- 1 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE15H DAY OF MARCH, 2024 PRESENT THE HON'BLE MR JUSTICE H.P.SANDESH AND THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL No.100111 OF2021(374) BETWEEN: SANJAY S/O. KISHAN MOHITE @ RAJAN, AGED ABOUT52YEARS, OCC: PRIVATE, R/O: TAPE VILLAGE, GULAB CHAWAL, D.N. ROAD, AMDERI WEST MUMBAI …APPELLANT (BY SRI. S.M. HATTARKI, ADVOCATE) AND: STATE OF KARNATAKA, BY COD, POLICE, BENGALURU, IN KARWAR TOWN POLICE STATION, KARWAR, REPRESENTED BY S.P.P. HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD. …RESPONDENT (BY SRI. M.B. GUNDAWADE, ADDITIONAL, SPP) THIS CRIMINAL APPEAL FILED UNDER SECTION374(2) OF THE CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE
JUDGMENTAND
ORDERCONVICTION DATED2004/2021 PASSED BY THE IST ADDITIONAL DISTRICT AND SESSIONS JUDGE UK, KARWAR SITTING AT SIRSI IN SC No.5001/2018, SC NO.5002/2018 & SC No.5003/2018 BY ALLOWING THE PRESENT CRIMINAL APPEAL AND ACQUIT THE - 2 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 ACCUSED/APPELLANT FROM THE OFFENCES WITH WHICH HE HAS BEEN CHARGED IN THE INTEREST OF JUSTICE. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON1812.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENTThe appellant (Accused No.6) being aggrieved by the judgment of his conviction and order of sentence passed against him in S.C. No.5001/2018, S.C. No.5002/2018 and S.C. No.5003/2018 by the I Additional District and Sessions Judge, U.K. Karwar sitting at Sirsi (hereinafter referred to as ‘Trial Court’) has preferred this appeal.
2. Parties to this appeal are referred to as per their rank before the Trial Court for the purpose convenience.
3. The aforesaid Sessions cases were tried by the Trial Court jointly for the offences punishable under Sections 302, 307, 120B and 109 of the Indian Penal Code, 1860 (for short ‘IPC’).
4. The records of the appeal reveals that, accused No.1-Dilip Arjun Naik and accused Nos.4 and 5 by name - 3 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Antony @ Tony Ruzario and Om Prakash Giri @ Pakkya @ Babu died during the pendency of the trial. Therefore, the case against them stands abated. Brief and relevant facts leading to this appeal are as under:
5. That, one Balaram S/o. Ramachandra Naik, resident of the address so stated in the complaint, filed a complaint to the Karwar Town Police Station, stating that, on 13.02.2000, there was marriage of one Suchitra D/o. the then sitting MLA of Karwar Shri. Vasant Asnotikar at Mumbai. After marriage, the said MLA scheduled the reception ceremony of his daughter on 20.02.2000 at Divadnya Kalyan Mantap Karwar. It is his further statement that, to oversee reception arrangement scheduled on 20.02.2000, in the evening of 19.02.2000, complainant himself, Ganapati Dumma Ulavekar, Santosh Yashavant Kalgutakar, Sandeep Vasant Halagekar, Chandrakant Narayan Naik, Ashok Kudatkar, Pandurang - 4 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Ramu Naik and others accompanied the said MLA to the said Kalyana Mantap.
6. It is further stated that, they were all standing and talking about the arrangements for reception inside the compound of Kalyana Mantap. The said MLA was giving instructions regarding arrangement.
7. It is alleged by the complainant that, when they were standing so, at about 8.00 p.m., one Hero Honda two wheeler driven by rider and accompanied with pillion rider came from Karwar Bazar and stopped by the side of Vasant Asnotikar, MLA, who was talking with one Mr.Pai. The said Motor cycle was ‘ON’. The rider and pillion rider stood on the said motorcycle itself and they were holding revolvers in their respective hands. Amongst them, one person showed the hand towards Shri. Vasant Asnotikar, MLA, coming near to him and in Hindi language told that “Yahi hai sala, maro maro”. By saying so, they shoot at MLA Shri. Vasant Asnotikar.-. 5 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 8. Because of the shooting, the said MLA fell down in a prone position. The said bullets hit on the back of the said MLA. To catch hold the said two persons, complainant and others and one Ganapati Ulavekar chased them. But the pillion rider fired at Ganapati Ulavekar and went away on the motorcycle. Though they tried to catch hold them, but they could not caught hold them. One of them threw stone to the motorcycle and the pillion rider. The said stone hit to the tail lamp of the motorbike and broken into pieces. They rushed towards the said MLA. They could not notice the registration number of the Hero Honda bike. Both the rider and pillion rider were aged in between 25- 30 years. The pillion rider was wearing full shirt and pant, he was fair in color and his height was about 5 ft 6 inches. He can identify the rider also. When the said incident has taken place, there was electricity light in the Kalyana Mantap as well as in the street. In the said incident Ganapati Ulavekar also was injured.-. 6 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 9. Immediately the said MLA was shifted to Dr. Pikale Hospital and thereafter was shifted to Civil Hospital, Karwar. He has sustained bullet injuries on his back and stomach. Ganapati Ulavekar sustained bullet injuries to his right shoulder.
10. It is further stated in the complaint that, the said Shri. Vasant Asnotikar was elected as MLA so also he was the president of Dock and Labour Union. In the year 1996 he was elected as president of Labour Union Society. Because of this, there was an ill-will/ animosity developed in between the said MLA and accused No.1-Dilip Naik. Accused No.1 was grinding axe against MLA. Therefore, he conspiring to kill Shri. Vasant Asnotikar. Because of that, the said MLA became the victim in the hands of accused No.1.
11. With these allegations, a complaint came to be filed at 9.30 p.m. on 19.02.2000 to the Karwar Town Police Station. It was registered in Crime No.37/2000 of - 7 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Karwar Town Police Station and criminal law was set in motion.
12. Subsequently, the said injured Shri. Vasant Asnotikar, MLA and Ganapati Ulavekar were shifted to Manipal Hospital for further treatment. But, Sri. Vasant Asnotikar, MLA succumbed to the bullet injuries in the Manipal Hospital.
13. It is the case of the prosecution that, said murder has taken place because of political animosity between accused No.1 and MLA-Vasant Asnotikar (deceased). Because of this political animosity, as deceased had joined the Congress Party leaving Karnataka Congress Party and elected with a majority vote of 45,000, the ill-will developed in between them.
14. The Dy.S.P., COD, Bengaluru submitted additional charge sheet on 16.09.2002 arraigning accused No.4, 5 and 6 as co-accused in the main case. While filing charge sheet, it is alleged that accused No.4 and 5 at the instance of accused No.1 to 3 along with accused No.6 - 8 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 (present appellant) committed criminal conspiracy and this accused No.4 and 5 being the residents of Mumbai, for the purpose of criminal conspiracy to kill deceased-Vasant Asnotikar, they conspired in their respective houses at Mumbai, so also visited hotels at Vasco and ‘Hotel Bhadra’ and ‘Hotel Savan’ at Karwar for the purpose of criminal conspiracy. They also criminally conspired in the house of accused-Aruf Agra Naik and also in a house belonging to accused No.1 situated at Rege compound, Kayakini road. According to the prosecution, for the purpose of committing murder of the deceased-Vasant Asnotikar, accused No.1 to 3 have spent sufficient money for hiring accused No.4 to 6. It is further alleged in the charge sheet that accused No.4 and 5 were involved in similar offences. In respect of this case, as the investigating officer has collected materials against them has filed charge sheet for the offence punishable under Section 302, 307, 120-B and 109 of Indian Penal Code and sections 3, 25 and 27 of the Indian Arms Act. Accordingly, charge sheet came to be filed against accused No.4 to 6. It is further stated in the - 9 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 charge sheet that, accused No.4-Omprakash Giri @ Pakya @ Babu died in police encounter by Jonapur police at Uttara Pradesh and accused No.5-Toni Rozario died in police encounter by Mumbai police. Showing these accused No.4 and 5 as dead in the above said encounters, charge sheet was filed by Dy.S.P., COD, Bengaluru. Since the charge sheet was filed against dead persons, the case against accused No.4 and 5 stood abated.
15. Subsequently, after arrest of other accused, the additional charge sheets were filed against the other accused persons. The records of this case further reveal that, accused No.6 was arrested by Maharashtra Police, under the provisions of MCOC Act. It is the case of the prosecution that, when this accused No.6 was interrogated by Maharashtra Police, he had given his voluntary statement stating that, he has murdered deceased Vasant Asnotikar, the then sitting MLA of Karwar. This fact was informed by Maharashtra Police to the Karnataka Police. Because of that, the presence of accused No.6 was - 10 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 procured by the Investigating Officer in this case. After investigation, additional charge sheet was filed against accused No.6 alleging offences punishable under Sections 302 and 307 of IPC.
16. The learned Trial Court after complying all the provisions of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), and on hearing both the side, framed charges against the accused for the offences under Sections 120-B, 302, 307 of IPC and Section 25(1-A) and 27 R/w Section 3 of Indian Arms Act, 1959, Accused Nos.1 to 6 pleaded not guilty and claimed to be tried.
17. Before the Trial Court to prove the guilt of the accused, prosecution in all examined 106 witnesses and got marked Ex.P1 to P.148 with respective signatures thereon and marked M.O. Nos.1 to 71. During the course of cross examination on behalf of the defense Ex.D.1 to D.26 were marked so also Ex.C.1 to C.5. Closed prosecution evidence.-. 11 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 18. On hearing the arguments and on evaluation of the evidence, the learned Trial Court found accused No.6 of guilty of committing the offences under Section 302, 307, 120B, 201 of IPC and Sections 25 and 27 read with Section 3 of Act, 1959 and sentenced him as under by acquitted accused Nos.2 and 3 of the charges leveled against them. “The accused No.6 is sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/- for the offence punishable U/sec.302 of IPC. In default of payment of fine amount the accused shall undergo simple imprisonment for a period of one year. Further the Accused is sentenced to undergo R.I. for a period of two years and to pay a fine of Rs.5000/- for the offence punishable u/sec.307 of IPC. In default of payment of fine amount the Accused shall undergo simple imprisonment for a period of two months. Further the Accused is sentenced to undergo R.I. for a period of one year and to pay a fine of Rs.3000/- for the offence punishable U/Sec.120(B) of IPC. In default of payment of fine amount the Accused shall undergo simple imprisonment for a period of three months. Further the Accused is sentenced to undergo R.I. for a period of three years and to pay a fine of Rs.5000/- for the offence punishable U/Sec.3, 27 of Arms Act. In default of payment of fine amount the Accused shall undergo simple imprisonment for a period of three months.-. 12 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Further the Accused is sentenced to undergo R.I. for a period of one year and to pay a fine of Rs.5000/- for the offence punishable U/Sec.25 of Arms Act. In default of payment of fine amount the Accused shall undergo simple imprisonment for a period of three months. Further the Accused is sentenced to undergo S.I. for a period of six months for the offence punishable U/Sec.201 of IPC. The sentences shall run concurrently.
19. This judgment of conviction and order of sentence is now challenged by appellant-accused No.6 by preferring this appeal. The state has not preferred any appeal challenging the acquittal of accused Nos.2 and 3 and thereby said judgment of acquittal of accused Nos.2 and 3 has attained finality.
20. The learned counsel for the appellant, Sri.S.M.Hattarki, with all vehemence submits that, though number of witnesses are examined by the prosecution but, none of the witnesses have spoken truth before the Court. So far as the appellant-accused No.6 is concerned, a different yardstick is to be applied. He narrates that, the wives of accused Nos.2 and 3 filed petitions for Habeas - 13 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Corpus. There was no reference of accused No.6 anywhere.
21. He further submits that, for the first time Karnataka Police received the wireless message on 11.02.2002 from Maharashtra Police and it was revealed during investigation about commission of murder of deceased MLA. According to him, it is a very strange development invented by the prosecution. Thereafter, according to the prosecution on 30.07.2002 accused No.6 was brought to Karnataka and recorded his voluntary statement. During investigation, I.O. has collected various documents to show that, accused No.6 was at Karwar and resided in a lodge. According to him, all these documents are manipulated by the Investigating Officer so as to falsely implicate the appellant. Additional charge sheet was filed against accused No.6 without any permission from the Court. Thus, the very trial of the appellant in the aforesaid Sessions Cases is illegal and unknown to law.-. 14 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 22. The Investigating Officer-PW.105 undertook fresh investigation without any permission. It was not permissible under law. He submits that, as there was a lapse on the part of the Investigating Officer, such a fresh investigation could not have been accepted by the Trial Court. He submits that, the very taking of cognizance by the Trial Court based upon fresh charge sheet against accused No.6 is illegal and not sustainable under law. On this count, accused No.6 is entitled for acquittal.
23. In addition to this submission he relied upon the evidence of various witnesses examined in this case and pointed out certain evidence brought out in a cross examination. He submits that, the test identification pared was conducted after two years of the alleged incident. As the witnesses were tutored, though there was identification of the appellant, but proper procedure is not followed by the Magistrate in conducting the said parades. The so called eyewitnesses never accompanied the deceased and whole story spoken to by them is created - 15 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 and concocted by them. According to him, at any stretch of imagination the evidence of these witnesses cannot be accepted as truthful evidence. He submits that, there is no independent incriminating circumstance against the appellant and such evidence was wrongly believed by the Trial Court. According to him, the very approach of the Trial Court basing its finding with regard to the various provisions of the IPC is contrary to the accepted principle of law. Section 120B of IPC has no application to the present facts of the case. According to him, the Trial Court has committed illegality in passing the impugned judgment. He prays to allow the appeal and set aside the impugned judgment.
24. As against this submission the learned Additional State Public Prosecutor, Shri. M.B. Gundawade, submits that, distinct charges were framed by the Trial Court. The investigation was conducted by the COD, Bengaluru. Immediately after the incident, complaint was lodged. Under criminal law, there is no restriction for the Investigating Officer to conduct further investigation.-. 16 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 There is no defective investigation. Even if any mistake is committed, it can be cured. The accused is not supposed to give any opportunity while conducting the investigation. The appellant has not raised any such objections before the Trial Court. There is no suggestion to any Investigating Officer. The witnesses in this case have spoken in line with their respective statements before the Investigating Officer. As evidence of the eyewitnesses is corroborative in nature, rightly the Trial Court has accepted the version of the prosecution and has rightly concluded that, the prosecution was able to prove the guilt of accused No.6.
25. In support of his submission, he relied upon various oral and documentary evidence adduced by the prosecution.
26. Refuting this submission, the counsel for the appellant forcefully submits that, the evidence placed on record and the witnesses so examined is not wholly reliable. Further he submits that, in view of the evidence brought on record in the cross examination so also - 17 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 admissions thereon, there is no substantive evidence to link the appellant to the commission of the offence. He further submits that, the grounds mentioned in the appeal memo prove the innocence of the appellant and lapse on the part of the prosecution.
27. In support of his submission, he relied upon following judgments:
1. State of NCT of Delhi Vs. Devangana Kalita in Special (Crl.) No.4289/2021 dated 18.06.2021 2. Mahendra Singh And Ors Vs. State of M.P. in 2022 LiveLaw (SC) 543 3. Gireesan Nair & Ors. Etc. Vs. State of Kerala in Criminal Appeal Nos.1864-1865 of 2010 of Supreme Court of India 4. Jayan Vs. State of Kerala in Spl.(Crl) No.6767 of 2010 of Supreme Court of India 5. Parveen @ Sonu Vs. The State of Haryana in Criminal Appeal No.1571 of - 18 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 2021 (SPL (Crl) No.5438 of 2020) of Supreme Court of India 6. Chunthuram Vs. State of Chattisgarh in Criminal Appeal No.1392 of 2011 of Supreme Court of India 7. Vinay Tyagi Vs. Irshadali in (2013) 5 SCC7628. Manunath Hebbar Vs. State of Karnataka in Writ Petition No.56754 of 2018 9. Abhishek Sharma Vs. State (Govt of NCT Delhi) in Criminal Appeal No.1473 of 2011 of Supreme Court of India 10. Kamal Prasad & Ors Vs. The State of Madhya Pradesh in Criminal Appeal No.1578 of 2012 of Supreme Court of India 28. We have given our anxious consideration to the arguments of both the side. Went through the records in depth. In view of the rival submissions of both the side, the following points arise for our consideration: - 19 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 i) Whether the judgment of conviction and order of sentence passed by the Trial Court against accused No.6- appellant suffers from illegality, infirmity and without any credible/corroborative evidence?. ii) If so, whether the impugned judgment of conviction and order of sentence requires interference by this Court?. iii) What order?. Point Nos.1 and 2 are discussed together:
29. The preliminary objection raised by the appellant is with regard to filing of additional charge sheet against the appellant. He submits that, though the initial charge sheet was filed against accused Nos.1 to 3 showing accused No.4 as absconding and subsequently, accused No.6 based upon the information flashed by Maharashtra Police stating that, this accused No.6 was arrested under the provisions of MCOC Act and he has given his statement confessing about murdering deceased MLA and thereafter, he was brought by Karnataka Police and based upon that, after fresh investigation the charge-sheet was filed against the accused No.6. Therefore, according to - 20 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 him, the very filing of additional charge sheet against accused No.6 is illegal.
30. It is his further submission that, on 11.02.2002 the Karnataka Police received wireless message i.e., after two years of alleged incident of murder of deceased MLA. It was informed that, accused No.6 has stated in his statement about the said offence and thereafter, he was brought to Karnataka by the Investigating Officer 30.07.2002. Further he submits that, it goes to establish that, only based on voluntary statement, this appellant has been falsely implicated in this case.
31. To this submission the learned Additional State Public Prosecutor submits that, under the provisions of Cr.P.C there is no bar as such to conduct further investigation.
32. In support of his submission, he relied upon the provisions of Section 173(8) of Cr.P.C. He submits that, this section never prohibited further investigation in respect of an offence after a report submitted under Sub - 21 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in-charge of the police station obtains further evidence, oral and documentary, he shall forward to the Magistrate a further report or reports regarding such evidence. He submits that, after committal of this case to the Sessions Court, it was revealed about the involvement of the appellant- accused No.6 and deceased accused No.4 and 5 in the commission of the murder of deceased. Therefore, the Sessions Judge by exercising his powers under Section 190 of Cr.P.C., has proceeded against the said accused No.6 i.e., appellant now and also against accused No.4 and 5.
33. Under the scheme of the Cr.P.C., the original cognizance taking power has been bestowed upon the Magistrate and under the said scheme Section 193 of Cr.P.C., provides that, ‘Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of session shall take cognizance of - 22 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code’.
34. Once a case is committed to the Court of sessions as provided under Section 209 of Cr.P.C., the rider on the cognizance taking power of the Court of sessions is lifted. There may be a case whereupon receipt of the case after commitment, the Court of Sessions find that, there are sufficient materials to summon any person/s as accused whose name does not figure out as an accused and at this stage, the Court of sessions may exercise the power under Section 193 of Cr.P.C.
35. In the case of Kishun Singh and others Vs. State of Bihar1 it has been held that, Sessions Court has jurisdiction, on committal of a case to it, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record, hence on the committal 1 (1993) 2 SCC16- 23 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 under Section 209 of Cr.P.C., Sessions Judge is justified in summoning, without recording evidence, the accused not named in police report under Section 173 of Cr.P.C., to stand trial along with those already named therein.
36. On committal, it is true that, the restriction on the Court of sessions to take cognizance of an offence as Court of original jurisdiction gets lifted. The opening words of Section 193 of Cr.P.C., categorically recite that, the power of the Court of sessions to take the cognizance would commence only after committal of the case by a Magistrate. The said provision opens with a non-obstante clause except as otherwise expressly provided by this Code or by any other law for the time being in force. The provision under Cr.P.C., expressly making a provision for exercise of powers of the Court to take a cognizance, then the same would apply and the provisions of Section 193 of Cr.P.C., could not be applicable.-. 24 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 37. In the case of Dharmpal and others Vs. State of Hariyana and another2, the Hon’ble Apex Court had noticed the conflict in the decisions of the Kishun Singh (supra) and in the case of Ranjit Singh Vs. State of Punjab3, and referred the matter to the constitution Bench. However, while referring the matter to the constitution Bench, the Hon’ble Apex Court affirmed the judgment Kishun Singh (supra) and doubted the correctness of the judgment in Ranjit Singh (supra).
38. In the case of Ranjit Singh (supra), the Court observed that, from the stage of committal in the Sessions Court reaches the stage indicated in Section 230 of Cr.P.C., that Court can deal with only the accused referred to in Section 209 of Cr.P.C., and there is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused, while in Kishun Singh (supra), Hon’ble Apex Court came to the conclusion that, even the Sessions Court has power under Section 193 of 2 AIR2013SC30183 AIR1998SCC3148- 25 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Cr.P.C., to take cognizance of the offence and summon other persons whose complicity in commission of the trial can prima facie be gathered from the material available on record and need not wait till the stage of Section 319 of Cr.P.C., is reached.
39. The Hon’ble Apex Court in the case of Dharmpal (supra) held that, the effect of Ranjit Singh (supra), would be that, in less serious offences trial by the Magistrate, the said Court would have the power to proceed against those who are mentioned in column No.2 of the charge sheet, if on the basis of material on record, the Magistrate disagrees with the conclusion reached by the police, but as per as serious offences triable by the Sessions Court are concerned, that Court will have to wait till the stage of Section 319 of Cr.P.C., is reached.
40. The issue was considered by the constitution Bench in the case of Dharmpal (supra), wherein it was held that, a Court of sessions can with the aid of Section 193 of Cr.P.C., proceed to array any other person and - 26 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 summoning for being tried even if the provisions of Section 319 of Cr.P.C., could not be pressed in service.
41. Thus, in the case of Dharmpal (supra), the constitution Bench approved decisions in Kishun Singh (supra), that the Sessions Judge has original power to summon accused holding that, the Sessions Judge was entitled to issue summons under Section 193 of Cr.P.C., upon the case being committed to him by the Magistrate.
42. If the aforesaid principles are applied to the present facts of the case, after filing initial charge sheet in the year 2002, it was informed by the Maharashtra Police by flashing a message to the Karnataka Police stating that, the appellant who was arrested by the Maharashtra Police, on interrogation, he has confessed about the commission of murder by him of the deceased MLA and thereafter, the Investigating Officer in this case took appropriate steps to conduct further investigation by securing the presence of the appellant through Court process and thereafter, further investigated and filed the charge sheet.-. 27 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 43. In view of the proper procedure being adopted by the Investigating Officer in this case and also the law laid down by the Hon’ble Apex Court in the case of Dharmpal (supra), we find no substance in the submission of the counsel for the appellant. His submission merits no consideration. Therefore, the preliminary point raised by the counsel for the appellant has no legal sanctity.
44. One more submission is made by the learned counsel for the appellant-accused No.6 that the very filing of the charge sheet against the accused No.6 is vitiated as proper procedure has not been followed. As discussed in the foregoing paragraphs, the criminal investigative machinery is set into motion by lodging of first information report in relation to commission of cognizable offences. Such report may be made orally, in writing or through any means by an officer in charge of the police station. Such officer is required to reduce the same into writing, read the same to the informant and whoever the person - 28 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 reporting is present, the same shall be signed by such person or the person receiving such information under the provisions of Section 154 of Cr.P.C. The police officer can conduct investigation in any cognizable case without the orders of the Magistrate. He shall conduct investigation in accordance with the provisions of Chapter-XIII i.e. in accordance with Sections 177 to 189 of Cr.P.C.
45. Here, in this case, initial charge sheet was filed against three accused persons and thereafter by conducting further investigation separate two charge sheets were filed. During the course of investigation, based upon the first information report, the investigating officer came to know about hiring of the accused persons for the purpose of commission of murder of deceased- Vasant Asnotikar. Because of this information being gathered during investigation, the investigating officer conducted the further investigation. When the complaint was filed, the matter was being reported to the Court as well as to the officers and it came to the knowledge of the Government. The Government directed COD to conduct - 29 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 enquiry. This power is vested with the government. That means, it is continuation of previous investigation and therefore, has to be understood and described as a ‘further investigation’. The scope of such investigation is restricted to the discovery of further oral or documentary evidence. Its purpose is only to bring the true facts before the Court even if they are discovered at subsequent stage to the primary investigation. It is only described as ‘supplementary report’. That means, this supplementary report would be the correct expression as ‘subsequent investigation’ which is made and intended to supplement the primary investigation. Therefore, the argument advanced by the counsel for the appellant cannot be accepted that the COD had no jurisdiction to conduct the investigation.
46. Referring investigation to the COD is a kind of continuation of previous investigation. The basis is to discover fresh evidence in continuation of same offence and chain of offence relating to same occurrence of - 30 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 incidents thereto. Here, during the course of investigation, it was revealed by the Maharashtra Police that, the present appellant-accused No.6 was involved in the commission of murder of deceased-Vasant Asnotikar. On getting such information, through process of Court, the presence of accused No.6 was secured by the Investigating Officer. He was interrogated. He gave his voluntary statement before the Investigating Officer. He was identified by the witnesses during the identification parade and it is at his instance, certain material objects were seized. Therefore, whatever investigation made by the Investigating Officer cannot be termed as a fresh investigation or de novo investigation as argued by the counsel for the appellant- accused No.6 even it cannot be termed as reinvestigation. Therefore, there is no merit in the submission made by the counsel for the appellant-accused No.6.
47. In a case of present nature, as it is alleged that, MLA-Vasant Asnotikar was murdered, it is the duty of the prosecution to prove the homicidal death of the deceased- - 31 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Vasant Asnotikar, the then MLA of Karwar. As per the case of the prosecution, on that ill-fated day i.e., 19.02.2000 at about 8.10 p.m., when the deceased was giving instructions with regard to the preparation for reception function of his daughter’s marriage, two persons came on a Hero Honda motorbike. Initially the rider of the motorbike tried to shoot the deceased but, the deceased avoided the bullets. Thereafter, the pillion rider fired at the deceased which hit on the person of the deceased and he fell down. He had sustained bullet injuries on his body. On seeing the said incident of firing the persons standing with deceased chased the said motorbike. At that time, the pillion rider also fired and said bullets hit on the person of PW.2. The said two persons went away on the motorbike. Initially the deceased was shifter to Dr. Pikale Hospital. There first aid treatment was made. Thereafter, he was shifted to Civil Hospital, Karwar. On the advice of doctors the deceased was shifted to Manipal Hospital for further treatment, so also PW.2-Ganapati. But, the deceased succumbed to the bullet injuries.-. 32 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 48. With regard to initially shifting of the deceased to Dr. Pikale Hospital prosecution relies upon evidence of PW.57 one Dr. Nitin Pikale. It is his evidence that, on 19.02.2000 at 8.20 p.m., MLA - Vasant Asnotikar was brought by his son Anand Asnotikar for treatment. He was informed that, his father had suffered bullet injuries. He put life saving reservement i.e., Intra Venus Foiled, Artificial rescuration, blood contusion and thereafter, he was shifted to Civil Hospital, Karwar. He also accompanied the patient and thereafter, he came to know that, the patient was shifted to Manipal Hospital.
49. It is noticed that, on the way to Manipal Hospital he died. In the P.M. Report it is stated that, the injured person died on the way to Kasturba Hospital and he was brought dead.
50. Accordingly, Dr. Murlidhar Saralay examined as PW.42 conducted the post mortem on the dead body of the deceased. He noticed the following injuries over the body on external examinations: - 33 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021
1) “A gun shot wound of entrance 1x1 cm with abrasion collar and grease collar on the back on right side, 9 cms to the right of midline.
2) A gun shot would of entrance 1.5x1 cm with abrasion collar and grease collar on right side of back, 8.5 cms below injury No.1.
3) A gun shot would 1x1 cm with a piece of cloth entering into the wound of entery, 2 cms to the left of the midline and 13 cms below the nape of neck.
4) A gun shot wound 1x1 cm with abrasion collar and grease collar on the right side of the back, 25 cms above glutial cleft and 5.5 cms to the right of the midline.
5) A contusion 5.5x9.5 cms in the midline and to the right of the midline, 7 cms above the umbilicus.
6) A contused abrasion 14x9 cms, the abrasion is 2.5x2 cms in the middle of the contusion on the right side of the abdomen, 7 cms above the iliac crest.
51. The P.M. Report is marked at Ex.P.87. This PW.42 has stated about the cause of death as because of bullet injuries. Ex.P.119 is the inquest Panchanama on the dead body of deceased.-. 34 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 52. On reading these two documents as well as the evidence brought on record, it can be concluded that the deceased Vasant Asnotikar, the then sitting MLA suffered homicidal death. Thus, the prosecution is able to establish the homicidal death of the deceased.
53. Once the homicidal death of the deceased is proved by the prosecution then the question arises that, who has caused the homicidal death of the deceased. To ascertain the same, we have to read both oral and documentary evidence adduced by the prosecution.
54. In this case in all there were six accused arrayed in the charge sheet. So far as accused No.1 is concerned, it is the case of prosecution that, though initially the deceased and accused No.1 were together but because of election to the President of Labour Union in the Dockyard of Karwar, as accused No.1 became wanted to become president of the said Union so also the deceased. Therefore, the ill-will/animosity began in between them.-. 35 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 55. As per the records made available by the prosecution, when such a dispute arose between them, it was, the then Superintendent of Police, Karwar and Deputy Commissioner, Karwar intervened and compromised the dispute. It was agreed between them that, for one year accused No.1 had to became the President of the Union and for the another deceased MLA had to became the President of the Union. But even then the dispute did not stop there. It has come in the evidence that, initially deceased MLA was a member of Karnataka Congress headed by S.Bangarappa. Thereafter, he changed his party and joined Indian Congress party. For assembly elections, accused No.1 was trying to get such a ticket to his brother-in-law Sri.Manjrekar, but could not succeed, whereas deceased succeeded in getting the ticket and elected as MLA with a majority of 45000 votes. The said ill-will continued in between them. It has come in the evidence that, even deceased MLA received telephone call from accused No.1 giving life threat to him. At that time, it - 36 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 was replied by the deceased MLA that, he has the support of 45000 voters. Thus, throughout the case of prosecution, it is alleged that, there was political rivalry between accused No.1 on one hand and deceased MLA on the other. So the motive for the crime as per the case of prosecution was political rivalry 56. It is the case of the prosecution that, with the help of other accused person it was accused No.1 who conspired to kill deceased MLA and hired the killers.
57. It is the further case of the prosecution that, Accused No.3-Sri.Aruf Agra Naik S/o. Datta was putting construction at Karwar. As there was violation of the building bye-laws, the corporation of Karwar directed him to remove the said construction and set right the construction in accordance with the building bye laws. Therefore, this Accused No.3 approached the deceased MLA and prayed for a favour to direct the corporation not to take any action. But this deceased MLA asked him to obey the notice. Therefore, because of this, accused No.3 - 37 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 also joined hands with accused No.1, who was having grudge against deceased MLA. It has come in the evidence that this acused No.3 was constructing the multistoried building there. As there was a refusal on the part of the deceased MLA, this accused No.3 being the close associate of accused No.1, joined them to take revenge against deceased MLA. This is another motive attributed against the accused persons by the prosecution.
58. To prove the guilt of the accused, the prosecution relied upon the evidence of eyewitnesses in this case in the shape of PW1 to PW6. As per the case of the prosecution, these six eyewitnesses were standing along with the diseased, when the said incident of shooting on the person of the diseased took place. On scrupulous reading of the evidence of these witnesses i.e. PW1 to 6, they are consistent in their evidence that there was marriage of daughter of deceased MLA at Mumbai on 13.02.2000 by name Suchitra. Deceased-MLA had scheduled the reception ceremony on 19.02.2000 at - 38 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Daivadnya Kanlyan Mantap, Karwar. There was preliminary preparation for the said reception ceremony on 19.02.2022 at the said Kalyan Mantap. PW1 states that, he went to Kalyan Mantap at 7.00 p.m., on the said day as he had work with deceased-MLA. When he met the deceased, it was about 7.45 p.m. At that time, he noticed the presence of the deceased at the hall in Kalyan Mantap. Along with him, there were other persons like Nandeep Halagekar, Ashok Kudatarkar, Ganapathi Ulavekar etc., The deceased was giving instructions to decorate the hall and also putting up of charts. Thereafter, the deceased by talking with a cook came outside the Kalyan Mantap. He was talking with one Pai. The other persons, who were accompanying the deceased, were standing surrounding the deceased. The deceased was standing at a distance of 15 to 20 ft away from the gate of the said Kalyan Mantap. This PW1 was standing under a tree situated near the gate. All were about to go to their houses. Ganapathi Ulavekar, Pandya and Santosh were also there. At that time, from Karwar market one Hero Honda motorcycle - 39 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 came from the eastern side to western side. At that time, PW1 was facing the road. On the said motorcycle, there were two persons. He specifically says that, by taking U- turn, the said two wheeler stopped in front of the gate at a distance of 5 ft. away from the deceased-Vasant Asnotikar. The said two wheeler was on. Both the riders stood up on motorcycle and the pillion rider showed the deceased to the rider by saying that “yehi hai, yehi hai woh saala, maro maro”. The rider of the motorcycle fired with a revolver at MLA, but it did not hit the deceased since the deceased avoided the said shooting. At the same time, the pillion rider fired at the deceased. The said bullet hit on the person of the deceased on his back. He fell down in a prone position. The said pillion rider fired twice on the person of the deceased. So also, again he fired at him. After firing, both pillion rider as well as the rider went away towards eastern side on their motorbike. The people gathered surrounding the deceased, scared themselves. Amongst them, Ganapathi Ulavekar, Sandeep Halagekar so also Chandrakant Naik and PW1 chased the said two- - 40 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 wheeler. When Ganapathi Ulavekar was about to catch hold the pillion rider, he fired at Ganapathi twice. The said bullet hit on the right shoulder of the Ganapathi. He fell down. Thereafter, the said motorcyclists went away from the said place. When Ganapathi and other persons returned, they noticed that, the deceased-Vasant Asnotikar was being shifted to hospital in a Tata Ciera vehicle driven by the son of deceased i.e. PW7. The deceased was shifted to Dr.Pikle Hospital. Thereafter he was shifted to Civil Hospital as per the advice of the doctor with respiratory support etc., thereafter he was taken to Manipal Hospital.
59. As per the evidence of PW1, all the aforesaid persons chased the said two-wheeler for about 250 ft. The said incident took place in between 8.10 p.m. and 8.15 p.m. He further states that, there were electricity lightings fixed on banyan trees situated in front of the said Kalyan Mantap and there were focus lights. So also, street lights were burning on 5-6 electric poles. Even it was a full moon - 41 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 day on the date of the incident. Ganapathi Ulavekar was also taken to hospital and thereafter he was also taken to Manipal Hospital for further treatment. On the following day, it was informed that MLA-Vasant Asnotikar succumbed to the injuries on the way to the hospital. Ganapathi had sustained two bullet injuries on his person and his cloths were bloodstained. This PW1 came to the police station and lodged the complaint as per Ex.P1.
60. According to his evidence, the police registered the crime against the accused and he has given description of the persons, who had fired at the deceased. It is his further evidence that on 23.07.2002, the Assistant Commissioner summoned him to the Central Jail for the purpose of identification. In all there were nine persons and he identified one of the persons, who was pillion rider, who fired the deceased with a revolver. He has also spoken with regard to the ill-will and political rivalry in between accused No.1 and the deceased. He also has shown the scene of offence to the police for conducting - 42 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 spot mahazar and seize of certain articles under panchanama. He identifies the shirt worn by Ganapathi as M.O.1, which was produced by him in the police station at the time of filing complaint after preparing panchanama to that effect.
61. This PW1 has been cross-examined by the defence. Though lengthy cross-examination is directed running into several pages, but nothing worth is elicited from the mouth of this witness so as to disbelieve the version of his examination-in-chief. By cross-examining of PW1, the defence admits the presence of all the eyewitness i.e. PW1 to PW6 at the scene of offence when the incident took place. It is suggested to PW1 in the cross-examination in page 15 at para 4 that, “the motorbike came and stopped to the left side of the deceased. It was stopped at a distance of 5 ft from him. He saw coming of motorbike from a distance of 100 ft. He did not see any other vehicles passing through Dhobi Ghat on that day. There is no further denial of this fact in the cross-examination. He is consistent that, he was standing - 43 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 beneath the banyan tree on the right side of the deceased. He further states that when the motorbike was coming near to the spot, its headlights were on. It is suggested that, the deceased was standing between the motorbike and himself.
62. This suggestion directed to PW1 by the defence proves that PW1 and the deceased were very much present at the spot. It is further elicited that the rider of the motorbike tried to fire on the face of the deceased. He was holding the revolver at 5½ ft distance from the ground. He further states that, the pillion rider of the motorbike fired at the deceased being on the motorbike, bending down towards the deceased. Due to the bullet shot, deceased fell down where he was standing. It is elicited that, the said incident took place within 2 to 3 minutes. None of the witnesses observed the registration number of the motorcycle. To that effect, he lodged a complaint before the police station.-. 44 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 63. As stated supra, though there is lengthy cross- examination directed to this witness, but nothing worth is elicited. He narrated the incident to the police. He saw the police in Pikle Hospital. Taking advantage of this, it is argued that the evidence of PW1 cannot be accepted. But the trend of cross-examination directed to him prove the presence of PW1 at the scene of offence when the icndient took place, which is clearly admitted by the defence. According to him, about 15 to 20 persons were surrounding the MLA at that time, when he was giving instructions.
64. With regard to the identification parade, he is specific that as per the notice issued to him, he went to the Central Jail and in his presence the identification parade was conducted. With regard to conducting identification parade by the Assistant Commissioner, it is not denied properly throughout the cross-examination. Certain evidence has been brought on record in the cross- examination with regard to the animosity, ill-will between - 45 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 the deceased and the accused No.1, who is also no more. There was a political rivalry between them and accused No.3 also joined his hands with accused No.1 in killing the deceased.
65. Likewise, PW2 an injured eyewitness by name Ganapathi Ulavekar suffered bullet injuries. He also speaks in similar terms with regard to his presence on 19.02.2000 at about 8.10 p.m. near the deceased-MLA. He specifically speaks with regard to arrival of two wheeler and also speaks with regard to decoration being made to the said Kalyan Mantap. He states that the deceased was standing about 15 ft away from the outside gate of the said Kalyan Mantap. At that time, said incident has taken place. He also speaks that who fired first and what was the result of the said firing, so also firing by the pillion rider on the person of the deceased, when deceased missed the shots being fired by the rider of the motorbike. According to him, after firing, the rider and the pillion rider started escaping on their motorcycle. This PW2 chased them along - 46 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 with others. When he was so chasing and above to catch hold the pillion rider, the pillion rider fired at him. Even one of the persons threw a stone towards motorcycle, which damaged the hind indicator.
66. Ashok Kudatarkar, who was also chasing the motorcycle, helped PW2 to stand up. Blood was oozing from his shoulder due to bullet injury. He was shifted to Pikale Hospital. On the way to hospital, police were informed. Thereafter PW1 went to the police station and filed the complaint.
67. In paragraph 3 of his examination-in-chief, this PW2 has specifically stated that, when the incident took place there were street lights burning. It was a full moon day, so also search light was fixed to the street light-pole in front of the said Kalyan mantap. He also stated that focus lights were also fixed on banyan tree. That means, PW2 has full knowledge that how the said incident has taken place and it was noticed by him in the said - 47 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 electricity light, which was very much available on that day.
68. It has come in the evidence of this PW2 that on 19.02.2000 he has noticed the presence of accused No.6- appellant at the scene of offence. According to him, on 17.02.2000 at about 2.30 p.m., he also has noticed accused No.6 at Amrutha Hotel. Along with him Jagadish Pednekar was there, who was the security guard in Rege compound at Dilip Naik’s house. He gives the features of this accused No.6, so also the other rider of the said motorbike. He states that, on 23.07.2002 he identified this accused No.6 as a person who fired at deceased MLA. When the name of this accused No.6 was enquired into, it was told that, his name is Sanjay Kishan Mohite @ Rajan. He identified this accused No.6 as the person who also fired at him twice. He has showed the same to the police.
69. Though this PW2 has been intensively cross- examined by the defence, he too has withstood the test of cross-examination. He was also a member of a political - 48 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 party, he also contested the elections, he was member of TMC Karwar etc., He was also a follower of the deceased. Though searching cross-examination is directed to this witness, but nothing worth is elicited. Even his cross- examination also runs into several pages with regard to the cases being filed against him, he was accused in criminal cases etc., The suggestions with regard to his involvement in other crimes is admitted by this PW2. They will not go to the root of the present case.
70. PW3 another eyewitness though examined, but he died before commencement of his cross-examination. Therefore, his evidence without any cross-examination has no evidentiary value.
71. PW4 Santosh Yashwant Kalagutkar also speaks in similar words with that of the evidence of PW1 and PW2. According to him, at about 7.00 p.m., on 19.02.2000, deceased-MLA told him to come to his house to ascertain about coming of his daughter and son-in-law. He went to the house. At that time, he noticed the arrival - 49 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 of one white Maruti Car enquiring about whereabouts of the MLA. Himself and one Ullas-CW19 told that MLA is available in Daivadnya Kalyan Mantap and showed the direction. He further states that, when they were talking to them, at that time, the driver of the car was sitting in the car. He went near the car and noticed the presence of Jagadish Pednekar. He gave the details of the persons who were there in the car. Further he states that, by 7.30 p.m. the son of the deceased also came to the said Kalyan Mantapa. Further he states that, at about 08.05 p.m. the MLA was standing in front of the said Kalyan Mantap talking with CW10-Pai, where PW2, PW3 and CW5 were also standing. PW1 was near the gate. CW8 was inside the compound. At about 8.10 p.m., according to his evidence, motorbike came from Bazar side and two persons were there on the said motorbike. Initially the rider fired at deceased-MLA and as he avoided the firing, the pillion rider fired at deceased, due to which MLA fell down. This witness states that himself, PW2, CW7 and CW8-Ashok Pandurang Naik chased the two-wheeler, CW5 threw a - 50 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 stone on the motorbike, which hit on the break light of the said motorbike. Even the pillion rider fired at PW2, who was chasing and he fell down. The injured were shifted to Pikle hospital initially.
72. He further speaks that, on 22.07.2002, he received a notice from the Assistant Commissioner, Karwar through which he was directed to attend the identification parade on 27.02.2002 at District Prison, Karwar. Accordingly, at 11.00 a.m. on 23.07.2002 he went to the Central Jail, Karwar. There identification parade was conducted and he identified accused No.6 as the person who had fired at deceased-Vasant Asnotikar. To that effect the proceedings were drawn by the Assistant Commissioner. He also speaks about the political rivalry between the deceased and accused No.1.
73. PW4 was also thoroughly cross-examined by the defence, but nothing worth is elicited.
74. PW5-Ashok Balakrishna Kudatalkar is also eyewitness, who has also spoken in line with the evidence - 51 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 of PW1, PW2 and PW4 with regard to his presence and firing of bullets on the person of the deceased by the pillion rider as the rider of the motorbike as the rider of the motorbike missed the target. He also speaks with regard to ill-will or rivalry between accused No.1 and the deceased. He too has been cross-examined at length. The cross-examination runs into several pages. But nothing worth is elicited from the mouth of this witness.
75. PW6 is another witness by name Pandurang Naik and he is also eyewitness to the incident. He also speaks in line with the contents of the other witnesses stated supra. He was also councilor and well known to the Vasant Asnotikar and also knew about the business being carried by the deceased and accused No.1. Though this PW6 was also cross-examined at length, but nothing worth is elicited.
76. On scrupulous reading of the evidence of PW1, PW2, PW4 to PW6, throughout their evidence, they are consistent about their presence when the said incident of - 52 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 fire on the person of deceased has taken place. Evidently PW3 though examined in-chief, but he died without any cross-examination. So the evidence of PW3 will not help the case of the prosecution in any manner and it is to be discarded.
77. It is the case of the prosecution that PW7 is the son of deceased-Vasant Asnotikar, who was also present there. He was driving Ciera car owned by the deceased and he was on the other side of the road. According to his evidence, his father died because of bullet injuries. He says that, on 19.02.2000 in the evening hours, his father went to Daivadnay Kalyan Mantap. He saw his father along with PW3, PW4, PW5 and PW7. His father instructed to replace the plates being used in the reception. One Srikanth Pai was talking with his father. He speaks that he also has seen the incident of firing on his father and he chased the two-wheeler by using his vehicle, but he could not catch hold the assailants.-. 53 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 78. He identified accused No.6 in the jail on 26.02.2002 when identification parade was conducted by the Assistant Commissioner. Thus, according to him, he was very much present at the time of the incident. He also speaks with regard to the other incidents that have taken place in between his father and accused No.1. Though he has been cross-examined at length, he has withstood the test of cross-examination.
79. PW8-Ramadas Nagappa Kudatalkar, was the police head constable at the relevant time and prior to his appointment, he was a photographer. According to him, on 20.02.2000 he received the requisition from PSI Karwar to take photographs in Crime No.37/2000 at Karwar Police Station. Accordingly, he took the photographs and he identified the same. He identified the requisition as per Ex.P18 and photographs as PW20 to 23 along with negatives. There is no effective cross-examination directed to this PW8. He also has taken the photographs at Ex.P27 to 39 after developing negatives, he has given positive - 54 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 photographs to the police. Taking of photographs as per the requisition is not denied by the defence in material particulars. Therefore, the evidence of PW8 can be accepted to the extent that, he has taken photographs as per the requisition so received by him.
80. PW9-Siddappa Kaller was Regional Transport Officer, who gave ownership particulars regarding Maruti Car bearing registration No.KA-19/M2919 as per the request of the police. It is marked at M.O.5. It is the case of the prosecution that, the car was being used by the accused person before the date of offence. No effective cross-examination is directed to this witness except denial in the cross-examination. That means, as per the request of the police, he has supplied the particulars regarding the said car.
81. PW10-Dr.Anand Pandurang Maitri is the retired District Surgeon. According to him, for the purpose of investigation, as per the request of the police, he collected - 55 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 the blood sample. To that effect, there is no cross- examination to him.
82. PW11-Giridhar Narayan Katigar, PW12-Datta Kashinath Pawar and PW13-Laxman Narayan Ganiga, who are the pancha witnesses to Ex.P46, having turned hostile to the case of the prosecution, nothing worth is elicited from their mouth in their cross-examination so as to disbelieve their evidence spoken in chief examination.
83. PW14-S.Siddaramayya, was the Municipal Commissioner, CMC, Karwar and he has issued documents of accused No.3-Aruf Ajgar Naik as per his request. They are marked as Ex.p47 in respect of Survey No.20/1B so also Ex.P48. No effective cross-examination is directed to this witness by the defence. To the extent of issuing the above said documents, his evidence has to be accepted.
84. PW15-Muralidhar Ambaji Majumdar was the Divisional Engineer of BSNL, Vasco and in respect of telephone No.514224 he has issued the call details.-. 56 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 85. PW16-Sharad Bhavant Sawant was the Accounts Officer in BSNL, Panaji. He has issued Ex.P52 at the request of the Dy.S.P. COD, Bengaluru.
86. PW17-Nityanand Ganapathi Kheni was the Sub- Divisional Engineer of Kajubag Karwar. He has issued Ex.P56 at the request of the investigating officer.
87. PW18-Surjeetsing S/o. Multan Sing was retired naval officer who was owning the landed telephone line No.514886 at Tilak Maidan Vasco. He has turned hostile to the case of the prosecution.
88. PW19-Preetam Jayaram Masurkar was also the witness to this case. But he has also been turned hostile.
89. PW20-A.M.Sheikh was the chief accounts officer at MTNL Mumbai. At the request of the Investigating Officer, he has issued Ex.P61.
90. PW21- Alex Rebello was the Goa shipyard helper. According to him, COD police have summoned him to act as a pancha to Ex.P62. Accordingly he acted as a - 57 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 pancha to Ex.P62. He has been turned hostile to the case of the prosecution.
91. PW22-CAJ Prakash was the Assistant General Manager Corporate Affairs and Nodal in Idea Cellular Limited. According to him, as per the letter of the COD dated 15.02.2002 he furnished the call details of telephone no.22100728 as per Ex.P64.
92. PW23-Nazimkhan at the relevant time was working in HDFC Panjim. He has issued Ex.P62 as per request of the police but he has been turned hostile.
93. PW24-Kiran Pednekar and PW25-Jagadish Ganapathi Pednekar, who are also prosecution witnesses but they have turned hostile.
94. PW26-Dilip Madhav Majumdar, chartered accountant deposed before the Trial Court that he used to take care of accounts of Dilip Naik being his relative. There is no effective cross-examination directed to this witness.-. 58 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 According to him, he has given the documents as per Ex.P72.
95. PW27-Pandurang Ganu Naik deposed before the Trail Court that at the relevant time i.e. on 19.02.2000 the Daivadnya Kalyan Mantapa was decorated for conducting reception on 20.02.2000 by deceased MLA-Vasant Asnotikar. He demonstrated the said decorative lights to the deceased-MLA. Electricity light was being focused inside the gate and outside the gate at that time. There is no specific denial of this fact by the defence.
96. PW28-Balakrishna Mahesh Desai is a pancha and as shown by PW1-Balaram Naik, chappal of the deceased was seized under Ex.P74 under the spot mahazar. He has been treated as partly hostile to the case of the prosecution.
97. PW29-Purushottam Kocharakar was running cycle mart at Karwar. According to his evidence, he knew Dilip Naik i.e. accused No.1. He has established the office at Rege compound and he has seen the accused persons - 59 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 there. According to him, in the year 2000 Vasant Asnotikar was murdered and for 4-5 days prior to the murder, he saw the accused persons in Rege compound. To that effect, one Rekha Vinayak informed him that some persons have used the house in Rege compound. That means, according to his evidence, the photograph was taken as per Ex.P26 in his presence and accused No.4- Anthoni Rozario was there in the said house. He was cross-examined by the counsel for the accused, but nothing worth is elicited from his mouth so as to disbelieve his evidence in chief examination.
98. PW30- Devidas Naik was the supervisor in Dock and Port at the relevant time and according to him, accused No.3 was constructing multistoried building in Brahman Galli Karwar. It was constructed illegally and because of that CMC has issued stoppage of construction notice. As such he requested MLA-Vasant Asnotikar to influence CMC Karwar not to come in the way of construction of his multistoried building. At that time, - 60 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 MLA-Vasant Asnotikar told that he will not come in the way of any illegal activities by using influence to the office of CMC, Karwar. That means, according to his evidence, because of this denial by the deceased-Vasant Asnotikar, ill-will started in between accused No.3 and the deceased. Accordingly, accused No.3 joined his hands with accused No.1 for committing murder of the deceased. There is no effective cross-examination directed to this witness by the defence so as to disbelieve the evidence spoken to by him in his examination-in-chief.
99. PW31-Suryakant Manjrekar, retired headmaster is none other than the brother-in-law of accused No.1. According to him, he came to know about the murder of deceased-MLA by reading it in newspaper. He speaks about the relationship between himself, his brother-in-law and the deceased. He speaks about previous incident that has taken place in between accused No.1 and the deceased. He has been partly turned hostile to the case of the prosecution.-. 61 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 100. PW32-Babani Bandi, though examined to prove the sale of cinema theater owned by accused No.1, but has been turned hostile.
101. PW33-Shambhushetty, a retired Bank employee was examined by the prosecution to prove that he was accompanying the deceased-Vasant Asnotikar to Ankola at 9.30 a.m. on 19.02.2000 and returned to Karwar on that day at about 4.30 p.m. Thereafter, he came to know that deceased-Vasant Asnotikar was shot dead. He has been treated as hostile witness by the prosecution and cross- examined but nothing worth is elicited.
102. PW34-Anjum Sheikh was the car driver of Tata Sumo owned by Prakash Masurkar. According to his evidence, Prakash Masurkar was residing in Rege compound, who was the owner of the Tata Sumo. The said Tata Sumo was parked in Rege compound on 18.02.2000 at 7.00 a.m. At that time one white colour esteem car and red colour Hero Honda motorcycle was also parked there. To that effect, there is no cross-examination directed to - 62 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 this witness by the defence. He has been treated as partly hostile to the case of the prosecution.
103. PW35-Giridhar Mankalugouda was examined by the prosecution to show that he was also present when the said incident has taken place. He has been turned hostile.
104. PW36-Srinivas Shetty is running Ankita Hotel at Mallapur in Subhadra Complex owned by accused No.1. He speaks about the telephone number of the said hotel as 223064. But he too also has been turned hostile.
105. PW37-Satish Revankar stated to be the friend of accused No.1 but he denies the same. He had been turned hostile.
106. PW38-Shankar Parashi, was umbrella repairer and according to him about 5-6 years back he was called by the CPI Karwar and he opened the lock being kept to the said Rege compound. This fact is not denied by the defence in material particulars.-. 63 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 107. PW39-Muralidhar Vernekar was working as a manager of Daivadnya Kalyan Mantapa. According to his evidence, on 18.02.2000, it was requested by deceased- MLA to hire the Kalyan Mantapa on 20.02.2000 to perform the reception ceremony of his daughter’s marriage. Accordingly, he provided the same. No effective cross- examination is directed to this witness by the defence.
108. PW40-Krishna Ganapathi Patagar was the bill writer in Amruta Hotel, but he has been turned hostile. According to him, he has seen Jagadish Pednekar twice, who took biryani from Amruta Hotel.
109. PW41-Kishor Shetty was working in Pinki Wine Shop and according to him, the said shop is being run by one Dilip Arjun i.e. accused No.1. He has been treated as hostile witness by the prosecution.
110. PW42-Dr.Muralidhar Saralay was the doctor who conducted postmortem on the dead body of the deceased-Vasant Asnotikar. He noticed bullet injuries on - 64 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 the person of the deceased and identified the PM report issued by him, so also identified Material objects being collected at the time of conducting the postmortem. He has been thoroughly cross-examined by the defence but nothing worth is elicited from the mouth of this witness so as to disbelieve his version in examination-in-chief. During Postmortem examination, he had sought police protection in uniform. The death of Vasant Asnotikar by bullet injuries is not denied by the defence. But other evidence has been brought on record in the cross-examination which will not shake the basis case of bullet injuries suffered by the deceased when the incident of firing took place on him.
111. PW43-K.Selvaraj S/o.Kanakasabhapathi the Chief Accounts Officer of MTNL, Mumbai has stated about issuance of the statement of call details as per Ex.P61, which is not denied by the defence so also PW44-Jagadish S/o.Venkatesh Kumta, who issued Ex.P66 call details.-. 65 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 112. PW45-Vishwanath Badhe was the Divisional Engineer of BSNL. He has issued Ex.P51 as per the request of the Investigating Officer.
113. PW46-S.Basavaraj S/o. Siddappa was the then Municipal Commissioner of Karwar and he has issued documents in respect of accused No.3-Aruf Agra Naik in respect of Survey No.20/1B as per Ex.P47. To show that the said accused No.3-Aruf Agra Naik in respect of Survey No.20/1B as per Ex.P47. To show that the said accused No.3 had undertaken construction of multistoried building is proved from the evidence of this witness.
114. PW47-Anthoni D’souza was the fish controller. He has been turned hostile to the case of the prosecution.
115. PW48-Prashant Naik, Junior Engineer, Port Sub- division Karwar, who drew the map of the scene of offence as per Ex.P99. This map is not in serious dispute by the defence.-. 66 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 116. PW49-Radhavendra Vasantarao was the manager of State Bank of India, NPCC Branch, Kaiga at the relevant time. According to him, deceased-accused No.1 was operating his current account of his Subhadra hotel with this banker. This is also not in dispute.
117. PW50-Maruti Naik was the Assistant Executive Engineer in KPTCL Karwar. According to him, as per Ex.P101, he has verified the complaint and issued report as per Ex.P112 stating that on 19.02.2000 in between 7.30 p.m. to 8.30 p.m., there was electricity supply. Though he has been thoroughly cross-examined by the defence, but nothing worth is elicited. The trend of cross- examination directed to other witnesses show that, at the time of incident, the electricity supply was there and street lights were burning, focus lights were burning and it was a full moon day.
118. PW51-Mallikarjun Thippanna Bavi was examined to prove that police approached him with regard - 67 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 to the Rege compound etc., but he has been turned hostile.
119. PW52-Krishnanand Achari was the driver cum contractor known to the deceased and he speaks with regard to his acquaintance with the deceased etc., He has not supported the case of the prosecution.
120. PW53-Aaruf Prabhakar Patil in his evidence stated that he has not given any statement before the police and he has been turned hostile.
121. PW54-Vasudev Naik the then Police Inspector of DCIB Karwar, has come before the Trial Court and stated that on 19.02.2000 when he was returning with Dy.S.P. after finishing the bandobast duty at Durumagad festival at about 8.25 p.m., he received a wireless message from police control room regarding bullet firing by unknown persons on MLA-Vasant Asnotikar. Immediately himself and Dy.S.P. went to Pikale hospital and thereafter deceased was shifted to government hospital and then he - 68 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 was shifted to Manipal for further treatment. He is acquinted with the handwriting and signatures of one P.G.Bhati, who was the PSI and was no more when the case was under trial before the Trial Court. Nothing worth is elicited from his mouth so as to disbelieve the version of his examination-in-chief.
122. PW55-Somashekhar Naik was the PSI at the relevant time. He speaks about the information being received by him with regard to shoot out in front of Daivadnya Kalyan Mantap Karwar, so also PW56- Krishnanand Madunaik, who carried the FIR to the court of CJM, Karwar in time immediately after its registration. Nothing worth is elicited by the defence.
123. PW57-Dr.Nitin Pikale was the doctor who gave first aid treatment to the deceased and shifted him to government hospital. To that effect there is no cross- examination.-. 69 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 124. PW58-Salim Chavan is the person, who is cited as witness known to accused No.1, but he has been turned hostile to the case of the prosecution.
125. PW59-Ashok Ganapathi Bhat was the then headquarter assistant-cum Additional District Magistrate, who has issued sanction as per Ex.P112 to initiate proceedings against the accused persons under the provisions of Indian Arms Act. He identified his signature, which is dated 04.07.2002. Based upon that a criminal proceedings were initiated against the accused persons. It is suggested to him that without going through the records he has issued a sanction, but it is specifically stated by him that, on going through the records and after satisfaction, he has issued sanction order as per Ex.P113.
126. PW60-Mahesh Sawant, Police Inspector, Lonawala Police Station, Pune District. As per his evidence, he was in-charge of local crime branch, Kolhapur from November 2001 onwards. In the month of November, a - 70 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Bank Dacoity has taken place within his jurisdiction. Accordingly it was noticed that the accused were hiding in Karnataka. They have abandoned the esteem car near Chikodi in Belgaum District. Accordingly, he came along with his staff on 27.07.2001 and surrounded the sugarcane field in the village Kannur, Chikodi Taluk. There were two persons and he apprehended them. They are by name Anil Bettal and Dayanand Krishna. No evidence is placed on record against them in this case. To the extent of apprehending these two persons, the evidence of this witness is to be believed.
127. PW61- Nagaraj S/o.T.S.Sridhar was the manager, legal cell Bharati Airtel Limited. He has issued ExP116 as per the request made by Dy.S.P., COD, Bengaluru. His evidence has to be accepted to the extent issuing Ex.P116.
128. PW62-R.Subhash S/o.Rangaswami, though knew the deceased-accusd No.1 but has been turned - 71 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 hostile stating that he does not know him. Nothing worth is elicited from his mouth in the cross-examination.
129. PW63-Rajesh Shivu Mojalikar, fish businessman, knew deceased-MLA. He speaks with regard to the ill-will and political rivalry between accused No.1 and the deceased. As accused No.1 is no more and there is no evidence against accused No.6-appellant, his evidence cannot be accepted as truthful against accused No.6.
130. PW64-Smt.Pratibha Kalagutkar speaks before the Trial Court that she was receptionist at Hindu Software system, Bengaluru. As per the request of Dy.S.P, COD, Bengaluru she has issued the SIM card of Airtel company. According to her, one Preetham Masurkar collected the said SIM card from her. She has been turned hostile.
131. PW65-N.G.Prabhakar S/o.N.Raghurao, the Assistant Director FSL, is an important witness in this case. According to his evidence, he was working in the - 72 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Balastic Division of FSL Bengaluru. He is a science graduate and has undergone training in Forensic Ballestic at National Institute of Criminology, Forensic Science, New-Delhi for a period of one year. He has also attended workshop on would ballistic conducted by the Central Forensic Science Laboratory, Calcutta and examined various types of firearms and ammunition during his tenure.
132. When it is alleged by the prosecution that there was firing by the revolver and the deceased died because of bullet injuries, it is a bounden duty of the prosecution to prove that, the seized revolver was in the possession of the accused was used for shooting the deceased-MLA. It is mandatory on the part of the prosecution to prove that, the person who examined the said revolver must have a required qualification and experience. On reading the evidence of this PW65, he has stated about his qualifications and also experience also obtaining degrees, participation in workshops, training classes with regard to - 73 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 ballistic subject. This fact is not denied by the defence in material particulars.
133. The evidence of PW65 is to the effect that, on 13.02.2000 in respect of crime No.37/2000 of Karwar Police Station, he examined articles 1 to 3, which were sent in a sealed cover. The seals were intact. According to him, Article 1 contained one lead bullet, Article No.2 contained one full arm bloodstained shirt and Article No.3 contained one bloodstained cut opened T-shirt. Article No.5 contained four bullets in a separate match box and the match box is marked as M.O.3 having a small cloth along with bullet, Article No.6 contained one lead bullet. He also received PM report of deceased-Vasant Asnotikar and original wound certificate of Sri.Ganapati Domma Valvekar. He examined the aforesaid articles and furnished his opinion as under: “The bullet in Art.No.1 and 5 are of 32 calibre and the same have been fired either from the country made revolver or from a legally manufactured revolver with wornout barrel.-. 74 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 The bullets in Art.No.4 are of 380 calibre revolver bullets and the same have been fired through a single 380 calibre revolver. The holes marked as 2H-1 and 2H-2 on the full arm shirt in Art.No.2 could have been caused by the passage of 32 calibre bullet like in Art.Nos 1 and 5.
4. The holes marked as 3H-1 to 3H-3 on the T.shirt in Art.No.3 have been caused due to the passage of copper jocketed bullets like in Art.No.4.
5. There is no tattooing marks around the wounds marked as 2H-1 and 2H-2 on the shirt in Art.No.2 but tattooing marks were detected around the holes marked as 3H-1 and 3H-2 on the shirt in Art.No.3.
6. The holes marked as 2H-1 and 2H-2 on the shirt in Art.No.2 have been caused more than 2 feet from the muzzle end of the revolver.
7. The approximate range of firing with respect to holes market as 3H-1 and 3H-2 on the shirt in Art.No.3 is beyond six inches and within 2 feet from the muzzle end of the revolver.
8. The approximate range of firing with respect to hole marked as 3H-3 on the shirt in Art.No.3 is beyond 2 feet from the muzzle end of the revolver.
9. There is no hole cloth piece in the match box marked as 3. After my examination all the articles were re- packed and sealed and handed over to Dy. S.P. H & b, C.O.D. on 19-5-2000. I have issued the - 75 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 certificate regards alongwith detailed method of examination. The method of examination is as follows. Art. No.1 contained one slightly deformed 32 calibre revolver bullet weighed about 5.5299 grams there was no rifling marks on it. Art No.2 contains one full arm shirt, there is a hole marked as 2H-1 on back side right shoulder of the shirt which measures about 0.6 x 0.15 inches (0.15 inches horizontally and 0.6 inches vertically.) This hole was oval in shape, another hole on right sleeve top portion which is stalled pattern with tear marked as 2H-2 measuring about 0.45 x 0.3 inches. The edges of the fibers around the hole were examined under stereo microscope. It was noticed that the edges of the fibers were not burnt, hence there was no scorching around the holes. The surrounding areas of the hole were viewed under VSC-1 (Vedio Spectral comparitor =
1) with IR(Infro red)- source using a filter ranging from 500 to 1000 nm. (Nano metre). It was noticed that there was no deposit of soot around the holes, hence there was no blackening around the holes. The adjacent area of the holes were subjected to walker’s test, pink colour spot with white back ground were not noticed, hence there was no tattooing marks around the holes. Presence of lead was detected around the edges of the hole marked as 2H-1 and 2H-2 and the same were not detected on the control area marked as 2C, hence these holes have been caused due to the passage of lead bullets.-. 76 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Art. No.3 contains one brown colour cut opened T-shirt, back side having three holes marked as 3H-1 to 3H-3 in the laboratory. These holes are surrounded by blood stains. A big cut hole is present on the back side which measures 4 x 5.25 inches. The shape, dimension and location are noted below. 3H-1 measures about 0.325 x 0.25 inches, which is ‘L’ shape, 3 inch down from the right shoulder and 6 inch towards left side from right sleeve joint. The hole marked as 3H-2 is measuring about 0.275 x 0.3 inches with ‘L’ shape, which is located 6.75 inches down from the shoulder 6.5 inches from right sleeve joint. The hole marked as 3H-3 is measuring about 0.25 inches which is circular in nature situated 14 inch from shoulder and 9.5 inches from right side joint. The edges of the fibers around the holes were examined under Sterio Microscope it was noticed that the edges of the fiber around these holes were not burnt, hence there was no scorching around holes. The surrounding area of the oles marked as 3H-1 to 3H-3 were viewed through VSC-I using IR source with a filter ranging from 500 to 1000 nm. It was noticed that the bullet wipe marks around these holes. I have noted the size of the bullet wipe mark as:
3. -1 having 1 x 1 inches with circular in nature 3H-2 is measuring about 0.75 x 0.50 inches slightly oval in shape. 3H-3 is measuring about 0.25 x 0.25 circular in nature.-. 77 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 The adjacent areas of the holes marked as 3H-1 to 3H-3 on the T-shirt were subjected to modified walker’s test separately. Blue spots under yellow back ground were noticed around the holes marked as 3H-1 and 3H-2 and the same was not notice around the hole marked as 3H-3 as well as control area marked as 3C, hence there is a tattooing marks around the holes marked as 3H-1 and 3H-2. Presence of copper was detected around edges of the hole marked as 3H-1 to 3H-3 and the same was not detected around the control area marked as 3T on the T-shirt in Art.No.3, hence these holes have been caused due to passage of copper jacketed bulled like in Art.No.4. The approximate range of firing is beyond 6 inches and within 2 feet from the muzzle end of the revolver with respect to holes marked as 3H-1 and 3H-2. The approximate range of firing with respect of hole No.3H-3 is beyond 2 feet from the muzzle nd of the revolver. Art.No.4 contains 4 match boxes marked as 1 to 4 by the Medical Officer. These match boxes contained 380 calibre bullet. The match box marked as 3 contains one circular cloth piece alongwith a bullet. The texture, colour, and size of the cloth piece correspond to the shirt in Art.No.3. The bullet in Art.No.4 are marked as 4a to 4d in the laboratory and there clothe characteristics marks are noted below.-. 78 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 1.Calibre .380 .380 .380 .380
2.Diameter .323” .323” .324” .324” at middle 3. Diameter .323” .320 .323” .324” at base 4. Length of .801” .807” .801” .805” bullet 5. weight of 11.6094 11.5008 11.5903 11.4856 bullet (in gms) 6. Condition Intact Intact Slightly Intact of the bullet deformed at nose 7. No.of 7 7 7 7 lands and grooves 8. Direction Right Right Right Right of twist 9. Land and L>G(Land I L>G L>G L>G groove width greater than w.r.t.bullet w.r.t.bullet w.r.t.bullet groove) w.r.t.bullet (with respect to bullet) 10.Cannelure Present Present Present Present 11. Location Near bottom Near bottom Near bottom Near of cannelure bottom 12. Foreign Blood Blood Blood Blood materials on present present present present the bullet 13.Jacketed/ Jacketed Jacketed Jacketed Jacketed unjacked 14.Soft nose Solid Solid Solid Solid / Solid bullet 15. Shape of RS (Round RN RN RN the bullet nose) 16. Base Hallow at Hallow at Hallow at Hallow at design bottom bottom bottom bottom 17. Colour of Red Guild Red Guild Red Guild Red Guild the jacket metal metal metal metal materials - 79 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 The class characteristic makrs on the bullets marked as 4(a) to 4(d) are tallying among each other. Art.No.5 contains one deformed lead bullet of .32 calibre in a glass bottle having following specification.
1. Calibre ..32 calibre 2. Diameter at middle ..309
3. Diameter at base deformed 4. Length of the bullet ..530
5. Weight of the bullet 5.4494 grams 6. Condition of the bullet Deformed at base.
7. Number of lands and grooves - Not visible 8. Direction of twist- NA (Not applicable) 9. Land and Groove width - NA10 Cannelure Present 11. Position of the cannelure - Near the bottom 12. foreign materials on the bullet - Absent 13. Jacketed or unjacketed Unjacketed 14. Soft nose or solid bullet Solid lead bullet 15. Shape of the bullet Round nose 16. Base design Hallow at bottom 17. Colour of the jacket materials NA The bullet n Art.No.5 is a 32 calibre and the absence of rifling marks on the bullet in Art.No.5 shows that it has been through a country made revolver.-. 80 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 I compared the Micro striation lines on the bullets marked as 4(a) to 4(d) in Art. No.4 among themselves under comparison microscope and I noticed that the pattern of mico striation lines on the bullets marked as 4(a) to 4(d) in Art.No.4 are tallying among themselves. Hence, these bullets have been fired through a single .380 calibre revolver. Then examined the barrel marks on the bullet in Art.No.1 and 5 under comparison microscope and I noticed that there are less number of striation lines on the bullet in Art.No.1 than on the bullet in Art.No.5 and the lines found on the bullet in Art.No.5 are very faint. Hence, it is not possible to state whether they have been fired from the same weapon or not.
134. On reading the entire opinion given by this Ballistic Expert, it shows that he has stated gunshot mentioned in the P.M. Report of the deceased-Vasant Asnotikar. He noticed the gunshot wounds as under:
1. A gun shot wound of entrance 1x1 cm. with abrasion and grease collar on the back of right side, 9 cm to the right midline.
2. A gun shot wound of entrance 1.5 x 1 cm. with abrasion and grease collar on right side of the back, 8.5 cm. below injury No.1.
3. A gun shot wound 1 x 1 cm. with a piece of cloth entering into the would of entry, 2 cms to the left of midline and 13cms below the nape of neck.-. 81 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 4. A gun shot wound 1 x 1 cm. with abrasion and grease collar on the right side of the back, 25 cms above glutial cleft and 5.5cms to the right of the midline. The gun shot injuries mentioned above corresponds to the holes found on the back side of the T-shirt in Art.No.3. I studied the would mentioned in the would certificate of Ganapathi Dooma Valvekar.
1. One cm long wound over posterior aspect of right shoulder 6 cm from the posterior axilla and 4 cm behind and 1.5 cm below posterior angle of acromion.
2. One cm. wound over upper 1/3 rd of right arm about 10 cm distal to acromion processes (Posterior angle) 3. Hard mass felt below the spain of scapula and 12 cm lateral to midline of right side. The holes marked as 2H-1 and 3H-2 corresponds to the injury Nos. 1 and 2 in the wound certificate.
135. According to his opinion, on conducting test, he is of the opinion that “the said shots were from the said revolver being examined by him”. To that effect, he has issued Ex.P20 and 21 certificates. While marking these documents, no little finger was raised by the defence. So the entire evidence spoken to by this witness specifically states that such injuries may be caused even within the - 82 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 effective range of 25 yards. Here the distance is just 5 ft from the place of standing of the deceased with that of the said assailants. Thus finding given by the Ballistic expert shows that, the said revolver was in working condition, it is article No.7. The cartridges and bullets were fired through the revolver in Article No.7, which are marked at Ex.P1to P6 and D1 to D3. Three bullets were not recovered. The effective range of said revolver in Article No.7 is about 30 yards. The revolver in Article No.7 can discharge 380 caliber ammunition. This opinion of the Ballistic Expert corroborates the evidence of other witnesses in this case.
136. Though a lengthy and searching cross- examination is directed to this witness but on reading the method of examination of the articles being examined by him, it shows that the assailant must have used the said Article No.7-revolver in committing the offence, which was seized at the instance of accused No.6. So therefore, the evidence of PW65 plays important role in this case. It is - 83 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 admitted by this PW65 that, only 5 bullets were recovered. He admits that, almost after lapse of two years after the bullets were examined, the weapon was sent to him for examination. He admits that holes found in the full-armed shirt and T-shirt were caused due to fire by a weapon from the last range at a maximum range. He has denied the other suggestions.
137. PW66-Raja S/o. Babugouda was examined by the prosecution to prove that he was also a contractor and pancha to Ex.P126. But he has been turned hostile.
138. PW67-Ullas Dhananjay Revankar was also a contractor. He speaks about his presence at the time of preparing Ex.P127. Nothing worth is elicited from his mouth.
139. PW68-Premanand Mallu Naik was the head- constable at the relevant time. He states that in the intervening night of 19.02.2000 and 20.02.2000 at about 1.30 a.m. he came to know that MLA-Vasant Asnotikar - 84 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 was brought to the hospital and he died on the way and thereafter PM report was conducted on his deadbody.
140. PW69-Shivalingappa Mastimaradi was the CPI at the relevant time in Karwar Circle. As per his evidence, on 19.02.2000 at about 8.15 p.m. when he was on patrolling duty at Kodibag, he received information that two unknown persons shot the MLA with revolver in front of Daivadnya Kalyan Mantap and there was attempt to cause murder and thereafter they took heal from their motorbike. On getting such information, he gave instructions through wireless to the Rural Town Police, Town Police Station and staffs through control room to maintain Naka-Bandi of Karwar. Accordingly, they blocked the same. He visited Daivadnya Kalyan Mantap to get information. He noticed two injured were taken to Pikle hospital. Thereafter, he went there and noticed that they were taken to civil hospital, Karwar. As on 20.02.2000 he received express report from PSI Karwar that injured Vasant Asnotikar was declared dead in KMC Hospital.-. 85 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Postmortem was conducted. He identified the articles which were sent under PF No.19/2000 marked at M.O.3 to 6 and 20 and 23 and also Panchanama at Ex.P30. In his presence certain articles were produced and he seized them. That means, he has done part of investigation. Though he has been cross-examined at length by the defence, but nothing worth is elicited.
141. PW70-Sahadev Naik, supervisor in Port. He was also pancha to Ex.P132. But he has been turned hostile.
142. PW71-RMK Achari was Airport Manager Indian Airlines. He has given his report as per Ex.P134 in four sheets.
143. PW72-Deepak Ulavekar was a signalman at Baitkol, Harbor, Karwar. He know both accused No.1 and deceased but he has been turned hostile.
144. PW73-Saravan Umesh Shirodkar was PWD contractor and he supported a candidature of Dilip Arjun Naik in election.-. 86 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 145. PW74-Chandrakant Narayan Naik was the Port labourer. He is a signatory to seizure panchanama Ex.P137. No denial of this fact by the defence.
146. PW75-Madhav Kamalakar Asnotikar is the younger brother of deceased-Vasant Asnotikar and he arrived at the scene of offence only after the incident. He speaks with regard to ill-will etc. between accused No.1 and his brother. To the extent of he getting information about firing on his brother and admitting his brother to the hospital and there his brother died, his evidence has to be accepted.
147. PW76-Raju Malasekar was the deputy supervisor of in Doc and he is a signatory to Ex.P74 spot panchanama. The spot panchanama has not been denied by the defence.
148. PW77-Prakash Krishna Naik was the police constable in DR, who was deputed as a gunman to escort the deceased-MLA. As per his evidence, he used to attend - 87 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 the gunman duty to Vasant Asnotikar between 8.00 a.m. to 1.00 p.m and 3.00 p.m. to 7.00 p.m. His presence at the time of the incident has not been stated. It has come in his evidence that though he was a gunman to accompany the MLA but he was placed to guard the house of deceased. Therefore, it is not expected that he was accompanying the deceased at the time of incident.
149. PW78-Smt.Subhdra Rege was housewife and used to reside at Rege compound. She turned hostile to the case of the prosecution.
150. PW79-Yashwant Neelakant Rege is also the owner of the said Rege compound property belongs to his maternal grandfather. He also turned hostile to the case of the prosecution. So also PW80-Smt.Sujata Prash Masurkar, who was also residing in Rege compound has turned hostile.
151. PW81-Uday @ Raju Shetti, speaks about deceased-Dilip Arjun Naik supporting the candidature of - 88 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Prabhakar Masalekar, his relative, to contest the election through Janatadal S Party. To that extent his evidence has to be accepted.
152. PW82-Smt.Shubhalata Asnotikar, is none other the wife of Vasant Asnotikar. She also speaks about the ill- will between accused No.1 and her husband deceased- Vasant Asnotikar. When the incident took place, she was in her house and she speaks about the marriage of her daughter in Mumbai and they scheduling reception on 20.02.2000 at Daivadnya Kalyan Mantap. She speaks about death of her husband in hospital due to injuries sustained by gunshot. To that extent her evidence has to be accepted.
153. PW83-Rajendra Singhvi was a chartered accountant in practice at 338, Kalyandas Udyoga Bhavan, near Century Bazar, Mumbi and he has given information regarding his landline telephone number 2422211 and that he having earlier phone number 2269227.-. 89 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 154. PW84-Anil Ujwal Naik is a crane operator in Karwar Dock and Port Labour Society. He is a witness to Ex.P132 siezure punchanama. He has stated regarding the police drawing the said mahazar in his presence. To that extent his evidence has to be accepted.
155. PW85-Pramodh Manju Bandekar was a witness in whose presence the clothes of deceased-Vasant Asnotikar were seized by the CPI under Ex.P127-seizure panchanama. He has identified his signature on Ex.P127- seizure panchanama. Nothing worth is elicited from his mouth by the defence to disprove drawing of Ex.P127 in his presence.
156. PW86-Smt.Rekha Suresh Gaonkar was the staff nurse in civil hospital and she was residing at Rege Compound behind the cycle mart. According to her evidence, she knows both accused No.1 as well as deceased-MLA, Vasant Asnotikar. She states that 4-5 days prior to firing on deceased-Vasant Asnotikar she saw two - 90 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 unknown persons in the office of Karwar Bachao Andholan, which is maintained by accused No.1-Dilip Arjun Naik. They were having red colour hero Honda motorcycle. She went to the said office and made an enquiry with those unknown persons as to whether accused No.1 has come or not in Konkani language, but those persons told her that they do not know Konkani language. Further she states that she has seen household articles, utensils in the said Karwar Bachao Andholan. After 4-5 days, she heard the news of murder of MLA-Vasant Asnotikar. She has been thoroughly cross-examined by the defence, but nothing worth is elicited. Her residence at Rege compound is not denied by the defence.
157. PW87-Dr.K.Arunkumar was the medical officer at the relevant time who collected the blood samples and hairs of accused No.6 for the purpose of chemical examination to conduct DNA test. To that extent, his evidence has to be accepted.-. 91 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 158. PW88-Pandurang Ramachandra Malsekar was supervisor in Labours Society at Baithkol. Before the Trial Court, he states about he being sent from Daivadnya Kalyan Mantap for the purpose of bringing utensil cleaning powder and when he returned, at that time he saw shootout at MLA and he was shifted to hospital.
159. PW89-Chandrashekhar Savant is a Kirana Shop owner. He speaks before the Court stating that he knows both deceased-accused No.1 and also MLA-Vasant Asnotikar. He speaks about the ill-will between accused No.1 and deceased-Vasant Asnotikar with regard to political rivalry. There was difference of opinion in between them. But he has been turned hostile subsequently.
160. PW90-Tulasidas Damodar Naik was the Crane Operation. Before the Trial Court, he has spoken about political rivalary in between both accused No.1 and the deceased. But he also has turned hostile.-. 92 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 161. PW91-Dattatreya Swar, cloth merchant, has spoken before the Trial Court with regard to political life of deceased. He was follower of deceased Asnotikar, who supported him in election.
162. PW92-Rama Ashok Kuvalekar has spoken before the Trial Court with regard to rivalry between accused No.1 and deceased-MLA.
163. PW93-Anandu Shirodakar was the person, who was present when Ex.P104-Panchanama was drawn under which revolver was seized by the police on 16.04.2000. Said revolver was marked as M.O.24. No cross- examination was directed to this witness by the defence. That means, seizure of M.O.24 is admitted by the defence.
164. PW94-Beerendra Chandram Pujari was retired Mayor of Karwar Corporation. He admits that accused No.1-Dilip Naik had given an application seeking permission to construct a building.-. 93 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 165. PW95-Srikanth Harikantra was also an independent member of corporation. He supported one Ramabai in election, who was contesting election for the post of president as Janatadal Candidate. He speaks about political rivalry between accused No.1 and deceased- Vasant Asnotikar.
166. PW96-Gangadhar Narayan Hiregutti is a press- reporter of “Karavali Munjavu” newspaper in Karwar. He speaks about he publishing certain news with regard letter written by accused No.1 about his relationship with deceased-MLA.
167. PW97-Thomas Mathais Gudeno, he speaks with regard to filing of nomination form of deceased-Vasant Asnotikar by him for MLA election. He speaks that in that election, Vasant Asnotikar was elected as MLA.
168. PW98-Venkataraman Revankar deposed before the Trial Court regarding he and his family members have constructed a cinema theater by name ‘Navaratna’ at - 94 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Karwar. He came to know about the death of MLA in a shootout.
169. PW99-Ajagarali Sheikh was real estate agent, businessman and political person. He too speaks with regard to rivalry between accused No.1 and deceased- Vasant Asnotikar.
170. PW100-Govindaraya Kalasa was retired ASI at the relevant time and he speaks that on receipt of telephone information on 23.02.2000 at about 12.00 in the noon, he was asked to come to Rege Compound and accordingly he went there and there he took fingerprint marks on empty royal company whisky bottles and water bottles.
171. PW101-Subray Narasimha Bhat, was constable at the relevant time and he carried the seized articles to FSL for the purpose of chemical examination.
172. PW102-Dr.S.Malini was Assistant Director in FSL at Bengaluru. She conducted Napto Analysis Test on - 95 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 Arnold and Aruf Agra as per the request made by Dy.S.P. HNT, COD. Nothing worth is elicited to disbelieve regarding she conducting the test on the said accused.
173. PW103-Neelesh Suresh Rane, was Police Inspector at Goa at the relevant time. He assisted the Investigating Officers in the present case for the purpose of conducting investigation.
174. PW104-Mustak Soudagar, is a retired superintendant of police, who collected the call details of landline numbers 6281304 and 6181305 and photographs of suspected accused.
175. PW105-Lavakumar Rtd.Dy.S.P., who conducted part of investigation in the matter.
176. PW106-Mohammed Rafi Mulla is retired superintendent of police, who conducted further investigation and has filed charge sheet in the present case.-. 96 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 177. Thus on reading the entire evidence spoken to by these witnesses in this case, PW1, PW2, PW4 to PW6 are the eyewitnesses to the said incident. As stated supra, PW3 died after his examination-in-chief. PW7 being the son of deceased-Vasant Asnotikar was on the other side of the road in his Ciera car. PW10, PW42, PW57, PW87 and PW102 are the medical witnesses. PW86 was the staff nurse, who resided at Rege compound at the relevant time. PW11, PW12, PW13, PW18, PW19, PW21, PW23, PW24, PW25, PW31 to PW37, PW40, PW41, PW47, PW52, PW53, PW58, PW62, PW64, PW66, PW70, PW72, PW78 to PW81, PW85, PW89, PW90 and PW98 have turned hostile to the case of the prosecution. Though prosecution directed severe cross-examination to these witnesses, but nothing worth is elicited from their evidence to disbelieve their version given in their examination-in-chief.
178. PW28, PW66, PW67, PW74, PW76, PW84, PW85 and PW93, the pancha witnesses, have supported the case of the prosecution and there is no effective cross- - 97 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 examination directed to them. There are some formal witnesses, who were examined in the shape of PW8, PW9, PW14 to PW17 and PW20 and other witnesses. All of them came before the Trial Court and deposed about their role being played in assisting the investigating officer in conducting investigation.
179. PW54 to PW56, PW59, PW60, PW65, PW68, PW69, PW77, PW100, PW101 to PW106 are the police officers.
180. In all 106 witnesses are examined by the prosecution. Amongst them, the evidence of the eyewitnesses, ballistic expert, so also the evidence of the doctor plays an important role to decide about the commission of crime by the accused persons.
181. So far as scene of offence is concerned, the police have conducted spot panchanama as per Ex.P74. On reading of this panchanama, it shows the width, length and also fixing of electric bulbs and focus lights have also - 98 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 been described in the Panchanama. It is accompanied with the sketch wherein one Sri.P.K.Naik, the junior Engineer, examined in this case, has stated about the location of persons, who were standing at the time of incident. He states that at place ‘A’ deceased-MLA was standing, at place B1 and B2 rider and pillion rider stopped their vehicle. Place ‘C’ is shown as the place where the MLA fell down, place ‘D’ is a place where chappal left by the deceased was found fallen, place ‘E’ is shown as a place where there were bullet marks, at place ‘F’ one Pai was standing, at place ‘G’ one Chandrakant Naik was standing and from H(I) to H(L), the persons named Santosh, Sandeep, Balaram Naik, Ganapathi Ulavekar and the place of parking of the vehicle by PW7 were shown. Place ‘L’ is the place where PW2 had fallen down. Likewise, if we see the entire sketch, it shows where exactly the said incident has taken place. Location of Daivadnya Kalyan Mantap, so also burning of decorative lamps have also been shown not only in front of Daivadnya Kalyan Mantap, but also on said Banyan tree as stated by the witnesses. While - 99 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 marking this document, no little finger was raised by the defence.
182. Thus, on overall reading of the evidence of all the prosecution witnesses, PW72 specifically speaks in his evidence that accused No.2 and 3 were found roaming together and sitting in the cycle shop of another brother of accused No.1. Even the other witness so examined in the shape of PW63 has spoken with regard to interference by the Court with demolition order issued in favour of accused No.2. That means, there developed an animosity between deceased-MLA and accused No.2. On perusal of documents so produced, even PW105-the investigating officer has collected the documents to show that accused No.3 approached the Chief Secretary to the Government of Karnataka and as per the direction of CMC Karwar to consider the feasibility of the representation. As stated supra, the motive for commission of crime is political rivalry. Except contending that there was political rivalry, there is no proper evidence spoken to by the witnesses.-. 100 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 The Trial Court has acquitted the other accused persons and convicted accused No.6. Evidently, this accused No.6 was involved in a offence at Maharastra State and was arrested by the Maharashtra Police for the offence of MCOCA Act. To ascertain about participation of accused No.6 in commission of crime, PW1, PW2, PW5, PW6 and PW8 are specific in their evidence about the presence of accused No.6 as a pillion rider of the motorcycle. They have consistently spoken before the Court on oath that at 8.10 p.m. on 19.02.2000, this accused No.6, as a pillion rider on motorcycle driven by the rider came in front of the gate of Kalyan Mantap and took U-turn without stopping the motorbike engine. They did not even got down from the motorbike and fired on deceased-MLA. The evidence of the aforesaid witnesses do establish that initially the rider of the motorbike tried to fire the deceased-MLA and as he escaped himself, accused No.6 again fired at the deceased-MLA. He fired bullets on the person of the deceased.-. 101 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 183. Even it has come in the evidence of these witnesses that, the pillion rider slightly leaned forward and in all four bullets were fired at deceased-Vasant Asnotikar. That means, deceased-accused No.5 was rider of the motorbike and accused No.6 was the pillion rider as per the evidence of these witnesses. It has come in the evidence of all these witnesses that though they chased those persons i.e. accused No.5 and 6, but they could not succeed to catch hold them. This accused No.6 also fired at PW2-Ganapathi and because of that, PW2 sustained two bullet injuries on his right shoulder. One of the persons threw stones towards the motorbike, which hit the tale lamp. Thereafter, PW2 and deceased were taken to Pikle hospital and thereafter to the government hospital and thereafter they were taken to Manipal Hospital where PW2 was treated for bullet injuries and MLA-Vasant Asnotikar was declared as brought dead.
184. Though it is argued by the counsel for the appellant that there were no lights and it is not quite - 102 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 possible for them to see the incident, but the witnesses have consistently stated that focus lights were fixed, there was light decoration in front of the said Daivadnya Kalyan Mantap and street lights were burning. The Electric Engineer came before the Trial Court and deposed that there was no power cut on the date of the incident. Though, it was suggested to the eyewitnesses that there was no electricity in the town at the time of the incident but the witnesses have consistently spoken that there was uninterrupted supply of electricity at the time of the incident.
185. If all these factual features are read together, there was sufficient light at the spot of the offence at the time of the incident. Therefore, the eyewitnesses were able to see the incident. Even it has come in the evidence that on 19.02.2000 it was full moon day. This fact is not denied. The incident has taken place at a distance of 8 to 10 feet that too in broad electrical lights with focus lights. The eyewitnesses have clearly deposed the presence of - 103 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 accused No.6 as a pillion rider. So it is evident from the scene of offence panchanama and the sketch so prepared by the police and also the evidence of PW50-Engineer of KPTCL that, there was no interruption of electricity supply to the Daivadnya Kalyan Mantap, goes to establish that for the sake of defence, accused No.6 might have taken such defence. The argument of the counsel for accused No.6 cannot be accepted as a proper defence so as to disbelieve the evidence of PW1, PW2, PW5, PW6 and PW8 with regard to their presence. Though lengthy cross- examination was directed to them but nothing worth is elicited.
186. Even these witnesses have identified accused No.6 at the time of identification parade. The said identification parade was conducted in the Central Jail in accordance with the provisions of Cr.P.C. as well as the Evidence Act. The factum of conducting of test of identification parade is not denied by the defence. Even this accused No.6 accompanied Jagadish Pednekar to the - 104 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 hotel, which is not denied properly. According to the defence of accused No.6, he was not at all in Karwar at the relevant time. That means he has taken a plea of alibi. When he takes up a plea of alibi that he was not present at the place of incident, then the burden lies upon him to prove as to where he was?.
187. Taking a plea of alibi is a double edged weapon. But there is no explanation offered in the cross- examination to any of the witnesses including the investigating officer that, where exactly accused No.6 was on the date of the incident. If that is so, presumption comes into operation that, said defence is not proved, he was very much present at the spot of the incident and his presence was noticed by eyewitnesses along with rider of the motorbike. Even revolver being examined by the ballistic expert shows that, it was seized at the instance of appellant-accused No.6 and the bullets so found and examined by the Ballistic Expert were fired through the said revolver only. If that is so, though a searching cross- - 105 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 examination is directed to all the witnesses, but the trend of cross-examination directed to the eyewitnesses and other witnesses perfected the case of the prosecution and it was imperfect cross-examination to believe the story of the defence. This possibility cannot be ruled out.
188. Though the learned counsel for the appellant- accused No.6 relies upon various judgments stated supra with regard to principles laid down in the said judgemnets, there is no dispute as such. However, the facts in the said cases cannot be justifiably applied to the facts of this case.
189. So far as murder is concerned, Section 300 of IPC is very much clear that in a case of present nature when the point of appreciation of evidence comes into operation, as stated supra, the evidence of the prosecution so adduced and when all the witnesses were subjected to searching cross-examination, but the appellant being accused No.6 could not elicite anything to say that the version of these witnesses was impressible or unreliable. Immediately after the incident, PW1 lodged the FIR being - 106 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 eyewitness and his evidence is corroborated with the evidence of other eyewitnesses.
190. The Hon’ble Apex Court in the case of Harabhajan Singh v. State of Punjab4 has held that “when the evidence on record shows that, accused has fired through his revolver and the bullet hit on the head of the deceased, the report of ballistic expert corroborates with the evidence of eyewitnesses, it was held that the conviction of main accused is held proper.
191. In this case, the facts of the case specifically prove about the involvement of accused No.6 in committing the murder of deceased-MLA by firing at him with the revolver seized at his instance. This fact is clearly established by the evidence of eyewitnesses.
192. The evidence of eyewitnesses is inconsonance with the contents of the FIR and with medical evidence. That means, the medical evidence corroborates with the 4 AIR1997SC1138- 107 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 version of the prosecution witnesses and the recovery of the weapon pursuant to the statement of the accused No.6 only, which was examined by the FSL.
193. It cannot be termed that the witnesses so examined in this case were followers of deceased-MLA and they are interested witnesses. Even the law says that, there is no hard and fast rule that the evidence of interested witnesses cannot be taken into consideration. But the only burden would cast on the Court in such cases is that the courts have to be very cautious while evaluating the evidence to exclude the possibility of false implication. In this case, no such false implication is attributed by the accused-appellant.
194. In a case of present nature, the evidence of witnesses is to be weighed but not counted. There was no basis for defence for suspicion to falsely implicate accused No.6 by the prosecution witnesses. No such evidence is brought on record. When witnesses are examined after two years of the incident, there may be minor - 108 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 discrepancies in the evidence of witnesses examined before the Court, which is quite natural. We are not supposed to deny such evidence on mere technicalities. That means, Courts should not be too much hyper- technical in considering the procedural aspects. Court has to appreciate material to do substantial justice. In this case, to do substantial justice, the evidence of the witnesses has to be accepted. When there was close range in between firing by the revolver and the deceased-MLA, definitely such injuries are possible as per the evidence of the doctor. Except denial in the cross-examination, no evidence is placed on record.
195. PW2-injured witness has spoken before the Court about he sustaining injuries on his shoulder because of bullet firing by accused No.6, whom he identified in identification parade conducted in Central Jail. Thus, to conclude, it can be said that, the case of the prosecution is perfected by the defence in the cross-examination.-. 109 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 196. It is definite evidence of PW1, PW2, PW5 to PW7 that, on 19.02.2000 at 8.10 p.m. the incident of murder of deceased-Vasant Asnotikar had taken place in front of Daivadnay Kalyan Mantap. The evidence also disclose that, two persons came on a motorbike i.e. hero Honda in front of the deceased. Without opening the mouth, the rider fired two bullets and they further stated that the deceased avoided the said bullets fired by the rider. Thereafter, the rider took U-turn and the pillion rider fired four bullets. The said bullets hit on several parts of body of the deceased due to which he fell down and he succumbed to the injuries on the way to Manipal hospital.
197. The second part of prosecution evidence given by the witnesses also reveal that PW2 and PW5 chased the assailants and one of them threw a stone at the two- wheeler, which hit the tale lamp of the vehicle and it was broken. They further stated that the pillion rider fired two bullets on PW2 due to which he also sustained injuries on his shoulder.-. 110 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 198. Admittedly, the name of accused No.6 is not found place in the complaint or the FIR. If at all they wanted to falsely implicate accused No.6, they could have implicated him at the earliest point of time. The complicity of crime by accused No.6 was revealed only when he revealed the commission of offence in this case to the Maharashtra Police. Thereafter, he was taken into custody and during investigation, he gave the information about the commission of crime pertaining to this case.
199. Although the confession before the police is inadmissible in evidence but such confession of accused No.6 gave a clue to the concerned investigating officer to find out the truth. The prosecution does not rely on the said confession given before the Maharashtra Police or the Karnataka Police in this case. After securing accused No.6, the Investigating Officer conducted identification parade wherein all the aforesaid witnesses have identified accused No.6 as the assailant. Since accused No.5 was already dead prior to apprehension of accused No.6, the question - 111 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 of identification of accused No.5 does not arise. The evidence of PW65 shows about the seizure of revolver. From that revolver the bullets were fired. Though the prosecution has attributed three motives for the commission of the offences by accused jointly, there is no clear-cut evidence. Since accused No.1, 4 and 5 are dead, case against them stood abated, whereas the Trial Court acquitted accused No.2 and 3 against which there is no appeal either by the complainant or by the State. Thereby, the judgment of acquittal of accused No.2 and 3 has attained finality. Motive alleged in this case is related to accused No.1 to 3, whereas the prosecution at subsequent stage has taken different platform contending that accused No.6 has been hired by accused No.1 to commit the murder of deceased-MLA. Since accused No.1 is dead, the prosecution is unable to prove that the accused No.1 hired accused No.6 to commit the murder of deceased-MLA. Under the circumstances, motive has no much role to play in the perpetration of the crime. The records do reveal that, accused No.6 who is the appellant involved in several - 112 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 heinous crimes and has been convicted also and suffering punishment and is in jail. So far as motive is concerned, accused No.6 has no role. The role of accused No.6 is taking money by way of ‘supari’ and committing murders of innocent persons. PW1, PW2, PW4 to PW7 have concurrently identified accused No.6 as the assailant of deceased-Vasant Asnotikar. There is no ill-will between the accused No.6 and PW1, PW2, PW4 to PW7. Said witnesses are not in inimical terms with accused No.6. Therefore, the plea of accused No.6 that he has been falsely implicated in this case cannot be accepted. In view of direct evidence of PW1, PW2, PW4 to PW6 and PW7 coupled with ballistic expert’s evidence (PW65) that, the shots were from the seized revolver being examined by him and certificates issued by him in terms of Ex.P20 and 21. The opinion of PW65 corroborates the evidence of direct witness. All of them deposed that such injuries caused within range of 25 yards. The opinion is clear that distance is just 5 ft from the place of standing of the deceased with that of the assailants.-. 113 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 200. PW1, PW2, PW4 to PW6 have identified accused No.6 as assailant. They have given their evidence before the Trial. There may be some contradictions in the evidence of these witnesses, but those are all in material particulars. When the evidence of eyewitnesses is accepted, the evidence of the other witnesses has to be believed. The incident of firing of bullets is uncommon. At least in city like Karwar, when such a firing has taken place, it remains in the mind of persons who witnessed the incident because hardly such witnesses see such incidents in cinema. Though there is elaborate cross-examination of these witnesses, it can be stated that the defence is unable to destroy the creditworthiness of the witnesses. There is nothing in the cross-examination to disbelieve the testimony of these witnesses. Therefore, if all these factual features coupled with the position of law is put together, it can be stated that the appellant-accused No.6 has utterly failed to prover before the Court with legal evidence that the judgment of conviction and order on sentence passed - 114 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 by the Trial Court suffers from material particulars, infirmity, perversity or illegality. There is no merit in this appeal. Hence, the appeal filed by the appellant is liable to be dismissed. Accordingly, the aforesaid points are answered in the negative.
201. Resultantly we pass the following:
ORDERi) The appeal filed by the appellant-accused No.6 is dismissed. ii) The judgment of conviction and order on sentence passed against appellant-accused No.6 in S.C.Nos.5001/2018, 5002/2018, 5003/2018, by I-Additional District and Sessions Judge, U.K., Karwar, sitting at Sirsi, is hereby confirmed. iii) Registry to send back the records to the Court below along with copy of this judgment forthwith.-. 115 - NC:
2024. KHC-D:5411-DB CRL.A No.100111 of 2021 iv) Intimate the Superintended of concerned Jail Authorities regarding confirmation of judgment of conviction and sentence passed against appellant-accused No.6. Sd/- JUDGE Sd/- JUDGE SMM - Para 01 to 54 YAN – Para 55 to till end.