Karnataka High Court
The Registrar General vs Doddahanuma @ Hanuma on 11 September, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 11th DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE.NO.2 OF 2011
c/w
CRIMINAL APPEAL.No.1033 of 2011
c/w
CRIMINAL APPEAL.No.563 of 2012
IN CRL.RC.NO.2 OF 2011
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU-560001 ... PETITIONER
(By Sri: H N NILOGAL SPL PP)
AND:
1. DODDAHANUMA @ HANUMA,
S/O VENKATAPPA, MAJOR
DANDUPALYA VILLAGE,
HOSKOTE TALUK,
BENGALURU RURAL DISTRICT.
2. VENKATESH @ CHANDRA
S/O VENKATASWAMY, MAJOR
DINNUR COLONY, KADUGODI
2
BENGALURU.
3. MUNIKRISHNA @ KRISHNA,
S/O VENKATASWAMY, MAJOR
DINNUR COLONY, KADUGODI,
BENGALURU.
4. NALLATHIMMA @ THIMMA,
S/O GURU BHOVI, MAJOR
BALEKATTE, CHANNENAHALLI VILLAGE,
MUTHUR, PIRIYAPATNA TALUK,
MYSORE DISTRICT.
5. LAKSHMANNA @ LAKSHMI,
W/O DODDAHANUMA,
MAJOR, DANDUPALYA VILLAGE,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
... RESPONDENTS
(By SRI: HASMATH PASHA ADVOCATE FOR R2 & R3
SRI: G.M. ANAND, ADVOCATE FOR R4 & R5)
THE CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) CR.P.C. FOR
CONFIRMATION OF DEATH SENTENCE AWARDED TO
ACCUSED 1) DODDAHANUMA @ HANUMA, CONVICT
NO.10176, 2) VENKATESH @ CHANDRA, CONVICT NO.
10175, 3) MUNIKRISHNA @ KRISHNA, CONVICT NO.
10178, 4) NALLATHIMMA @ THIMMA, CONVICT NO. 10177
AND 5) LAKSHMAMMA @ LAKSHMI, CONVICT NO. 10179,
BY THE JUDGEMENT AND ORDER DATED
31.03.2011/07.04.2011 PASSED IN S.C.NO.607 OF 2001
XXXIV ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
(SPECIAL COURT), CENTRAL PRISON PREMISES,
BENGALURU.
****
3
IN CRL.A.NO.1033 OF 2011
BETWEEN:
1. VENKATESH @ CHANDRA
S/O VENKATASWAMY
AGED ABOUT 36 YEARS
R/O DINNUR COLONY
KADUGODI
BENGALURU RURAL.
2. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY
AGED ABOUT 29 YEARS
R/O DINNUR COLONY
KADUGODI
BENGALURU RURAL. ... APPELLANTS
(By Sri: HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY BASAVANAGUDI POLICE STATION
BANGALORE CITY.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) ... RESPONDENT
(By Sri: H N NILOGAL SPL.PP)
THIS CRL.A. FILED UNDER SECTION 374 (2) CR.P.C
BY THE ADVOCATE FOR THE APPELLANTS/ACCUSED NO.2
AND 3 PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT DATED
31.3.11/7.4.11 PASSED BY THE XXXIV ADDITIONAL CITY
CIVIL & SESSIONS JUDGE AND (SPECIAL COURT), CENTRAL
4
PRISON, PARAPPANA AGRAHARA, BENGALURU IN
S.C.NO.607 OF 2001-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 396 OF INDIAN PENAL CODE. THE
APPELLANT/ACCUSED NOS.2 AND 3 ARE SENTENCED TO
DEATH. THEY SHALL BE HANGED BY NECK TILL DEAD AND
PAY A FINE OF RS.10,000/- EACH - FOR THE OFFENCE
PUNISHABLE UNDER SECTION 396 OF IPC.
****
IN CRL.A.NO.563 OF 2012
BETWEEN:
1. NALLATHIMMA @ THIMMA
S/O GURUBHOVI
AGED ABOUT 36 YEARS
R/O CHANNENAHALLI, MUTHUR POST
PIRIYA PATNA TALUK, MYSORE DIST
DINNUR COLONY, KADUGODI,
BENGALURU RURAL.
2. LAKSHMAMMA @ LAKSHMI
W/O DODDAHANUMA
AGED ABOUT 42 YEARS
R/O DANDUPALYA VILLAGE
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT. ... APPELLANTS
(By Sri: G M ANANDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BASAVANAGUDI POLICE
BENGALURU ... RESPONDENT
5
(By Sri: H.N.NILOGAL, SPECIAL PP)
THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS/ACCUSED NO. 4 & 5
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE JUDGEMENT DATED 31.03.2011/7.4.2011
PASSED BY THE 34TH ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON
COMPOUND, PARAPPANA AGRAHARA, BENGALURU IN
S.C.NO.607 OF 2001-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 396 READ WITH SECTION 34 OF INDIAN
PENAL CODE. THE APPELLANTS/ACCUSED ARE SENTENCED
TO HANG TO NECK UNTILL DEATH AND PAY A FINE OF
RS.10,000/- EACH - FOR THE OFFENCE PUNISHABLE
UNDER SECTION 396 OF INDIAN PENAL CODE .
****
THIS CRL.RC A/W CRL.A's COMING ON FOR HEARING
THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
JUDGMENT
The case of the prosecution is that on 22.10.2000, between 8.15 a.m. and 8.45 a.m., some persons with an intention to commit robbery, gained entry into the house bearing No.30/2, D.V.G. Road, Basavanagudi, Bengaluru. They entered the house and assaulted the deceased Manjula, using a weapon, by cutting her neck and killed her. They robbed certain gold articles from her. When her 6 husband PW-1-Keshav Rao returned home, from his usual morning walk, he saw his wife lying at the portico near the plants. She had sustained a grievous injury on her neck. He alongwith PW-13 viz., the brother of the deceased, shifted her to Mallya Hospital for treatment at about 9.00 a.m., However, she succumbed to the injuries at about 10.30 a.m. Various gold articles were missing. In terms of the complaint filed by PW-13, a case was registered in Basavanagudi police station, in Cr.No.345 of 2000, for the offence punishable under section 302 Indian Penal Code against unknown persons. After completing the investigation, PW-12, the Police Inspector, Basavanagudi Police Station, filed a charge sheet against five accused persons under Section 302 Indian Penal Code. Initially charges were framed for the offence punishable under section 392 r/w 394 Indian Penal Code. Thereafter, charges were re-altered against accused Nos.1 to 5 for the offence punishable under section 396 r/w 34 Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 7
2. In order to prove its case, the prosecution examined 18 witnesses and marked 33 exhibits alongwith 14 material objects. By the impugned judgment, accused Nos.1 to 5 were found guilty for the offence punishable under sections 396 r/w 34 Indian Penal Code alongwith payment of fine of Rs.10,000/-. A reference was made by the trial court which has been numbered as Criminal Referred Case No.2 of 2011. Accused Nos.2 and 3 have filed Crl.A.No.1033 of 2011 and accused Nos.4 and 5 have filed Crl.A.No.563 of 2012.
3. The plea of the appellants is that the trial court committed an error, in misreading the evidence and the material on record. The trial court failed to consider the fact, that the prosecution has not established its case beyond all reasonable doubt, for the offences charged against them. That so far as the provision of Section 396 of IPC is concerned, there is no recovery of any weapon by the prosecution. There is no material to indicate that these five accused committed the murder as well as robbed the articles, on the deceased at the same point of time. There is 8 no evidence to indicate that the murder has been committed by the appellants. That even the so-called recoveries are not with reference to accused Nos.1 and 5. That the recoveries against accused Nos.2, 3 and 4 have not been proved by the prosecution. Hence, it is pleaded that the appeals be allowed, by acquitting the accused.
4. On the other hand, Sri. H.N. Nilogal, learned Special Public Prosecutor, for the respondent-State, defends the same. He contends that substantial evidence has been let in, in proof of guilt of the accused. That substantial recoveries have been made from accused Nos.2, 3 and 4. That, at the behest of accused Nos.1 to 5, they were led to the scene of offence. That even though no recovery of any weapon has been made, the other material evidence on record, would clearly indicate that all the accused have committed the offence punishable under section 396 of the Indian Penal Code. Therefore, he pleads that the appeals be dismissed by upholding the judgment of the trial court.
5. Heard learned counsels and examined the records. 9
6. PW-1 is the husband of the deceased. He has stated in his evidence, that he would go for a morning walk every day at about 6.00 a.m. On 22.10.2000, he left home at 8.15 a.m., since it was drizzling. He returned home from his morning walk at 9.15 a.m., He saw that the portico gate was locked from inside. He banged on the portico gate. It did not open. From the said grill gate, he saw his wife Manjula(deceased) sitting on the floor by the side of the plants. She was sitting in the passage which leads to the backyard of his house. He saw his wife sitting there holding her head with one hand and waving the other hand. She could not speak. He asked her as to why she cannot talk. To this, she waved her hand and wiped her neck. He saw blood oozing from her neck. Her palms were smeared with blood. He removed the tower bolts of the portico gate from outside and entered into his house. He noticed blood on her neck. There was a cut wound on her neck. She was gasping for breath. He took his wife to the hall at the backside. He made her to sit on a cane chair. He gave her water. When she drank the water, it came oozing out of her neck. He 10 asked her, where the gold ornaments like Mangala sutra and bangles are. She gestured by showing her hand and neck, that those ornaments have been taken away by somebody. She gestured that the persons went away from the backyard of the house. Thereafter, he told his relatives and informed them of the injuries sustained by his wife. His eldest sister-in-law Smt. Sudha, who was staying on the next road, came to the house alongwith CW-3 Ramesh. Thereafter, his brother-in-law CW-1, his sister CW-9 came to his house by car. They lifted his wife and took her to Mallya Hospital. He was making calls to his relatives about the seriousness of the incident. They reached Mallya Hospital at 10.15 a.m. At 10.30 a.m., the Doctor informed him that his wife is no more. CW-1 Gopinath Rao lodged the complaint before the Basavanagudi police, in terms of Ex- P1. He has further stated that the Mangalya gold chain with rope design, two pairs of bangles and diamond earrings which his wife was wearing, were found missing. Next day, while searching the house, he found the earrings which she 11 was wearing, were kept in the cupboard. Accordingly, the same was informed to the police.
7. PW-2 is a pancha to Ex-P2-Spot Mahazar. He is a tailor by profession. His shop is situated opposite to the house of PW-1. The deceased and PW-1 were the only inmates of the house. On 22.10.2000, he came to his shop at 9.30 a.m. While opening his shop, the sister-in-law of PW-1, came to his shop and told him that some persons had cut the throat of the deceased Manjula and snatched the gold ornaments which she was wearing.
8. PW-3 is a pancha to Ex-P3-Inquest. He has stated that on 22.10.2000, at about 11.00 p.m., the Basavanagudi police called him to the Kempegowda Institute of Medical Sciences, Bengaluru for inquest mahazar on the deadbody of Manjula. Accordingly, he went there and noticed injuries on the deadbody. There was a cut lacerated wound on the neck of the deadbody of Manjula. Police conducted the mahazar in his presence. He has signed it. It was marked as Ex-P3, with his signature at Ex-P3(a).
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9. PW-4 is another pancha to the spot mahazar. The Inspector of Police Sri. Chalapathy had requested him to act as a panch. Thereafter, Sri. Chalapathy, he, accused and another co-panch Manjunath, went in a jeep to D.V.G. Road. The Inspector asked the accused to show the spot. Thereafter, the accused led the Inspector, PW-4 and another pancha to a house situated at D.V.G. Road. A mahazar was prepared in the said house, in his presence vide Ex-P4. His signature was identified by him as Ex-P4(a). The mahazar was conducted from 8.30 a.m. to 9.00 a.m. on 08.02.2001.
10. PW-5 is the Police Constable at the Basavanagudi Police Station. He was asked by his superiors, to take the deadbody of Smt. Manjula, to KIMS hospital for post- mortem examination.
11. PW-6 is the Doctor and Professor and Head of Department, Forensic Medicines, Kempegowda Institute of Medical Sciences, Bengaluru. He has conducted the post- mortem of the deceased. He has stated that on 13 examination, he found a cut-throat incised wound over the upper part of the front of the neck- 6.5 cms from the chin and 7 cms from supra-sternal notch. It measures 8.5 cms x 1.75 cms x 4 cms in depth. Both the ends were pointed etc., He has submitted the post-mortem report in terms of Ex-P6. He has stated that the cause of death was due to respiratory failure due to aspiration of blood from the cut throat injury into the respiratory track.
12. PW-7 is the Doctor, who was serving in the casualty in the Mallya Hospital, who first saw the deceased while she was brought to Hospital with a history of assault. He noticed injuries over the neck. Thereafter, she succumbed to the injuries.
13. PW-8 is the Sub-Inspector of Law and Order in Basavanagudi Police Station. He has stated that on 22.10.2000, when he was on duty, he received a telephone message regarding the murder of a woman on D.V.G. Road, Bangalore. Accordingly, he went to the spot. A number of people had gathered there. He was informed that the 14 woman's throat was slit in Jamakhandi's house and was shifted to Mallya Hospital. Thereafter, he went to Mallya Hospital and enquired with the Doctor.
14. PW-9 was the Head Constable in Basavanagudi police station. He received the post-mortem report from PW-6 and four sealed articles as M.Os.7 to 10 and produced them before the Court.
15. PW-10 is the Scientific Officer working at the Forensic Science Laboratory, Madiwala, Bengaluru. He received 12 sealed articles for chemical examination. He has submitted the report in terms of Ex-P9.
16. PW-11 was the Police Inspector of Thyagrajnagar Police Station from September 1998 to September 2002. On 21.10.2000, he was incharge of Basavanagudi Police Station as the regular Police Inspector of Basavanagudi Police Station was on leave. On 22.10.2000, at about 3.00 p.m., he received a message, that a murder had taken place within the limits of Basavanagudi Police Station. Immediately, he rushed to the Basavangudi police station. 15 One Jayamuthu, P.S.I. had registered the case under Section 302 Indian Penal Code in Cr.No.345 of 2000 and had taken up the investigation. He took charge of the said case for further investigation.
17. PW-12 in the Police Inspector, Basavanagudi Police Station, who took up further investigation from PW-11.
18. PW-13 is the elder brother of the deceased. He is the brother-in-law of PW-1. He has stated in his evidence that on 22.10.2000, at about 8.30 a.m., when he was taking his bath, his another sister Ratna (CW-9), came and informed him that she had received a telephone message from PW-1, that Manjula viz., the deceased, had been badly hurt in her neck and therefore they had to go to her house. Thereafter, he went to Manjula's house at about 9.00 a.m. He saw his sister in the hall. There was a slit injury on her neck and blood was oozing out. She was not able to speak. She could not breathe properly. Immediately, he took her in his car to Mallya hospital at about 9.30 a.m. The emergency 16 Doctor attended to her. At about 10.30 a.m., the Doctor told him that Manjula is dead. By then, the Basavanagudi police had arrived. They asked him to give a complaint. He filed a complaint in terms of Ex-P1 which bears his signature at Ex-P1(a).
19. PW-14 is a jeweller. He runs his business in the name of "Satya Narayana Jewellary Mart" in Raja Market, Chickpet, Bengaluru. He has stated that he knows accused Nos.2 to 4. He identifies them before the Court. That on 7.2.2001, at about 10.00 a.m., Sri. Chalapathy viz., PW-15 and his staff, came to his shop along with accused No.2. That accused No.2 had sold some gold articles to him about two months prior to 7.2.2001. Accused No.2 asked him to produce the gold articles, which he had sold to him. He had kept the gold articles in the same form, after polishing them, with an intention to sell them. At the request of accused No.2, he gave all the gold articles to the police, which he had purchased from accused No.2. Police drew the mahazar in his shop. Having seized the gold articles, CW-13 and CW-14 acted as panchas to the mahazar. He has also 17 signed the mahazar. The same is marked as Ex-P12 with his signatures at Ex-P12(a). On the same day, at about 3.00 p.m., Sri. Chalapathy and his staff, brought accused No.3 to his shop. Accused No.3 asked him to produce the seven gold articles which he had sold to him prior to 7.2.2001. Accordingly, he produced the seven gold articles before the police. The police drew the mahazar to the said effect in the presence of CW-12 and CW-13 in terms of Ex-P13 with his signature at Ex-P13(a). On 8.2.2001, at about 11.00 a.m., Sri. Chalapathy and his staff, brought accused No.4 to his shop. He stated that he sold thirteen gold and silver articles to him about one month prior to 8.2.2001. He asked him to produce all the thirteen gold and silver articles to him. Accordingly, he produced thirteen gold and silver articles before the police. They were seized under the mahazar Ex- P14 with his signature at Ex-P14(a) in the presence of CWs- 13 and 14. He has further stated that he can identify M.O.5, which is the gold chain and four bangles M.O.6 which were sold by accused Nos.2,3 and 4 to him. In the cross- examination, he has stated that there is no difference 18 between the four bangles in M.O.6 in respect of design, make and weight etc., That he can distinguish between the four bangles and who has given them. He denies the suggestion that M.O.5 is not a Mangalya chain whereas it is a rope chain. That accused Munikrishna-accused No.3 had sold M.O.5 to him. He has stated that he did not sell any of the gold articles to anybody else. He had polished and kept them for sale. Since no customer came to purchase the same, the gold articles continued to remain in the showcase of his shop. Accused No.2 himself pointed out the gold articles kept in the showcase. The showcase was kept in the centre of the shop, so that it was visible to all the customers. He has stated in his cross-examination that MO- 6(a) two bangles were sold by accused No.2 and M.O.6 two bangles were sold by accused No.4. That he does not remember whether both the accused sold the above bangles at the same time or different time. M.O.6(a) are two bangles weighing 22gms and M.O.6 are two bangles weighing 21.5 gms. That he narrated the weight of the bangles to the police which was written in the mahazar. He 19 admits that the design of all the four bangles M.O.6 and M.O.6(a) are similar.
20(a). PW.15 was a Police Inspector in Vijayanagar Police Station at the relevant point of time. He has stated that, on 28.10.1999, a case was registered in the Vijayanagar Police Station in Crime No.674 of 1999 under Section 302 of Indian Penal Code, on the basis of the complaint by one Dr.Prakash Vishnu. He took up further investigation of the case on 10.07.2000 from Sri.Chandraiah. On 17.09.2000, he received information from CB-CID, Chittor (AP), that the accused Doddahanuma and others had escaped from Chittor Prison. On 31.01.2001, he received credible information that the accused were hiding in Echanur Village in Tiptur Taluk, Tumkur district, Karnataka. On informing his Superior Officer, he left to the said place and when he reached Echanur Village at 8.30 p.m, the accused were in front of a school. He and his Officers surrounded them and apprehended all the accused persons and took them to the Vijayanagar Police Station and completed the formalities of arrest. The accused were 20 interrogated and their voluntary statements were recorded as Exs.P15, 16, 17, 18 and 19. On the evening of 06.02.2001, the Video recording of the statements of the accused was also recorded.
(b). On 07.02.2001, accused No.2 led PW.15 and panchas to the Jewellary Shop of D.Janardhan Shetty, situated at Rajamarket, Bengaluru. The owner of the shop D.Janardhan Shetty namely PW.14 was asked by the accused to return the jewellery sold to him. PW.14 having admitted the transaction, produced in all five gold Jewelleries and they were seized at the presence of the Panchas. The Seizure Mahazar contains the details and it bears the signature of the witness, which is already marked as Ex.P12 and his signature as Ex.P12(b). MO.5 is the four Gold Bangles, two of which were seized at that point of time. MO.6 is the Gold Chain.
(c). On the same day, accused No.3 in terms of the voluntary statement given by him, took the witness and his staff to Avenue road. The Panchas were secured at Chickpet 21 and were taken to the shop of PW.14. The accused identified the owner and asked him to return the gold articles. PW.14 having admitted the transaction, identified the accused and returned the gold ornaments purchased by him from the accused. In all seven gold articles including the gold chain having two threads rope design, one gold thin thread chain, one gold mangalya chain, four gold bangles, one gold neck chain, having letter 'JM', a pair of gold hangings with red stones, a pair of ear hanging having white stones were recovered. The Mahazar was drawn in terms of Ex.P13 which bears the signature of the witness as Ex.P13(b). Among the above properties, the gold neck chain having letter 'JM' weighing about 45 grams, is relatable to the instant case. The contents of the Mahazar was read over to the Panchas, who signed the Mahazar in the shop itself.
(d). On the same day, accused No.4 in terms of the voluntary statement led PW.15 and his staff to the Chickpet circle near Avenue Road and secured the Panchas. They all went to the shop of PW.14, situated near Rajamarket, Bengaluru. The accused asked the owner of the shop to 22 return the gold articles sold by him. PW.14 identified the accused and having admitted the transaction, returned the articles purchased by him. There were in all 13 gold and silver articles namely, a pair of gold machine made bangles, a pair of gold ear studs with corals, two pairs of ear studs with pearls, a pair of ear studs, one gold necklace, one gold chain having gajje design, a pair of silver lamp stand sets, a pair of silver lotas, six silver karadige of different sizes, a pair of silver small lamps, a gold finger ring, a pair of gold bangles and a pair of gold Mati. The above articles were seized in the presence of Panchas and the Mahazar was drawn in terms of Ex.P14 with his signature at Ex.P14(b). As aforesaid, the item No.12 namely, a pair of gold bangles weighing about 22 grams are relatable to the instant case.
(e). On 08.02.2001, the Udaya T.V. Channel representatives of 'Sutha-Mutha' programme, came to the Police Station and interviewed the accused, who were in the Police Station.
(f). The accused led the witness and staff to Gandhi Bazaar to a house bearing No.30/2 situated on DVG Road 23 and they pointed out that house, as the place where the offences took place. Further, they pointed out that in the aforesaid house, they have committed the murder of the deceased and robbed the gold ornaments and the witness later on came to know that the owner of the house is one Jamakandi and the Mahazar was drawn in that place between 8.30 a.m. and 9.30 a.m. Ex.P4 is the Mahazar drawn at the place of offence. Ex.P4(b) is the signature of the witness. The Panchas have also signed the said Mahazar and the television crew was also present at the said place.
(g). On 16.06.2001, he received the video cassettes and CDs from PW.16, who is a Photographer and the Videographer and recorded his statement. The said video cassettes and CDs were produced before the Sessions Court at Mayo Hall. The witness identified the properties seized at the instance of accused Nos.2, 3 and 4. He has also identified MO.5 as well as MO.6.
21. PW.16 is a Videographer, who recorded the statement of the accused and he has narrated the manner 24 in which the videos were recorded and thereafter, handed over to the Investigating Officer.
22. PW.17 is the Sub-Inspector of Police of Vijayanagar Police Station at the relevant point of time. He accompanied PW.15 when the accused were arrested.
23. PW.18 is the Pancha for the recoveries of the articles from PW.14 who identified the articles as well as the accused, who sold the said articles.
24. Based on these evidences, the trial Court was of the view that the prosecution has established its case beyond all reasonable doubt. It therefore, convicted the accused for the offence punishable under Section 396 read with Section 34 of the Indian Penal Code and sentenced them to death, along with an imposition of fine. The trial Court was also of the view that the evidence of the witnesses stand corroborated. That there is no infirmity in the evidence.
25
25. However, on re-examination of the entire evidence and material on record, we are of the considered view, that there are various loopholes in the case of the prosecution.
26. The charges against the accused is under Section 396 of Indian Penal Code, which reads as follows:
"That you accused Nos.1 to 5 on 22.10.2000, morning in between 8.15 a.m. and 8.45 a.m., with a malafide intention to commit dacoity and murder, trespassed into the house of CW2 namely Keshava Rao, bearing No.30/2, D.V.G. Road, Basavanagudi, Bangalore City, when deceased Smt.Manjula, the sister of CW1 was alone in her house, you accused Nos.1 to 5 with sharp edged weapons slit the neck of Smt.Manjula and conjointly murdered her, while committing dacoity in her house and thereafter you snatched one gold chain, four gold bangles, one wrist watch and one shirt and fled away along with the valuable robbed properties and thereby you accused Nos.1 to 5 committed an offence punishable U/S.396 r/w 34 of IPC and within the cognizance of this Court of Sessions. 26 I hereby direct that you accused Nos.1 to 5 be tried by this Court on the above said charges."
27. The evidence as led in by the prosecution does not indicate any overt-acts attributable to each one of the accused in the commission of the offence. The entire case of the prosecution is based on the recoveries said to have been made at the behest of accused Nos.2, 3 and 4. Therefore, it is necessary to consider the evidence led in with regard to the recoveries.
28. PW.15, the Investigating Officer has stated that accused Nos.2, 3 and 4 led him to the shop of PW.14, who is the jewellery shop owner, who identified the accused and returned the articles to him. The articles have been marked as MO.5 and MO.6. Therefore, when the recoveries were made at the behest of accused Nos.2, 3 and 4, the question of implicating the remaining accused, would not arise for consideration.
27
29. There is no material to indicate that any recoveries were made so far as accused Nos.1 and 5 are concerned. Therefore, the first ingredient under Section 396 of the Indian Penal Code, of the involvement of five or more persons, is absent. The second ingredient is that while committing dacoity, a murder is committed by the said five or more persons. Admittedly, there is no weapon that has been seized by the prosecution. The evidence of the Doctor- PW.6, in terms of his report vide Ex.P6 would indicate that the death was due to respiratory failure due to aspiration of blood from the cut throat injury into the respiratory track. When there is no seizure of any weapon, the question of the Doctor stating that the weapon has caused the death of the deceased, would not arise for consideration. Therefore, as to how and in what manner the injuries were caused to the deceased and as to how, the accused were responsible for such an act, has not been borne out from any evidence. In the absence of any seizure of the weapon by the prosecution, the element of murder, has not been proved by 28 the prosecution. Therefore, the second ingredient of Section 396 has not been satisfied by the prosecution.
30. The entire evidence as led in by the prosecution even with regard to the owner of the Jewellary shop-PW.14, the Investigating Officer-PW.15 and the Panchas to the recoveries-PW.18 cannot bring home the guilt of the accused for the offence under Section 396 of the Indian Penal Code.
31. Moreover, the prosecution would also have to show that the act of murder and dacoity took place in the same instance by the very same persons. These two aspects are found absent in the case of the prosecution. When there is nothing to relate the murder by the accused, dacoity would not lie. Therefore, Section 396 of the Indian Penal Code would not get attracted.
32. Therefore, we hold that the finding of the trial Court is not based on the evidence on record. In our considered view, the findings of the trial Court are at a tangent, while coming to the conclusion, that the 29 prosecution has proved its case for the charge under Section 396 of the Indian Penal Code.
33. On re-appreciating the entire evidence, we are of the view that the ingredients of Section 396 of the Indian Penal Code are not attracted and a conviction cannot lie on mere assumptions and surmises. The prosecution has to lead convincing evidence to establish their case. They have failed to do so. Therefore, we are of the view that the judgment and conviction passed by the trial court requires to be set-aside and the accused be acquitted of the offence punishable under Section 396 read with Section 34 of the Indian Penal Code.
34. However, learned Special Public Prosecutor contends that if the prosecution has failed to prove its case so far as Section 396 of the Indian Penal Code is concerned, the material evidence on record would certainly attract a lesser offence. He therefore pleads that, the evidence is adequate to convict the accused for the offence punishable under Section 392 of the Indian Penal Code. 30
35. On the other hand, the same is disputed by the learned counsel appearing for the defence. He contends that there is no case made out even to attract Section 392 of the Indian Penal Code. Even for the sake of arguments, if such a contention is to be accepted, at the most, the case of the appellants could probably be attracted by Section 411 and not Section 392 of the Indian Penal Code.
36. Section 392 of the Indian Penal Code would narrate that whoever commits robbery, shall be punished with rigorous imprisonment for a term, which may extend to ten years, and shall also be liable to fine etc.,
37. Section 411 of the Indian Penal Code narrates that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term, which may extend to three years, or with fine, or with both.
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38. Having considered the material, we are of the view that Section 392 of the Indian Penal Code would not be applicable to the facts of this case. Even so far as Section 411 of the Indian Penal Code is concerned, the ingredients therein would not be attracted to facts of this case. Therefore, we are of the view that the appellants could be held liable for the offence punishable under Section 379 of the Indian Penal Code, which is punishment for theft. The same would indicate, whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The evidence, therefore, would relate to the ingredients of Section 379 of the Indian Penal Code.
39. Therefore, we are of the view that appellant Nos.2, 3 and 4 are guilty of the offence punishable under Section 379 of the Indian Penal Code. Hence, we deem it just and proper to impose a sentence of imprisonment for a period of three years.
3240. The sentence imposed on appellant Nos.2, 3 and 4 is directed to be set-off against the period of detention already undergone by them in the present case.
41. Appellant No.1 has not filed any appeal. However, in view of the fact that a reference has been made under Section 366 of the Code of Criminal Procedure, the entire evidence has been reconsidered with respect to all the accused. The benefit of this judgment would therefore stand extended insofar as accused No.1 is also concerned.
42. For the aforesaid reasons, we pass the following order:
i) Criminal Appeal Nos.1033 of 2011 and 563
of 2012 are allowed.
ii) The judgment dated 31.03.2011 and the
order of conviction dated 07.04.2011
passed by the 34TH Additional City Civil And Sessions Judge (Special Court), Central 33 Prison Compound, Parappana Agrahara, Bengaluru in S.C.NO.607 of 2001 in Criminal Appeal No.563 of 2012 and Criminal Appeal No.1033 of 2011 is set-
aside. The accused/appellant Nos.1 to 5 are acquitted of the offence punishable under Section 396 read with Section 34 of Indian Penal Code.
iii) Accused Nos.2, 3 and 4 are convicted and sentenced for a period of three years for the offence punishable under Section 379 of Indian Penal Code. They are entitled for a set-off for the period of detention already undergone by them.
iv) Accused Nos.1 to 5 are directed to be set at liberty forthwith from these cases, if they are not required in any other case/s.
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v) In view of acquittal of the appellants, Criminal Referred Case No.2 of 2011 would not survive for consideration and is disposed off.
Registry to communicate the operative portion of this order to the Jail Authorities, Hindalga Prison, Belagavi, forthwith.
SD/- SD/-
JUDGE JUDGE
*mn/VM