IN THE HIGH COURT OF K! RNATAKA CIRCUIT B...••ENCH AT DRARWAD DATED THIS THE 22ND DAY OF NOVEMBER 2011 TH.E RON’]. hE MRJUSTiCE MORAN SHANTANAGOUDAR AND TH HON’BLE JMRJUSTICE RAVI MALIMATH CRIMINAL APPEAL No2795 OF 2010 STATE OF KARNATAKA, THROUGH GANGAVATHI POLICE STATION, KOPPALDIST. APPELLANT Sri KRISHNA 5/0 LATE. VENKOBANNA AGE..:: 31 YEARS, OCCU: BUSINESS, R/O KAMPLI, TQ: HOSPET DIST: BELLARY. 2. Sri SHANKAR 5/0 DRARMAPPA, AGE: 29 YEARS, R/O NEAR D.ODDA MARi.iMMA TEMPLE, HOSPET, DIST: BE . LLARY. (By Sri NEELENIYRA D.GUNDAE FOR Sr M B GUNDA2LADE ADVOCATE) ) 11118 CRIMI%4l 4PPE4I IS FIIFD 1. 5 3 81) (3j Cr P C SFFMNG 1’O SF1 %SIDF rIIF Jt lXFMF% 1 AM) ()RI)FR 01’ A(QI.IIIU DUFD 30.091009 P4sSFl) BY THE LFRN11) FASI IRME COIRI KOPI’XI I C O 00 IOR [hF (JFIFNCF P \ialIkl,11 *1 ‘FL lIONS 30’ 404R W 340F IPC THIS CRIMINAL APPEM COMING ON FOR lIE UUNG 1HIS L)4Y, M01141te SH4N’14’\400UP4R J ‘FII’ FRFI) IHF IOIIOWThC JbDGMEN I if e State has iled this appeal agaarst tht Jvdgrr c and order of ac.quitt ii dated 30 September )009 p isa I b thu Fast riackcourti,toppai.m c”n23 (XI! 2. The aeo heprseutnnasfoun t h’ orjlar Lxi Ii )fl( p1 H ssai ad ot’ an dc.r I’4e a o s 1. I I. 1 h itnpIana t tb (Itt cl it be r tiet rnc s Ih’ ucr b a 1Pm ‘He h lelt th shoj o °o u Fus h us r S I he r ip it at i hot r 0 anothet brother krishna At that point II time P Anim imma the is r oi h rnp in n ik m d ‘omplamint that two unknown persons took the dccc )ut of thc house for psrP 1111 wormr o tH ic isd not om ba( P a th house nd at 10 00 a a i as to that the dead both f t1 e de as d as I rig Jangamar a Kalgudi i1Ia I h th as d I ad smarc irjur CS 0 i th heiJ bacbs c r P r rd 1 sI e ac :4: recorded in the month of November, 2006 in which accused Nos. 1 & 2 were implicated. Based on the additional statements, the charge sheet came to be filed on 1-2-2007 against the accused for the offences punishabic under Section 302, 304 read with 34 of IPC. During the course of the investigation the police have recovered two golden rings said to be belonging to the deceased by virtue of voluntary statement of accused Nos. 1 & 2. In order to prove its case the prosecution in all examined 24 witnesses and got marked 37 Exhibits and 18 Material Objects. On behalf of defence 6 Exhibits .were got marked. The trial Court on evaluation of the material on record acquitted all the accused on the ground that the case of the prosecution bristles with suspicion. 3. As aforementioned nobody suspected accused Nos. 1 & 2 till the additional statements of the complainant and other witnesses were recorded in the month of November, 2006. Till such time the investigation was conducted based on the complaint Ex.P- 1. The complaint Ex.P- 1 and none of the statements recorded by the police 5 under Section 16201 Cr.P.( reveal flit comphciti of accused Nos I & 2 it 211 cu-he: point of ‘ame Hmce tic witnesses had stifed that the accused N, bad p ii Rs40000 to thc dc ‘cased fr opening ne Hair Cu tin’ shop but the said fact is denied b the compialn2nt 2nd other inmates of the house in the en etidenee lxfort t ic Court 4 p w 1 is the complainant and the brother of the deceased He has submitted about the motive for Agob Hussaim o commit murder of the deceased The complaint ismarked asDacPI P11s2&3arethc sisterind tint f he Iecasediespectl an h) at spoke aoci ii nt ten age icr ir mstnc hn ed cc lb I CsCdcr IpA c & I ft cN 1 a ii £12 h 6 alit gtdl’s p’c the iid nntnw,r In ,icviic.erl jn Ut thc part’ular da PWS is t’ic.. ,‘rc f Dl ifla t a supposed to speak abou the las scer rwc 1risttncc mrnedatc.l pror t thc ni idcntu qic tim PW th alleged purchaser of ring belonpin to thc dccc isc d from accuscd No 1 Hc kids also turncd hostilc i W 1 is the mother of accused t’o 1 %ho vas supposcd to spcak about thc rcunc of thc chopptr, shc has turncd hostile P W I ho was supposed to speak about thc scllm f gc lden invs infaour 4PWlflnLxFalf face scdr ithastuircd hostilc PV 9 is thc F..ngince sh drev sketch i sccnc of iffenceasperlxP PW 0 sipi heasa vitr s i oi c I dgc I r’ t ri Ic id b a U PA ) 1 r x 1 tha ijp at1gtion P i fl is ths pqp n hit c” lute c the i.nc,s p’tioi PWs1 aid 21 z ‘Fe pakc ors t i c. PW fl dcposcd 2bcut th okduing e1 thc my uuU PV b4 PW PV 22 is $1 Inspector h deposci atcut th iecot.rv of nn°s md chopper PW23 is the elitrie if P W I the onet of the motorcttie 3 Thc, mmatcs at the hoist of flu, lccc iscd arc the relennt vutnesses ho speak about the motne ar d the last seen ucumstanc f. File mob e i %pokc n ) l the complainant is found it E’c p 1 ic any it ircals that goh Hussaini had got urc .isc against U c deceasc d nasm a h as bctF e t a my lii it relat lip W ti mam Al lu’ i trea uruk icca t te o t U aef 1 1’ C 8 for .mxn’ssic’r ‘ muracr. Tks rcfc”t lu i’r”sccutic rrc—ateci a rn ctor: ‘if rn’’u fl 1)1 gi’hlet’ tuigs lIt’i.)flfl1,g Ts thc dec costa Iron aa usc t Sos I nid) !:.%t ‘$t’..n tIst.Je .% sc r in P.W ‘ Shc ‘5 thL first lads who Units out of the housc on th it aa to tinci out afici heanrw the call trorn accused ‘Jo 2 ccnrching to her. iccuscd Iso 2 called the nimc ol h1 deccased Sincc thc clec-eaqed was not present ‘ii the hinise. P.W.2 r nile ‘)Ut of the houst and sent acc.ubcd No On tnquixy ict used No 2 has stated that ihes are going tc’ Ka-mpls to ant-nd a pam and thcrefore the) are rcqucsurg tl- I tea td t .t c ‘rip i’ .‘it’lfl Affrr iii tIer V n a’rnrc! tcj the h.ise •‘n: !c hop PW r’,treri t at so cc’s’ ttái’d’i c Ic ‘c 1 flT. U tIc is f. . j&. ‘ \c’ ,, 1 r•’rt ‘ci c11t jh.’c —n.. 5 ’r’ .r’s ,• ‘- (it ‘1 ‘t I di I(. • : •— r c: •• ,• r’.. 1a •‘% ••• •:‘ LI •‘, 4 i.. 11 • i • . . • .• . is I — • .1’ • — 1 L • I 5• . S £ 9 I1oun three persnn iruiiidini thr 4vrensd ine ft prx’cedir°onthc rrctrc’ It F en i her ersnr xcrc the polic c she has s dc d that ‘c hcn ‘nt canie outside ie I’ c St nok F as tIe c F oz lie u, it s ‘car that ?V r not seen the actusc d voing ilong ;ith the deceased 1 he etidcncc of PWs — 6, 3 as iwlith das&litic.d , he tra 1 Court on the ground of number of c’aggcrations ad c,mbethshmcnts P Wi has deposed before the (our hat her statement wis recorded only once 2 3 days alter the incident In the police Fheicafwr she has not pcne to tkc police statior later Hot (‘Cr 5 irattcr , ra t hr su err en is corded subscque 1t13 also cmewh’re r he rio nI Ncribe 0’) ‘ir r ‘e un 1 u “1 siFcrc i It, i 3 US 1 e 1 I. ) F 0 d ccats—tt wcr’ flat el)lt’ In repLZ’ tlic. Jtpj1flt Ut £ 1)1) f lsc C s is foistc.d Pk’ .8 and 2’ wen sp’1t. b rn T k dt g In otoratic rn ncu .q tP fat fit J 1.4 turned hostile. SC) the altenipt of prosecuui•n ru link the stor with iccustd Ms 1 & 2 piclong up the dcceaMci t U .30 p.m c.n 18-1 200n truns the house c,f 11w deceased 9t the motorcycle has tailed Then, s no suftic’ert cotroboration to thc dc.positic r of P.W.2 tha’ wr brother Naravana(deccusedl had :‘Ci ornpanicd tile unkn S” n pet Søfl cnthcmctorcv Ic — lIw Jiruisef tC nrz Cr.elt)pCA the fjrTI’. r ‘ir bi is nc ti i tf I mpl.iij.a.i; arrieft. Dwt. 1 a N 4n’ppa •:n zteifl.L ?i.’• 1(1. ci I it IPY’ t c i’:. jrg _ • 1 ‘1. fi, .2 r. 1.’ r.. ‘•c’ jr ; ..;ja—i—r ‘sil ‘I ( 1._S I I ., ‘—.‘L’’ ‘fl. .5’ ji. V:.. r 11 rar frnn tune tn time fny a pm v ol ‘t year 4s aforcmcntionc d thc c hars,c sixct s fi’c d n 1 2 )OCt ’ tic u°h thc complair t is lodved on 19 )OOb Si ice I)oad ‘agippa s no eanririd nd is tic rson cf eccgrisir, the voice of acc used No 2 does not find any coz roboration thc rrial Court has nghtls disbeheved the case of the prosecution that accused No 1 had callcd the dccc ased to comc out of thc houst Morcover it is thc icisicn of PW 2 that accuscd No 2 was with the dcezsed and ic’ used No 1 wis on the moton dc 8 As aforementioned Fa D-a that is thc nirked tatcuen’ f PW sw as stit bef c ti’c p lwc P4 C lit 1. e tic P4 F us t :1 S t 1’ C 12: after-thought creation by the police. Thus the trial Court has rightly disbelieved the same. P.W.2 has admitted in her deposition that her re-statement dated 9-11-2006 is created by the Investigating Officer as per his own convenience inasmuch as she has not gone to the police station after three days of the incident. 9. There is nothing on record to show that the deceased had worn two gold rings at the time of going out of the house. It has also not come on record that he used to wear two gold rings and one chain. Thus, in our considered opinion only to fix accused Nos. 1 & 2 in the case, the recovery theory of gold ornaments from accused Nos. 1 & 2 is created by the prosecution. If really the accused had got the intention to rob the two rings, they would not have left the gold chain of the deceased unrobbed. Thus, in our * opinion the alleged fact that rings were worn by the deceased Narayana could not be proved beyond doubt by the prosecution. It was specifically suggested by the defence to P.W.2 in her cross-examination that the complainant himself has created the rings for the purpose of this case; P.W.2 has not denied the said suggestion. This creates doubt in the k/S 13 m’nd ‘ thc C “it and make, us ‘e belie’ c Via, ‘E’t t ic’as f thc prosc cuuo i of decc ased wear ii txo trivs is fcilsc Whet’ tile nri,secIn:•ri hac n”t pr.wra r %e thai ttw il.•’ tias vflring B’” :ing. on the uatr ‘‘1 tEa ui idtn: thc e idence of recovery of pancha etc fills to the ground 10 One of the recover pancha P.W. 11 in the cross examination has deposed that he ei1t t the polk e station onc da Lifter the incident and at that umc both iccused Nos 1 & 2 erc prescnt m the police ‘ttion But tEa c rte of the prosecution is that th cfrithi I as ‘t rui rc d in j’)-I 20Gb and both the accused nre :irrestt-I vU on U. 11 2006. that is alter abet 1 1Q im,i’rt s ,? ,ht- ‘cJejept W. •r’— s i bed a as I \c. I pol tin tE’t. din H. i ii. %“t ii 1 ’r Jr t • F I’. C ( 1 .‘. I” e’I’ .•-.(. . -—. t • ..* •l 4- :14: interference is called for. The appeal fails and is accordingly dismissed. Sd!’ JUDGE Sd! JUDGE Rsk/ -