Cr1.ANo2527/20 10 :1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 2! Day of February 2011 Present THE HONBLE MRJUSTTCE K.SREEDHAR RAO And THE HOWBLE MRJUSTICE CR,KUMARASWAMY 1I1nfllz)eai22f’2(ii0 BETWEEN: Pradeep Vithal Naik, Aged: 30 years, R/o Kulunaikwada. Kaleshilt a. Baad, Karvar, At present. in Jail AppeIlant (By Sri, Satish MS., Amicus Curiae) AND: The State by Karwar Town PS. Respondent 137 ,rL Bafmbaii A. Danawade. HCGP) This criminal appei is filed by corwlct/ appeliant/aceused through Superintendent. Central B rh ii Zi1de ‘ p’—o h . [—t’e t a “ ‘r Kannacia, Kaiavar th S. C. No. 19/ 2006 cot ..victing •tl7•e appehant/aecused for the offence pu iishable under Cr1 No 2527/201() Se tions 4 l and 302 of IPC and sentenced to underto SI br 3 months and is scnteiieed to undergo life liii jj I3I1flient and to pay a 11n of Rs,2.000/ in dePiult it pavrneiit of InK to utideigo SI for a period 1 two iriontlis. This rinnnal appeal coming on for healing this (1 iv CRKumaraswamy, J, delivered tIk I )ilowi11E: JUDGMENT Phis Criminal Appeal is filed b appellant a (‘used through Superintendent. Central Prison, Belgaum against the ud ment and order dated 2509.2009 passed by the Disti ic amid Sessions Judge Uttar’i Kaimada Karwar in S C . No 19/2006 . onvicting rh appellant aused for the offene punishabh iiridr Sedions 445 and 302 of JR and sent enced to L1nd r$o slmpl( imp’ ionmenr for rnoiuJ n 1 d is enI CiR( (I to uiderge Pt i i i a 3 a I i I s200( I I pax ii r I ii K I IY 3 r41 arni P iflOIItKIKI 1 iO J i;uzad of in iii ri1l1, ILe nt at F . 1 npLunI a’ a. H”IU Crl.A.No.2527/2010 :3: The complainant is one Kumari Ashwini, daughter of Achut Naik. She is aged about 15 years and a student and she is residing at Canara Bank Colony, near Mahadevastana Temple. Baad, Karwar. It Is stated in the complaint that she is residing at the above said address along with her mother Shyamala aged about 55 years and her elder brother Anand. She was studying in 10th Standard in Shivaji 1-Ugh School, her elder brother is working as a clerk In the Office of Superintendent of Police and her brother’s wife Aparna is working as a teacher. She and her brother used to leave the house daily at 9.45 a.m., and while her brother was going to office, she was going to school and her mother used to stay in the house alone and when she used to stay in the house she was wearing gold chains and gold bangles. It is further stated in the complaint that on 23.08.2005 in the morning at about 9.45 a.m.. she. along with her elder brother. left the house to school and when C, Crl.A.No.2527/2010 :4: she returned to house for lunch at about 1.30 p.m., she found that the front door of the house was closed, she pushed the door and saw that her mother was lying dead and she raised hue and cries, then the residents of that area viz., one Shashlkant and others came there. Shashikant telephoned her brother at the S.P. Office and Informed about the Incident, then her brother rushed to the house and they ail tried to pour water and attempted to woke up the mother of the complainant. They found that the deceased had sustained injuries on her cheek and neck and the wire of table fan was lying on the body. They also found two chains and two gold bangles were missing. The chain worn by her was weighing two tolas, another chain was weIghing 3 tolas and bangles were weighing about one tola each. They thought that accused person might have entered the house and committed the murder of her mother In between 9.45 a.m. to 1.30 p.m., for his gain. The ornaments which were stolen have not been recovered. C’ Cr! .A.No.2527/2010 :5: 3. The complainant gave her oral statement on 23.08.2005 between 14.15 to 15.00 hours. The same was reduced into writing at the spot in the presence of PSI, who, thereafter returned to the police station and registered a case in Crime No.84/2005 for the offence punishable under Section 302 of the Indian Penal Code against some unknown culprits. Thereafter, the Police Sub-Inspector of Town Police Station. Karwar. prepared the HR and sent the same to learned Magistrate along with enclosures through P.C.No.995 of Karwar Town Police Station on 23.08.2005 at 6.30 p.m. 4. The Investigating Officer, after completion of the investigation, laid charge-sheet against the accused Pradeep, son of Vittal Naik. who was aged 25 years and a coolie, residing at Khulunalkwada, Kaleshitta, Baad, Karwar. It is stated in the charge-sheet that on 23.08.2005 at about 12.45 p.m.. the accused committed the offence of murder for gain by causing the death of €/ C’rLA No 2527/2010 :6: complainant c mother Shyamala Achuta Nalk When sh was alone In the house, accused has cnteied the house and straui4ulated the deceased with the aid of a table fan wire and committed theft of article Nos. 10, P3, 14 and 15 5. Tn the Trial C ourt. the prosecution examined In all 19 wItnesses as PWs.1 to 19 and Exs.P1 to P28 and MOs.1 to 18 were marked. The defence did not examine any witness nor marked any documents In support of Its case. 6. PWI - Kiran is a witness to the mqucst panchnama and spot panehnama. He deposes that he knows the dcc eased Shyamala Achuta Nalk. He admits his signature on Ex Ph Inquest pnchanama He further lq)cs(s tint Pollee driw spot anchnama ‘is ‘r rxn ru ‘ ill a j lint r s pe 1’cP2h. I i t po C hit wit cndi tiw pot pit tinima taole fan. red cnlmr veil and a hlood.$alnec. flx ‘ere Mc, fe,. mel and tnt same Wt it seized mid i E.P2 PM I Cii ?.No2527/2Oi(> (lt’I1tiliCd t1l( tal1u lau Ui(l the sviteli VifC COHiTh(’ied tc it is MO I lie s’ixv the red olour veil in I lie pa k t and idcntifu d it a MO2 He saw th plastk I ra in a cloth hag and idntilied it as MO3 and also -axv a packet eontaining naiis and idntified it as Mo L)uring his cross e\amination, In stales that there are residential houses in and around rh seem ol ofiene 7. PW2 (iirunath has deposed about the role pIaed I the doss. . PW: Rohidas has denosed that in his pu eiic a cused w examined to I rid ot w hcther at mt is e i d [n I lurtt ci et hat s( talt it mat Rs ‘‘ ( fCmIll(] 0 i lJi, iJ (1 -t1iCI I Lh.a tt’ T, a ‘I in ii i)eiC f5 ( ‘), 11tia sjI a 2 a Ii dc m I CrI.A.No.2527/20 10 b’ :8: 9 fl’j4 - Sashikant is the neighbour who conveyed the message of death of Shyamala to the son of the deceased through telephone. During his cross-examination, he admits that he was the first person to visit the scene of offence. 10. PW5 — Santosh is the relative of deceased. His evidence shows that he had telephoned the deceased at about 12.30 p.m on 23.08.2005 and the deceased herself spoke to him and that he had Invited the deceased to attend his engagement ceremony. Though PW5 was cross-examined, nothing is elicited to disbelieve his testimony. 11. PW6 - Ullas is the owner of Jewelry shop. He has deposed that accused had visited his Jewelry shop stating that as his father was not fceling well and his wife was pregnant. he wants to pledge the gold chain. He further deposed that as his father was not present. he Crl.A.No.252712010 :9: would not like to enter Into the transaction of pledging of the articles, but as the accused pleaded that he was in trouble and started crying, he took the gold chain with locket weIghing 16.200 grns produced by the accused and advanced a sum of Rs.3,350/- and that he also handed over a chit to the accused which mentioned the details of the said transaction. He further deposes that on 28.08.2005. the police had brought the accused to his Jewelry shop and enquired him as to whether the accused had visited his shop and PW6 told the police that accused had pledged a gold chain along with a locket and produced the same. They had also brought a person who weighed the gold ornaments. Those articles were kept In a box i.e.. one gold chain and one chain with locket and they were Identified as MO.5. Police also obtained the signature and drew a panchnama as per Ex.P5. He also identified the chit given to the accused, which was marked as Ex.P6 and his signature on the chit as Ex.P6(a). Ex.P6(b) is the signature of the accused on the CrI.A.No.2527/20 10 :10: chit. He also produced one receipt wherein the accused signature was found. During his cross-examination, he states that he does not possess licence for conducting the business of pawn-broking. He does not purchase or pledge the gold articles if it is old, but he receives the gold and assess the price at the prevailing market value of the gold as on the date of the transaction. If the gold ornaments are used even while taking bath, the shining on the gold ornaments will be impaired. Whenever, If any unknown person comes and wants to pledge gold ornaments, he insist that he should bring the person who is known to them. When the accused was brought to the Jewehy shop there were also four other persons. Ex.P7 is the carbon copy and signature of the accused is also taken on that. 12. PW7 - Sayikiran has deposed that accused had taken a cycle for hire. £0-’ CrI.A.No.2527/2010 11: 13. PW8 - Dr.RPrabu Is the Medical Officer working in District Hospital, Karwar. He has stated in his evidence that he has conducted Post-mortem examination on the dead body of Shyamala Achut Naik. He alongwith CW25 - Nagaraj Nalk jointly conducted the post-mortem examination between 8.00 am. to 10.30 a.m. He states that on dissection of ligature area and neck he found I) subcutaneous blood present under the ligature mark, Ii) dark blood clots around both carotids 10 ml on each side, ill) fracture of thyroid and cricoid cartilage In the middle and iv) Fracture of right greater cornu of hyoid bone, stomach was empty. They are of the opinion that death is due to asphyxia subsequent to throttling and approximate time of death is 12 to 24 hours. They issued postmortem report as per Ex.P9. All the injuries mentioned in the postmortem report are anti- mortem In nature. InJury No.12 mentioned in the postmortem could be possible if a person while snatching C, Cr1.A.No.2527/20 10 12: the ring from the finger and if nail would come In contact with It. He further deposes that on 15.10.2005 he received a letter from Circle lnspector of Police, Karwar to give opinion In respect of ligature mark and throttling of the dead body of deceased by producing table fan with wire. Accordingly, himself and CW25, the co-doctor gave their opinion saying that the ligature mark shown In the postmortem report could be caused by the fan wire and death could be caused by throttling with hand. He saw the opinion and It Is marked as Ex.P10. He further deposes that on 29.08.2005, accused was brought by Circle Inspector of Police, Karwar with the history of commitment of crime. He examined him on 29.08.2005 at about 8.45 an. and found i) abrasion over right neck measuring ½ cm x 1 cm along the upper part of posterior border of sterno-cliedomarstold, then scab present: II) a small abrasion ½ x ½ cm over right upper 6 Crl.A.No.2527/2010 :13: ‘U lip, thin scab present; and iii) two linear scratch marks over front of chest and lower part of neck ½ x ½ cm. He is also of the opinion that the above injuries are simple in nature and the age of wound is 4 to 6 days. He issued wound certificate as per Ex.P11. The wound certificate of accused discloses that the Injuries could be caused by fingernails. He Issued his opinion in this regard as per Ex.P12. During his cross-examination, he states that if a person fails while climbing the coconut tree during rainy season, the injuries mentioned in Ex.P1 1 could be caused. So also, if he comes in contact with rough surface and if a person who works In saw-mill and while shifting the wooden logs, when the same comes in contact with the parts of his body, the injuries mentioned in Ex.P. 11 could be caused. V CrI.A.No.2527/2010 fr 14: 14. PW9 - Subash has issued house tax assessment extract as per Ex.P13. PW1O - Shekappa has issued house tax assessment extract as per Ex.P14. 15. PW1 1 - Kumari Ashwinl is the complainant. She has deposed that CW13 is her brother. Their house is situated at Canara Bank Colony, near Mahadev temple. CW14 - Smt. Asmat, CW15 - Smt. Pramila, CW16 - Shashlkanth and CW17 - Santosh are all residing near their house. CW13 - her elder brother Is working as a Clerk In the office of Superintendent of Police, Karwar District and accused Is the son of her paternal aunt. She has further deposed that on 23.08.2005 her mother was murdered. On the date of Incident, herself, her brother and mother were in the house and. in the morning, her brother had gone to office and she also left the house along with her brother at 9.45 a.m., to go to Shivaji High School. where she was studying. Her mother was wearing gold bangles, one gold chain and C- CrLA.No.252?/20 10 15: another chain with locket, ear studs and nose studs. When she returned to the house at 1.15 p.m. for lunch, she found that the front door of house was closed, she pushed the door and went inside and found that in the 3rd room her mother was lying dead. On seeing the dead body of her mother, she screamed, then the neighbours CW16 - Shashikant came to the spot and he telephoned to her brother. Thereafter, her brother came and saw the dead body. They also saw the wire of table fan by the side of the dead body and Injuries on her cheeks and found that gold ornaments were missing, but the ear studs and nose studs were on the dead body. Gold chain and another gold chain and two gold bangles were missing. They thought that somebody might have committed the murder and theft the gold ornaments. M012 is the blouse, M013 is the Inner garment. MOl is the wire of the fan, MO2 Is the red colourveil; M03 is the fiber tray and M04 is the hairs. Cr1.A.No.2527/20 10 :16: During her cross-examination, she states that MOs.5, 8, 9 and 10 were all gold ornaments except these ornaments other ornaments were intact in the house. On 28.08.2005 these ornaments were shown to her. MOs.5. 8, 9 and 10 were available in the market. 16. PW12 - Siddalinga Swamy Is the Assistant Executive Engineer who Inspected the spot and drew sketch of the scene of offence. 17. PW13 — Prakash Is the relative of accused as well the deceased. He has deposed that on 28.08.2005, he closed the canteen and went to his house and came to know that Shyamaia has been murdered. After 2 to 3 days, accused came to him and told that murder of Shyamala has been committed by one of their own relatives and if the police enqulres as to hIs whereabouts, accused requested PW13 to tell the police that accused was working in his canteen. Accused also told that he had committed a mistake, and since he was In financial C, CrI.A.No.2527/2010 :17: difficulty, he killed Shyamala. On hearing this, PW13 became panic and accused went away. By the time, PW13 went to inform the police, the accused was arrested. Though this witness was cross-examined, nothing is elicited to disbelieve his evidence. 18. PW14 - Rajendra has deposed that he knows the accused. On 23.08.2005 at about 1.00 p.m. when he was returning to house after his work at about 2.00 p.m.. he met the accused and on enquiring him as to where he was going. he said that he was going to the carpenter to give money. then he took him to his house for taking food. The accused and himself took food and after taking food the accused went towards Karwar. The accused had kept the ornaments In bathroom. Cr, CrI.A.No.2527/2010 18: During his cross-examination, he states that accused was brought by police and took the gold ornaments and no panchnama was drawn to that effect. 19. PW15 — Syed Adam has Issued the property extract. PWI6 - Ramdas Is the police constable who canied the dead body for post-mortem examination. PW17 - Bala has canied the seized articles to the Forensic Science laboratory. 20. PW18 — Devidas Is the pancha witness for seizure of gold chain along with locket as per Ex.P5. Though this witness is cross-examined, nothing Is elicited to disbelieve his evidence. 21. PW19 - Manjunath is the main Investigating Officer. He visited the spot and drew spot panchanama. He recorded the statement of the witnesses. He subjected the seized articles to the property form. He recorded the voluntary statement of the accused. He recovered the gold Crl.A.No.2527/20 10 :19: ornaments from Shanta jewelry shop In the presence of panchas. He also seized the apparels of deceased and one original receipt from the pant pocket of accused under Ex.P7 and Ex.P6(c). He also seized the bicycle. He subjected the accused to judicial custody. He secured the concerned officials and get the sketch of the scene of offence drawn. As accused has sustained injuries he secured the opinion of doctor as per Ex.P12. Though this witness Is cross-examined nothing Is elicited to disbelieve his evidence. 22. The statement of accused was recorded under Section 313 of Cr.P.C. Accused has denied all the allegations of the prosecution. 23. The sum and substance of the findings of Trial Court Is as under: The Trial Court has observed that the death of Shyamala Is homicidal. The extra-judicial confession C-., CrLA.No.2527/2010 20: made by accused before PW13 Is proved by the evidence of PW13. The recovery of gold ornaments viz., M05 - gold locket chain from PW6 and gold ornaments MOs.8 to 10 and 14 from the house of PW14, recovezy of Ex.P7 from the pocket of accused, M08 - gold bangles and M09 - gold chain and MOlO - gold ring has also been proved. In the complaint, It is specifically mentioned that the deceased Shyamala was wearing gold ornaments and after the murder the gold ornaments except nose-stud and ear rings were found missing. PW6 identified the accused and produced the gold chain and locket and also the chit. Ex.P7 is the receipt issued by PW6 mentioning the weight of gold chain, and the amount of Rs.3,250/-. Ex.P6 Is the carbon copy of the receipt of the chit and Ex.P6(c) Is the original chit wherein the weight and amount of the gold chain M05 are mentioned. The Thai Court has also observed that the evidence of PWs6, 18 and 19 and the recovery of gold ornaments C, Cri.A.No.2527/2010 21: M05. M0s8 to 10 was proved by the prosecution beyond aU reasonable doubt. The evidence of PW19 corroborates with the evidence of PW6 and PW18. The date of Incident is 23.08.2005 in between 12.45 p.m. to 1.30 p.m. On the same day Immediately after the Incident, the accused Is said to have approached PW6 and collected Rs.3,250/- by pledging M05 and further on the same day he met his old friend PW14 and under the guise of taking lunch in his house hidden MO8 to 10 In the bath room. The Trial Court has further observed that the accused who came in possession of gold chain MO5, gold bangles, gold chain and ring M08 to 10 Immediately after the murder of Shyamala tried to dispose of them by pledging MO5 - gold chain with PW6 and by keeping M0s8 to 10 hidden in the house of his Mend Rajesh which are subsequently recovered at the instance of accused. Except denying the prosecution case In toto, accused has not given any explanation for the possession Crl.A.No.2527/20 10 :22: of the said ornaments I.e., M0s5.. 8 to 10 Immediately after the incident. Therefore. the Thai Court convicted the accused for the offences punishable under Sections 448 and 302 of the Indian Penal Code. 24. Feeling aggrieved by the same, the accused has preferred this appeal. 25. We have heard learned counsel for the appellant as well as learned High Court Government Pleader for the State. We have perused the records. 26. It Is the contention of learned counsel for the appellant that this case is based on circumstantial evidence. There are no eye witnesses to the Incident. The extra-judicial confession Is a weak piece of evidence and it cannot be relied upon. He further submitted that the Thai Court only on the basis of recovery of MOs.5, 8 to 10 and the extra-judicial confession made by the accused before PWI3 has convicted the accused and the CrLA.No.2527/20 10 :23: same is not proper. There are Inconsistencies In the evidence of prosecution and it accrues to the benefit of accused. Therefore, learned counsel sought for setting aside the Impugned Judgment. 27. Learned High Court Government Pleader submitted that chain of circumstances Is established. Recovery of robbed ornaments worn by the deceased is established by the prosecution by examining PWs14 and 18 and also extra-Judicial confession made before PWI 3. There is suffident evidence to point out the guilt of accused, even though there are no eye witnesses to the incident. 28. As stated earlier, this case is based on circumstantial evidence. In this case complainant states that when she returned to her house for lunch at 1.30 p.m., she found her mother dead. There is positive evidence about the recovery of robbed articles on the basis of voluntary statement of the accused. The accused I, . I.-. CrIAN0.2527/2010 24: has not properly explained as to how he came in possession of the gold ornaments. There Is also evidence to the effect that accused gave statement before PW13 about committing of crime by him. The accused has also sustained injuries. The evidence of recovery is corroborated by the evidence of complainant and also evidence relating to extra-judicial confession. Accused being omitted to give plausible explanation as to how he came In possession of gold ornaments points out to one of the incriminating circumstances against him. Though there is no direct evidence to connect the accused, there is sufficient evidence about the recovery of robbed articles and extra-judicial confession and this evidence is corroborated by the evidence of the complainant and also PWs14 and 18. The Trial Court has carefully appreciated and analysed the evidence and has come to the conclusion that accused is guilty of the offence punishable under Sections 448 and 302 of IPC. The evidence found on record tends to point out the guilt of CrLA.No.2527/2010 :25: accused. The series of circumstances narrated by the prosecution connects one another. Therefore, we are of the view that finding recorded by the Trial Court Is sound and proper and does not call for interference. In that view of the matter, this appeal Is liable to be dismissed. 29. In the result, we pass the following: ORDER This Criminal Appeal is dismissed. Fee of Amicus Curiae is fixed at Rs.5,000/-. Sd! JUDGE Sd! pJDGE Kms