I IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2i JAY OF NOVEMBER, 2011. PRESENT THE HONBLE MR.JUSTICE D V SHYLENDRA KUMAR AND THE HON’BLE MR.JUSTICE C R KUMARASWAMY Between: STATE OF KARNATAKA BELTHANGADY CIRCLE INSPECTOR APPELLANT [BY SRI. P M NAWAZ. ADDL. SPPJ And: SANTHAPPA SHETIY S/O LATE KUNHAPPA SHEYI’Y AGED 37 YEARS R/AT MANJUNATI-LA N1LAYA OLD KAKKINJE TEIOTATHADI GRAMA BELTIHEANGADY ThLU K 2. VITIHALA POOJARY S/U LATE RUKMAYYA POOJARY ARED ABOUT 24 YEARS R’A’I POYYA 1 HADK’-\ MARE HFE-IOTATHAI)i GRAMA EDT fHA2(\DI I\UjK I: 3. KRISH3A SHE’FIY S ‘0 1 F SHE APP SIiZ2T AGET) ‘i YEARS R/AT MOORJT MANE 110 fti \11 CRAI.iA ii I C ET(\I)I I J II. II p1 II. 2 FillS (‘RE. APPEAL IS FILED F/S 378(1J&(3) (‘R.P,C BY IHE STATE PP. FOR FIlE STATE PRAYING J’HAT THIS HON BEE C’OI’RT MA BE PLEASED TO GRANT LEAVE R) FILE AN APPEAL AGAINST THE l1 ‘I)GEMEN F DT 25, I 06 PASSEI) BY THE II ADDL SAL, I) K. MAN(ALORE IN S,G\O 61/04 AND A(’I T 1ii’ING FIlE RESPONDI’\ISiAC(TSED FOR THE OFFENLE P/lJ/S 302, 506 NI) 201 R/W 34 OF JP( AND ER 1HIS c RE. APPEAL FOMING ON FOR HEARING THIS DAY, KtT MARASWAMV F, DELIVEREI) lifE FOLLOWING: JUDGMENT This appeal is tiled under section 378(11 & [3] of Criminal Procedure Code [CrPC1 by the State Public Proseculor for the State praying that this Honhie court may he pleased to giant leave to file an appeal againsi the Judgment datt’d 25 1 06 passed h the 11 AddI Sessions Judge. Dakshina Kannada, Mangalore in S C No 61/04 md at qiuttirig the rc spondents /acetls d for the oflence punishahh under se lions 302 506 and 201 re d will ((t1Ori 31 of IP( 2 fin ‘jnteni — of Fxtiibn P cinphiiit i irid i. QflL I ksan 1 i n ift o1 1 VTJi 1 a - Con r’ sicli nt I F Pt i u liati L l’n 13 hE ii I ‘I J i1 L d (,rfl I i 3 to the Sub Inspector of Police. Beithangady in respect of death of her husband. She has stated in her complaint that on 30.3.2004 at 5 30 pm. her husband told her that he will go to witness a religious ritual populai described as ‘I3hoozhczdapan’a’ In that locality. The complainant’s husband dild not return to the house. That on 31.3.2004 at 7 am. Chlnnappa Poojary informed that her husband Madhava Gowda. aged 65 years. was lound In the canal of Haragandi. Thereafter. the complainant, her son and her daughter went to the place where the dead body was found. There were Injuries found on the cheek. Blood was oozing from the nose and therefore they thought lie has been murdered. Then they suspected C’hannana Gowda. son nf Gummanna Gowda md hr, supporIer might liavc committed tlw crime. (‘hannana Crowda is the bioihtr of ii ,- hi sta ii Hi it hen wa a ‘list uts t i - spec t 4 prnpc for ‘he oa%t flcnt one iedrs • k days tailtel 10 tii. they hid thu iteurd lit o i—b. nd ma c h”dren lb IC it I it pie te I th a ( 1 CC I I I - 4 to Investigate the crime. The incident might have occurred in the night. On the basis of the complaint, the Police registered a case in Crime No.65 of 2004 for the offence punishable under section 302 read with section 34 IPC against Channana Gowda, son of Gummanna Gowda and others. According to the first Information report, the occurrence of the offence is on 30.3.2004 at 17.30 hours. The information was received at the Police Station on 31.3.2004 at 12.45 noon. 3. The Investigating agency after Investigation of the crime filed charge sheet against Accused Nos. 1 to 3 for the offence punishable under sections 302, 201, 506 read with section 34 of IPC. 4. The contents of the charge sheet Is as under: The deceased and his brother Channana Gowda had a dispute In respect of the land. The supporters of Channana Gowda I.e.. Accused Nos. 1 to 3 used to harass the 5 complamalil and her husband and also her children frequently. Thc also used to damage the crops In this regard, a complaint was registered in l3elthanaclv Police Station Accused were summoned to the Police Station in connection with the enquiry. So, there was ill-will between the accused and Madhava (owda and with common intention to kill Madhava Gowda that on 3O.32OO4 in the night at 83O pm on a public road of Beejarapalke Aramane in the village of Dombararnajulu. the accused made a plot and they were waiting there and when Madhava Gowda was proceeding from Narayana Shettvs Hotel to his house, at Ihat time Accused No, I assaulted him b means of stone on his forelu ad and caused grievous injuries ( harg S1u et Witness No 2 c am th r at that tim, A t used No. 1 asked mm t g from the spot otih rvis they vll hi tim Is( nd the iRe ii reaten (1 bin, that me asc it ht disulos LhlIS fa I b anvlxjd tlie will do awv u ith his lift ; ms d p No 2 nd 1ss died M dhi Rev da h’ rian’ b ib r stq uih t n-e bh (Ii mij in if r1 I t hi çh 6 was also injured. Madliava Gowda sustained injuries 10 his head and died due to the injuries sustained to the brain. In order to cause the disappearance of offence ol murder, ihev threw the dead body into the canal of Haragiindi. thereby they are alleged to have committed offence as stated in the charge sheet. 5, [‘he prosecution has examined in all 21 witnesses. Exhibits,P1 to P72 and M.O. Nos. I to 11 were marked. On behalf of respondents, Exhibit D I was marked 6. PW I is the complainant. She has deposed that his brother in law is Channana Gowda. During partition. iwo and half acres ol land was allotted to the share of her brothet in1aw Channana Gowda 3uernptd t rah 1h land I c1onirig to them a1s In tnt n i I. h ‘a as dbpl IC n tIn tn ft r he pat tw nt\ two veai that on 30 t 2004 it iboul 5 30 pm hrr husband acm t the IILi( Us r 11191, Iamt 13 flOC1hQthAJ ci e( ‘II ii I ii I I Iai inna o ii; 7 She has further deposed thai on 3 I 2004 (Thinnappa Poojarv came to her house, lie told the complainant that h( r hllsl)ands dead body is found in the canal of Haragandi. II was 7 am in the morning. Then herself and her children engaged an auto, went to the place where the dead body was found, She further deposed that she has got suspicion on her brother in law Channana Gowda: that about eight days prior to this incident, Channana Gowda, Sanjeeva Shettv were holdiiig stones and threatened her husband since he has lodged a complaint to the Police. Ch( supporters of (Thannana Gowda are Shanthappa Shett. Vittala Pooarv. Krishna Shettv, Da ananda Navaka. Ravi Navaka. Suresha Thclaga. Sundaaa Shttt She fairth r deposd hat nmpIaint writtt h her i i md ht Ic s ifhx d h r inatu i At pm. nqu st panchanama was on I iit d. During inquest parichanama sh’rt iid I ia r Iv \I nd M ) i s ui e 4 i au at I t . I e pnct 4 a Ic’ P hnd I 8 spoke with Rajappa Madivala on the day of the incident. Ha)appa Madivala was following the deceased. Then Rajappa Madfrali heard the sound. At that tune. Accused No 1 - Shanthappa Shetty assaulted by means of stone. This fact was narrated by Rajappa Madivala to her. Rajappa Madivala pointed out the place of occurrence. Blood stained mud and sample mud were seized. One Chappal 01 her deceased husband was also seized. She further deposed that after five days. the Police called her to visit to the spot and at that time Accused No.2 - Vittala Poo)arv pointed out one torn and chappal. rhappal belongs to her husband. She also deposed that Accused have poured icid to thc t Fops about 21s days back Sh furthe’ clepost ii tInt en 1 .2 ‘04 1 h s 1i Usc ‘n lain in if t B lthançad’v Polv e Station rht on lK’ 2004 she his ‘ubmitted .‘ petan ii t -; the Chief Ministe’ •n’ ihii’ jp Eflail tcl “ I hib i. 1 6 ,xhil ii . is I ill 9 acknowledgement br receipt of complaini ExliibitP8 is the endorsement given by Ihe Police on I ¶)22OO4. This ‘ itness as cross examined at length The distance between the residence of Rajappa Madivala and her house is about half a kilometer. In the morning, on the next day of the incident, she (lid not see Rajappa Madivala. She does not know whether Rajappa Madivala was taken to the Police Station or not 7 PW.2 is the evewitmiess. lie has deposed that he knows Madhava Gowda and his wife Lakshmi His house is sil uaied about one and half kilometer away from Madhava Gowdas house H has got half acre of land where coconut an grown Marcos i hic mpbovr lie idcntifies the used in the ot ri Madha ua nurducd, that 3 2ui)4, dii no o to tor k E cmn, at 5 ,O pm h \unt to his land Ahcr ork he wein to Kakkinjipt. H ‘1u’s d a s tlar and In nas ‘i mn ‘ the Iious’ \1 ua no tie sx \idh aOa in ‘a r 10 Shetty’s shop. He spoke with him and Madhava Gowda spoke with Rajappa Madivala. Madhava Gowda told that be intends to go to religious ritual ‘Bhonthudapan’a’ ac he was not able to see He further deposed that about at a distance of ten meters Madhava Gowda was coming behind his back when he was proceeding at that time, he heard a sound. Then he tin-ned back. At that time. he saw three persons assaulting Madhava Gowda. They were Vittala Poojary and Krishna Shetty. They were holding clubs and assaulting Madhava Gowda. Shanthappa Shetty was assaulting him h) means of stone% When lie saw then was bleeding In the nose, Viltala Poojai and Krishna Shettv assaulted him and ran away. Shanthappa Shetty came and put his hand on his %houlder that Marlhava Gnda dic d ‘md ackeal iiji tnt t’ uo tThjtre H ‘ u fright med. A’ used Nu 1)1i’1iCd hm ii d m i Ic li i I gc. from tin spot 11 al’c dir ‘an ned tht t 1 - ii I s tis f&ct tc an lx d I’ w i kill 1dm 11 He further deposed that he narrated this incident to his wife and except her wife, he did not narrate to any other person. lie further deposed that he alho narrated this incident at 8.30 pm In the night to Man os. Before he reached the spot. the dead body was sent to the Hospital for post mortem examination. He has seen the accused assaulting Madhava Gowda. The blood stained mud and samplt mud were seized from the spot. slipper was also found and It was also seired. MO. 10- sample mud MO. 11 blood stained mud. MO.5 - slipper were marked. Exhibit P2 is the spot mahazar. During the course of spot Mahazar, Unnikrlshna and wife of Madhata Gowda were also present Durint, his cross cxammation by the delènc t ‘0 1%( 1 ii 11w ourl below he states his house i sitinic il at 4nntha llailu The list iw e lwtwetn Ins bous” and Mau o’ gai den is aixitit on” kilomt wi H knows Nande sh Shettv Hi ha’s Iodrccl nmpl i ‘ 1t2 i 1 ‘i cit ,li at t - 1 i 1.i )t,tAIt’tJ Si h’th’it \ tt fi in ‘ I ‘1 ‘I 12 Nandeesh Shetty is relative of Accused No.1 - Shanthappa Shetty. After ten days. l3ehhangady Police railed him and secured his signature on two writings. He was not knowing the contentc of the writing He also states that except telling before his wife lie has not narrated the Incident to any other person. lie had visited the funeral ceremony of Madhava Gowda. He was his close friend. He has stated that for the first time he narrated that deceased was unable to see before the court. At a distance of about ten meten, he saw Madhava Gowda coming. At that time he heard a sound. He as not able to see Accused Nos 1 to 3 at lo’ei base of the ditch. From that spot. lie ould not see the ac’rustd fit has omitted to state befort th I ollee that lit sai’ three lwrsns when lit tan tic d rhis ‘itnt%s rk arl’ Kinpts iii ii h’ he] ii i ate the death nf Madhat a Goda to the nit mix rs h hc de 1t L%ed farmly and eli in ii in lining also lit did riot nanal’ irj rvtn i’i the dir ccnak hcii’r’t 0 ’ lis’i ii’’ ilc3itt k r in, Iii a I I ii Ut F I i i .4 1 ‘ii $ lb I K 13 his shoulder and pushed hint and he also threatened that in ease he discloses this faet to anybody. he will kill him. He denies suggestion put to him that h( has been tutored to narrate (lie incident in the manner as tuton d In Sandesh Shetty who is a relative of accused. lie has denied suggestion that Madhava (Jowda was a friend of him and therefore in order to help him lie has deposed incorrectly. During his re-examination, he has stated that at the first Instance lie narrated the incident before his wife. thereafter before Mareos i e.. on 31” and then at 4 pm he narrated the 1w ident before the Policc The court has put the question and ft that question he has answered that hc nairited the incidcnt at Vu first mstance to Ins wife and theteafter t, Ma, ‘n’ ar ri hc eafttr at 1 0 ‘lock ,o tht Pohct Duting his cross txaininath n h( taU s tha. Mau’ns ‘lid not anmpas ‘, Ii n I-k i Ct nii are - ‘et Ln, a T.)li1( I lb 14 8. PW.3 is inquest panch witness. He has deposed that he was present when inquest panchanarna was conducted. He came to know that there was suspicion against Channana Gowda during inquest panehanarna. On the next day. Rajappa Madivala came and pointed out the place of incident. Though this witness was cross-examined, nothing is elicited in the cross examination, 9. PW.4 is another panch witness. His evidence is in the same line as that of PW.3. 10. PW,5 speaks about the foot mark found on the shirt, On 3 1 December the Police, open the packet and showed the shirt and pointed out the foot mark on the shirt.. 1.. 1.. PW6 spea s about the •seizurc. of Mo. 9 stone under II Exhibit, P1 3 in pursuance of the voluntaD? statement of a ensed \o I He also speaks about tf eizir MO 6 one clappal,. III P PI, iii.p PI 15 12. PW.7 speaks about seizure of stick under Exhiblt.P14, seizure panehanama. this stick was seWed in pursuance of the nhuitary statement ofAccused No.3. 13. PW.8 is Monanuna. She has deposed that he had gone to bring water and lound a dead body in a canal. She was frightened. Then she returned to the house and narrated the Incident to her younger brothers. Then they also went and saw the dead body. Then they were able to identify that it was the dead body of Madhava Gowda. One of the brothers ot PW.8 went to the howe of Madhava Gowda and informed about the death of Madhava Gowda to wife of the dec e ased and to other relatives of the deceased. 14. IS .9 is Remanna Poolan. lie has depo’c d that hc caw ecu,ed Noc I and 2 it tie rchio.is ritual namc h Ishx.orhrulapar& • Accused I to 3 ‘i’re ilsn present ‘i’ tbx said rltu ds. lie came to know about the cit alit nf %Ia’Ili.a a (iod’ n the next ‘It iinon LPlring lr cnss I, I 16 examination, this witness admits that he does not know when the accused left the place of Bhoothadczpczrrcz. 15. PW1O S K Krlshnura4 is d M’iviitific officer at RFSL, Mangalore. He has deposed that on 6 5-2004 he received eight sealed articles in connection with Cr No 65 of 2004 of Belthangady police station. He found that items A. B, C and D contain mud, item I contains a wooden club, item II contains one fist sized stone. item-F contains one shin. item-G contains one walstv. He examined these articles, lie also conducted serology examination and found that articles A. C. I. H, F and 0 werc stained with human blood and the blood group was U group. lit issued a certificate in this regard a pcr FxPI5 During cioss examination. he admits ‘he name of the te’,t which he had conducted Is riot Id irlüi et in tlt reprt 16 flYl I Somaiina Po n h€ s d po’.ed Ii it hr in. itr .1 thc a n t t d f ‘ I i’d in . e 1 .d flu I3hnorhrzcLzpar r I I I p 17 rituals conducted on 30 3-2004. On the next day. he came to know that Madhava Gowda has died. 17 PW12 Shekhar Bhandarv has deposed that about one year prior to his deposition, add was sprayed on the arecanut plants. He speaks about motive for the crime. 18. PWI3 Leela is the wife of Rajappa Madiwal, an eyewitness to the incident. She has deposed that her husband has narrated the incident to her She further deposed that her husband has narrated the Incident to one Marcos After this incident, her husband discontinued the employmeni i4th stud Marcos. 19 1W 14 L Ashok Kumar is a photographei ‘rho has taken photou.raphs nflhe spot ol offenee. 20. NVI Shckhar (iowda !% i’ a poix e con-it it Ic He Iia deposed that on 31 3 2001 he earned the first mformatii ii I y fel ilirdtc(nm N ‘ (X) I liii n. d ku t I * 18 Station and handed over the same to the jurisdictional magistrate at 2.10 pm. 21. PW16 Glriyappa, AS!. has deposed that on 7-1-2004 when he was a station house officer of Beithangady Police Station, he received the complaint as per ExP4 from complainant Lakshmi. He registered the case in C.No.3/BPS/04. On 14-1-2004 VIthal, Suresh, Ravi Nayak, SanJeev Shetty and Dayananda were produced before him and he enquired them. 22. PW17 Dr S R Sheetal Kumar has deposed that he conducted the post mortem examination of deceased Mahdava Gowda, aged 65 years. He conducted the post mortem examination on 31-3-2004 between 4.05 and 4.55 pm, He found four Injuries on the dead body. On examination of the Inside of the body. he found fracture In the skull; there was bleeding In the brain; semi-digested food articles were present In the stomach. He opined that the death was due to injury caused to the head and brain and 19 the death might have bern caused about 18 to 24 hours prior to the postmortem examination and that tile Injuries found on the dead body might have been caused due to coiflact of blunt object. He has issued ExP63 post mortem report. He further deposed that the Investigating agency has sent two wooden clubs and one stone. He examined them and opined that the injuries mentioned in ExP63 post mortem report can result it a person is assaulted with such objects. Mos 7 and 8 are the clubs and M09 Is the stone. Though this witness was cross-examined, nothing Is elicited to disbelin e his evidence. I I 23 PW is p i’ Marcos deposed that PW2 Rajappa Madiwal has narrated ibout the assault by ac eused I to 3 on deceased But this witness his (timed ho%tik tQ trw side ol t ’ft tgosecutio’i i lrugli this wttnss ;a ross rainwe’J bi’ rhr Ifranled public prusc c utor for.- tht tn’sI .o’irt ii’ tl’iip is 4 iritecl r’.. disix litre las (3 Idr fl. C 20 24. PW19 Narayana Shetty is the owner of a hotel where the deceased consumed tea. But, this witness has turned hostile to the side of the prosecution. Though this witness was cross-examined by the learned public prosecutor before the trial court, nothing Is elicited to disbelieve his evidence. 25. PW2O Jayaram D Gowda is sub-inspector of poilce. He has deposed that on 3b3-2004 he went to the spot He received complaint from the wife of deceased. ExP1 is the complaint. He registered a case In Cr No 65 of 2004 for the offence punishable under Section 302 read with Section 34 IPC. On 5-4-2004, as per the directions of circle Inspector of police. he apprehended accused Shantappa Shetty and Vithal Poojaiy and produced them before the investigating officer. He further deposed that on 12-4-2004 he arrested accused Krishna Shetty and he was also produced before the investigating officer. He further deposed that about 2 months prior to the present incident, wife of deceased namely Lakshmi gave a petition to the law minister in respect of harassment of her husband by the villagers in LI.. 21 respect of a dispute relating to garden. ExP6 is the said application. He submitted a report to the law’ minister in this regard indicating that there was no harassment to husband of the complainant by Chennana (iowda and his followers. During the cross-e’camination. he denied the suggestions put to him. 26. PW2 1 l3alachandra. police sub inspector has deposed that on 31-3 2004, lie received information about the murder through PSI. Belthangady police station. On the same thy, he went to the spot lie inspected the spot. In the presence of panchas he drew- spot rnahaxar. He seized stained and unstained mud. which are marked as Mos 10 ‘md 11 respe tin ly. lie also conducted inquest rnahazar oii the dead body and notic ed mjune’ m er the rigId sid( of thit Ic,ieh’ad and nulstt cut ‘Vh n ,y .l t side .a the at C and blood wis oozing finn thi’ posc Duilng the nurse of rnquest P’rn hr iama it nemined and ecc rile I th %tlt(mtnt ol ‘if’ tqrl Iii di’ thi i ci ‘he I cc is’’! it Itoaiz ,kr Ca• •g v ‘fjc ;;‘ .1”. ‘— ) t%, 11 ; 31 p P.. 22 recorded the statement of witnesses. He also recorded further statements of the complainant. On 5-4-2004. as per his Instructions, PSI and staff apprehended accused 1 and 2 and produced before him. He recorded their voluntary statements. In pursuance of the voluntary statements of accused 1 and 2, he seized clubs, chappal and stone and they are marked as Mos 5. 6. 9, 7 and 8 respectively. In pursuance of the Information given by the third accused, he recovered one club. On 13-4-2004, thIrd accused was remanded to judicial custody. He recorded the statements of Durgappa and Sanjeeva. He sent the seized articles to medical officer for his opinion. He also sent articles to forensic science laboratory. He secured sketch of scene of offence from public works department. He recorded statement of the photographer. His staff Sanjeev produced the apparels of the deceased. After Investigation, on 1-6- 2004 he laid charge sheet. During his cross-examination, this witness has stated that PW3 made a statement as per ExDl. ‘2’ 23 p. 27. The trial court recorded