IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL APPEAL NO. 1176 OF 2012 BETWEEN 1. H. M. Halaswamy, S/o Panchaiah, Aged 52 years, Asst. Engineer, Zilla Panchayath, Jagalur, R/at 1970/74, 2nd Main, S.S. Layout, ‘B’ Block, Davanagere.
2. Smt. Sharadamma W/o Panchaiah, Aged 77 years, House Maker, R/at No.1970/75, ‘B’ Block, 2nd Main, S.S. Layout, Davanagere. ... Appellants (By Sri. Sunil Kumar S., Advocate, Sri. Chandrashekar R.P., Advocate for Sri. C.H. Hanumantharaya, Advocate) (Now Duress at Central Prison at Bellary) AND State of Karnataka By Vidyanagara Police, Rep. by S.P.P., High Court Buildings, Bangalore-560 001. ... Respondent (By Smt. B.M. Nagaveena, Advocate and Smt. K.S. Girijamma, Advocate for the applicant in IA 1/15.
Sri. Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment of conviction and order of sentence passed by II Additional District & Sessions Judge, Davanagere in S.C.No.112/2010 dated 14/9/2012 - convicting the appellants/accused 2 & 4 for the offences punishable under Section 302, 201, 109, 120-B R/W Section 34 of IPC. Appellants/accused-2 & 4 each are sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- in default to pay fine, they shall undergo rigorous imprisonment for two years, for the offence punishable under Section 302 R/W Section 34 of IPC. Appellants/accused-2 & 4 each are sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/-, in default to pay fine, they shall undergo rigorous imprisonment for one year, for the offence punishable under Section 201 R/w Section 34 of IPC. Appellants/accused-2 & 4 each are sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/-, in default to pay fine, they shall undergo rigorous imprisonment for two years, for the offence punishable under Section 120-B R/w Section 34 of IPC. All the aforesaid substantive sentences shall run concurrently.
This Criminal Appeal having been heard and reserved for Judgment on 05.12.2018, coming on for pronouncement of Judgment, this day, K.SOMASHEKAR, J., delivered the following:
J U D G M E N T This appeal is directed against the judgment of conviction and sentence passed by the II Addl. District and Sessions Judge, Davanagere in S.C.No.112/2010 dated 14.09.2012 wherein accused Nos.2 and 4 were convicted for the offences punishable under Sections 302, 201, 109, 120-B read with Section 34 IPC and they were sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- each, in default to pay fine amount, to undergo R.I for two years, for the offence under Section 302 IPC. Further, under Section 201 r/w Section 34 of IPC, they were sentenced to undergo R.I for three years and to pay fine of Rs.10,000/- each and in default to undergo RI for one year. Further, under Section 120-B read with Section 34 of IPC, accused Nos.2 and 4 were sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- each and in default to undergo R.I. for two years.
2. The factual matrix of the appeal is as under:
It is stated in the theory of prosecution that accused No.2 - Halaswamy is the husband of deceased Roopa, accused No.4 - Smt.Sharadamma is the mother of accused No.2 and mother-in-law of deceased Roopa. Accused No.1 – Nagaraja is stated to be working as a small contractor in connection with works of the office of accused no.2 - Halaswamy who was working as Engineer in Zilla Panchayat at the relevant point of time. It is further stated that accused Nos.1 and 2 were in good terms with each other and as a result of the contract work said to have been allotted by accused No.2, accused No.1 was under his obligation. It is further alleged that accused No.2 - Halaswamy was addicted with bad habits and it appears that there was some matrimonial dispute between accused No.2 and deceased Roopa. Accused Nos.2 and 4 were hatching a plan to go for second marriage for accused No.2 Halswamy and they were in search of bride and to clear their way for second marriage, they made a conspiracy with each other and took assistance of accused No.1 – Nagaraj to kill deceased Roopa. In pursuance of their common intention they entrusted the said work to accused No.1 and in pursuance of such plan, on 01.06.2010 between 10.30 a.m. to 11.30 a.m. while deceased Roopa was alone in the house and taking bath, at that time accused No.1 by using alternative door lock key of the house of deceased from accused No.4 - Sharadamma, entered the house and committed murder of deceased - Roopa by putting cloth on her face and throttling her and robbed the golden ornaments belonging to her. It is further alleged that immediately CW.1 - Karibasamma the maid servant working in the house of deceased - Roopa came to the house for attending her routine work and inspite of she pressing the calling-bell the door was not opened and by that time she noticed that accused No.4 - Smt. Sharadamma was sitting in front of adjacent house and on her enquiry accused No.4 misled PW.1 - Karibasamma asking her to bring the mobile from inside the house by stating that some person of dark complexion ran away from the house of deceased and in the meantime, CW.2 Smt.Savithramma, mother of the deceased and CW.3 Kumari Anitha their relatives came to the house of the deceased and by entering into the house, they noticed deceased Roopa was murdered in front of the bath room. Immediately, they tried to give first-aid to her and noticed that she has lost her breath. It is further alleged that accused No.4 - Sharadamma being mother- in-law of the deceased and residing in the adjacent house of her another son had given a complaint to Vidyanagar police station against unknown persons. Based upon her complaint, CW.51 – PSI of Vidyanagar Police station registered a case against unknown persons in Cr.No.112/2010 for the offence punishable under Sections 302 and 192 of IPC and as per the instructions of their superiors handed over further investigation to CW.52.
3. It is further alleged that CW.52 circle Inspector of Police of City Central Circle, Davanagere has took up further investigation and he visited the spot, conducted spot panchanama in the presence of panchas and thereafter conducted inquest proceedings over the dead body of deceased - Roopa and handed over further investigation to CW.53 the then Police Inspector, District Special Branch and DCIB Division, Davanagere. Whereas, CW.53 stated to have conducted further investigation and arrested accused No.1 and at his instance he is stated to have seized the gold ornaments and money which belonged to deceased - Roopa and other incriminating articles stated to have been used for commission of offence and he has also arrested other accused, recorded the statement of witnesses and after completion of investigation he laid the charge sheet against accused Nos.1, 2 and 4 for the offences punishable under Sections 302, 201, 109, 120-B read with Section 34 of IPC and as against accused No.3 for the offence punishable under Section 411 of IPC. Accused No.3 – Vishal Kumar @ Vishal Kumar Sanghvi was deleted as per order of this Court in Crl.R.P.No.962/2011 dated 26.09.2011.
4. Subsequent to committing the case by the committal Court, the II Addl.District and Sessions Judge, Davanagere secured the presence of accused and put them on trial. Subsequently, the prosecution in order to establish the guilt of the accused examined PWs.1 to 38 and got marked Exs.P1 to P68 and material objects M.Os.1 to 17. During the course of trial, defence got marked Exs.D1 to D4.
5. Subsequent to closure of evidence by the prosecution, the accused were examined as required under Section 313 Cr.P.C for enabling incriminating statements against them. But the accused have denied the evidence of prosecution witnesses. Subsequently, the accused did not come forward to adduce the defence evidence as contemplated under Section 233 Cr.P.C.
6. The trial Court after hearing the arguments advanced by both the sides, by appreciating the evidence on record, oral and documentary held conviction against the accused for the offences aforesaid. It is this judgment which is under challenge in this appeal.
7. We have heard the arguments advanced by the learned counsel for the appellants and the learned Addl. SPP for the State and perused the entire records.
8. The learned counsel for the appellants has taken us through the evidence of PW.1 – Karibasamma who was the maid servant of the house of deceased – Roopa as on the date of the incident. On that day when she came to the house of the deceased to attend her routine work she used the calling bell, but there was no response from inside. In the meanwhile, accused No.4 – Sharadamma who was sitting in front of the house adjacent to house of deceased asked PW.1 – Karibasamma to fetch her mobile phone from inside the house. In the meanwhile, PW.2 – Savithramma being the mother of the deceased and PW.10 – Kum.Anitha being grand daughter of Savithramma came to the house of deceased – Roopa and they noticed that Roopa was murdered. Though they tried to give first aid to her, they noticed that she has lost her breath. Subsequently, the law came into motion by investigation relating to the death of deceased Roopa. The case was investigated by PW.37 being the IO who laid the charge sheet against the accused. But the trial Court has placed reliance on evidence of PW.1, PW.2, PW.5, PW.6 and PW.10 who are the blood relatives of deceased – Roopa and not only the blood relatives but also interested witnesses for the prosecution theory. But the case of the prosecution as a whole, vested upon the circumstantial evidence, since there was no eye witness to the alleged act of murder of deceased – Roopa. But the trial Court has failed to consider the available evidence of those witnesses while deciding the merits of the case that too in a murder case and it was a house murder. In order to substantiate the case of the prosecution they want to establish the guilt of the accused in causing away the life of deceased – Roopa. Therefore, what are the supervening circumstances emerged in the case of the prosecution against the accused with the complicity of the crime and whether the prosecution has proved its case beyond all reasonable doubt though the case rests upon the circumstantial evidence as accused Nos.2 and 4 have linked with the chain of circumstances or a member of criminal conspiracy as contemplated under Section 120-B of IPC relating to these accused persons have to be looked into through the evidence of the aforesaid witnesses.
9. The second limb of the arguments is that in order to look into the available evidence for the prosecution and to re-appreciate the evidence in analyzing the witnesses and circumstances are to be glanced in this appeal. It is further contended that the trial Court has not appreciated certain facts and peculiar circumstances of the case as wherein the murder took place in the house of accused No.2 – Halaswamy, despite of calling the bell she did not get any response from inside the house but later came to know that Roopa was found murdered and her ornaments were robbed by the miscreants/culprits. Though she supports the case of the prosecution, but in the cross-examination she admits that accused no.4 – Sharadamma has been residing in the house adjacent to the house of deceased – Roopa and accused no.1 – Nagaraja had been to work. In the peculiar facts and circumstances of the case as well as re-appreciating the evidence of PW.1 – Karibasamma coupled with the evidence of PWs.2, 5, 6 and 10 as they are not only the blood relatives of deceased – Roopa but they are familiar to accused No.1 – Nagaraja as he was working as a contractor under accused No.2 – Halaswamy. Therefore, PW.1 – Karibasamma and rest of other witnesses are known to accused No.1 – Nagaraja. But there are contradictions in their evidence itself relating to the person being the accused who went out from the scene of crime and when PW.1 – Karibasamma who entered into the house of deceased – Roopa and found that she was lying dead in front of bathroom. This evidence has not been appreciated by the Trial Court in a proper perspective manner and so also not appreciated the evidence of PW.2. Naturally, PW.2 being the mother of the deceased has supported the case of the prosecution, but material aspects elicited in her cross-examination it found to be disbelieved the testimony of the witnesses in so far as accused No.2 – Halaswamy and accused No.4 – Sharadamma hatching a conspiracy to eliminate deceased – Roopa as they were making attempts for second marriage of accused No.2.
10. There are residential houses in and around the house of accused no.2 – Halaswamy and accused No.4 – Sharadamma. She did not sought anybody’s assistance to catch accused no.1 – Nagaraja and PW.2 did not observe anything at the hands of accused No.1 but in the cross-examination she admits that she did not state before the police that an attempt was being made for second marriage of accused No.2 – Halaswamy. Similarly, PW.5 is the brother of the deceased who was working as Professor at Gulbarga, he being a hearsay witness for the prosecution, though he supports the case of the prosecution, however out of evidence of PW.5 there is nothing to connect the complicity. Accused No.2/Appellant No.2 has not been residing with deceased – Roopa but there is specific allegation against accused No.4 that she was harassing deceased – Roopa that it does not mean accused No.4 had a nexus with deceased. Whereas it is the specific case of the prosecution that accused no.4 - Sharadamma had given the interlock key(M.O.17) to accused No.1 – Nagaraja to facilitate him to gain entry inside the house. If whole of the prosecution case were to be believed, did the investigating agency has recovered M.O.17 at the instance of accused No.4 – Sharadamma. But nobody speaks after the incident that accused No.1 had handed over the internal lock key to accused No.4. Thus it is suspicious from where it has been recovered and how that M.O.17 had come to the possession of accused No.4 – Sharadamma. This aspect has not been appreciated by the trial Court in a proper perspective manner.
11. It is further contended that evidence of PW.6 wife of PW.5 is not properly appreciated. The mental condition of deceased Roopa was not good and in fact she was taken to Shimoga for treatment by accused No.4 and accused No.2 respectively. PW.4 – elder sister of deceased Roopa has deposed that there was cordial relationship between them and accused no.4 who has lodged a complaint to the police with regard to incident of murder of deceased – Roopa in the house. In the cross-examination it has been elicited that whether accused No.4 – Sharadamma told them were not stated before the police and it was learnt that Accused No.2 and 4 have entrusted the work to commit murder of deceased – Roopa through Accused No.1 – Nagaraja. Similarly from the evidence of PW.10 – Anitha, daughter of PW.5 and PW.6 has stated that accused no.2 and deceased were cordial and accused no.2 used to take his family members outside once in a week. Since there are neighbouring houses, if any such act is being committed, it would be heard by others. Added to this, accused No.4 had been residing in the house of elder son, the Doctor who treated her and had certified that deceased was having average knowledge when it has been depicted to her, in turn admits the same, and further admits that she is not aware of the preplan made by accused Nos.2 and 4. Hence, from the evidence of this witness it is evident that there is no conspiracy between accused Nos.2 and 4 in causing away life of deceased.
12. It is further contended that PW.11 Ramesh, Manager of Bindas Wine shop and according to his evidence accused Nos.1 and 2 used to visit their bar and sometimes sitting in a Car and used to place order to supply drinks. He further states that even prior to the night of the incident both accused Nos.1 and 2 came to their Bar and were talking with each other. Out of which could it be possible to give a spectrum shape of criminal conspiracy to eliminate deceased – Roopa whereas in the cross examination several aspects were elicited from PW.11 that in their wine shop only liquors were to be sold but there was no provision to sit and have drink. He being a Manager was not aware whether the said Wine shop own a license of CL-1 or CL-2. Further he did not produce any such bills relating to consumption of liquor by accused No.1 and accused No.2 Thus, when PW.11 miserably failed to give evidence with regard to meeting of minds of accused No.1 and accused No.2, how the complicity with crime could be connected. It is the core of the prosecution case and the same is required to be established to put forth positive evidence against accused No.2 and accused No.4 that they were hatching conspiracy to eliminate deceased – Roopa with the aid of accused No.1 – Nagaraja.
13. It is further contended that PW.30 the Asst.
Executive Engineer, was asked by the respondent Police to give information whether accused No.2 has entrusted any such work allotment in favour of accused No.1 – Nagaraj or not. In this regard, he gave a report as per Ex.P.47. In the cross-examination he was asked on which date four items of work was entrusted to accused No.1 and when it was completed, he had no knowledge about that. Further he admits that accused No.2 had no power to entrust such work in favour of accused No.1 or interested persons. Besides that the person who was getting such works to be carried, should be holding a license, when accused No.1 was not holding any such license to carry out the work it is practically impossible to entrust such piece work in favour of accused No.1. Thus, it is evident that the evidence of this witness is insufficient to form an opinion about meeting of accused No.1 and accused No.2.
14. Finally, it is contended that the trial Court has committed error in giving much importance to the evidence of PW.37- IO who laid the charge sheet against the accused. He starts the investigation merely on the basis of perception that accused No.4 has lodged a complaint by misleading the police and used to rely upon the call details of accused No.2 and accused No.4 respectively. It could be seen that there are some contradictions and improvements in the evidence of PW.1, PW.2 and other material witnesses on record. Admittedly, the alleged call details were not obtained from the respective mobile companies instead whatever the conversation made between the parties are secured out of the S.P.office. But Ex.P.56, 59 and 60 do not reveal that what conversation took place pertaining to commission of offence and in the absence of such information it cannot be safe to throw a ghastly offence of murder against the appellants and even if assuming for a moment, if accused No.2 and accused No.4 had a conversation how the complicity could be connected when a son talks with a mother and can a colourful shape be given to such conversation. It is only an after thought of investigating agency to implicate the accused into the crime. The IO has not even produced the details of conversation involving the criminal conspiracy in executing the act, which has become fatal to the case of the prosecution. Apart from that, to establish the guilt of the accused, the sons of deceased who are the natural witnesses have not been examined which creates considerable doubt.
15. Lastly, learned counsel for the appellants contends that after analyzing the entire evidence, it could be noticed that some miscreants have committed the murder of deceased Roopa for personal gain, since the deceased used to wear valuable gold ornaments, in order to commit robbery committed murder of deceased – Roopa. Therefore, accused No.4 had rightly lodged the complaint before the police and when the investigating agency failed to trace the actual culprits, it has thrown a ghastly charge of murder against appellants and enabled accused no.1 – Nagaraja to commit the murder which is far away from reality. Of course, merely out of the family disputes over a trivial issue which is insufficient to constitute an offence of murder against the appellants. It is further contended that accused No.2 was working as an Assistant Engineer at Zilla Panchayat office at Jagalur and he do not have any bad antecedents. On the day of incident he had visited the Bangalore office and he was not in station. Similarly, accused No.4 is aged about 77 years and has not committed any offence muchless levelled against and moreover, she was residing in the house of her elder son, counting the days and both have been languishing at Central Prison. This aspect of the matter is not considered by the trial Court. On these grounds urged by the learned counsel for the appellants and contending that in this appeal it requires to revisit the judgment and order of conviction and sentence by re- appreciating the entire evidence on record and that the trial Court has not appreciated the evidence in a proper perspective manner and has also misdirected the entire evidence on record and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. On all these grounds urged, the learned counsel for the appellants seeks intervention of this Court to set-aside the judgment and order of the Trial Court.
16. Per contra, learned Addl. SPP for the State who has taken us through the evidence of PW.1 – Karibasamma being the maid servant in the house of deceased – Roopa who came to her house for attending routine work but instead of she pressing the calling bell the door was not opened and by that time the said Karibasamma has noticed that accused no.4 – Sharadamma was sitting in front of adjacent house and on her enquiry she misled by asking her to bring mobile from inside the house, by stating that some person of dark complexion ran away from the house of deceased – Roopa. In the meanwhile, PW.2 – Savithramma being the mother of the deceased and PW.10 – Kumari Anitha being her relative who came to the house of deceased – Roopa and on entering into the house they noticed that the deceased was murdered in front of bath room and immediately they tried to give her first aid but noticed that she has already lost her breath. The same has been noted in their evidence. They are the main witnesses for the prosecution and their evidence has been appreciated by the Trial Court. PW.1– Karibasamma has specifically stated in her evidence that, when she entered into the house, one person with dark complexion ran away from the scene of crime as he being accused No.1 – Nagaraja who is an associate of accused No.2 – Halaswamy. Whereas the trial Court had appreciated the evidence of PWs. 1, 2, 4 to 6 and PW.10 that they have specifically and categorically stated in their evidence that earlier accused No.2 – Halaswamy was residing with his wife deceased – Roopa and his children in the first floor of house of PW.2 – Savithramma, being the mother-in-law of accused No.2 – Halaswamy and mother of deceased – Roopa.
17. On the date of incident i.e., on 01.06.2010 accused No.2 Halaswamy was not in his house and he has also not attended his office duty. All such incriminating evidence stated by PWs.29 and 31 were put to accused No.2 at the time of his statement under Section 313 Cr.P.C. but he has not given any explanation about his absence to the duty as well as in his house at the time of incident. It is relevant to note here that accused No.1 murdered Roopa by throttling and the incident had occurred in the house in the day broad light around 10 to 11 a.m. These are all the strong circumstances which are pointing towards accused No.2 and 4 about preparation for committing murder and their intention. The above circumstances unravel the full dimension of the mental disposition of the offender’s towards the person whom they have offended. The prosecution is successful in proving the possibility of some ire on the part of accused No.2 – Halaswamy and accused No.4 – Sharadamma.
18. Further, PWs.1, 2 and 10 have stated in their evidence that they saw accused No.1 Nagaraja running from the place of incident when they were discussing with accused no.4 – Sharadamma. PW.1 has further stated that when there was no response from inside and by that time accused No.4 – Sharadamma called PW.1 – Karibasamma and asked her to bring cell phone. Even while talking about the person inside the house, accused No.4 was telling to PWs.1, 2 and 10 that he was not accused No.1 but he was person of dark complexion and he might have committed the murder for wrongful gain of taking jewels. These are all the circumstances available in the evidence of the prosecution witnesses and the same in all probability points out towards the guilt of accused Nos.1, 2 and 4 towards crime and the same shows the preparation, motive and intention of the accused in the crime alleged against them.
19. The evidence of PW.14 Suresh and PW.38 – Vishal Kumar goes to show that immediately after the incident, accused No.1 – Nagaraja pledged the Mangalya chain marked as MO.4 belonging to deceased Roopa with their jewellery shop and after 2 to 3 days he came with the police and at the instance of accused No.1 they returned MO.4 mangalya chain to the Investigating Officer. All the material aspects in the evidence of PW.14, PW.38 and evidence of IO – PW.37 corroborates with each other. Further PW.18 – Ullas Kamath who is mahazar witness has attested the recovery of MO.4 under Mahazar Ex.P8 and corroborates the say of the above witness on the material aspects. It is clear that immediately after the incident accused No.1 Nagaraja came to Shanghavi Jewellers belonging to PW.38 Vishal Kumar and pledged MO.4 mangalya chain for Rs.50,000/- and after two to three days the same was recovered at the instance of accused No.1 by the IO – PW.37 in the presence of PW.18 under Mahazer Ex.P19.
On the above material aspects, evidence of PW.14, PW.18 and PW.38 appears to be in a natural way. The pledging of MO.4 with shop of CW.38 in all probability supports the case of the prosecution that immediately after the murder of deceased Roopa, he came with the said gold chain to the shop of PW.38 and pledged it for Rs.50,000/- which is another strong circumstantial evidence which point out the guilt of accused No.1.
20. The evidence of PW.26 – Ramareddy, Head Constable then working in the DCIB, Davanagere shows that on 01.06.2010 the IO - CW.53 Ramesh Kumar being the Inspector DCIB has entrusted the work of arrest of accused No.1 Nagaraj and in that regard he had taken the help of CW.4 Nagabhushan who was the friend of accused No.1 Nagaraj and he came to know that accused No.1 was moving towards Bangalore. With the help of CW.4 Nagaraj they were able to catch hold of accused No.1 near a hotel at Nelamangala in the early hours of 03.06.2010 and produced accused No.1 before IO – CW.53 and filed report as per Ex.P41. The aforesaid materials goes to show that on 31.05.2010 and on 01.06.2010 up to 12 noon or so accused No.1 Nagaraj was in Davanagere city, immediately after vacating the room in Shanti Comforts lodge he has left towards Bangalore and admittedly, he was the resident of Jagalur Taluka. Even after vacating the lodge instead of going to his native place he has hurriedly rushed towards Bangalore which is unexplained by the accused.
21. The learned Addl.SPP lastly contends that the trial Court has rightly appreciated and held that the prosecution has proved the charges levelled against accused persons for the offences punishable under Sections 302, 201, 109, 120-B read with Section 34 of IPC. The evidence on record would clearly show that accused No.1 – Nagaraja has committed murder of the deceased Roopa while she was taking bath in her house and accused No.2 – Halaswamy and accused No.4 – Sharadamma being the husband and mother-in-law of the deceased have joined their hands with accused No.1 in committing the murder of deceased Roopa. Accused No.1 was able to commit the murder with the support extended by accused no.2 and accused no.4 by hatching a conspiracy to eliminate deceased Roopa. He contends that accused Nos.2 and 4 were supposed to take care of the deceased – Roopa, but they themselves have involved in her murder. Therefore, the trial Court looking into these aspects and coupled with the gravity of the charges proved against these accused has rightly convicted the accused persons. Therefore, the judgment of conviction and order of sentence passed by the court below does not call for any interference to re-appreciate the same.
22. In this background, it is relevant to go through the evidence of PW.1 – Karibasamma. In her evidence she has stated that she was working as a maid servant in the house of accused No.2 – Halaswamy as well as deceased – Roopa since 7 years. Accused No.1 – Nagaraja used to come to the house of Halaswamy whenever there was work and therefore, she was acquainted with accused No.1 - Nagaraja. Accused No.4 – Sharadamma used to stay adjacent to the house of deceased – Roopa. While she was working as maid servant in the house of deceased – Roopa, there were altercations between deceased – Roopa and accused No.2 – Halaswamy. The said aspect was told by the deceased to her. She used to go for work between 10.30 and 11.00 a.m. She has further stated that on the day of the incident she had been to the house of deceased – Roopa at about 11.00 AM. At that time accused No.4 – Sharadamma was sitting in front of her house. A cloth bag belonging to Roopa was with this witness. Then at that time accused No.4 – Sharadamma called her and enquired about the contents in the bag and asked to show her. After that she went near the house of deceased – Roopa and saw that the door was closed and inspite of thumping the door was not opened. Thinking that deceased Roopa had gone to bathroom, she went near the bathroom and saw a person inside. Therefore, she again came to accused No.4 – Sharadamma and informed about the situation. Then accused No.4 – Sharadamma asked her to bring the mobile from inside her house and at that time, accused No.1 – Nagaraja had ran outside. At that time, Savithramma, mother of deceased and Kum.Anitha, her granddaughter came there and she informed about the incident to them. They told her that they saw Nagaraja running outside. Then accused No.4 – Sharadamma told that the person who ran outside was not Nagaraja but a stout person of dark complexion. After that herself, Savithramma and Anitha had gone inside the house of deceased – Roopa and near the bath room they saw Roopa lying with her inner garments. Anitha had sprinkled some water to the face of the deceased and despite that she was not awake. On seeing Roopa, there was abrasion nearby her neck but Roopa had lost her breath. Deceased used to wear gold ornaments in her neck and hands. On that day gold ornaments was not found on her body. Further she states that police had secured her to police station and conducted mahazar and came to know that accused No.1 – Nagaraja committed murder of Roopa. She has further stated that Accused No.2 – Halaswamy and accused No.4 – Sharadamma were hatching a plan to eliminate deceased Roopa with intention to perform second marriage to Halaswamy. This witness was cross-examined at length but nothing worth was elicited to disbelieve her evidence relating to murder of deceased Roopa.
23. PW.2 – Savithramma - mother of deceased Roopa has stated in her evidence that accused No.2 – Halaswamy had been to her newly constructed house in S.S.Layout. While she was residing there that accused No.2 – Halaswamy and his mother Sharadamma were harassing her daughter – Roopa and the same was informed by her daughter. Further accused No.4 – Sharadamma used to tell her daughter that after the death she will perform marriage to his son Halaswamy and also her daughter had informed her that Sharadamma was seeing bride for Halaswamy. She had requested the accused persons not to harass her daughter at that time Halaswamy had asked for divorce from her daughter so that he can have another marriage. She has further stated that on 01.06.2010 at about 9.30 AM deceased Roopa had called her and stated that her husband Halaswamy had gone to Bangalore and she asked her mother to come to her house so that they can go and purchase books for her son. Therefore, herself and grand daughter Anitha had been to the house of deceased in an auto rickshaw they saw accused No.1 – Nagaraja running away by jumping compound wall. When they went near the house they saw Karibasamma and Sharadamma and asked them that why Nagaraja had ran away. Then Sharadamma had told that, the person who ran away was not Nagaraja but a stout person of black complexion. Then they went inside the house and saw deceased Roopa lying and there was no gold ornaments on her body and she had lost her breath. Accused No.4 – Sharadamma had told that some thief would have come and robbed deceased Roopa and Sharadamma had given complaint in this regard. Further they were investigated by the police and they came to know that at the scene of crime, the police had took a motor cycle belonging to accused Nagaraja and on that basis, the police had apprehended him. At that time, the gold ornaments belonging to Roopa were with him. Further she has stated that Halaswamy had taken a policy for a sum of Rs.10 lakhs in the name of Roopa. For second marriage the accused persons had seen a bride in Veerapura village. She had stated that for performing second marriage, accused no.2 and accused no.4 by hatching a criminal conspiracy had eliminated deceased Roopa with the assistance of accused No1. This witness was also cross examined at length but nothing worth was elicited to disbelieve her version.
24. PW.4 – Smt.Rekha is the sister of deceased Roopa. She has stated in her evidence that subsequent to the marriage of deceased Roopa and Halaswamy initially they were in good terms. But after the acquaintance of Nagaraja, Halaswamy used to drink and developed bad vises and used to picked up quarrel with her sister Roopa for simple reasons and accused No.4 Sharadamma were trying to perform second marriage to accused No.2 – Halaswamy. Further she states that on 01.06.2010 her mother Savithramma and Anitha had gone to the house of deceased – Roopa in an auto rickshaw to bring some books. Nearby the house, they saw Nagaraja running away and on enquiring to Sharadamma and Karibasamma, Sharadamma had told that the person who ran away was not Nagaraja. They went inside the house and saw deceased Roopa lying and she had lost her breath. This witness went there and saw Roopa lying and was only wearing inner wear and there was abrasion near her neck. Further, she has stated that accused No.4 – Sharadamma has told that the person who ran away had committed murder of Roopa for gold ornaments. That accused No.1 Nagaraja had parked his Bajaj Platinum bike near the house of accused No.2 and she came to know that police had apprehended Nagaraja. She identified Rs.20,000/- and bangles and other ornaments in the custody of police and the police had told her that the same was seized from accused Nagaraja. She had further stated that the Mangalya chain of deceased Roopa was purchased at Jewellary shop of Pandurangappa Vannekar and at that time she had accompanied deceased Roopa and even she had also purchased the Mangalya Chain for herself. This witness was cross-examined at length. But nothing worth was elicited to disbelieve her evidence and the same was considered in the judgment rendered by the trial Court.
25. PW.5 – Mr.Vidyadhar H.S. is the brother of deceased – Roopa. He has stated that accused No.2 – Halaswamy is his brother-in-law and accused No.4 – Sharadamma is mother of Halaswamy. The marriage between deceased – Roopa and accused No.2 – Halaswamy was performed in the year 1989 and out of their wedlock they had two children by name Akshay and Vinay. Halaswamy was residing with his family in the upper portion of their house, at that time, accused No.1 – Nagaraja frequently used to visit Halaswamy and he knows Nagaraja. Subsequent to the marriage accused No.2 – Halaswamy was well looking after his family, after two to three years the harassment was started. As he was the only brother, deceased – Roopa used to call him and 3 to 4 years prior to the date of incident, Halaswamy was consuming Alcohal and used to assault her. Even accused No.4 – Sharadamma was harassing his sister – Roopa and was telling that she would perform second marriage to Halaswamy. In this regard talks were held between the family of deceased – Roopa and family of accused. During that talk accused – Sharadamma had told that they would perform second marriage to Halaswamy and are ready to give compensation to his sister. At that time, deceased – Roopa who was sitting beside him had told to give Rs.50 lakhs and for that accused Sharadamma told she would not give even Rs.50,000/- and she knows what to do. This witness advised his sister to adjust with them and while returning he told Sharadamma that they will come again and persuade all. At that time Sharadamma told that you will come to put soil on the dead body of his sister deceased Roopa. On 24th May, accused No.4 Sharadamma had called his wife Amitha stating that Roopa has to be taken to Hospital and his wife Amitha came to Davanagere from Gulbarga. From Davanagere, Halaswamy, Sharadamma, Roopa and Amitha together went to Psychiatrist at Shivamogga and after diagnosing Roopa the Doctor had told that she is well and no problem with her. On 01.06.2010 at about 11.30 AM his mother and sister had called him and told that somebody had committed murder of Roopa when she had gone to the Bathroom. After hearing this, he along with his wife and children left Gulbarga and reached Davanagere at 9.30 pm. He saw the dead body on the next day and performed all rituals to the dead body. In the afternoon all of them went near the house of Halaswamy in the third cross where the Bajaj Platinum bike of silver colour was parked and they came to know that bike belonged to accused No.1 Nagaraja who was apprehended near Nelamangala and brought to Davanagere as informed by the police and they went to the police station. Further the police had told them that they have the gold ornaments of deceased Roopa seized from accused Nagaraj and they identified them. He also came to know about performing second marriage to Halaswamy by hatching a plan to eliminate Roopa through accused No.1 Nagaraja. PW.1 - Karibasamma the maid servant was working in the house Halaswamy. His mother and Anitha had gone there in an auto rickshaw and saw accused No.1 – Nagaraja running out of the house. This witness was cross-examined at length but nothing worth is elicited to disbelieve his evidence relating to murder of his sister Roopa on 01.06.2010 and the same was considered in the judgment rendered by the trial Court.
26. PW.6 – Amitha is the wife of Vidyadhar, who is the brother of deceased Roopa. She has stated that she know the accused persons. About five years accused No.2 Halaswamy and deceased Roopa and their children were residing in the upper portion of their house in Davanagere on rent. At that time, accused No.1 – Nagaraja frequently used to visit their house hence, she also knows Nagaraja. Initially deceased and accused Halaswamy were happily living together but after that deceased Roopa used to tell her that her husband after consuming Alcohal used to assault. One day prior to the incident, accused Halaswamy had shifted his house to SS Layout with his family. Roopa was telling her that Halaswamy and Sharadamma would give the amount as much as she wants and to leave her husband. On 04.05.2010 a panchayath was convened in the house of Halaswamy. On 01.06.2010 at about 11.30 AM there was a phone call to her husband informing that Roopa was murdered by strangulation and her gold ornaments were robbed. On hearing this, her family came to Davanagere at about 11.30. p.m. She came to know from the police that accused No.1 Nagaraja by using the inter lock key from accused – Sharadamma with her assistance entered into the house of deceased and committed murder by compressing her neck. Accused No.1 – Nagaraja after committing murder and seeing Karibasamma was under perplexity so that he jumped out from the compound wall by leaving his motor cycle there itself. Sharadamma had told her that some thieves might have committed the murder of deceased and robbed the gold items. She has stated Sharadamma with an intention to perform second marriage to her son Halaswamy used to harass her. This witness has been cross-examined at length but nothing worth has been elicited to disbelieve relating to death of deceased – Roopa and also accused – Nagaraja who had ran away from the house of the deceased.
27. PW.7 – Ramakrishna has stated in his evidence that he was residing behind the lane of house of accused Halaswamy. On 01.06.2010 while he was going to office duty at about 9.30 AM nearby his house, near the bushes beneath a tree a person was talking in the mobile sitting on a bike. The bike did not had registration number. After he going to office, his sister had called her and told that Roopa wife of accused Halaswamy had been murdered. After coming from duty in the evening he saw the same bike standing near the bushes and nobody was there. He informed the same to the police and on enquiry he had identified that person as accused No.1 Nagaraja and also the bike. This witness was cross-examined at length but nothing worth has been elicited relating to seeing of Nagaraja along with the motor bike beneath the tree nearby his house.
28. PW.8 – Chandrashekar has stated in his evidence that nearby his house, there is house of accused No.2 – Halaswamy and accused No.4 – Sharadamma. He had not seen accused No.1 – Nagaraja and he had seen deceased Roopa who was wife of Halaswamy. About 1 ½ years back he came to know about the murder of deceased Roopa. This witness has turned hostile and he was cross-examined but nothing worth was elicited from him and the same was observed in the judgment rendered by the trial Court..
29. PW.9 – Nagavenu was working as a Tax Consultant. He has stated that he was residing nearby the house of accused persons and he knows Halaswamy and Sharadamma. About 1 ½ years back he came to know about the murder of deceased Roopa. He had been there and Roopa had been murdered. Police came there and took the dead body of Roopa and from the newspaper he came to know that one Nagaraja had committed the murder. This witness also turned hostile and thereafter in the cross-examination nothing worth has been elicited relating to murder of deceased – Roopa and harassment by Sharadamma and Halaswamy.
30. PW.10 – Anitha is the grand daughter of PW.2 – Savithramma and she has stated that she was living with Savithramma from 5 to 6 years for studying. Accused No.2 – Halaswamy and his wife Roopa and their children were residing on the upper portion of their house on rental basis. One year prior to the incident, Halaswamy vacated the house and started residing in his own house at SS Layout, Davanagere along with family. She knows accused No.4 – Sharadamma as mother of Halaswamy and he was residing in the house of his elder brother. She even know accused Nagaraja. Since 4 to 5 years, Accused Nagaraja used to come to the house of Halaswamy and while vacating the house Nagaraja himself has shifted all the materials to the house of Halaswamy at SS Layout. On 01.06.2010 about 9.30 a.m. she was along with her grandmother Savithramma, at that time, deceased Roopa had made a call and told them to come at 10.00 am as she wanted to purchase some books for her son. After this Savithramma and herself went to the house of deceased – Roopa in an Autorickshaw. While paying money to the driver of Autorickshaw, Savithramma told her that Nagaraja was jumping from the compound of the house of deceased Roopa and ran away. While they came to the house of deceased, accused Sharadamma and PW.1 Karibasamma was standing, herself and Savitramma went inside the house by calling Roopa but no response was there. While searching for Roopa, they saw her dead body lying in front of the bathroom. Deceased Roopa was lying on the floor with her inner wear and there was abrasion near the neck and there was no mangalya chain in the neck and ear studs and bangles. Roopa used to wear all these items everyday but at that time they were not found on her body. They sprinkled water on her face and Sharadamma told them that some thieves might have committed murder and robbed her and Sharadamma gave complaint to police and informed to Ambulance. She has stated that accused no.2 Halaswamy and deceased Roopa used to quarrel while they were in the old house and Roopa used to tell Savithramma that Halaswamy was always abusing her. Accused No.4 Sharadamma used to tell that she will perform second marriage to him. In this regard accused Halaswamy and Sharadamma conspired with each other to eliminate Roopa through accused No.1 – Nagaraja. She has identified M.O.1 to 4 the gold items of deceased Roopa. She has also identified M.O.5 – Motor bike. This witness has been cross-examined at length. In the cross-examination she has stated that she does not know that she has given statement before the Police that accused Nagaraja had jumped from the compound and thereafter ran away. It was in the evening when she saw M.O.5 – motor bike. She has denied that she is stating this for first time. She has stated that when the police was enquiring Sharadamma, herself and Savitramma were telling that the person who ran away was Nagaraja but Sharadamma was telling that the person who ran away was not Nagaraja but a stout person. She has not given any complaint that Sharadamma was giving a false statement before the police. She has further denied that accused no.2 – Halaswamy and accused no.4 – Sharadamma did not hatch any conspiracy to seek divorce from deceased – Roopa in order to get second marriage to Halaswamy. She has further denied the suggestion that accused No.2 – Halaswamy and accused no.4 – Sharadamma are not the cause for the death of deceased – Roopa.
31. PW.11 – Ramesha was working as supplier in Bindas Wine Shop and Hotel and it was a bar and restaurant. He states that accused – Nagaraja and Halaswamy were permanent customers of that Bindas Bar and they used to come in a Nano car at night 8.00 p.m. for consuming alcohol and used to call him as Ramesha to supply the drinks. They used to consume alcohol in the said Nano car and sometimes in the Hotel and sometimes used to carry parcel. They used to talk between themselves and sometimes in their mobiles. 1½ year prior to the incident he came to know that Roopa wife of accused Halaswamy was murdered. Prior to the date of incident the accused persons had come to the Hotel and at that time they had not brought the Car. They came inside the Bar and consumed liquor and they were talking between themselves in suspense. They had come in a motor bike which is marked as M.O.5. Incisive cross-examination was done and he has denied that Halaswamy and Nagaraja did not come to Bindas Bar and Restaurant on the previous day for consuming the liquor. He further denied that police did not made any enquiry and record his statement. The accused persons used to make minimum bill of Rs.400-500, but the concerned bills were not given to the police.
32. PW.12 – Manohar has not supported the prosecution case when he was subjected to examination relating to his statement as per Ex.P6 and he has turned hostile. Even PW.13 – Nagabhushana similarly is also a hostile witness and did not support the case of prosecution despite of cross-examination done by the prosecution.
33. PW.14 – Mr.Suresh B.V. is working in Sanghvi Jewellarry shop in Davanagere and 1½ year prior to the incident accused No.1 – Nagaraja had come to their shop and at that time himself and owner Vishalkumar were there. He had brought two row mangalya chain and pledged the same to Vishal kumar and took Rs.50,000/- from him. The same is identified by him as M.O.4. The police have conducted the seizure mahazar but did not secure the signature on the mahazar. Vishal Kumar being the proprietor of the said shop was also arraigned as accused. He denied the suggestion that about 1½ years back accused Nagaraja did not come to the shop and pledged M.O.4 mangalya chain.
34. PW.15 – Huchappa is a receptionist working in Shanti Comforts. He has stated that on 31.5.2010 at about 4.00 p.m. accused No.1 – Nagaraja had come to Shanti Comforts and asked for a room to stay there for two hours. He entered the address and his name in the register maintained in the lodge. Room No. 124 was allotted to Nagaraja and after sometime he asked for another room as the room allotted to him was not proper. Again room no.121 was allotted to him and the same number was entered in the register. On 01.06.2010 at about 12.00 p.m. Nagaraja had come to the reception counter under perplexity and asked to provide bill for vacating the room. Within five minutes he vacated the room. In the cross-examination this witness has denied that on 01.06.2010 that at about 12.00 p.m. he did not stated that Nagaraja had come to Shanti Comforts in perplexity. He has denied the suggestion that the document has been created to furnish to the police that accused had come to Shanti Comforts and stayed there for two hours.
35. PW.16 – Mr.Prabhudeva is Manager of Panduranga Jewellary Shop, Davanagere. He has stated that Roopa had come to their shop in September 2009 and got prepared mangalya chain of 61 gms and 5 mgms consisting of black beads. He identified M.O.4 – Mangalya chain. In the cross-examination, he has denied that M.O.4 – Mangalya chain was new one and the bill at Ex.P3 has been issued recently at the instance of police.
36. PW.31 – K.G.Gangaiah is the Registrar Chief Engineer in Panchayathraj Engineering Department. He has stated in his evidence that on 5.6.2010 a letter was written by the Davanagere police relating to visit of accused Halaswamy to the main office between 30.05.2010 and 02.06.2010. Accordingly after verification of documents they submitted a report as per Ex.P45 that accused Halaswamy had not come to the Bangalore Office during that period. In the cross- examination he has denied that report as per Ex.P45 has been concocted at the instance of police.
37. PW.32 - Mr.Ramachandra B.Jadhav, is the police constable in the office of Superintendent of police, Davanagere. He has stated in his evidence that he has to monitor the call details reports with regard to landline phone and mobile phone. With reference to Cr.No.112/2010 the IO had given a letter to the office requesting to provide the call details regarding the case. Accordingly, he had provided the call details of the phone numbers through e-mail of Vidyanagar Police Station and the printout has been taken by the IO. In the cross-examination he has stated that he secured the report from the concerned telecom companies as per the details for the period of eleven months.
38. PW.33 - Mr.Duggesh is the police constable of DAR, Davanagere. He visited the scene of crime as on the date of incident and has taken the photos and videograph as per Ex.P48 to Ex.P51 of the dead body of deceased Roopa which was lying in front of the Bathroom.
39. PW.34 – M.D.Fasiuddin is the PSI of Vidyanagar Police Station. He has stated in his evidence that while he was on bandobust duty on 01.06.2010 at about 9.00 AM he got emergent message from police control room at around 1.45 pm that some incident had occurred in the limit of SS Layout B Block, 2nd main road and to proceed there. Accordingly, he went there and by that time, people gathered in the house of Halaswamy in front of bathroom that there was murder of his wife Roopa and her dead body was lying there. In the meanwhile, in that house her mother-in-law Sharadamma and other relatives were there. When he enquired Sharadamma she stated that somebody had murdered Roopa and robbed the gold ornaments. Therefore, she filed a complaint in that regard. There were innerwear on the dead body. Accused No.4 Sharadamma had given a written complaint as per Ex.P52. He observed that murder was due to compression of neck. He further stated that based upon the complaint at Ex.P52 case in Cr.No.112/2010 for the offences under Sections 102, 392 of IPC and sent FIR to the Court as per Ex.P53. In the cross- examination he has stated that while he was on special bundobast duty, he got wireless message and visited the scene of crime but the same has not been mentioned in the case diary.
40. PW.35 – Mr.H.R.Shivaprasad is the police constable who has stated in his evidence that he carried the FIR in Cr.No.112/2010 and submitted to the concerned committal court.
41. PW.36 – Mr.Dashatha Murthy M.C., is the CPI, Central Circle, Davanagere. He has stated in his evidence that on 01.06.2010, he took over the case file for further investigation at 3.00 p.m. in the afternoon from CW-51 PSI, Vidyanagar police station. Subsequent to taking over the case, he visited the scene of crime which is the house of Halaswamy. With the assistance of staff he secured one Nagaraj and Gangadhar as panchas and so also Karibasamma who was the witness to the incident. He observed near the bathroom the dead body of deceased Roopa was lying with inner wear on it and there was no gold ornament. He secured the finger print experts and they secured chance prints and they found that there was compression near the neck of deceased – Roopa and also abrasion on the right side of her nose. After noticing all these he prepared the spot panchanama as per Ex.P1 in the presence of panch witnesses and secured the signature of Karibasamma. Subsequently, he sent the dead body to Government Hospital for further action. There he secured CW-28 M.V.Shantkumari, CW-29 Prakash and CW-30 Srinivas as panchas and in their presence conducted the inquest panchanama marked as Ex.P32. He also photographed and videographed the spot as per Ex.P48 to P51 with the help of the staff. Subsequently, he handed over the case file for further investigation to the Ramesh Kumar Police Inspector, DCIB. In the course of cross- examination he has denied that he did not conducted the panchanama as per Ex.P1 in the presence of panch witnesses and he further denied that Rudreshi and Siddaiah had not given statement during the inquest mahazar over the dead body.
42. PW.37 – Ramesh Kumar being the IO has stated in his evidence that on 01.06.2010 he took over the case file for further investigation in Cr.No.112/2010 relating to Vidyanagar Police Station. On verification of the investigation report prior to spot panchanama was conducted and so also inquest over the dead body was conducted. Subsequent to taking over the file he visited the scene of crime and he formed a team for searching the accused. He has further stated that he made an enquiry with CW.1 – Karibasamma and CW.2 – Savithramma and recorded their statements. While he visited the scene of crime, he noticed that a silver colour motor cycle was parked near the scene of crime without registration number. Therefore, he secured the chassis and engine number of the said vehicle from Bajaj showroom and he found that the vehicle was registered in the name of K.G.Nagaraja. On the basis of the statement of Karibasamma and Savitramma he suspected involvement of accused No.1 Nagaraja as he was working with accused No.2 Halaswamy as assistant contractor.
43. He has further stated that they secured mobile number of Nagaraja as 9591422878 and also another number 9483651494. At the same time, they also secured mobile numbers of Halaswamy as 9008540342 and 9741439257 and another number 95356640368, so also secured mobile number of Sharadamma as 998022509. The landline number of deceased Roopa was 08192222189 and the number of Nagabhushan who was friend of accused Halaswamy was 9164930954. He requested the SP office to furnish the call details of all the above said phone numbers and secured the same.
44. On enquiry with accused – Sharadamma she has stated that the person who was running out from the house of deceased – Roopa was not Nagaraja but it was a stout person with black complexion and it was the other person who has robbed the gold ornaments. He suspected that Sharadamma has misled the police and given a false complaint. On 03.06.2010 the CDR report of all the above mobile numbers were received and he identified them as Ex.P55. The call details of accused Nagaraja and Halaswamy is marked at Ex.P56. Ex.P57 and Ex.P58 are the call details report of accused Nagaraja pertaining to different numbers. Ex.P59 is the call details report of accused No.4 – Sharadamma. Ex.P60 is the call details report of landline number of deceased Roopa. Ex.P61 is the call details report of CW.4 Nagabhushan. In Ex.P59 at serial no.5, accused No.4 Sharadamma had called from her number 9731331629 to the number of Nagaraja which was 9591422878 on 01.06.2010 at about 9.14 AM and it was covered under the tower of Kuvempunagar which is the place of incident. He has further stated that at Ex.P59 at serial No.11, accused No.4 Sharadamma from the same number had called to Nagaraja at 10.35 AM and the same was registered in Anjaneya Layout tower. At Sl.No.19, 25 and 26 of Ex.P59 accused No.4 – Sharadamma had spoken with accused No.1 Nagaraja from the same number and it has been registered in the towers of Anjaneya layout and Kuvempunagar. Accordingly, there was a communication between two of them prior to and after the incident.
45. In Ex.P56 the mobile call made by accused No.1 Nagaraja is at sl.13, 21, 26, 37, 43 and 44 with accused No.4 Sharadamma prior to and after the incident on 01.06.2010. On verification of call details at Ex.P56 and Ex.P59 that accused No.1 Nagaraja and accused No.4 Sharadamma on 01.06.2010 that is on the date of incident, there were communications between the two. At Sl.No.1 in Ex.P56 accused No.2 Halaswamy from his mobile number 9535664038 had made a call to his mother accused No.4 – Sharadamma at 1.25 p.m. and also has made call to different numbers from different places. He has further stated that on 03.06.2010 that one Nagabhushan had come near the house of deceased – Roopa. Therefore, he secured the said Nagabhushana and showed him the motor bike without registration number and he identified that it was belonged to accused No.1 Nagaraja. As could be seen from the mobile call details of Nagaraja, he was found in different places in every one hour. On 02.06.2010 at about 8.19 AM a call was made from the mobile number of Nagabhushan to accused No.1 - Nagaraja and they found that Nagaraja was proceeding at Holalkere road of Chitradurga and after watching his location they found that on 02.06.2010 Nagaraja was proceeding towards Bangalore from Chitradurga and on that day at night 10.00 p.m. the police staff had apprehended accused Nagaraja near Nelamangala check post and they produced him before the IO on 03.06.2010 at 6.00 AM. The said report is marked as Ex.P41. In further examination he has stated that after personal search of Nagaraja, recorded the voluntary statement and he called Ullas Kamath and Nagaraja as panch witness. At that time accused No.1 Nagaraja was possessing Mobiles of Max company and Nokia company. Also he was possessing pouch of yellow colour which had name of Sanghvi Jewellary. He also possessed one bangle cut into four pieces and ear studs, motor cycle key, Janathavani news paper, 40 currency notes of 500 denomination and it was totaling to Rs.20,000/- All these items were seized from accused No.1 – Nagaraja as per Ex.P18.
46. Further they took accused No.1 Nagaraja along with panchas to the Sanghvi Jewellary shop where the gold ornaments were pledged by this accused. Vishal Kumar the proprietor of that shop had identified this accused. Mangalya chain was seized in front of the panchas as per seizure mahazar Ex.P19. Subsequently, this accused took them to the place where the Cutter was thrown by him at S.S.Layout, B Block 2nd Main Road, Davanagere and the same was seized as per seizure mahazar Ex.P20. After that the accused has shown the place where his motor bike was parked and the same was seized under Ex.P33 in the presence of panch witness. All articles that were seized at the instance of accused were subjected in PF No.34/2010, 35/2010 and 36/2010. In Ex.P58 the telephonic call sheets indicates the conversation made by accused No.4 and also materials collected by him goes to show the involvement of accused no.1 – Nagaraja, accused No.2 Halaswamy and accused no.4 – Sharadamma by hatching a plan to eliminate deceased – Roopa. On 03.06.2010 he gathered information that Halaswamy was in his house and he along with his team went to his house and apprehended him and investigated and recorded voluntary statement. He also further recorded statements of other witnesses on 04.06.2010. CW.9 and CW.10 has given statement before him as per Ex.P4 and P5. He secured receipt of Shanti Comforts wherein accused No.1 – Nagaraja stayed in the room by paying advance amount as per Ex.P9 which bears his signature. He has further stated that accused – Sharadamma was present in the house and he went there and apprehended and investigated her and recorded her voluntary statement as per Ex.P63. As per the voluntary she lead them to her house and produced the interlock key of house of deceased – Roopa. The same has been seized by conducting seizure mahazar as per Ex.P36 in the presence of panch witnesses. On 22.06.2010 he secured the map of scene of crime as per Ex.P40. On completion of investigation he laid the charge sheet against the accused persons. This witness was thoroughly cross-examined by the defence counsel. He denied the suggestion that witness Karibasamma did not give any statement before him and also Karibasamma and Savitramma did not give any statement before him. He further denied that there was no case against accused No.2 and 4 relating to murder of deceased – Roopa. Despite of it, he has registered a false case against them at the instance of Superintendent of Police.
47. In this background the evidence of the prosecution with regard to last seen theory has to be looked into. On going through the entire material on record the fact that accused No.2 – Halaswamy is the son of accused No.4 – Sharadamma and he is the husband of deceased Roopa is not disputed. The death of said Roopa died in the house of accused No.2 – Halaswamy in unnatural way between 10.00 am to 11.00 am on 01.06.2010 is also not in dispute. Adjacent to the house of accused No.2 which is the alleged place of incident, the house of accused No.4 is situated and at the time and date of incident accused No.4 – Sharadamma was sitting in front of the house. At that relevant point of time, PW.1 Karibasamma who is a maid servant working in the house of deceased Roopa had come to attend her routine work around 10.00 to 10.30 a.m. and at that time, accused No.4 – Sharadamma was sitting in front of her house. These aspects have not been disputed by the accused. With this background, the nature of death and cause for the death of deceased Roopa has to be looked into.
48. It is relevant to note the evidence of PW.27 – Dr.L.Hanumagouda the senior surgeon working in C.G. District Hospital at Davanagere at the relevant point of time. He has conducted the autopsy over the dead body of deceased Roopa and has given P.M.Report as per Ex.P42. In his evidence he has stated that on 01.06.2010 after 6.30 p.m. he along with Dr.Chaithanya and their staff members conducted the autopsy over the dead body and noticed the presence of Rigor Mortis throughout the body. Further they noticed that face was congested, finger nails and toe nails were bluish in colour and small contusions in the neck around the thyroid cartilage with blood clot system around the neck. On dissection they noticed hematoma in the subcutaneous region and trachea shows congestion in the upper and lower parts in both the sides and trachea large hematoma 3 x 5 cms left 2 x 2 on right side present. They have opined that the aforesaid injuries on the neck portion of the dead body of the deceased Roopa were antemortem in nature and on the basis of post mortem report they have opined that death of deceased Roopa was because of Asphyxia due to throttling. Further in the cross-examination it has been elicited that except the aforesaid injuries there were no other visible injuries around the neck and other parts of the body. There is no dispute with regard to the death of deceased. After noticing of injuries around the neck of deceased by PW.27 Doctor, he has opined in the PM Report as per Ex.P42, that death of deceased was due to Asphyxia as a result of throttling.
49. Further, there is no dispute with regard to occupation of accused No.1 – Nagaraja. He was a small contractor carrying his work in the Zilla Panchyahath engineering department wherein accused No.2 – Halaswamy was working as an Engineer. It is also not in dispute that accused No.2 – Halaswamy was working as an Engineer at the relevant point of time in the Zilla Panchayath office at Jagalur. Accused No.1 – Nagaraja is the resident of Kattigenahalli village in Jagalur Taluk. The case of the prosecution is that for the last 5 to 6 years, accused No.1 and 2 were moving together and accused No.2 being the engineer in the department was helping accused No.1 to carry on his small contract work and in this regard they had developed very close and intimated relationship with each other. It is the case of prosecution that due to this obligation accused No.2 Halswamy and accused No.4 - Sharadamma were hatching a conspiracy so as to eliminate deceased – Roopa and perform second marriage of accused No.2 – Halaswamy.
50. It is relevant to note here that PW.1, PW.2, PW.4 to PW.6, PW.10 and PW.22 have categorically stated in their evidence that earlier to the incident, accused No.2 was residing with his wife and children in the upper portion of house of parents of deceased – Roopa for about 6 to 7 years and during that time, accused No.1 – Nagaraja used to visit accused No.2 – Halaswamy and they were in good terms. PW.10 Anitha being grand daughter of PW.2 used to reside in the ground floor of the house. She has stated in her evidence that accused No.2 had vacated the house of PW.2 who is the mother of deceased – Roopa and shifted to his own house at II Main, SS Layout, ‘B’ Block, Davanagere which is the place of incident and at that time accused No.1 – Nagaraja had helped accused No.2 – Halaswamy to shift his house. In the cross-
examination it has been elicited from this witness that during that 4 to 5 years, PW.10 had talked with accused No.1 – Nagaraja on several occasions. All such evidence has not been disputed and it corroborates the case of the prosecution that accused No.1 and 2 were close with each other and due to that obligation accused No.2 and 4 were hatching a plan to eliminate deceased Roopa.
But the court below has failed to see that in the murder cases, preparation, motive and intention are all the material factors and in the case on hand the intention, preparation and motive factors have not been properly proved by the prosecution in order to prove the guilt of the accused.
51. It is the case of the prosecution that prior to the incident accused no.2 Halaswamy was addicted to bad vises and due to the same he used to ill-treat the deceased and there were quarrel between them and on account of the same, deceased always used to be in a depressed mood and she was even treated by the Psychiatrist and it may be the reason for accused No.2 to go for second marriage and in that regard, it is alleged that accused No.2 and No.4 were hatching a criminal conspiracy to eliminate the deceased. The house of accused No.4 is adjacent to the house of deceased as well as accused No.2 and one spare inter lock key used to be in the house accused No.4. The key was given to accused No.1 – Nagaraja to facilitate him to go inside the house and commit murder of deceased – Roopa. Even after the murder when PW.1 Karibasamma maid servant came and knocked the door and when there was no response, the said PW.1 had come to accused No.4 – Sharadamma who was sitting in front of the house and she had asked PW.1 to go inside her house and bring her cell phone and by that time, the offender had ran away from the spot.
52. But it is relevant to note here that there were residential houses in and around the house of accused no.2 and 4 and no assistance was sought from anybody to catch accused No.1. There was nothing in the hands of the accused No.1 – Nagaraj. Further it is relevant to note that accused No.4 was not residing with accused No.2, even though there is allegation that accused No.4 used to harass the deceased it does not mean that accused No.4 had a nexus with the deceased. The case of the prosecution that one spare inter lock key as per M.O.17 used to be in the house accused No.4 and the key was given to accused No.1 – Nagaraja to facilitate him to gain entry inside the house and commit murder of deceased – Roopa. If this were to be believed the investigation agency has recovered M.O.17 only at the instance of accused No.4 and of course not from accused No.1 – Nagaraja and there is no evidence in this regard that after the incident accused No.1 had handed over the inter lock key M.O.17 to Accused No.4. The trial Court has failed to take note of this aspect of the matter while convicting the accused persons.
53. PW.1 – Karibasamma has stated in her evidence that when she was working in the house of the deceased, sometimes deceased – Roopa used to be in depressed and silent mood. In the evidence of PW.2, PW.4 to PW.6 and PW.10, it is elicited that PW.28 who is the Psychiatrist in Davanagere has treated the deceased for psychiatric problem. He has stated in his evidence that whenever the deceased came to his hospital she used to be in depressed mood and anxiety. He had issued the certificate as per Ex.P43. The trial Court has failed to notice that in the cross-examination this witness has stated that deceased was having sub average intelligence and he has failed to state about counseling made to the deceased and number of treatments given to her. From the evidence of PW.10 Anitha, daughter of PW.5 and PW.6 has stated that accused No.2 – Halaswamy and deceased – Roopa were cordial and accused No.2 used to take his family members outside once in a week. When there are neighbouring houses, if any such act is being committed, it would be heard by others and added to this accused No.4 – Sharadamma was residing in the house of elder son. The trial Court by relying mainly on the evidence of PW.1, PW.2 PW.5, PW.6 and PW.10 who are not only the blood relatives of deceased Roopa but also interested witnesses has come to the conclusion that accused No.2 – Halaswamy and accused No.4 – Sharadamma by hatching a criminal conspiracy to eliminate deceased – Roopa through accused No.1 – Nagaraja for performing second marriage of accused No.2 – Halaswamy have committed murder of deceased – Roopa.
54. Having gone through the material evidence relating to the motive factor as well as the last seen theory set up by the prosecution, crime came to be registered based upon the complaint filed by accused No.4 – Sharadamma as per Ex.P52. Sharadamma was arraigned as an accused relating to the death of deceased – Roopa who was her daughter-in-law on the fateful day of 01.06.2010 between 10.30 am to 11.30 am. At a cursory glance of the material evidence one thing is clear that on the date of incident on 01.06.2010 accused No.2 Halaswamy being an absentee abettor was not in the house and he has not attended to his office duty. But at the time of giving statement under Section 313 Cr.P.C. accused No.2 has not given any explanation about his absence to the duty as well as in his house at the time of incident. Having observed that the wife of accused No.2 was murdered by throttling and the incident had occurred in his house in the broad day light around 10 to 11 a.m. and accused No.2 is silent and has not given any explanation, the trial Court was misdirected and misread while coming to the conclusion that prosecution was successful in proving the possibility of some ire on the part of accused No.2 and No.4 towards the victim. This evidence is very much required to be proved by the prosecution by placing cogent and unimpeachable evidence to probabalise that this accused with the assistance of accused No.1 Nagaraja was hatching a plan to eliminate deceased – Roopa to go for second marriage.
55. PW.1 – Karibasamma, PW.2 –Savithramma and PW.10 – Anitha are the important material witnesses for the prosecution and from their evidence it reveals that they saw accused No.1 – Nagaraj running from the place of the incident i.e., the house of deceased – Roopa where her dead body was lying in front of the bath room with inner cloths on the body. PW.1 further stated that when there was no response for her calling bell she saw one person from the window inside the house and by that time accused No.4 called her and asked her to bring the cell phone from inside the house. At that time, accused No.4 was telling to PWs.1, 2 and 10 that it was not accused No.1 – Nagaraja but he was a person of dark complexion and he might have committed the murder for wrongful gain. These are all the attending circumstances for the prosecution which are available in the evidence and the same is required to be probabalised towards the guilt of the accused No2. and accused No.4 that they were hatching a criminal conspiracy in order to eliminate deceased – Roopa but the same requires to be established by the prosecution by putting forth positive, corroborative and consistent evidence.
56. It is important to note here the evidence of PW.11 Ramesh who was working as Manager, supplier working at the relevant time in Bindas Bar and Restaurant. In his evidence he has stated that both accused Nos.1 and 2 were very close to each other and they were regular customers to his bar and they used to come in a Nano car. On the previous date of the incident also they had come to the Bar and consumed drinks together but he was not aware whether the said wine shop own a license of CL-1 or CL-2 and further he did not produce any such bills related to consumption of liquor by accused no.1 and accused no.2 and hence, the complicity with crime connected when this witness has failed to give evidence with regard to meeting of minds.
57. PW.7 Ramakrishna is a person who is residing nearby the house of accused No.2 and working in LIC office at Davanagere. He has stated that on 01.06.2010 at about 9.30 am when he was going by the side of house of accused no.2 towards his office as usual he has noticed one person standing with his bike and talking in mobile. But in the evening only the bike was parked and the person was not found. He has stated that accused no.1 Nagaraja was the person who was standing with a bike M.O.5. But on the perusal of the entire cross-examination of this witness it is observed that no worth materials have been elicited that accused No.1 Nagaraja was the person with motor bike M.O.5 as the incident occurred in between 10 a.m. to 11.00 a.m.
58. In the evidence of PW.1 – Karibasamma, PW.2 – Savithramma and PW.10 – Kum.Anitha they have stated that immediately after the incident they were there near the house of the accused No.2 and saw accused No.1 Nagaraj running away from the said house and at the same time accused no.4 – Sharadamma was sitting in front of her house and all of the three have enquired with her about running of accused No.1 – Nagaraj from the house of accused No.2. But accused no.4 – Sharadamma has stated that it was not Nagaraj but some other person of dark complexion who ran away from the place of incident. But the trial Court has failed to consider the inconsistencies and contradictions in their version during the course of cross-examination i.e., non-giving of statement of accused no.1 before the IO and also non-filing of the complaint against accused No.1. They have stated that by seeing the murder of deceased Roopa they were afraid of such situation and they were not in a position to talk with others. But whereas accused No.4 – Sharadamma being the mother of accused No.2 and mother-in-law of deceased Roopa herself had come forward and given complaint regarding the incident as per Ex.P52. PW.1 who is a prime witness to the incident has stated in her cross-examination that after the incident the police and other persons used to make repeated enquiry therefore, she was afraid about the incident. This part of the evidence also has not been considered by the trial Court and it has opined that her natural evidence cannot be disbelieved.
59. The evidence of PW.14 – Suresh and PW.38 Vishal kumar goes to show that immediately after the incident, accused No.1 pledged the Mangalya chain as per M.O.4 belonging to deceased Roopa with their jewelry shop and at the instance of accused No.1 the said mangalya chain was returned to the IO. PW.18 Ullas Kamath who is a mahazar witness has attested the recovery of MO.4 under mahazar Ex.P8 and has corroborated the say of above witness on the material aspects. Immediately after the incident accused No.1 Nagaraja had come to Sanghvi Jewelers belonging to PW.38 Vishal Kumar and pledged MO.4 mangalya chain for Rs.50,000/- and after 2 to 3 days the same was recovered at the instance of accused No.1 by the IO - PW.37 in the presence of PW.18 under mahazar Ex.P19. But all these aspects have been denied by accused No.1- Nagaraja in his statement under Section 313 Cr.PC. This has not been properly elicited by the prosecution by placing plethora of evidence.
60. Among the witnesses examined by the prosecution PW.3 – K.M.Nagabhushan, PW.8 – Chandrashekar, PW.9 – Nagavenu, PW.12 – M.G.Hiremath and PW.13 another Nagabhushan have turned hostile to the case of the of the prosecution. The trial Court mainly relied on the evidence of PW.1, PW.2 and PW.10 who are the interested witnesses. The trial Court has failed to notice that accused No.2 – Halaswamy while giving statement under Section 313 of Cr.P.C. has stated that due to the family disputes between the family of the deceased and accused a false case has been filed.
61. Exs.P55 to 59 are the call detail reports in respect of cell phones of accused Nos.1, 2 and 4 and PW.37 – IO has collected those CDRs. But it is relevant to note here that the authors of Exs.P55 to P59 have not been examined by the prosecution and there is no evidence as to who has taken out those reports. It should be noted here that while appreciating the documentary evidence in a criminal trial, mere marking of the documents through the IO is not sufficient to prove the contents. The trial Court has only held that all those reports are taken by way of mechanical process in the day to day transactions and duties. Even the customer ID card has not been seized by the investigating agency and hand sets of accused No.4 have not been recovered. All these discrepancies have not been considered by the trial Court while concluding that prosecution has proved its case beyond reasonable doubt. There is no conclusive reference about the criminal conspiracy between accused No.1 – Nagaraja and accused No.2- Halaswamy in order to eliminate deceased – Roopa to perform second marriage of accused No.2 – Halaswamy. Even the trial Court has failed to consider that there is no direct participation by accused No.2 and accused No.4 in the incident.
62. PW.15 – Ravikumar was the receptionist in Shanthi Comforts Lodge and he has stated that accused No.1 Nagaraja had come to his lodge and taken one room on rent for his short stay. Accused No.1 on 01.06.2010 at about 12 noon had come to the counter under perplexity and stated that he is vacating the room and asked him to prepare bill. On the basis of the evidence of PW.15, the documents were marked as Ex.P8 to P10. Merely because accused No.1 had booked the room and vacated the same on the next day, it cannot be said that accused No.1 was present there at that time in preparation to commit the murder of deceased Roopa as projected by the prosecution in their evidence. Therefore, we are of the opinion that the prosecution has not put forth positive, corroborative and acceptable evidence to probabalise that accused No.2 and accused No.4 with assistance of accused No.1 – Nagaraja were hatched a criminal conspiracy to eliminate deceased Roopa.
63. PW.37 is the IO who conducted the investigation. He has subjected accused No.1 for detailed interrogation and on such interrogation, four golden bangles and ear studs belonging to deceased Roopa and cash of Rs.20,000/- and a bike key was seized from him. But the possession of those incriminating articles with accused No.1 has remained unexplained. On the basis of his voluntary statement, MO.4 – Mangalya Chain has been recovered and MO.5 motor bike was also seized. But the court below has failed to notice that evidence of PW.2, 7 and 10 goes to show that on the date of incident they have seen MO.5 near the house of deceased and such fact was within the knowledge of the police and recovering the same at the instance of accused No.1 on 03.06.2010 will have no sanctity at all and therefore, the evidence of the prosecution in this regard cannot be given any credentiality. The trial Court committed error in holding that the guilt of accused Nos.1, 2 and 4 is proved beyond all reasonable doubt though there are no direct eye witnesses to the incident of murder of deceased Roopa by accused No.1.
64. PW.38 Vishal Kumar is the owner of the Sanghavi Jewelers, Davanagere wherein the accused No.1 had pledged MO.4 mangalya chain for Rs.50,000/- immediately after the incident on 01.06.2010. He was arrayed as accused No.3 in the case on the charge under Section 411 of IPC for receiving the stolen property. He filed Crl.R.P.No.962/2011 before this Court which was allowed as per order dated 26.09.2011 and accused No.3 was ordered to be discharged.
65. We have gone through the entire evidence of the prosecution referred to supra and so also the cross- examination done by the defence counsel meticulously with regard to involvement of accused No.2 – Halaswamy and accused No.4 Sharadamma in committing murder of deceased Roopa through the assistance of accused No.1 - Nagaraja. But the prosecution has mainly relied on the evidence of material witnesses such as PW.1 – Karibasamma, PW.2 – Savithramma and PW.10 Anitha relating to the motive factors as well as last seen theory. The evidence placed by the prosecution does not repose any confidence that accused No.2 – Halaswamy and accused No.4 – Sharadamma were hatching a criminal conspiracy prior to 1.6.2010 and even on the date of the incident with accused No.1 to eliminate deceased – Roopa. Therefore, we are of the opinion that the evidence of prosecution suffers from infirmities and there are clouds of doubts in connection with accused No.2 and accused No.4 involved in murder of the deceased with the assistance of accused No.1 – Nagaraja. The conspiracy of the accused No.2 and No.4 with accused No.1 has not been proved and to prove the offence of conspiracy there must be a meeting of minds resulting in decision taken by the conspirators regarding commission of crime. Undisputedly the whole case rests upon circumstantial evidence and since there is no eye witness to the alleged act of murder, the trial Court has failed to consider the available evidence while deciding the merits of the case and the conviction shall not be based on such unacceptable evidence.
66. Therefore, for the aforesaid reasons and findings, we are of the opinion that whenever there is doubtful circumstance crept in the case of the prosecution the benefit of such doubt should be given in favour of the accused. The trial Court has not bestowed its attention to analyze the case of the prosecution and has not given the benefit of doubt to the accused. Therefore, we prefer to give such benefit to the accused. Hence, with these observations, we proceed to pass the following:
ORDER Appeal preferred by the appellants/accused Nos.2 and 4 is hereby allowed. Consequently, the judgment of conviction and order of sentence passed by the II Addl.District and Sessions Judge, Davanagere in S.C.No.112/2010 dated 14.09.2012 convicting the accused for the offences punishable under Sections 302, 201, 109, 120B read with Section 34 of IPC is hereby set-aside. The accused persons are acquitted of the charges levelled against them. If any fine amount has been deposited, the same shall be refunded with proper identification and acknowledgment.
Accused No.2 is in judicial custody. Therefore, he shall be set at liberty forthwith, if he is not required in any other case. Registry shall communicate the same to the concerned Jail authorities, for compliance.
Accused No.4 has already been granted suspension of sentence and bail. The sureties furnished by her shall be discharged.
The applicant has filed an application under Section 452 Cr.P.C. seeking release of the ornaments stated in the application, in detail. Therefore, the said application shall be disposed of by the Trial Court, after following the procedure under Section 452 Cr.P.C.
Registry shall transmit the said application along with the entire record to the Trial Court, for disposal of the said application, in accordance with law.
SD/- JUDGE SD/- JUDGE DKB