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2017 Supreme(Kar) 444
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI MALIMATH, B.A. PATIL, JJ.
Anand S/o Lakshmaiah - Appellant
Vs.
The State by Yalahanka New Town Police - Respondent
Criminal Appeal No. 1219 of 2012
Decided On : 22-05-2017
Advocate Appeared:
For the Appellant : Sri N.R. Krishnappa
For the Respondent: Sri Vijay Kumar Majage
Headnote:INDIAN EVIDENCE ACT, 1872 – Section 3 – Circumstantial evidence – Robbery and murder – Neighbour of deceased deposing about seeing accused proceeding towards house of deceased and also hearing accused ringing door bell – Within one hour daughter of deceased finding her mother lying dead on returning from school – After incident, relative of one of accused noticing them coming from house of deceased and on being called accused running away – Accused seen entering and leaving house of deceased within time span of one hour and deceased also found dead during that time span – Gold ornaments of deceased, recovered at instance of accused – Held, All circumstances linked in complete chain, to point towards guilt of accused. Conviction of accused is proper.
INDIAN EVIDENCE ACT, 1872 – Section 9 – Test identification parade – F.I.R. filed just after incident containing names of accused – Neighbour, witness acquainted with accused before incident – Neighbour seeing accused in broad daylight proceeding towards house of accused – Neighbour again identifying accused in Court due to prior acquaintance – Non-conducting of test identification parade, held, not fatal for case of prosecution.
INDIAN EVIDENCE ACT, 1872 – Section 27 – Recovery evidence – Robbery and murder – Recovery of gold ornaments of deceased – Recovery panch deposing about accompanying police for recovering gold bangles and other ornaments from house of second accused – Recovery panch corroborating statements of Investigating Officer – Panch witness turning hostile, during cross-examination – Deposition of hostile witness can be relied up to extent it supports prosecution case – Accused unable to explain circumstances under which he came in possession of gold articles belonging to deceased – Factum of gold ornaments of deceased recovered at instance of accused, held, proved.
INDIAN EVIDENCE ACT, 1872 – Sections 114(g), 134, 59 – Adverse inference – Non-examination of witness – Examination of all witnesses quoted in charge sheet is not compulsory – Examination of only material witnesses, so as to prove case of prosecution would be sufficient – Neighbour of deceased already deposing about seeing accused proceeding towards house of deceased and on returning also seeing deceased lying dead – Evidence of neighbour substantiating case of prosecution – Non-examination of wife of neighbour is not affecting case of prosecution – No adverse inference can be drawn for non-examination of witness.
INDIAN EVIDENCE ACT, 1872 – Section 138 – Cross-examination – Accused despite having opportunity, not filing any application seeking to cross examine Investigating Officer – After cross-examining all witnesses, accused again recalling all witnesses for cross-examination except Investigating Officer – Accused not using his best opportunity, despite having knowledge – Principles of natural justice and fair trial, held, not violated – Fair trial not denied to accused.
This appeal has been preferred by accused No.2 by assailing the judgment and order of conviction and sentence passed by the Fast Track Court No. X, Bengaluru, dated 27.9.2012 in SC.No.83/2009.
2. The brief matrix of the case of the prosecution is that, the complainant Linga Reddy was residing along with his deceased wife Smt. Lakshmi and children in residential quarters at No.318/D West Colony, Railwheel Factory, Yelahanka New Town, Bengaluru. On 13.8.2008, at about 1.00 p.m., accused No.1 came to the house of the complainant along with CW.2-Srinivasa. On seeing accused No.1, complainant identified that, he is the son of his maternal aunt and on that day they had lunch. On 14.8.2008, at about 11.30 a.m., CW.2- Srinivasa who used to reside opposite to the house of the complainant, noticed that, accused Nos.1 and 2 were proceeding towards the house of the complainant. By seeing CW.2, accused No.1 tried to cover his face to avoid to show his face to CW.2. It is further alleged that, thereafter accused Nos.1 and 2 entered into the house of the complainant, at that time deceased Smt.Lakshmi was present in the house, they requested her to provide water for drinking. It is further alleged that when she brought water, accused No.1 pressed her neck and accused No.2 put cloth into her mouth, when she fell down, accused persons tied her neck with a pillow cover cloth and caused the murder. It is further alleged that accused Nos.1 and 2 thereafter took away money from almirah and they also robbed gold ornaments found over the body of the deceased Lakshmi. When the daughter of the complainant came from school, the door was opened, she entered into the house and saw her mother Lakshmi was lying in the passage. She tried to wake her up, immediately she went to neighbouring house and informed one Saraswathi who also tried to wake her up and she noticed injuries on the forehead of the deceased Lakshmi and the ornaments were missing. Thereafter she informed the said fact to the complainant who was in his office. Immediately, the complainant after obtaining the permission from his boss, was proceeding to his house, on the way he saw CW.2 and one Doreraj taking his wife Lakshmi in a car to the hospital. He also went along with them to the hospital, where he noticed that she is dead and the ornaments were missing. At that time, CW.2-Srinivasa told him that he saw accused No.1 who has been brought by him previous day, he along with another person were proceeding towards his house, under the impression that he is his relative, he went to withdraw the amount from ATM counter. On the basis of such allegations, the complaint was filed by the complainant, based on which a case was registered in Crime No.187/2008 for the offence punishable under Section 302 r/w. Section 34 of IPC. After completion of investigation, charge sheet was filed against the accused. Thereafter, the learned CJM, Bengaluru took the cognizance and after following the procedure under Section 207 of Cr.P.C. since the alleged offences are triable by the Court of Sessions, he committed the case to the Sessions Court. Thereafter, the Sessions Court took the cognizance and after securing the presence of accused Nos.1 and 2, after hearing them about charge, charge has been framed, to which accused Nos.1 and 2 pleaded not guilty as such, the trial was fixed.
3. In order to prove its case, the prosecution has got examined PWs.1 to 21 and got marked Exs.P1 to P39 and MOs.1 to 12. After closure of the prosecution case, statement of the accused under Section 313 of Cr.P.C. was recorded. Accused No.2 did not lead any defence on his behalf. During the course of trial, accused No.1 reported to be dead, hence the case against accused No.1 was ordered to be abated on 15.9.2011.
4. After hearing the learned Public Prosecutor and the learned counsel for the accused, impugned judgment came to be passed. Being aggrieved by the same, appellant-accused No.2 is before this Court.
5. We have heard Sr
