1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH ON THE 25 TH DAY OF JANUARY, 2017 BEFORE THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE K. SOMASHEKAR CRIMINAL APPEAL No.2866/2012 BETWEEN: PADMAKAR @ PADDU ABHAY UPADHEY @ PANDI AGE:25 YEARS, OCC:NIL, R/O:CHICHALI ROAD, RAIBAG NOW AT CENTRAL PRISON, BELGAUM. ... APPELLANT (BY SRI. A.G.MULAWADMATH, ADVOCATE) AND: THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR DHARWAD. ... RESPONDENT (BY SRI. V. M. BANAKAR, ADDL. SPP) ---- 2 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE SEEKING THAT THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 10.04.2012 PASSED BY THE FAST TRACK & ADDL. SESSIONS JUDGE, HUKKERI, IN S.C.NO.149/2011 AND THEREBY CONVICTING THE APPELLANT AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE AND FINE OF RS.1,00,000/- FOR THE OFFENCES UNDER SECTION 302 OF IPC AND ETC. RESERVED ON 04.1.2017 PRONOUNCED ON 25 .01.2017 THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.01.2017 COMING ON FOR PRONOUNCEMENT THIS DAY, K. SOMSHEKHAR J. DELIVERED THE FOLLOWING: JUDGMENT This appeal is by the convicted accused against the judgment and order of conviction passed by the Fast Track and Additional Sessions Judge, Hukkeri in S.C.No.149/2011 dated 10.04.2012. 2. The brief facts of the case of the prosecution is as under: That the accused had made friendship with the deceased Satish three months prior to the death of the deceased. There was a love affair between the accused and PW18-Amruta and the 3 accused intended to marry her but he was not having sufficient money to marry her. The accused found that deceased Satish was always having cash with him, wearing gold ornaments in his neck and fingers, mobiles and used to move with Bajaj Pulsor motorcycle. He made a plan to take away his life by assuring deceased Satish that he will provide driving licence to him and called him to Gadadbasti. On 29.01.2011, at about 15:30 hours, when the deceased Satish went near Gadadbasti, the accused assaulted him with spade on his head, left ear, right eye and caused grievous injuries to him. Further, he assaulted the deceased with punch and caused his murder. Subsequent to the murder, in order to cause destruction of the evidence of the murder he had put the dead body of the deceased Satish in a gunny bag and shifted the said dead body in Bajaj Pulsor motorcycle belonging to the deceased within the jurisdiction of Hebbal village near Hiranyakeshi River on NH4 road and threw the said dead body in the open space on the side of the NH4 road by taking away the gold chain, rings, ear Bale, mobiles, cash 4 packet and so also Bajaj Pulsor motorcycle. CWs.16 to 20 searched for the deceased Satish and ultimately they telephoned to the complainant who was at Belgaum. The complainant, while coming from Belgaum in his car found gathering of people near Hiranyakeshi river on the side of the road and found a gunny bag and when certain part of the gunny bag was opened he saw the dead body of his son. Subsequently, he went to Sankeshwar Police Station and filed complaint before CW.47-PSI. On the basis of the complaint-Ex.P1 lodged by the father of the deceased Satish, a case came to be registered by CW47 against the accused in Crime No.31/2011 and FIR was sent to the Court. Subsequently, he proceeded to the spot along with staff members where the dead body was lying. Later, it was handed over to CW.48-CPI, who had come to the spot for investigation. Subsequently, the Investigating Officer has investigated the case and laid the charge sheet before the Committal Court. The charge was framed against the accused. The accused pleaded not guilty, but claimed to be tried. 5 In order to prove the guilt against the accused, the prosecution in all examined 37 witnesses and got marked 60 exhibits and 38 material objects. The trial Court, on evaluation of the entire material on record and after hearing, convicted the accused for the offences punishable under Sections 302, 201 and 404 of IPC. On behalf of the defence, learned counsel for the accused has got marked Exs.D1 to D3. The statement of accused under Section 313 of Cr.P.C. was recorded. The Sessions Judge, on appreciation of the evidence on record has held that the appellant/accused is guilty of the offence punishable under Sections 302, 201 and 404 of IPC and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- in default, to undergo imprisonment for a period of three years for the offence punishable under Section 302 of the IPC. He was further sentenced to undergo rigorous imprisonment for period of three years and to pay a fine of Rs.10,000/- in default, to undergo imprisonment for a period of 6 one year for the offence punishable under Section 201 of the IPC. He was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to under go imprisonment for a period of three months for the offence punishable under Section 404 of the IPC and all the sentences shall run concurrently. Aggrieved by that, the appellant/accused has preferred this appeal. 3. The learned counsel for the appellant, during the course of arguments, contended that the learned Sessions Judge has misread the evidence as well as misdirected the evidence placed by the prosecution to prove the guilt against the accused though there are discrepancies and inconsistencies found in the evidence of the prosecution putforth by examining PW1- complainant, PW2- wife of the complainant and PW3-brother’s son of the complainant whereas in the evidence of PW1 it reveals that after the receipt of the information about missing of his son Satish, he left Belgaum. While he was on the eastern side of NH4 7 road, he found people gathered near Hiranyakeshri River towards the extreme side of NH-4 Highway. The evidence of PW1 is not reliable for the prosecution because as per Ex.P36, NH4 Highway is 4 way lane, out of that 2 lanes goes towards Mumbai and 2 lanes towards Bengaluru and having divider with thick bushes in the middle. The dead body was fallen near the service road which is about 4-5 ft. deep down to the main Highway. The complainant, practicing as an Advocate, has specifically stated in his complaint as well as in the evidence that Dr.Basavaraj Yamakanmardi’s grand daughter was having love affair with his son and his followers have dashed motor cycle to his son and gave life threat to him. Based on the complaint-Ex.P1, the police have registered the criminal case against Dr.Basavaraj Yamakanmardi but have not made any investigation to that effect and left the said Dr.Basavaraj Yamakanmardi scott-free. Therefore, the investigation conducted by PW37 being an Investigating Officer found to be partial for the prosecution and also defective found in the investigation done by him. Neither 8 PW1 nor PW2 or PW3 being the material witnesses for the prosecution have specifically stated that the deceased Satish was wearing gold items such as gold rings, ear baley, having bundle of money in his pocket while leaving the house at 2.30 p.m. on 29.01.2013, but their evidence are not consistent to each other, as there are discrepancies. 4. Learned counsel for the appellant has submitted in his written arguments wherein it is contended that; PWs.4 and 5 have stated in their evidence they are good friends to each other and to whom the accused has made extra judicial confession. It is on record that the accused obtained the cell number of PW4 from PW6. If accused and PW4 were good friends to each other, question of collecting the cell number from PW6 does not arise. Neither PW4 has stated in his evidence that he has seen the dead body on 29.01.2011 nor he has whispered about the commission of the offence by the accused till 04.02.2011. Therefore, how the police learnt that accused has made confession to PWs.4 and 5 and how the I.O. contacted 9 PWs.4 and 5 is not coming on record. Therefore, PWs.4 and 5 are concocted and planted witnesses. PWs.4 and 5 are being the strangers and the accused confessing to them does not arise. PW6 has stated in his evidence that he saw the deceased Satish and accused near Gadadbasti is not believable because he too have not stated this fact to anybody till 03.02.2011. PW7 has stated in his evidence that he is a businessman and he had filled the water to the tank of the Gadadbasti and on next day there was a marriage at Basti and the accused has helped him in filling the water but he went hurriedly. The evidence of this witness is also not helpful for the prosecution. PW8 has stated in his evidence that he is a businessman and he sells Radium and accused came to get affixed the Radium is a concocted story only to show that the accused had come with the Bajaj Pulsor motorcycle of the deceased. However, it is contradictory to the common sense as to how a person if he has really committed murder can he go to the Radium shop and affix 10 radium sticker to the motorcycle not belonging to him.