R :
1. : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE24H DAY OF MARCH2021PRESENT THE HON’BLE MR. JUSTICE K.SOMASHEKAR AND THE HON’BLE MR. JUSTICE M.I.ARUN CRIMINAL APPEAL NO.100183 of 2018 (C) BETWEEN:
1. Shilpa W/o. Vivek Meharwade, Age 30 years, Occ: Business, R/o.: Harihar, Now at Mudhol, Dist.: Bagalkot.
2. Ganga D/o. Chandrashekar Shettar, Age 29 years, Occ: Student, R/o.: Budni K.G., Now at Mudhol, Dist.: Bagalkot. … Appellants (By Shri S.S. Koti & Shri K.S. Patil, Advocates) :
2. : AND: The State of Karnataka, Rep. by PSI, Mudhol Police Station, Tq.: Mudhol, Dist.: Bagalkot, Rep. by State Public Prosecutor, A.G. Office, High Court Building, Dharwad. … Respondent (By Shri V.M. Banakar, Addl. SPP) This criminal appeal is filed under Section 374(2) of Cr.P.C. praying to call for the records in S.C. No.17/2017 and to set aside the judgment and sentence dated 11.01.2018, passed by I-Addl. District and Sessions Judge, Bagalkot to sit at Jamakhandi, Jamakhandi for the offences punishable under Sections 302, 201 read with Section 34 of IPC and acquit the appellants by allowing this appeal. This criminal appeal coming on for final hearing, this day, K.Somashekar, J., delivered the following: :
3. :
JUDGMENT1 This appeal is directed against the judgment of conviction and order of sentence passed by the Court of I-Addl. District and Sessions Judge, Bagalkot to sit at Jamakhandi (for short “the Trial Court”) in S.C. No.17/2017, dated 11th January 2018, whereby the Trial Court held conviction for the offences punishable under Sections 302, 201 read with Section 34 of IPC. It is further held that both the accused i.e., accused Nos.1 and 2 are sentenced to undergo imprisonment for the life and shall pay fine of Rs.50,000/- each for the offence punishable under Section 302 read with Section 34 of IPC and also sentenced to undergo imprisonment for seven years and shall pay fine of Rs.25,000/- each for the offence punishable under Section 201 read with Section 34 of IPC. The same has :
4. : been challenged under this appeal by urging various grounds and also seeking for allowing of the appeal by setting aside the judgment of conviction and order of sentence rendered by the Trial Court against the accused.
2. The factual matrix of the appeal that transpired in the case of the prosecution is that the complainant – Tungamma Yallappa Meharwade, who is none other than the mother of the deceased – Vivek Meharwade. The marriage of her son – Vivek was performed with one Shilpa D/o.Vittal Habib of Hubballi on 12.04.2004 as per the customs prevailed in their society. Subsequent to the marriage, they led happy marital life at Harihar and blessed with two children namely Rakshita and Abhishek, who are now aged about 11 years and 10 years :
5. : respectively. About ten years back, the complainant’s husband Yallappa came to Mudhol and started oil business. Later, the complainant, her son – Vivek and daughter-in-law – Shilpa, who is arraigned as accused No.1 came to Mudhol and started residing there. In the year 2014, the husband of the complainant - Yallappa died due to heart-attack. The son of the complainant namely Vivek and his wife – Shilpa, who is none other than the daughter-in-law of the complainant were looking after the oil shop, which is situated at Mudhol. The daughter-in-law – Shilpa used to assault her husband namely Vivek and used to torture him and insisted him to send his mother i.e., the complainant– Tungamma from home. Accordingly, the complainant returned to Davanagere with a fond :
6. : of hope that her son – Vivek and also his wife– Shilpa will live happily.
3. It is further stated that the daughter-in-law of the complainant i.e, accused No.1–Shilpa is moving freely with the neighboring shop owner namely Shri Mahadev resident of Mudhol and also another person by name Shri Ramanna, working in their shop. The said fact is within the knowledge of her son – Vivek. Her daughter-in- law namely Shilpa engaged the said Ramanna in her shop to look after the affairs and directed her husband to work in other shop and the complainant asked her not to do so and remove said Ramanna, but her daughter-in-law not heeded her advice and she used to go to Belagavi and Vijayapur frequently. :
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4. On 14.10.2016 in the evening while he was in her house, the Circle Inspector of Police, Mudhol Circle namely Shri Sanjeev Kambale made phone call and told that your son Vivek is murdered and his dead body is in Mudhol graveyard/cemetery and asked to come there, as such she informed not to take any action until she arrives and the complainant along with her son – Anand and also her relatives came to Mudhol graveyard/cemetery on 15.10.2016 in the morning at 8:00 a.m. and in the graveyard/cemetery, wherein people gathered and the Police were also there. They found the body of Vivek lying there and his hands and legs were tied with plastic wire and emitting some foul smell and one bag was lying near the dead body at a distance and then they asked the watchman of the said cemetery and he told his :
8. : name as Eknath Maruti Kadam, who told that on 14.10.2016 at about 12:00 p.m., while he was in graveyard/cemetery, two women folk came there and told that they will bring a body and if he burns the same, they will give him Rs.2,000/- to Rs.3,000/-. Hence, he asked them to bring the body and later the said women folk brought a body in a van and when he asked as to where are the relatives and to whom the body belongs to, at that time, one of the woman folk told that she is Shilpa W/o.Vivek Meharwade, resident of Harihar and now resides at Mudhol and another woman folk told her name as Ganga D/o.Chandrashekhar Shettar, resident of Budni K.D. and at about 9:30 a.m. in the morning, they have made Vivek to consume poison and also tried to kill him with a pillow by putting it on his face. Despite of the same, Vivek did not :
9. : last his breath and they murdered him by tying saree on his neck and both pulled the same, later by tying his hand and legs put him in plastic bag and brought him there for the purpose of burning the body in the graveyard/cemetery of Mudhol. On suspicion, PW4 – Eknath had informed the same to the Police through phone and after sometime, the Police came there and the Police opened the bag and found the dead body, where the hands and legs of the deceased were tied with plastic wire.
5. A complaint came to be filed by the complainant–Tungamma, who is none other than the mother of the deceased–Vivek and mother- in-law of accused No.1–Shilpa, who committed the murder of Vivek with the assistance of her friend–Ganga, who is arraigned as accused No.2, :
10. : as her husband had become hurdle in her transaction and also tried to destroy the evidence by taking his body to graveyard/cemetery for burning. On filing of the complaint by the complainant, crime came to be registered by recording FIR in Crime No.273/2016 by the PSI, Mudhol P.S. for the offences punishable under Section 302, 201 read with Section 34 of IPC on 15.10.2016 at about 9:00 a.m. On 15.10.2016, both the accused i.e., Shilpa and Ganga were apprehended by the Police and were produce before the Committal Court.
6. Subsequent to registration of the crime, the Investigating Officer took up the case for investigation, thoroughly investigated the case and laid the charge sheet against the accused for :
11. : the offences punishable under Sections 302, 201 read with Section 34 of IPC. Subsequent to laying the charge sheet against the accused, the committal Court committed the case to the Court of Sessions. Accordingly, the case has been made over to the Court of I-Addl. District and Sessions Judge, Bagalkot to sit at Jamakhandi for trial of the case against the accused.
7. Subsequently, charges were framed against the accused and accused were denied the charges and claims to be tried. Accordingly, plea of the accused have been recorded.
8. Subsequent to recording of charges of the accused, the prosecution examined in all 25 witnesses as PWs.1 to 25, got marked 62 documents as Exs.P1 to P62 and also marked 13 material objects as M.Os.1 to 13. On behalf of :
12. : the defence, no witnesses were examined and only got marked 3 documents as Exs.D1 to D3. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded and the accused denied the incriminating evidence appearing against them in the evidence of the prosecution.
9. Subsequently, the accused were called upon to adduce defence evidence as contemplated under Section 233 of Cr.P.C., but the accused did not enter into the defence evidence. Subsequently, heard the arguments advanced by the prosecution and so also the defence counsel for the accused. The Trial Court has considered the evidence of PWs.1 to 25 so also the documents at Exs.P1 to P62 and material objects at M.Os.1 to 13 and thereafter held conviction :
13. : against the accused for the offences punishable under Sections 302, 201 read with Section 34 of IPC. Aggrieved by the same, this appeal has been filed challenging the judgment of conviction and order of sentence passed by the Trial Court.
10. We have heard the arguments advanced by the learned counsel Shri S.S.Koti for the appellants and the learned Addl. SPP for the respondent – State.
11. In this appeal, the learned counsel for the appellants urged various grounds. The primary ground urged by the learned counsel for the appellants is that no proper reasons have been assigned by the Trial Court based upon the evidence on record and has erroneously came to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable :
14. : doubt. Even though there are material inconsistencies in the oral evidence and that the evidence has not been properly appreciated in a proper perspective. Therefore, in this appeal, it requires re-appreciation of the entire evidence as where the Trial Court has misread the evidence and also not properly appreciated the entire evidence on record. It is further submitted that the entire case of the prosecution rests upon the circumstantial evidence. Whereas, PW1 – Doctor, who has conducted autopsy over the dead body of Vivek and it cannot be said that the force was applied to the deceased – Vivek, whereas ligature marks were found in the postmortem report and could not be formed by use of M.O.1 – Saree alleged to have been used by the accused persons for strangulating the neck of the deceased forcibly by the accused :
15. : No.1–Shilpa and her friend, accused No.2– Ganga. That the death of Vivek is due to poisoning and strangulation. In the postmortem report, it is mentioned that there is possibility of causing injuries due to mishandling. But the effect of entire evidence of PW1 is that the poisoning is self administered. This important material evidence has not been properly appreciated by the Trial Court. Therefore, intervention is required in this appeal by re- appreciating the evidence of PW1 being a Doctor, who conducted autopsy over the dead body and so also the evidence of PW17, who subjected to microscopic examination of hyoid bone said to have been fractured.
12. It is further submitted that PW17 being a Doctor, who gave evidence stating that the :
16. : fracture of hyoid bone is anti mortem and caused the death of the deceased–Vivek. This clearly nagates and destroys the evidence of PW1 being the Doctor, who conducted autopsy over the dead body of the deceased – Vivek. This glaring mistake has not been properly appreciated by the Trial Court. The ligature mark as well as the fracture of hyoid bone is anti mortem in nature. Therefore, the accused persons are innocent of administering the poison to the deceased – Vivek. On this count alone, the Trial Court has erred in arriving at a sound and proper conclusion by assessing the evidence of PW1 and 17 being responsible doctors.
13. The second limb of the argument advanced by the learned counsel for the appellants is that the dead body of Vivek was discovered at around :
17. :
3. 00 p.m. on 14.10.2016, the Circle Inspector, Mudhol P.S., immediately gave the information to his mother Tungamma stating that a dead body was found in the Mudhol graveyard/cemetery. Accordingly, Tungamma, who examined as PW14, told the Circle Inspector Mudhol P.S. not to proceed in further to take an action till she arrives to the graveyard/cemetery of Mudhol. Thereafter, she reached the graveyard/cemetery of Mudhol on 15.10.2016, at around 16:00 hours from the time of alleged incident. Therefore, there is delay in lodging the FIR and that there is involvement of the accused in crime. This glaring facts and important matter has not been properly appreciated by the Trial Court and if the same are not considered, certainly there will be a miscarriage of justice. :
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14. Lastly the learned counsel for the appellants submits that in the instant case, administering of poison by the accused is held to be proved by the Trial Court by facilitating worthwhile evidence, but without any iota of evidence on record, the trial Court relied upon the alleged extra judicial confession made by PW4 i.e., Eknath S/o.Maruti kadam. The alleged confession is found to be infirmity and it is against the scope of Section 24 of the Indian Evidence Act, 1872, but the confession statement alleged is not in the form of exact words used by the accused i.e., accused No.1 – Shilpa, who is none other than the wife of the deceased – Vivek. The Trial Court without looking into the admissibility of the extra judicial confession made to PW4-Eknath Maruti Kadam and on a sole ground, held conviction which is :
19. : against the principles of law and also cannon of justice, as such several judgments have been rendered by the Hon’ble Supreme Court of India on this aspect. The alleged extra judicial confession is nothing but only a fruitful imagination by the prosecution and the alleged confession is not at all proved by the prosecution by facilitating the worthwhile evidence for securing the conviction of accused No.1 and 2.
15. The prosecution did not produce the container of the poison before the Trial Court and there is no evidence regarding purchase of the container of poison bottle by the accused. None were examined in this aspect to connect the accused with administering the poison to the deceased-Vivek, whether forcibly administering the poison to the deceased – Vivek or the :
20. : deceased Vivek on himself consumed the poison which prime fact requires to be established by the prosecution and the witnesses have been examined to prove this aspect relating to the poison bottle, which either purchased by the accused – Shilpa with the assistance of her friend – Ganga or the poison bottle said to have been purchased by the deceased – Vivek, neither the Proprietor of the shop relating to the purchase of poison bottle examined to indicate that the accused has purchased the poison bottle in order to use it for killing her husband deceased-Vivek. This being glaring infirmity in the evidence of the prosecution, the Trial Court has presumed that administering of poison by the accused Shilpa and her friend Ganga with her assistance without any concrete evidence or any proof of evidence or to prove the guilt of the :
21. : accused. Therefore, on that count alone, the Trial Court is required to acquit the accused persons and has misread the evidence and without appreciating the evidence in a proper perspective manner, held conviction against the accused for the offences which reflected in the charge. Therefore, in this appeal it requires for intervention and if not the accused will be the sufferer.
16. It is further submitted by the learned counsel for the appellants that the evidence of PWs.4, 5 and 11, as wherein there are contradiction in their evidence itself in respect of the vehicles used i.e., Scooty or Activa or the bag said to have been used to cover the dead body of the deceased Vivek, that either the dead body alleged to have been kept in a jute bag or :
22. : in plastic bag or in polythene bag and this aspect alone is required for intervention in this appeal.
17. On all these premises, the learned counsel for the appellants seeking for intervention in this appeal and accordingly seeking for allowing of the appeal by setting aside the judgment of conviction and order of sentence rendered by the Trial Court in S.C. No.17/2017, dated 11.01.2018 and acquit the accused for the offences punishable under Sections 302, 201 read with Section 34 of IPC.
18. In support of his contention, learned counsel for the appellants has placed some reliance in the case of Thulia Kali vs. the State of Tamil Nadu reported in (1972) 3 SCC393 wherein the Hon’ble Supreme Court of India has addressed the issue relating to the scope of :
23. : Section 154 of the Cr.P.C. regarding initiation of the FIR and importance of the delay in lodging the FIR. Whether safe to rely on, Section 114, item (g) of the Evidence Act, 1872, non- examination of witnesses by prosecution whether adverse inference can be drawn. Insofar as Section 3 of the Evidence Act, 1872 relating to circumstantial evidence in respect of flaws and improbabilities effect. In this reliance, the counsel has mainly pointed out to the delay in lodging the FIR. But in the instant case, the incident was taken place on 14.10.2016 and the complaint was filed by the complainant on 15.10.2016 at around 9:00 a.m. Though there is a delay in lodging the FIR and registering the case in Crime No.273/2016, the criminal law was set into motion even though there is a delay, but the delay can be questioned in this matter it :
24. : cannot be having any vital role because it is a heinous offence and also disappearance of evidence with a common intention of committing the murder.
19. Learned counsel for the appellants has further placed reliance in the case of Bhimappa Jinnappa Naganur vs. State of Karnataka reported in 1993 SCC (Cri) 1053, wherein the Hon’ble Supreme Court of India has been addressed the issue and scope of Section 302 of IPC, 1860 relating to time of death, medical opinion based on the contents of stomach contradicting the prosecution’s allegation that the deceased had died within a couple of minutes of coming out of his house after taking midday meal. In such circumstances, Trial Court’s order of acquittal, ought not to have been interfered :
25. : with by the High Court. In the instant case, PW1 being the Doctor conducted autopsy over the dead body of Vivek and issued postmortem report as per Ex.P1. PW17 namely Dayanand S/o. Gurubasappa Gennur, Professor and Head of Department, Forensic Medicine, B.M. Patil Medical College, Vijaypura were subjected to examine hyoid bone which found to be fractured and the hyoid bone parts/unit has been subjected to examine as micro scopic examination and there is a glaring contradiction of evidence of PW1 and PW17 during autopsy held over the dead body of Vivek by PW1 – Dr. Basavaraj S/o. Veerappa Biradar – Patil, Senior Medical Officer, Government Hospital, Mudhol and issued postmortem report as per Ex.P1. PW17 being the Professor and Head of Department, Forensic Medicine, B.M. Patil :
26. : Medical College, Vijaypura subjected examination of hyoid bone which alleged to be fractured and issued report, but it is not anti mortem in nature, but it is postmortem in nature. This glaring contradiction on the evidence of PW1 and PW17 requires to be re- appreciated in this appeal.
20. The reliance placed in the case of Lalita Kumari vs. Govt. of U.P. and Ors. reported in 2014 Cri.L.J.
470, wherein the Hon’ble Supreme Court of India extensively addresses the scope and issues of Section 154 of the Cr.P.C. The FIR recording imperativeness not affected by introduction of Section 166A of IPC, 1860, but the greater extent of scope of Section 154 of the Cr.P.C. and Section 41(1)(a), (g) of the Cr.P.C., the recording of FIR for evidence is :
27. : mandatory, the word “shall” used in Section 154 leaves no discretion to Police Officer for holding preliminary inquiry before recording FIR and the use of expression “information” without any qualification, also denotes that police has to record information despite he being unsatisfied by its reasonableness or credibility. The scope of Section 154 of Cr.P.C. has been extensively addressed in the judgment of Lalita Kumari vs. Govt. of U.P. and Ors. In this reliance, chronologically good number of cases have been rendered relating to the scope of Section 154 of the Cr.P.C. But in the instant case, though a heinous offence of murder has been taken place on 14.10.2016, but the FIR has been recorded on 15.10.2016 and there is a delay in lodging the FIR, even in the heinous offences alleged to have been committed by the persons being :
28. : arraigned as accused, this reliance is squarely applicable to the present case relating to the recording of the FIR on 15.10.2016 by the Circle Inspector of Police, Mudhol P.S., only after arrival of PW14, the complainant – Tungamma, who is an instrument of the registration of the crime and also being instrument of the complaint.
21. The reliance in the case of Pulukri Kottaya and Ors. vs. Emperor of the Privy Counsel Appeal No.37 of 1946, wherein the privy counsel addressed the issues and scope of a confession of the accused, who has deposed to the Police Officer, alleged to have stabbed the injured with means of a spare. But in the instant case, the voluntary statements of the accused persons marked at Exs.P49 and P50 deposed that they :
29. : have used pillow-M.O.12, seized by P.W.14, Investigating Officer to cause smothering to the deceased Vivek and he did not last his breath and with the help of MO1–saree, they strangulated his neck forcibly and committed the murder of Vivek. However, the rejection of the evidence shall not be a ground for reversal of any decision in any case and in this appeal, it requires for re-appreciation of the evidence which facilitated by the prosecution in order to securing the conviction. In the instant case, there is no worthwhile evidence facilitated by the prosecution in order to satisfy that there is sufficient admissible evidence to justify the conviction that the accused have committed the heinous offence of murder of Vivek. On all these premise and by placing all these reliances and also referring the evidences stated supra, :
30. : learned counsel for the appellant prayed to set aside the judgment of conviction and order of sentence rendered by the Trial Court and acquit the accused persons by allowing this appeal.
22. Per contra, the learned Addl. SPP for the respondent – State has taken us through the evidence of PW1 being Doctor, who conducted autopsy over the dead body of the deceased – Vivek and also issued postmortem report as per Ex.P1. He submits that on 15.10.2016 at about 1:10 p.m. the Circle Inspector of Police, Mudhol sent a request with dead body of one Vivek Yallappa Meharwade for postmortem. On the same day, he conducted autopsy over the dead body and he has found two reasons for the death of the deceased – Vivek i.e., poisoning and strangulation. On examination of the dead body, :
31. : he has noticed that rigor-mortis is absent in neck and both lower limbs and very slightly present in upper limbs; postmortem lividity or staining present over anterior chest wall; ligature mark means, contused imprint abrasion seen and felt over anterior neck transversely placed, extending from 4 cm below right angle of mandible, crossing midline below thyroid cartilage and ending 4 cm below left mastoid process; continuous and absent over posterior neck. Ligature mark is measuring 30 cm in length horizontally x 2 cm in breath vertically. Skin over the abrasion is hard, dry and brownish black, subcutaneous hemorrhages and odema present and hyoid bone is fractured at greater corny on left side. The witness has withheld the final opinion till arrival of FSL report from Belagavi and has given interim opinion as death :
32. : is due to asphyxia secondary to insecticide poisoning and ligature strangulation. Accordingly, PW1 has issued postmortem report as per Ex.P1.
23. On 08.12.2016, Mudhol Police have produced FSL report along with Ex.P1 and on perusing the report, he has opined that the death is due to asphyxia secondary to organo- phosphorous insecticide poisoning and ligature as per Ex.P2. The hyoid bone of deceased sent to BLDE Medical College, Vijayapur and the Investigating Officer secured the report on 08.01.2017. On perusal of the said report, the Doctor has given opinion as hyoid bone is fractured at lesser cornu on right side after his death i.e., postmortem injury as per Ex.P3. :
33. :
24. Whereas On 27.11.2016, the Circle Inspector of Police, Mudhol requested to PW17 – Dayanand S/o. Gurubasappa Gennur, Professor and Head of Department, Forensic Medicine, B.M. Patil Medical College, Vijaypura to furnish opinion report in respect of fracture of hyoid bone. Accordingly, he has been subjected to micro-scopic examination of hyoid bone. It shows that there is no any force, as there are no outer injuries. The ligature mark is ante-mortem in nature. Mere because, there is a glaring mistake of evidence of PW1, who conducted autopsy over the dead body of Vivek and so also the microscopic examination of hyoid bone, it cannot be a ground for intervention in this appeal in respect of the judgment of conviction and order of sentence rendered by the Trial :
34. : Court as contended by the learned counsel for the appellants.
25. The second limb of the arguments advanced by the learned Addl. SPP for respondent – State is that PW4 Eknath S/o. Maruti kadam, Watchman of the graveyard/cemetery, on 14.10.2016 at around 12:00 p.m. while he was in cemetery, two women folk came on the Scooty and asked him whether he will burn a body and if he does the same, they will pay him Rs.2,000/- to Rs.3,000/- and in turn he told them to bring the body and he will burn. At around 3:00 p.m. the accused persons brought the dead body in a mini lorry and on asking the driver of mini lorry, he told his name as Muttu and registration of mini lorry is KA-48/7957 and after unloading the dead body he came to the :
35. : graveyard/cemetery, Mudhol. The dead body was in a plastic bag, later the women folk told him to burn the same. Later PW4 asked them why the dead body is in bag and for that, the accused Nos.1 and 2 told that the deceased by name is Vivek and one of the woman is his wife and they have killed him by administering poison and as he did not die, they tried to smother him by putting a pillow on his face and yet he did not last his breathe and then by putting a saree to his neck, they pulled the same and he died.
26. PW4–Eknath Maruti Kadam, watchman of the graveyard/Cemetery of Mudhol, though he has received information from two women folk namely Shilpa and Ganga, later Salagundi Police came there in search of card players and sand thieves and at that time, PW4 called them and :
36. : informed regarding the dead body and he suspected on the woman folks, as they only had brought the dead body. Thereafter, PW4 informed the said matter to his officials and at about 3:00 or 3:15 p.m., the Officer came and then by opening the bag, they found the dead body of man folk and the Police asked the women folk to stay there in the night. The Police on enquiry with the family members on 15.10.2016, they drew the mahazar in the presence of panch witnesses and thereafter sent the dead body of Vivek for postmortem examination. The Police have recorded the statement of PW4–Eknath Maruti Kadam, who identified the women folk i.e., accused No.1 – Shilpa and accused No.2 – Ganga, as they had brought the dead body to the graveyard/cemetery, Mudhol. After two and half :
37. : to three months later, the Police Officer enquired P.W.4 and he told all the things relating to the incident and recorded his statement. Therefore, the evidence of PW1 relating to conducting of autopsy over the dead body and the evidence of PW17 relating to fracture of hyoid bone, which subjected to microscopic examination and issued report and so also the evidence of PW4-Eknath Maruti Kadam on the part of the prosecution relating to the alleged offence committed by accused Nos.1 and 2, are found to be fortified and there is credentiality on the part of the evidence of accused Nos.1 and 2 in committing the murder of the deceased. PW5 – Muttyappa @ Muttu S/o. Rangappa Mamagoudar, working as Supervisor in Polifacto Product Factory, since last two and half years, whenever he is in need of oil, they purchased it from Shiva Lubricants, :
38. : situated at APMC Complex, Mudhol. On 14.10.2016 they have received stitching machines from Ahamadabad to their factory through VRL Office, Mudhol. On that day, he had been to bring the said machines to their factory in a Ashok Leyland mini lorry bearing No.KA- 48/7957 to Mudhol. On that day, from 1:30 to 2:00 p.m. for having tiffin, they had parked their vehicle near Samrat Hotel. At that time, both the accused came near him on a Scooty vehicle and told that they want to shift a house and asked to bring the vehicle and at that time, he told to inform the same to my owner and for that they told that they will tell him and asked him to come on Sai Niketan School Road. After completing the tiffin, owner called and informed that oil shop owner wanted to shift their house and after shifting the house, bring the machine. :
39. : As such, he had been Sai Niketan School road and at that time, infront of the house, accused were standing, hence, he parked the vehicle there and opened the back side of the vehicle. At that time, the accused persons brought a white bag from the house and put in the vehicle and he do not know what was in that bag and they asked him to help them to put the bag and he held the upper part of the bag and they pushed from downward and then put the bag inside the vehicle. Then he followed them for 1 or ½ km and they stopped and hence, he took his vehicle. At that time, one old man came there and accused No.1 asked that old man to take the thing belongs to him, then he opened the lock of the back side of the vehicle and then took the bag and put the same near the temple. The old man, who is watchman of the cemetery came :
40. : towards him and asked his name and he told his name as Muttu. Then accused No.1 came to give money and he has not received the same. On the next day, the owner of the company asked him that what you have shifted on yesterday in the vehicle, he told to the owner that he had shifted two bags and unloaded near the temple and he do not know what was in the bags. Then the owner told him that accused No.1 killed her husband and shifted him in that bag. PW5 has been subjected to cross-examination at length and no impeachment elucidated to disbelieve the theory of the prosecution. But the prosecution has proved the guilt of the accused by facilitating worthwhile evidence and even subjected to examine PW9-Mohammad S/o Allabaksh Momin, PW10-Famida W/o. Mohammad Monin as well as the accused No.1 – Shilpa that :
41. : they were residing on a rental basis by paying rent of Rs.5,000/- per month and PWs.9 and 10 said to be a circumstantial witnesses have been subjected for examination on the part of the prosecution. PWs.9 and 10 have been subjected to examination on the part of the prosecution and in their evidence, it reveals that the accused No.1 consumed poison to her husband – Vivek and committed the murder. Though PWs-9 and 10 have been subjected to cross-examination at length, but no worthwhile evidence has been elicited on the part of the defence to disbelieve the theory of the prosecution that the accused have not caused the death of the deceased.
27. It is further submitted by the learned Addl. SPP that PW22-Rakshita D/o. Vivek Meharwade and PW23-Abhishek S/o.Vivek Meharwade are :
42. : the children of accused No.1-Shilpa and deceased-Vivek and they have been subjected to examination on the part of the prosecution. They have stated in their evidence that their father is having mental illness. Therefore, he used to consume liquor and he is not a working person and he does not look after their mother well and does not talk with them and he used to threatens them always and two days prior to the date of incident, he had brought a poison bottle in the house and PW23 has seen his father consuming poison and they asked why he is consuming and he left it and after two days, he consumed the poison and on seeing the empty bottle of poison, they suspected that consuming the poison, their father has died. Later they have not seen the dead body and at that time their mother has been to market. On that day, :
43. : till 12:00 p.m. in the night she did not return and she has not received the phone and later she had called and informed the Police. Though PWs.22 and 23 have been subjected to cross- examination on the part of the defence, mere because some impeachment in their evidence, it is not worthwhile elucidation of the defence theory to disbelieve the theory of the prosecution that the accused have committed the murder of the deceased Vivek.
28. Learned Addl. SPP for the State has further referred to the evidence of PW21-Kallappa Huchhappa Doddamani that he was working as ASI in Mudhol P.S. On 14.10.2016, the CPI and PSI asked him to come to Mudhol cemetery, wherein he found a dead body of one Vivek Meharwade and people were talking that the said :
44. : body was brought by the women folk namely accused Nos.1 and 2. As per the direction of CPI, he along with CW34 were entrusted to watch over the dead body. On the next day till about 10:00 a.m. he was there in the graveyard/cemetery and has given his statement before the CPI in that regard. This witness was also subjected to cross-examination on the part of the defence, but no worthwhile evidence has been elicited in the theory of prosecution.
29. The entire case has been investigated by PW24 – Sanjeev Maruti Kamble and major part of the investigation has been done by him. On 14.10.2016 at about 3:30 p.m. while he was in Mudhol P.S. along with PSI, at that time CW25 made a phone call and informed that near Mudhol cemetery, a body of male has been found :
45. : in a plastic bag. Accordingly, he along with the PSI and Staff visited cemetery of Mudhol, wherein one person Ekanath Kadam, watchman to the Cemetery was present and on enquiry about the incident, PW4-Eknath Kadam told that on that day at about 12:00 p.m. two women folk asked him whether he will burn a dead body and for that he told it is his work and he will burn the dead body and asked them to bring the body. For which the accused persons promised him that they will give Rs.2,000/- to Rs.3,000/-. Later at 3:00 p.m. both women folk brought the dead body in a bag in a mini lorry. Later, on enquiry, the women folk informed that the dead body is of her husband. Then they shown the body to the informers and with their help came to know that he was Vivek resident of Davanagere. Later the same was informed to the :
46. : relatives of the deceased Vivek. On 15.10.2016 at about 8:00 a.m., the relatives of the deceased came there and PW4 – Eknath had informed the things. At that time, they came to know that the deceased was having two children and as such, they called the relatives and shown the dead body in the cemetery and they have identified it as belongs to their father.
30. Subsequently, PW24, took up the case for investigation for further investigation, conducted inquest panchanama over the dead body as per Ex.P15, subjected to photos as per Exs.P21 to 24, drew spot mahazar as per Ex.P16 in the presence of panch witnesses and during panchanama, he seized the MO3 to 6 and also subjected to photos at Ex.P25 and 26. Subsequently, on enquiry with the accused Nos.1 :
47. : and 2, they given the voluntary statement as per Exs.P49 and 50 that MO12, pillow said to have been used by the accused to smother the deceased Vivek by putting the pillow on his face, the same has been seized and marked as MO12. Even in the voluntary statement of accused No.1 – Shilpa, she produced one plastic wire bundle, with which she had tried to tie the hands and legs of her husband, which is marked as MO3 and also subjected to photo.
31. PW24 being the Investigating Officer, who had made major investigation and he has conducted seizure mahazar as per Ex.P29 and recorded the statement of witnesses and so also secured postmortem report as per Ex.P1 and also the report from the BLDE Medical College as per Ex.P4 and map of scene of crime as per Ex.P5 :
48. : and so also the spot mahazar, seizure mahazar has been conducted by him and also laid the charge sheet in this case.
32. PW25 –Ramanagouda S/o.Adiveppagouda Hatti, who is the investigating Officer in part and he has laid the charge sheet against the accused before the committal Court. The evidence of PW1, PW17, PW5, PW9, PW10, PW13, PW14 and PW15, relating to establish the motive behind for committing the murder. The Trial Court has considered the aforesaid evidence and so also the scope of Section 106 of the Indian Evidence Act and has rightly come to the conclusion that the prosecution has proved the guilt of the accused and held conviction against the accused. Therefore, learned Addl. SPP seeks for dismissal of this appeal and to confirm the judgment of :
49. : conviction and order of sentence rendered by the Trial Court.
33. In support of his contention, the learned Addl. SPP for the respondent – State placed reliance in the case of Jitender Kumar vs. State of Haryana reported in (2012) 6 SCC204 wherein the Hon’ble Supreme Court of India addressed the issue relating to Section 154 of the Cr.P.C., relating to recording of the FIR. The object and evidentiary value that FIR, itself is not proof of a crime, but it is a piece of evidence, which can be used for corroborating prosecution case and not all fact and circumstances on which the prosecution relies, but the incident narrated by the witnesses, who have subjected to examine on the part of the prosecution. Even in the instant case, PW1 being :
50. : the Doctor, who conducted autopsy over the dead body and issued postmortem report as per Ex.P1 and PW17 being a Professor and Head of Department, Forensic Medicine, B.M. Patil Medical College, Vijaypur, who subjected microscopic examination of hyoid bone, therefore, the incident narrated by them corroborates the experts evidence on record. In the instant case, the accused No.1 committed the murder of her husband with the assistance of accused No.2, but based upon the worthwhile evidence facilitated by the prosecution, the Trial Court has held conviction. Therefore, the prosecution has established its case beyond all reasonable doubt by producing oral and documentary evidence and so also the medical evidence. Therefore, it cannot be said that the case of the prosecution is not a case of mere :
51. : suspicion. Section 3 of the Indian Evidence Act, it is the domain vested with the Trial Court to appreciate the evidence and the Trial Court has appreciated the entire evidence on the part of the prosecution and has rightly come to a conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
34. Learned Addl. SPP has further placed reliance in the case of Trimukh Maroti Kirkan vs. State of Maharashtra, reported in (2006)10 SCC681 wherein the Hon’ble Supreme Court of India addressed the scope of Section 302 of IPC, 1860, the circumstantial evidence, burden of proof, no explanation or false explanation against the incriminating circumstance(s) if accused fails to offer any cogent explanation or offers an explanation :
52. : which is untrue, then it can be treated as an additional link in the chain of circumstances against the accused to make it complete, the Evidence Act, 1872 in respect of Section 106 and III(b). In the instant case, the deceased – Vivek, who is none other than the husband of accused No.1 – Shilpa, neither the accused No.1 – Shilpa and a prudent man can infer that the accused No.1 – Shilpa and her husband – Vivek said to have been residing in the house of PWs.9 and 10 by paying a rent of Rs.5,000/- along with their children. But in the instant case, even though it is a circumstantial evidence, even the last scene together theory has to be established and also affirmatively states that accused No.1 – Shilpa as where the offence of murder was committed in the house of her husband – Vivek, where the prosecution succeeds in leading the evidence to :
53. : show that either the husband and wife were last scene together but the offences so committed in house, where the husband also resided, but the accused offers no explanation as to the incident which narrated in the charge sheet and also the theory set up by the prosecution. But the circumstantial evidence in a criminal trial that the conviction solely based on the evidence itself. This principle restated in the reliance rendered by the Hon’ble Supreme Court of India.
35. Therefore, the learned Addl. SPP submits that these reliances are squarely applicable to the present case on hand and even on that count alone, this appeal do not hold any substance to call for any interference of the judgment of conviction and order of sentence rendered by the Trial Court. :
54. :
36. It is in this contest of the contentions taken by the learned counsel for the appellants and so also the counter made by the learned Addl. SPP for the State, it is relevant to refer Section 300 of IPC,1860, which reads as under: “300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is :
55. : sufficient in the ordinary course of nature to cause death, or Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. :
56. : The above exception is subject to the following provisos:- First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of :
57. : person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act whch he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such publc servant and without ill-will towards the person whose death is caused. :
58. : Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel unsual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
37. But in the instant case, P.W.22 Rakshita and P.W.24 Abhishek, who is none other than the daughter and the son of the deceased Vivek and :
59. : accused No.1 Shilpa, have turned hostile to their statements recorded by the Investigating Officer during the course of investigation. However, at a cursory glance of the evidence of the prosecution, there are some glaring contradictions that whether it was a jute bag or a plastic bag or a polythene bag alleged to have been used by the accused persons to carry the dead body of the deceased Vivek to the graveyard/cemetery of Mudhol. P.W.4 – Ekanath Maruti Kadam, the watchman of the cemetery, who was earlier informed by the two women folks i.e., the accused Nos.1 and 2, Shilpa and Ganga respectively, that they would bring the body of a person and they had not informed to P.W.4 that whether they are bringing the body of a man folk or woman folk. However, the body of Vivek was carried in a mini lorry which was :
60. : belonging to P.W.5 Muttappa @ Muttu to the graveyard/cemetery of Mudhol and the bag containing the body of a person was unloaded and then he had returned back. But P.W.4 Ekanath Maruti Kadam, who is the first informant got information about to bring the body of a person to the cemetery and asked him to burn the body for paying an amount of Rs.2,000/- to Rs.3,000/-. But on 14.10.2016 that two women folks i.e., Shilpa and Ganga brought the body of a persons in a bag, but there is a glaring mistake or flaws on the theory of prosecution whether the body was brought to the cemetery in a plastic bag or jute bag or polythene bag. This glaring mistake or flaws has not been cleared by the prosecution by facilitating worthwhile evidence for securing the conviction against the accused. There is no dispute about :
61. : the body of a man i.e., Vivek, who is none other than the husband of the accused No.1 Shilpa. But the allegation made in the theory of the prosecution that the accused No.1-Shilpa with the assistance of the accused No.2-Ganga have committed the murder of Vivek by administering poison forcibly and when he did not last his breath, further they had put a pillow on his face and caused smothering or otherwise to say suffocation to death. Despite of it, the deceased – Vivek has not last his breath. Therefore, the accused Nos.1 and 2 alleged to have used MO1- saree with means of ligature material the same has been used by them for strangulating the neck of the deceased – Vivek forcibly and caused his death. At a cursory glance of the entire theory of the prosecution and even in a totality of the circumstances of the case, when one can :
62. : infer that the cause of death is due to strangulation or administering poison forcibly or using pillow by putting on his face and causing some smothering or suffocating the deceased. This evidence is very much required to be re- appreciated on the part of the prosecution to prove the guilt of the accused. But at a cursory glance of the evidence of the prosecution, i.e., the evidence of PWs.9, 10, 12, 13, 14 and 15 coupled with the evidence of PW1 and PW17, there are some contradictions and also inconsistencies to each other, as there is a cloud of doubt and also there is clumsy.
38. Though Section 106 of the Indian Evidence Act, relies upon the burden of proving fact by a person especially within knowledge, but conjointly read together with Sections 101 and :
63. :
106. of the Indian Evidence Act, 1872. Section 101 of the Indian Evidence Act, 1872 reveals that whenever a Court desires to give judgment as to any legal right or liability depend on the existence of facts which he asserts, must prove that those facts exists, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person, but in the instant case, the prosecution decides that a Court to give judgment that the accused shall be punished for a crime. But merely because some of the material objects have been seized at the instance of the accused No.1 Shilpa and so also accused No.2 Ganga, as at the voluntary statements made by them as per Exs.P49 and 50, but the MO12, pillow said to have been seized by drew the mahazar by PW24 and that pillow said to have been used the accused No.1 – :
64. : Shilpa for causing of the death of the deceased Vivek by causing some sort of smothering or some sort of a suffocation. Mere because as at the instance of the accused No.1 Shilpa said to have been seized MO12 pillow, the same has been used for cause of the death of a person, it cannot be the worthwhile evidence to prove the guilt of the accused, but reasonably the proof of the evidence, it should be facilitated by the prosecution. But proved by the prosecution, it is a well settled principle that the prosecution can succeed by substantially proving the very story it alleges that the theory of the prosecution, it must stand on its own leg, but it cannot take advantage of some sort of weakness even on the part of the defence as well as on the part of the prosecution, nor the Court can on its own make out a new case for the prosecution, but the :
65. : prosecution can prove the guilt against the accused beyond all reasonable doubt. Even in a circumstantial evidence, the chain of circumstances shall be established without giving any scope of rumor or any clouds of doubt; but the prosecution is bound to prove the existence of any fact i.e., ingredients of each one of the offences, it is said that the burden of proof lies on the prosecution, but the burden of proving fact narrated in the theory of the prosecution, it lies upon the prosecution alone, unless the burden is discharged with a sticto senso, it cannot be securing for conviction.
39. Insofar as Section 106 of the Indian Evidence Act, the burden of proving of fact is especially within the knowledge, but in the instant case, the heinous offence of murder was :
66. : taken place in the house of the deceased Vivek and the accused No.1 Shilpa, they were residing in the house of PWs.9 and 10 on a rental basis for Rs.5,000/- per month and the burden of proving the fact is upon the prosecution, but accused No.1 Shilpa, who is an accused, but the murder as well as the onus should be taken into consideration. The onus has been shifted upon accused, keeping in view the Section 106 of the Indian Evidence Act, 1872, but when a person does not act with some intention, other than with his character and circumstances of the act suggests, the burden of proving the intention is upon him/her i.e., the felony/accused/offender. But in the instant case, the onus has been shifted upon the accused No.1 –Shilpa, who is none other than the wife of the deceased Vivek, but similarly it is required to state that accused :
67. : No.1 and her husband were alleged to have not in good terms for certain period and therefore, PW14 Tungamma had returned back and stayed in the house of his younger son namely Anand. PW15 Roopa W/o. Anand said to have been examined on the part of the prosecution, she is none other than the co-sister of accused No.1 – Shilpa. But it cannot be said that they are in good terms of life in between the accused No.1 and the co-sister, who examined on the part of the prosecution that whether they are in cordial terms, but there is no dispute about the death of the deceased – Vivek, as where his dead body was carried out by the accused persons alleged neither in a jute bag or in a polythene bag or in a plastic bag or in a gunny bag to the graveyard/cemetery of Mudhol, but the dead body was found in the graveyard of Mudhol. :
68. : Though the first information given by the two woman folks i.e., accused Nos.1 and 2 Shilpa and Ganga to PW14-Eknath, who is a watchman to the graveyard, Mudhol and even that extra judicial confession has to be maintained but admissibility of that evidence and also evidentiary value of extra judicial confession, it should be the weak piece of an evidence unless the evidence on the part of the prosecution to be established by facilitating with worthwhile evidence, but this piece of evidence in terms of extra judicial confession, to be make use not in all circumstances, but the circumstances in a criminal trial perhaps to be warranted, then only to be tilting the balance that kind of a extra judicial confession, the evidence has to be used on the part of either prosecution or defence :
69. : counsel by tilting the balance in respect of a criminal justice delivery system.
40. The FIR though it is given by two women folk namely Shilpa and Ganga to Eknath i.e., PW4, that he did not ventured to give information initially to the Police to swing into operation immediately, but only after enquiring with the two ladies, has given an information to the nearest Salundi Police Station and who in turn given an information to the Mudhol Police Station and consequently the PSI, the CPI and staff members, swing into operation in the Mudhol graveyard/cemetery and found that the bag containing the body of a person and the same was identified by PW22 Rakshita PW23 Abhishek, the children of the deceased Vivek. :
70. :
41. Thereafter, inquest was held over the dead body as per Ex.P15, in the presence of PW7 and so also the spot mahazar as per Ex.P15, where the dead body was found. Whereas, the incident was alleged to have taken in the house of the accused No.1 and the dead body was shifted from their house to graveyard/cemetery of Mudhol in a bag. Therefore, the shifting of the dead body from the scene of crime i.e., the house of PWs9 and 10, as where the accused No.1 Shilpa and her husband Vivek and their children were staying by paying a rent of Rs.5,000/-, there is a glaring mistake and flaws which is on the part of the prosecution relating to the committing of murder of the husband of accused No.1 or committing a murder somewhere and bringing that body to the scene of crime and this requires to be established by :
71. : the prosecution by facilitating the worthwhile evidence without creating any cloud of doubt, but when the doubt has been arisen in the mind of the Court and naturally the benefit of doubt should be held in favour of the accused alone under the criminal justice delivery system.
42. Even keeping in view of the Section 154 of the Cr.P.C., soon after the receipt of the information, duty is cast upon the Police Officer, who is having jurisdiction to proceed with the matter by recording an FIR and need not wait to get the information by the informant insofar as heinous offence under Section 302 of IPC as in the instant case.
43. However, in the instant case, the incident was taken place on 14.10.2016, but the FIR said :
72. : to have been recorded on 15.10.2016 on the basis of Ex.P39 – Complaint given by PW14 – Tungamma, a criminal law was set into motion even though on a very short span of time in between 14.10.2016 and 15.10.2016, it is not a fatal to the case of the prosecution especially for the heinous offence under Section 302 of IPC. The duty is caste upon the Police Officer soon after getting an information about the heinous offence. The domain is vested with the Police to register the crime and proceed with the case for investigation without causing delay.
44. In the instant case, FIR has been recorded on 15.10.2016 and then proceeded with the case for investigation and laid the charge sheet by PW25, as there is cloud of doubt. :
73. :
45. The duty is cast upon the prosecution to produce worthwhile evidence to establish the guilt against the accused beyond all reasonable doubt. However, at a cursory glance of the evidence of P.Ws.17 and 4 coupled with the evidence of P.Ws.22 and 23 that their evidence are found to be camouflage and also to be clumsy on the part of the prosecution. But the entire case of the prosecution is revolving around the circumstantial evidence, but the chain of circumstances cannot be proved by the prosecution by facilitating the worthwhile evidence. When the clouds of doubt arise in the prosecution evidence and this benefit shall be extended to the accused alone as according to the doctrine of criminal justice delivery system. Accordingly, the clouds of doubt accrues in favour of the accused alone in the instant case, :
74. : but the duty is cast upon the prosecution to prove the guilt against the accused beyond all reasonable doubt by facilitating the worthwhile evidence insofar as the motive behind for committing the murder in criminal justice delivery system and positive, cogent and corroborative evidence should have been produced and probablize that the accused have committed the murder as alleged in a theory of the prosecution.
46. In the instant case, at a cursory glance of the evidence of the prosecution witnesses, that too the evidence of PWs.9, 10, 12, 13, 14, 15 to establish the motive factor, the accused No.1 – Shilpa, who is not happy with her husband and this question even though arise or emerge in the theory of the prosecution, the duty is cast upon :
75. : the prosecution to establish the guilt against the accused by producing worthwhile evidence for conviction.
47. Therefore, in terms of the aforesaid reasons and findings, we are of the opinion that the prosecution has not been established the guilt against the accused with beyond all reasonable doubt for securing the conviction. Therefore, in this appeal, it requires for intervention of re- appreciating the evidence and we are of the opinion that the interference of the impugned judgment of conviction and order of sentence rendered by the trial Court is called for, if not, gravamen of the accused would be sufferer. Accordingly, we proceed to pass the following: :
76. :
ORDER(i) The appeal preferred by the appellants / accused Nos.1 and 2 under Section 374(2) of the Code of Criminal Procedure is hereby allowed. Consequently, the judgment of conviction and the order of sentence rendered by the Trial Court in Sessions Case No.17/2017, dated 11th day of January 2018 is hereby set aside. Consequently, the appellants / accused Nos.1 and 2 are hereby acquitted for the offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code for which they have been charged. :
77. : (ii) The bail bonds, if any, executed by the appellants / accused, stands cancelled. (iii) The fine amount, if any, deposited by the appellants / accused, the same shall be refunded to them with due identification. Ordered accordingly. SD/- JUDGE SD/- JUDGE Vnp* & Rsh