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2015 Supreme(Kar) 757
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.BILLAPPA, K.N. PHANEENDRA, JJ.
MRS. SHARADA URS – APPELLANT
Vs.
BHARTHI URS RANI & ORS. – RESPONDENTS
CRIMINAL APPEAL NO. 754, 952/2010
Decided On : 17-12-2015
ADVOCATE APPEARED:
SRI.ADITHYA SONDHI, SR.COUNSEL FOR SRI.SRINIVAS.A.R. ADV., SRI.NARENDRA.P.R.ADV. SRI.KARAN JOSEPH, ADV.
SRI.C.V.NAGESH, SR.COUNSEL FOR R1. SRI.HASMATH PASHA, ADV. FOR R2 & R3. SRI.P.M.NAWAZ, SPP1 FOR R4.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 156: [H. Billappa & K.N. Phaneendra, JJ] Investigation - Statement of witnesses and documents collected during course of investigation - Held, They should be produced before Court in order to provide opportunity to accused if necessary to make use of such material. Not producing relevant material before Court would not be fair.
CODE OF CRIMINAL PROCEDURE, 1973 - Section 161: [H. Billappa & K.N. Phaneendra, JJ] Statement, under - Statement recorded by police either in writing or by videograph, of witnesses falls under Section 161 of Cr. P. C. only - There is no provision under Cr. P. C. which gives any prominence or preferential value to videograph statement of witnesses than the one recorded by police in writing.
CONSTITUTION OF INDIA - Article 141: [H. Billappa & K.N. Phaneendra, JJ] Binding law - Factual aspects discussed in any case cannot be termed as precedent - Only law interpreted or laid down by Apex Court have binding force.
INDIAN EVIDENCE ACT, 1872 - Section 8: [H. Billappa & K.N. Phaneendra, JJ] Motive - Divergent views possible from prosecution evidence showing existence of alternative motive, raises doubt regarding existence of motive on part of accused.
INDIAN EVIDENCE ACT, 1872 - Section 9: [H. Billappa & K.N. Phaneendra, JJ] Test identification period - Witness working on highway - More than 50 vehicles passed through highway at night of occurrence - Accused also alleged to have passed through highway in car - Witness never seen accused prior to that date - After 40 to 45 days they were shown isolated, by police without mixing them with any other person - Held, In the absence of test identification parade, showing of accused to said witness by the Investigating Officer is in violation of recognized principles and purpose of test identification parade.
INDIAN EVIDENCE ACT, 1872 - Section 65-B: [H. Billappa & K.N. Phaneendra, JJ] Electronic record - Copies of call list generated by computer - No statement made by witness that any certificate was issued in this regard, as provided by Section 65-B - Held, Such documents are not admissible in evidence and relied on by Court. Production of certificate under Section 65-B is sine qua non or condition precedent to put witness into box to elicit with regard to genuineness of said document.
INDIAN EVIDENCE ACT, 1872 - Sections 145, 155: [H. Billappa & K.N. Phaneendra, JJ] Previous statement of witness - Recorded either by reducing it into writing or through videograph method can only be used for purpose of contradicting witness or to impeach credit of witness - It cannot be used for purpose of corroborating evidence or for purpose of using it as substantive evidence.
INDIAN EVIDENCE ACT, 1872 - Section 154: [H. Billappa & K.N. Phaneendra, JJ] Hostile witness - Credibility - Held, The evidence of hostile witnesses cannot be out rightly discarded. What is to be looked into is that, apart from the contradictions elicited during the course of cross-examination by the prosecution itself, treating some of the witnesses as hostile, then the portions marked in the statement under Section 161 of Cr. P. C., cannot take the place of substantive evidence. Therefore, independent of such statement made by the witnesses before the police, if any other factual aspects are elicited and proved through such witnesses, such evidence would only act as substantive evidence recorded by the court and that can be used for the purpose of corroborating the other materials on record. Otherwise, it can be said that even though the witness states that he has stated before police as per the statement recorded under Section 161 of Cr. P. C., are true and correct, that itself will not take the place of substantive evidence, but the witnesses have to state before the court pertaining to the facts of that particular case. Then only such portion will become substantive evidence.
INDIAN PENAL CODE, 1860 - Section 300: [H. Billappa & K.N. Phaneendra, JJ] Murder - Circumstantial evidence - Motive - No definite interference could be drawn from evidence on record that there was loan transaction between accused and deceased as alleged - Fact that there was strong alternative motive behind murder, was not properly investigated by police - Conduct of accused, immediately after incident, going to house of deceased consoling her family members and also regularly going to their house creating serious doubt in case of prosecution with regard to circumstance of motive alleged - Circumstance of last seen together could not be held to have been proved on basis of shaky evidence of hostile witnesses of prosecution - Recovery of dead body at instance of accused tried to be proved on basis of evidence of stock witnesses or close intimates of investigating officer - No independent witness was produced - Long time gap between alleged date of offence and detection of dead body - Mahazar alleged to have been drawn at spot not sent to Magistrate immediately as provided by Section 102(3) of Cr. P. C. - Extra judicial confession was not proved beyond all reasonable doubts - Time of death was doubtful - Tampering of inquest report - Defective investigation - Right of accused also infringed due to selective process of selection of witness and manner of recording evidence of only some witnesses through videograph - Acquittal of accused upheld.
Being aggrieved by the judgment of acquittal rendered by the Fast Track Court-I, Bangalore City in SC No.489/2004, the above said two appeals have been preferred.
2. Criminal Appeal No.952/2010 is filed by the mother of the deceased (PW3 before the Trial Court), whereas Criminal Appeal No.754/2010 has been preferred by the State. The Trial Court has acquitted the accused Nos.1 to 3 (Respondents 1 to 3) herein for the offences punishable under Section 120B, 302, 201 read with Section 34 of IPC vide judgment dated 27.3.2010.
3. At the preliminary stage, the respondents have raised an objection with regard to the maintainability of the appeal preferred by the mother of the deceased (PW3 before the trial court) before this Court. However, the said contention has been considered by this court in detail and vide order dated 27.3.2010, this court has held that the appeal is maintainable. Therefore, the above said jurisdictional point has already been answered by this court as noted above. Therefore, there is no need to again delve upon the said point.
4. For easy understanding and to avoid confusion and also repetition of facts, we would like to refer the parties as per their ranks before the Trial Court.
5. Before adverting to deal with the merits of the case, we feel it is just and proper to have the brief facts of the case which are as under:
5.1 Accused No.1 Smt. Bharathi Urs, is no other than the daughter of former Chief Minister of Karnataka late Sri Devaraaj Urs. Accused Nos.2 & 3 are said to be the conspirators with accused No.1. Deceased Chitralekha is the daughter of late Sri Chandrakanta raj Urs former Judge of High Court of Karnataka. A1 and deceased were said to be the close relatives and friends to each other.
5.2 It is the case of the prosecution that A1 had indebted lot of money to the deceased and other persons who are arrayed as witnesses PWs.7, 8 and 10. The deceased had also acted as a facilitator between A1 on the one side and PWs.7, 8 and 10 on the other side to facilitate accused No.1 to avail loan from them. It is alleged that in all, A1 had taken hand loan to the tune of Rs.65 lakhs from the deceased Chitralekha and others. The above said creditors including the deceased started demanding for repayment of money advanced to A1.
5.3 In this background, the prosecution case is that the accused Nos.1 to 3 have conspired to avoid payment of money and to defraud the deceased and creditors and also they have hatched conspiracy with an ulterior motive to do away with the life of the deceased.
5.4 It is the case of the prosecution that in furtherance of their conspiracy, A1 on the relevant date i.e., on 19.01.2004 along with A2 and A3 have discussed and hatched the plan and particularly on the date of incident, A1 requested the deceased to go over to the premises called Palm Grove Nursery Premises situated near Golf Club, Bengaluru and requested the deceased to go over to the said premises in the evening hours. Accordingly, the deceased went to the said place. It is alleged, A1 to A3, who were already present there, have caused the death of the deceased particularly A2 and A3 at the instigation and abatement of A1, throttled and strangulated the neck of the deceased and suffocated her and caused the death of the deceased.
5.5 It is further alleged that, thereafter A2 and A3 took the dead body of the deceased and went to Sakaleshpur Ghat area, which is at a distance of more than 200 kilometers from Bengaluru and threw the dead body in a deep valley of the Shiradi Ghat area in order to destroy the evidence in the case.
5.6 The prosecution case begins with the lodging of the missing complaint by the sister of the deceased PW1(Hema) on 19.01.2004 with the High grounds Police Station, Bengaluru. It came to be registered in FIR No.0029/2004. As they found the deceased missing from the evening of 19.01.2004, they have lodged the complaint on the same night before the police. In fact, the High Grounds police have sta
