbour and other people admitted PW.1 to Agadi Hospital. On receiving information PW.38 visited Agadi Hospital and recorded the statement of PW.1 as per Ex.P1 in the presence of the doctor PW.25. He sent the statement through PW.34 to the Police Station for registration of the FIR. Accordingly PW.34 registered the FIR in Crime No.103/2014 as per Ex.P33. PW.38 took up the investigation. PW.32 apprehended accused Nos.6 and 7. PW.33 apprehended accused Nos.1 and 3. PW.36 conducted mahazars Exs.P17 to 19 on the basis of the voluntary statements of accused Nos.1 to 3. PW.38 conducted inquest on the dead body of the victim, got subjected the same to Post mortem examination, recorded the statements of the witnesses, seized the robbed articles, weapons and cars used in the commission of the offence and sent the seized articles for FSL examination. On completing the investigation filed the charge sheet against the accused.
7. As already noted, since accused No.2 could not be secured, he was not tried in the above cases. The trial Court on holding the trial convicted accused Nos.1, 3 to 7
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Submissions of Sri Mahesh.S, Sri Mohan Kumar.D, Sri Satyanarayan S.Chalke for accused Nos.1, 3, 5, 7 & 6:
8(i) PW.1 was the only eye witness to the incident. Once she says that soon after she was stabbed she lost conscious. Therefore, she coming out and raising alarm and public and Police chasing accused Nos.2, 4 and 5 apprehending at the spot is doubtful.
ii) As per her statement, except accused Nos.1 and 2 accused Nos.3 to 7 were strangers to her. For their identification, the Investigating Officer did not conduct any Test Identification Parade. Therefore, the identity of accused Nos.3 to 7 was not established.
iii) Except PW.1 and Police/official witnesses the other witnesses did not support the prosecution case.
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iv) According to the prosecution the genesis of the crime is PW.1 and her husband owning antique diamond necklace. The prosecution was required to prove that they had acquired the said necklace. The appraiser of MOs.1 and 2 was not examined. The ancestors of PW.1 and Udaya Raj Singh were not examined to show that PW.1 and Udaya Raj Singh acquired that from their ancestors and that was their valuable antique property. Therefore, the trial court should not have accepted the evidence of PW.1 that the antique necklace was worth Rs.18 crores.
v) PW.1 had not given any features of the accused. The Police Officers have not stated on what basis they apprehended them in the absence of their names and particulars. The scribe of Ex.P1 was not examined. PW.25 who allegedly certified the fitness of PW.1 to give statement Ex.P1 was not eligible to give such certificate as he was not qualified medical practitioner. Only on last page of Ex.P1 the signature of PW.1 was taken. That shows that other pages were subsequently manipulated. Therefore, Ex.P1 is shrouded with suspicion.
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vi) The incident allegedly took place on 25.03.2014 at 2.30 p.m. No medical records were produced to show that at what time PW.1 and Udaya Raj Singh were admitted into Agadi Hospital. Her statement was allegedly recorded at
6.p.m. Why her statement was not recorded between 2.30 p.m. and 6 pm was not explained. There is delay in delivering the FIR to the Court. That fact also creates doubt about the genuineness of Ex.P1 and leads to the inference that subsequently the Police Officers and others have concocted Ex.P1 to suit their convenience.
vii) Even accused No.1 was stranger to PW.1, she had not met him earlier. Therefore identification of accused No.1 is also doubtful. There were CCTV cameras in the area where the crime took place. But those CCTV footages were not collected by the Investigating Officer. The mobile numbers and the CDRs of the accused were not collected to prove the conspiracy or the movement of the accused in the area where the offence took place.
viii) According to the prosecution itself accused No.7 had kept watch standing outside and he did not cause any injury to PW.1 or the deceased. The evidence of PW.1 shows
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 that several persons had contacted them for purchasing M.Os.1 and 2. Therefore, somebody might have committed the offence. When the Police were unable to find the real culprits they have falsely implicated accused Nos.1 to 7.
ix) As per PW.1 they had kept 6 to 7 dogs in their house. If that be so, the said dogs could not have let anybody to assault PW.1 and the deceased. Accused Nos.1 and 3 were allegedly arrested in Bellavi, Tumkur District and accused Nos.6 and 7 were allegedly arrested in Mysore on 28.03.2014. Till then PW.1 had not given their names or any of their identity particulars. How the Police Officers figured them as the culprits in the case was not explained. Even the apprehension of accused Nos.2, 4 and 5 was tainted.
x) None of the recovery witnesses to the seizure of weapons of the offence, bloodstained clothes of the accused and other incriminating materials supported the prosecution version. Therefore, the said circumstances were not proved. The trial Court overlooking the fact that recoveries were not proved beyond reasonable doubt convicted the accused solely based on the evidence of PW.1 and the Police witnesses which were shrouded with so many suspicions. Therefore, the
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 impugned order of conviction and sentence are liable to be set aside.
9. In support of their submissions, they relied on the following judgments:
i) Kamal vs. State of NCT of Delhi1
ii) Budhsen vs. State of UP2
Submissions of Sri H.Jayanth Poojary, learned counsel for the complainant /appellant in Crl.A.No.593/2020:
10. As per the prosecution itself MOs.1 and 2 belonged to PW.1 and her husband Udaya Raj Singh. Udaya Raj Singh is no more. There were no rival claimants to claim M.Os. 1 to 4. The trial Court in its final judgment ordered for release of those properties without any condition. What remained was only the ministerial act of release of the properties. Therefore, the trial Court was not justified in imposing condition of furnishing surety of 18 crores at the interim stage and rejecting the application of PW.1 which was filed subsequent to the conviction judgment only on the ground that appeals are pending. Even in the split up case against accused No.3 the trial is concluded. Therefore, the 1 [2023 Livelaw (SC) 617] 2 AIR 1970 SC 1321
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 properties were not required for identification. Thus the order of the trial court is unsustainable and the properties MOs.1 to 4 be released to PW.1 Submissions of Sri Vijayakumar Majage, learned SPP- II for the State:
11. PW.1 is the injured eye witness. In her complaint Ex.P1 she has stated that M.O.1 was valuable antique property, that was also once stolen and traced by the Police. She has named accused Nos.1 and 2 as the persons known to her and her husband. She has also spoken about accused Nos.1 and 2 along with other accused approaching on the date of incident and clearly stated about the overtacts of the accused. There was no reason to disbelieve her. Her evidence was further corroborated by the evidence of PW.3- Sudha regarding PW.1 revealing the incident to her and suffering the injuries. Her evidence was further corroborated by the evidence of PW.25/doctor who certified about her fitness. If he was not eligible to practice English medicine, it was for the concerned authorities to take action against him, that itself does not falsify his evidence regarding fitness of PW.1 to give statement. The evidence of PW.1 was further
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 corroborated by the evidence of PW.34 who carried her statement to the Police Station and registered FIR. The delay in delivering the FIR was explained by him. PW.26 another doctor who treated PW.1 issued wound certificate. Ex.P30 also speaks about her condition to give statement. Accused Nos.2, 4 and 5 were apprehended by the Police and the Public on chasing them. Soon after the incident, M.O.1 was recovered from the custody of accused No.4. That supports the case of the prosecution that on robbing the items they were running away and they were caught.
12. PW.9 partly supported regarding the arrest of accused Nos.2, 4 and 5. PWs.23 and 24 head constables spoke about the arrest of accused Nos.2, 4 and 5. Since their evidence was recorded after three years of incident, some minor inconsistencies are bound to occur. That did not demolish the case of the prosecution. Their evidence was corroborated by the evidence of PW.9. Since the injured eye witness supported the prosecution, the witnesses to the mahazar regarding seizure of the properties was not fatal to the case of the prosecution. PW.1 the victim identified the accused before the Court. Since no Test Identification Parade
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 was conducted the judgments relied on by the defence counsel are not applicable. The evidence of PW.1 shows that she had seen the accused for sufficiently long time. So the identification by her before the Court is natural. There is nothing to show that at the scene of offence, CCTVs were installed. Therefore, the contention that CCTV footages should have been collected has no merit. PW.1's evidence that they used to keep M.O.1 in the bank and only when the customers demanded, they used to bring them from the bank and show them, was not disputed. Therefore, for the first time it is not open to the accused to claim that MOs.1 and 2 are not valuable ornaments. FSL report/Ex.P46 shows that the clothes of the accused and deceased were stained with 'O' group blood, which connect the accused to the crime. Accused No.4 who has suffered the order of conviction and sentence based on the same evidence has not challenged that order. That has become final, therefore, there are no grounds to reverse the order against him. There are no reasons to reverse the judgment and order against the appellants which is based on the same set of evidence.
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13. On careful consideration of the submissions of both side the points that arise for determination are:
i) Whether the impugned judgment and order of conviction and sentence passed against accused Nos.1, 3, 5 to 7 is sustainable ?
ii) Whether the trial Court was justified in rejecting the application of complainant/PW.1 for release of M.Os.1 to 4 ?
Analysis Reg. Point No.1
14. According to the prosecution, PW.1 and her husband had acquired M.Os.1 and 2 the valuable antique jewellery from their ancestors and they intended to sell the same for establishing Orphanage/community centre. It is further case that accused Nos.1 and 2 were drained into financial stress due to loss of their business, therefore they were finding out ways to get money by any means. On learning about PW.1 and her husband trying to sell M.Os.1 and 2, accused Nos.1 and 2 conspired with other accused to rob the said jewellery. It is the further case of the prosecution that in execution of such conspiracy on
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 25.03.2014 at 2.00 p.m. accused Nos.1 to 6 entered into the house of PW.1 robbed M.Os.1 to 4, when Udaya Raj Singh protested they committed his murder by stabbing him. When PW.1 raised alarm they stabbed her also on her neck and robbed her mangalya chain.
15. The case of the prosecution was based on:
(i) The evidence of PW.1/the injured eye witness;
(ii) The circumstance of motive;
(iii) Recovery of robbed articles, weapons of offence and blood stained clothes of the accused at their instance;
(iv) Evidence of official witnesses and other witnesses.
16. So far as the motive, during trial the accused did not dispute that M.Os.1 and 2 were the valuable jewelleries. As against that accused No.2 in the cross examination of PW.1 himself suggested that PW.1 had informed many persons about they possessing diamond necklace and they had tried to sell that about 2 years prior to the incident. It is also suggested that several people used to visit their house for purchasing the said diamond necklace and one of such purchasers had offered Rs.12,50,000/- for the said jewellery.
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 It is also suggested that they declined that proposal demanding higher amount. Accused No.4 has suggested to PW.1 that the said necklace was once stolen in the year 2006 and a case was registered in Wilson Garden Police Station. Accused No.4 had suggested to PW.1 that her mother-in-law had given the said jewellery to her saying that it is an ancestral property inherited from their ancestors. Her evidence that their family was a royal family was not denied. As against that an attempt was made by accused No.4 to suggest PW.1 that jewellery belonged to Devika Rani of Tataguni Estate and that was siphoned by her husband. Similarly accused No.4 suggested to PW.1 that several persons from Hyderabad, Mumbai and Jaipur visited the house of PW.1 since four months prior to the incident for purchasing the said jewellery. It is also suggested to her that they used to entertain the intending purchasers only on verifying their affordability to purchase the same. Having regard to such evidence, we do not find any merit in the contention that M.O.1 was not valuable jewellery and thus the motive circumstance was not proved.
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17. It is no doubt true that none of the witnesses to the recoveries of incriminating materials like weapons of the offence, clothes of the accused etc supported the prosecution version. Whether that itself falsifies the prosecution case is the question. The case is based not only on the circumstantial evidence, but also depends on the evidence of injured eye witness PW.1.
18. How the evidence of the injured eyewitnesses shall be appreciated was expounded by the Hon'ble Supreme Court in Bakshish Singh v. State of Punjab3 and in Lakshman Singh v. State of Bihar (now Jharkhand)4.
19. In the judgment in Bakshish Singh's case referred to supra it was held that if evidence of sole eyewitness of assault found within the zone of credibility, minor inconsistencies/contradictions/embellishments shall be ignored. In para 25 of the said judgment, it was held that such inconsistencies, discrepancies etc often happen when such eye witness witnessed a brutal murder in gibberish 3 (2013) 12 SCC 187 4 (2021) 9 SCC 191.
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 manner. Therefore, testimony of such witness is not liable to be rejected on that ground alone.
20. In para 9.2 of the judgment in Lakshman Singh's case referred to supra the Hon'ble Supreme Court dealing with the manner of appreciation of the evidence of the eyewitnesses referring to its several earlier judgments held as follows:
9.2 The aforesaid principle of law has been reiterated again by this Court in Ramvilas and it is held that evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence. It is further observed that being injured witnesses, their presence at the time and place of occurrence cannot be doubted.
(Emphasis supplied)
21. Reading of the above judgment clearly shows that the evidence of injured eyewitness has greater evidentiary value. Unless there exist compelling reasons, the statements of such witnesses cannot be discarded.
22. The Court has to examine credibility of the evidence of PW.1 in the light of the aforesaid principles laid down by the Hon'ble Supreme Court. The accused also did not
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23. PW.19 the doctor deposed about conducting postmortem examination on Udaya Raj Singh and issuing postmortem report as per Ex.P26. As per his evidence, Udaya Raj Singh had suffered the following external injuries
1. Abrasion measuring 0.5 x 0.5 cms present 1 cms below the left eye.
2. Three abrasions of varying sizes ranging from 0.5 cms x 0.5 cms to 2 cms x 0.5 cms present over the nose.
3. Four abrasions measuring 1 x 0.5 cms present over the left cheek.
4. Abrasion measuring 2 x 0.5 cms present over the left angle of the mouth.
5. Cut throat wound measuring 8 cms x 1.5 cms x muscle deep present over front of the upper part of the neck, involving both right and left sides, more towards the right side of the neck. The wound is situated 6 cms below the chin, 5 cms below the right ear lobule and 8 cms below the left ear lobule exposing the cut underlying muscles. Margins are clean cut. On dissection of the neck, contusion of the strap muscles of the neck present. The right common carotid and right internal jugular vein, nerves of the right side of neck and severed. The right lamina and right superior horn of the thyroid cartilage are cut.
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6. Incised wound measuring 6 x 0.5 cms x muscle deep present over the right side of the neck, 1.5 cms from the injury No:5, Margins are clean cut.
7. Incised wound measuring 1 cms x 0.5 cms X subcutaneous tissue deep present on the left side upper part of neck, 1 cms above injury No: 5 and 4 cms below the chin. Margins are clean cut.
8. Incised wound measuring 2 cms x 1 cms X subcutaneous tissue deep present on the left side upper part of neck, 1 cms above injury no:5 and 2 cms below the injury no.7.
Margins are clean cut.
9. One punctured wound measuring 1 cm x 0.5 cm x muscle deep present on the right side of the cheek, 1 cms from injury No:5, Margins are clean cut.
10. Incised wound measuring 2 cm x 0.5 cm x subcutaneous tissue deep present on the right side of the neck, 2 cms above injury no:5, Margins are clean cut.
11. Incised wound measuring 2 cms x 0.5 cm x subcutaneous tissue deep present on the front of the neck, 4 cms below injury no:5, Margins are clean cut.
12. Oblique Incised wound measuring 15 cms x 1 cm x muscle deep present over the left side of upper part of chest with tailing of the wound towards the midline of the chest. Margins are clean cut.
He deposed that the above injuries were ante mortem in nature and the death was due to shock and hemorrhage as a result of cut throat injury sustained. In his cross-examination, nothing worth was elicited to disbelieve the evidence
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 regarding the nature of injuries or cause of death. The above injuries show that the victim Udaya Raj Singh was assaulted in very barbaric manner.
24. To find out whether PW.1 was the victim to the incident, her evidence is also required to be narrated. She categorically deposed that on the date of incident, accused Nos.1 and 2 had come to her house saying that they have customers for purchasing MO.1, they will secure them in the afternoon and requested to get MO.1 for their inspection. She further deposed that at 2.00 p.m. accused Nos.1 and 2 accompanied by 4 others came and asked production of MO.1 for their inspection. When Udaya Raj Singh was showing that to the accused, they grappled him and stabbed him with knife and slit his neck etc. She also deposed that when she raised alarm, one tall person amongst them dragged her into the room, stabbed her with knife on neck and another accused came and pushed her to the ground and then all of them ran away. She further deposed that she was taken to Agadi Hospital by neighbours and other public and she was treated there. Her evidence regarding she being shifted to Agadi Hospital was corroborated by the evidence of PW.3/her
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 neighbour. Though PW.3 turned hostile to certain other aspects, she deposed that on learning about murder of Udaya Raj Singh on TV news, she went to the house to see the dead body and came to know that by that time, PW.1 was admitted into the Agadi hospital.
25. PW.26 Consulting Doctor of Agadi Hospital deposed that on 25.03.2014 at 4.00 p.m. PW.1 was admitted into their hospital with history of assault, he examined her and issued wound certificate as per Ex.P30. As per his evidence and Ex.P30, PW.1 had suffered the following injuries:
1. Incised wound present over the front of the left side of the neck measuring 3 cm x 1 cm x 0.3 cm. Bleeding present at the site of the wound. The margins are clear cut.
2. Incised wound present over the front of the right side of the neck measuring 1 cm x 1 cm x 0.2 cm. Bleeding present at the site of the wound. The margins are clear cut.
The above evidence goes to show that the victim had suffered incised cut injuries on her vital part namely neck. Those injuries correspond to the narration of PW.1 regarding assault on her. In the cross-examination of PW.26, except the suggestion that he was only the Consulting Doctor and not
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 employee of the said hospital, nothing worth was elicited to impeach his evidence regarding examination of PW.1 or the injuries found on her. The evidence goes to show that PW.1 had witnessed disastrous situation of her husband being slayed inhumanely in front of her eyes in a barbaric manner. She also suffered injuries. The scene of offence was the house of PW.1 and her husband where they ordinarily resided. Under such circumstances, the presence of herself and her husband at the scene of offence was probable and natural. Her evidence shows that she knew accused Nos.1 and 2 earlier to the incident, they had visited her house twice or thrice and they were not strangers to her. Therefore she identifying accused Nos.1 and 2 was quite natural. In addition to that, in Ex.P1 which was recorded soon after the incident the names of accused Nos.1 and 2 appeared as assailants. It is no doubt true that other accused were not named or their physical features or approximate age, clothes worn by them or any specific identification marks were not given. But so far as accused Nos.1 and 2, her evidence was consistent and acceptable.
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26. Having regard to the fact of death of her husband in front of her eyes, nature of the injuries suffered by her, there would be no reason for her to shield if true assailants were somebody else and to falsely implicate accused Nos.1 and 2. Therefore the contention raised by learned Counsel for accused No.1 that accused No.1 was falsely implicated by her and her evidence with regard to identification of accused Nos.1 and 2 cannot be countenanced.
27. Similarly the judgments of the Hon'ble Supreme Court relied on by the learned Counsel for the accused regarding conduct of Test Identification Parade etc are not applicable so far as accused Nos.1 and 2 are concerned.
28. So far as other accused, it is true that they were not known to PW.1 prior to the incident. Even according to the prosecution, accused No.7 had not entered the house and had not assaulted either PW.1 or her husband. PW.1 in her chief examination itself states that after her discharge from the hospital on 28.03.2014 at 4.45 p.m. to 5.00 p.m. she went to the police station and the police showed her seven persons and she identified them. Her evidence identifying accused No.7 is not acceptable. Since according to the
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 prosecution itself, he had not entered the house at all. She did not say on what basis she identified the other accused. She did not identify them with reference to the physical features, clothes worn by them or any specific identification marks like any scar etc. Therefore the evidence of PW.1 with regard to identification of accused Nos.3 to 7 was not satisfactory. Despite they being strangers to PW.1, the Investigating Officer did not conduct any Test Identification Parade for their identification. Her evidence shows that because the police arrested all of them, she found them to be culprits.
29. So far as accused No.4 he was implicated in the case not only on the basis of his identification, but on the basis of recovery of MOs.1 and 2 from his possession on his voluntary statement. Therefore he stands on different footing than accused Nos.3 and 5 to 7, more over he has not preferred any appeal. Therefore we do not find it necessary to make any further comment about him. Once identification of accused Nos.3 and 5 to 7 was not found helpful, they are entitled to benefit of that doubt. Since the identification of accused Nos.3, 5 to 7 is not found trust worthy and as no
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30. As already pointed out, except the evidence of PW.1 the injured eyewitness other circumstances were not proved against appellants'/accused as the witnesses to those recoveries of incriminating materials did not support. So far as accused No.1, there is no reason to disbelieve the evidence of PW.1 about his overt acts. Therefore we do not find any ground to interfere with the impugned judgment so far as accused No.1 is concerned.
31. So far as other accused/appellants, the trial Court despite holding that other circumstances were not proved, simply went on reproducing the evidence of the witnesses more particularly the official witnesses to hold that there was no reason to disbelieve them. It is settled principle of law that to convict a person of any criminal charge, there should be evidence beyond reasonable doubt. Suspicion however strong may be cannot take the place of proof. Therefore the impugned judgment and the order of the trial Court with regard to accused Nos.3, 5 to 7 is liable to be set aside.
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32. PW.1 has preferred Crl.A.No.593/2020 against rejection of her application for return of the property on the ground of pendency of the appeals. It is material to note that the trial Court itself had granted interim custody of properties MOs.1 to 4 to PW.1 satisfying that she is entitled to the same, however, imposing onerous condition of furnishing surety of Rs.18 crores.
33. So far as the ground of pendency of appeals as now the appeals are being disposed of, that ground does not survive. Though the case against accused No.2 is still pending, as submitted, the trial in that case is also over. Therefore the said property is not required for identification. The Hon'ble Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat5 has explained the principle of disposal of the properties in criminal cases. It is held that in such cases photographs of the property shall be taken and properties shall be returned to the eligible person on retaining the photographs. While granting interim custody of the property, the trial Court was not justified in imposing such onerous 5 2022 AIR SCW 5301
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 condition. PW.1 had already lost her husband. At the time of the incident, both PW.1 and her husband were retired. Having suffered such tragedy, it would be travesty to impose such onerous condition to the person who had suffered injustice. Therefore her appeal deserves to be allowed. Hence the following:
ORDER Crl.A.No.1350/2019 filed by accused No.1 is hereby dismissed.
Crl.A.Nos.1035/2020, 313/2022, 1307/2019, 1305/2019 & 593/2020 are hereby allowed.
The impugned judgment and order of conviction and sentence of accused No.1 in S.C.No.744/2014 passed by the trial Court is hereby confirmed.
The impugned judgment and order of conviction and sentence passed by the trial Court against accused Nos.5, 6 and 7 in S.C.No.744/2014 and accused No.3 in S.C.No.772/2016 are hereby set aside.
Accused Nos.3, 5 to 7 are hereby acquitted of the charges for the offences punishable under Sections 120B, 302, 396, 397, 201 of IPC.
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NC: 2024:KHC:6188-DB CRL.A No. 313/2022 C/w CRL.A No.1305/2019 CRL.A No.1307/2019 CRL.A No.1350/2019 CRL.A No.593/2020 CRL.A No.1035/2020 Bail bond of accused No.7 and his sureties shall stand discharged.
Accused Nos.3, 5 and 6 shall be set at liberty forthwith if their detention is not required in any other case.
The impugned order of the trial Court with regard to rejection of the application of PW.1 under Section 452 of Cr.P.C. is hereby set aside.
The trial Court shall release MOs.1 to 4 to PW.1 forthwith retaining photographs of the said properties with condition that she shall produce them before the trial Court if required in split up case in S.C.No.1018/2017.
The order of the trial Court with regard to disposal of other properties and compensation to the victim under Section 357(1) of Cr.P.C. are maintained.
Communicate copy of this order to the trial Court and the concerned prison forthwith.
Pending IAs, if any, stood disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE PKN,AKC,KSR