Karnataka High Court
Ranjith K vs State Of Karnataka By on 15 March, 2019
Bench: K.N.Phaneendra, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRL.A. NO.471/2014
C/W
CRL.A.NOs.475/2014, 766/2014 (C)
IN CRIMINAL APPEAL NO.471/2014
BETWEEN:
RANJITH K.
S/O KRISHNA MURTHY
AGED ABOUT 25 YEARS
R/AT NO.109, DEVARAJU BUILDING
PUTTARAJU LAYOUT
KALKERE, B.G.ROAD
BENGALURU - 560 029
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BENGALURU) ... APPELLANT
(BY SRI. HASHMATH PASHA, SR.COUNSEL A/W
SRI. RANJAN KUMAR P., ADV.)
AND:
STATE OF KARNATKA BY
MICO LAYOUT POLICE STATION
BENGALURU - 560 029
REP. BY LEARNED ADDL. STATE
PUBLIC PROSECUTOR ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 7/9.5.14 PASSED BY THE P.O., FTC-V,
BENGALURU IN S.C.NO.1199/2012 -CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 READ WITH 34 OF IPC. AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE WITH A DIRECTION THAT, HE
SHOULD NOT BE RELEASED FROM THE PRISON FOR
THE REST OF HIS LIFE FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 READ WITH 34 OF IPC.
*******
IN CRIMINAL APPEAL NO. 475/2014
BETWEEN:
BHUVANESH T. P. @ KUTTI
S/O CHATHU KUTTI
AGED ABOUT 24 YEARS
R/AT 1ST CROSS
NEAR GANESHA TEMPLE
NGR LAYOUT
ROOPENA AGRAHARA
BOMMANAHALLI
BENGALURU - 560 056
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BENGALURU) ... APPELLANT
(BY SRI. HASHMATH PASHA, SR.COUNSEL, A/W
SRI. RANJAN KUMAR P., ADV.)
AND:
STATE OF KARNATAKA BY
MICO LAYOUT POLICE STATION
BENGALURU - 560 029
REP. BY LEARNED ADDL.STATE
PUBLIC PROSECUTOR ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 7/9.5.14 PASSED BY THE P.O., FTC-V,
BENGALURU IN S.C.NO.1199/2012 - CONVCTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 READ WITH 34 OF IPC. AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE WITH A DIRECTION THAT, HE
SHOULD NOT BE RELEASED FROM THE PRISON FOR
THE REST OF HIS LIFE FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 READ WITH 34 OF IPC.
******
IN CRIMINAL APPEAL NO. 766/2014
BETWEEN:
STATE BY MICO LAYOUT
POLICE STATION
BENGALURU - 560 076 ... APPELLANT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
AND:
1. RANJITH K @ BATTA
S/O KRISHNA MURTHY, 23 YEARS
R/AT NO.109, DEVARAJU BUILDING
PUTTARAJU LAYOUT
KALKERE, B. G. ROAD
BENGALURU - 560 083
2. BHUVANESH T. P. @ KUTTI
S/O CHATHU KUTTI, 22 YEARS
R/AT 1ST CROSS, NEAR GANESHA TEMPLE
NGR LAYOUT, ROOPENA AGRAHARA
BOMMANAHALLI
BENGALURU - 560 068 ... RESPONDENTS
(BY SRI. HASHMATH PASHA, SR.COUNSEL, A/W
SRI. RANJAN KUMAR P., ADV.)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 377 CR.P.C. PRAYING TO (a) MODIFY THE
JUDGMENT DATED 7/9.5.2014 PASSED BY THE FAST
TRACK (SESSIONS) JUDGE-V, BENGALURU CITY IN
S.C.NO.1199/2012 IN SO FAR AS IT RELATES TO NOT
IMPOSING FINE ON THE RESPONDENT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTION 302
READ WITH SECTION 34 OF IPC. BY ALLOWING THE
APPEAL AND (b) TO IMPOSE FINE ON THE
RESPONDENTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH
SECTION 34 OF IPC.
*******
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 20.02.2019,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT',
THIS DAY K.N.PHANEENDRA, J. DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants who are arrayed as accused Nos.1 & 2 have challenged the judgment of conviction dated 7.5.2014 and the order of sentence dated 9.5.2014 passed by the Fast Track (Sessions) Judge-V, Bengaluru City, in SC No.1199/2012, and sentencing them to undergo imprisonment for life for the offence punishable under section 302 r/w Section 34 of IPC with a direction that they should not be released from the prison for the rest of their life.
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2. The accused persons have individually preferred appeals. Accused No.1 Ranjith.K. @ Batta has preferred an appeal in Criminal Appeal No.471/2014, whereas the accused No.2 Bhuvanesh.T.P. @ Kutti has preferred an appeal in Criminal Appeal No.475/2014. Apart from the above said two appeals, the State has also preferred an appeal in Criminal Appeal No.766/2014 on the ground that the trial Court has imposed the sentence without making any order regarding fine, and sought for modification of the judgment and to impose fine on the accused persons for the offence punishable under section 302 read with Section 34 of IPC, as imposition of fine is mandatory under the above said provision.
3. As the above said three appeals are arising out of a common judgment passed by the trial Court, they are taken up together for consideration on merits.
4. We have heard the arguments of the learned Senior Counsel Sri Hashmath Pasha for the accused and the learned Additional State Public Prosecutor for the State. We have carefully perused and re-appreciated 6 the oral and documentary evidence on record and also examined the correctness of the judgment of the trial Court.
5. Before adverting to the grounds urged before this court by the respective counsels, we feel it just and necessary to have the brief factual matrix of the case.
6. It is the case of the prosecution that, accused No.1 Ranjith fell in love with deceased Divya D/o. P.Shyam, R/o.No.317, 1st B.Main, N.S. Palya, BTM II Stage, Bengaluru-76. It appears, sometime prior to the incident, some marriage talks were taken place with reference to the marriage of PW-8 Pradeep with the deceased Divya. In that context accused No.1 was not happy and he in fact threatened PW-8 over phone informing him that, he has been loving Divya for more than 4 years and he would like to marry her etc., and also threatened PW-8 to take care of himself other wise, he would do something later. In this background, it appears, Divya was not interested towards accused No.1 and started avoiding accused No.1. Therefore, this was the motive projected by the prosecution that 7 accused No.1 has decided to do away the life of the deceased Divya. Therefore, he joined hands with his friend accused No.2 in order to help him to do away with the life of the deceased Divya. In this background, it is alleged that, on the day of the incident that was on 28.5.2012 at about 6.30 p.m., when Divya after completing her work in a company in which she was working, was returning to her house she was attached and assaulted by accused No.1 with lethal weapon by causing serious injuries. In fact, she had informed earlier to her father about the conduct of accused No.1 that accused No.1 had snatched her mobile phone and she was scared of accused No.1. For this reason, the father of deceased regularly used to accompany her to her work place/company and bring her back in the evening. On the day of the incident also, the said Divya had called her father at about 5.45 p.m., and requested her father to pick her from the office. As PW-2 Shyam was at Basavanagudi, he told her to go by bus on that day. In this context, the said Divya was proceeding to her house by walk in the 7th Main Road, BTM II Stage. 8
7. It is the further case of the prosecution that, taking advantage of the situation that the deceased was walking alone in the said road, accused Nos.1 and 2 came on a Splendor Motorbike bearing No.KA-51/Y- 3188 and accused No.1 got down from the motor cycle and went behind Divya and assaulted her with the help of a long chopper by force on the right side of her neck. She sustained severe injuries to her neck and fell down and thereafter, accused No.1 threw and left the long at the spot and went away from the place on the motorbike which was being driven by accused No.2. Accused No.2 brought accused No.1 to the spot and he was watching and waiting till the completion of the crime by accused No.1 and took him on the motorcycle. It is the further case of the prosecution that, this incident was seen by PW-1 V. Srirama and he lodged a report narrating the above said incident before the Mico Layout Police Station. On the basis of the said report, the Police have registered a case in Crime No.263/2012 initially for the offence punishable under section 307 of IPC and subsequently, the father of the deceased PW-2 9 Shyam has reported as per Ex.P2 that Ms. Divya succumbed to the injuries in Sagar Hospital at 7.30 p.m., and thereafter, the Police have converted the case for the offence punishable under section 302 read with Section 34 of IPC and investigated the matter. During the course of investigation, the Police found that accused Nos.1 and 2 are the culprits and therefore, laid charge sheet against them for the offence punishable under section 302 read with Section 34 of IPC.
8. The accused were actually arrested on 2.6.2012 and they were secured by the learned Sessions Judge, after committal of the case. The Trial Judge has framed charges against the accused for the above said offence. As the accused pleaded not guilty, the trial Court tried them for the offence charged against them. The prosecution in order to bring home the guilt of the accused, examined as many as 13 witnesses PWs.1 to 13, and got marked documents Exhibits P-1 to P-25 and Material Objects MOs.1 to 12. The accused were also examined u/s.313 of Cr.P.C. and thereafter provided an opportunity to lead defence 10 evidence. The accused have also examined 4 witnesses as DWs.1 to 4 and got marked Exhibits D-1 to D-14.
9. After hearing the arguments of both sides, the trial Court after appreciating the oral and documentary evidence on record, has rendered the impugned judgment.
10. The learned Senior counsel for the appellants Sri Hashmath Pasha, has strenuously argued before the court that the entire case revolves around three important aspects i.e., (1) Motive Factor; (2) Evidence of the sole eye-witness PW-1; and lastly (3) Recovery of the incriminating articles such as a Pant, a Shirt and a motorcycle from the accused persons. He further contended that the trial Court has not even ventured upon to consider the important factors involved in this case with regard to the identity of the accused by PW-1. Absolutely, there is no identification parade conducted by the Police during the course of investigation. On the other hand, prior to identification of the accused before the court, the Police have shown the accused persons to the witness PW-1 in the Police Station. This is a serious 11 lapse which has not been taken into consideration by the trial Court. He also contended that the presence of PW-1 at the time of the incident itself is doubtful, considering his mobile movements which has been admitted by him that throughout PW.1 was holding his mobile with him. He contended that Ex.D-6, which is the document marked during the course of defence evidence clearly discloses that PW-1 actually came to the spot after the incident and he was not present at the time of the alleged incident. The learned counsel submitted that the conduct of PW-1 has not been properly appreciated by the trial Court. He has further contended that PW-1 is a chance witness and there was no opportunity for him to be present at that particular point of time. According to PW-1 in a spur of moment, he has seen accused No.1, but there was no occasion for him to be present at that particular point of time. Also, there was no occasion for him to witness the incident or the accused persons in detail. Therefore, his evidence has not been properly appreciated by the trial Court. He is the sole eye-witness and his evidence 12 ought to have been meticulously considered by the trial Court.
11. Learned Senior Counsel has further argued with regard to the recovery. There is absolutely no evidence available because no witness was examined so far as recovery of incriminating articles are concerned. The evidence of PW-5 is not acceptable because his mobile movements also shows that he was not there at the place where the alleged recovery was made i.e., the Shirt and pant of accused No.1 and also the motor cycle. There are serious procedural infirmities in the evidence of I.O regarding the voluntary statement of accused No.1 is concerned. There is no explanation by the Police as to why identification parade has not been conducted. Though other witnesses were also available, near the scene of offence the Police have not examined them. Therefore, there is a serious infirmity in the prosecution evidence which makes the evidence of PW-1 unreliable and also the recovery is also proved to be farce. He has further contended that so far as the motive factor is concerned, it is not even spoken to in 13 Ex.P-2 by PW-2 himself, but it is an improvement during the course of evidence before the court. Therefore, such improvement should not have been relied upon by the trial Court for the purpose of laying a false claim against the accused. Therefore, he pleaded for acquittal of the accused. He has also relied upon various decisions which we are going to discuss little later while discussing the relevant circumstance.
12. Per contra, learned Addl. State Public Prosecutor Sri Vijayakumar Majage, submitted that, though there are some contradictions and omissions and infirmities in the evidence of PW-1, his presence is undoubtedly established and even Ex.D-6 also establishes the same though there is some time difference. Therefore, at the relevant point of time, PW- 1's presence was even established by the defence evidence. PW-1 is a stranger and he is not an interested witness or partisan witness and he has no animosity against the accused. There is nothing to show in the cross examination of PW-1 that as to why he has to falsely implicate the accused. Therefore, his evidence 14 cannot be easily brushed aside. The core of the prosecution has not been disturbed in the course of cross examination of this witness. He further contends that the evidence of PW-5 Ganesh K. Devadiga clearly discloses that he was very much present at the time of recovery of Pant and Shirt at the instance of accused Nos.1 and 2 and also a Motorcycle which was used for commission of the offence. Though the defence tried to elicit in the course of cross examination that this witness was not present at that time, but sufficient explanation has been given by the witness with regard to the movement of his mobile. Therefore, his evidence is trust worthy coupled with the evidence of the Investigating Officer.
13. Learned Addl. State Public Persecutor further submitted that, recovery of Shirt and Pant connect the accused persons to the crime as they were stained with blood particularly the blood group of the deceased tallied with the same. There is a strong motive to eliminate the deceased which has been spoken to by the father and other relatives of deceased Divya which 15 virtually have not been controverted in the course of cross examination. Therefore, for all these reasons, learned Additional State Public Prosecutor prayed for dismissal of the appeals filed by the appellants/accused.
14. Learned Addl. State Public Prosecutor, further contended that the trial Court has not looked into the provision of Section 302 of IPC which mandates the court that if the accused is found guilty for the offence punishable under section 302 of IPC imposition of fine is mandatory. Therefore, the appeal filed by the State requires to be allowed.
15. Having heard the arguments of the learned counsels as noted above, before adverting to the material evidence on record requires to be appreciated by this court, we feel it just and necessary to have the birds eye-view of the prosecution evidence.
16. PW-1 T. Sriram, as we have noted, is the sole eye-witness to the incident, who lodged the complaint as per Ex.P1.
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16.1 PW-2 P. Shyam, is the father of the deceased and he received the information from the Police and went to the Hospital and after the death of Divya, he lodged a report as per Ex.P2 on which basis, the offence was converted into section 302 of IPC.
16.2 PW-3 Sri Pavansuvarna, is a panch witness to Ex.P3 spot Mahazar under which, one long chopper and blood stained mud and un-stained mud were seized from the spot.
16.3 PW-4 Sudakar is the inquest panch witness who supported the case of the prosecution. The inquest was held in the Victoria Hospital as per Ex.P-4.
16.4 PW-5 Ganesh K. Devadiga, is another panch witness for the seizure of Motorcycle bearing Registration No.KA-51/Y-3188 under Mahazar Ex.P-5 and he is also a panch witness to Ex.P-6 Mahazar under which the Police have recovered clothes from A1 and A2 as per MOs.4 & 5 which are the Shirt and Pant of the accused No.1.
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16.5 PWs.6 and 7 Karunakar and Shekar, are the cousin brothers of deceased Divya who have spoken to about the motive of the accused.
16.6 PW-8 Pradeep is also a close relative of the deceased, who was willing to marry Divya has also spoken to about the conduct of the accused and also about the motive.
16.7 PW-9 Dr. Pradeep Kumar M. is the doctor who has conducted the Post Mortem examination on the dead body of the deceased Divya and furnished the report as per Ex.P-7 narrating the cause of death, was due to "chop injury to the neck." He has also furnished his opinion as per Ex.P-8 that the injury on the deceased could be caused with the help of MO-3 which is a long chopper which is seized in this case.
16.8 PW-10 Sri Parameshwarappa, Junior Engineer who has drawn the sketch of the scene of offence as per Ex.P-10.
16.9 PW-11 S.Nanjegowda who was working as PSI Mico Layout Police Station has registered a case on 18 the basis of Ex.P-1 in Crime No.263/2012 and dispatched the FIR to the court as per Ex.P-11 and he has also visited the spot and drew the spot Mahazar as per Ex.P3 and seized MOs.1 to 3. He has also apprehended Accused Nos.1 and 2 at Hosur Bus Station on 1.6.2012 and produced them before the Investigating Officer.
16.10 PW-12 B.S. Mohan Kumar, is the Investigating Officer who completed the investigation and submitted the charge sheet against the accused for the offence punishable under section 302 of IPC.
16.11 The last witness PW-13 Shanaz Fathima is the Scientific Officer, FSL, Bengaluru, who has given the report as per Ex.P-22 along with a sample seal Ex.P- 23 stating that, the articles sent to her were stained with the blood belonging to B-Group which tallied with the blood group of the deceased.
16.12 DW-1 P. Ratnakar, Division Engineer, BSNL, spoke about the call details pertaining to Cell Nos.94486 19297 and 94481 84722 and produced the 19 call details report as per Exs.D1 to D4 and also Exs.D-6 and D-8 to D-10.
16.13 DWs.2, 3 and 4 Mr. Stanley, Mr.Gurinder Singh Johar and Mr. Murthy, are all the Nodal Officers, who have spoken to about the mobile movements pertaining to Cell Nos.98802 51999 belonged to PW-1 and 93437 74500, a mobile belonged to PW-5 Ganesh and Mobile No.98868 32881 belonged to the PSI Nanjegowda, about their tower locations etc., at the relevant point of time.
17. Now, on the basis of the above said evidence as rightly contended by the learned counsels, the material evidence has to be re-appreciated by this court. According to us, the case of the prosecution can be broadly divided into four important circumstances.
(1) Homicidal death of the deceased;
(2) Motive;
(3) Recovery of incriminating articles at the
instance of the accused and their connection to the crime; and lastly, 20 (4) Reliability of the sole eye-witness.
18. Now, succinctly we discuss the above said important aspects.
18.1 HOMICIDAL DEATH OF THE DECEASED:
So far as the homicidal death of the deceased is concerned, there is no much dispute. The learned counsel also not much disputed the death of the deceased Divya. But according to the learned counsel for the accused, the accused are not the perpetrators of the crime. Apart from the evidence of PW-4 Sudhakar, who is the witness to inquest Mahazar, the evidence of other witnesses including the father PW-2 P. Shyam and the evidence of PWs.6 to 8 clearly disclose that, they have seen the dead body of the deceased and observed severe injury to the right side of the neck and they have spoken to that, the deceased died due to the injuries stated in the inquest report Ex.P-4. Ex.P-4 Inquest Report fully corroborates with the evidence of PW-4.21
18.2 PW-9 Dr. Pradeep Kumar also given a report as per Ex.P7 which clearly discloses that, the cause of death was due to chop injury to the neck and he gave his opinion that such injury could be caused by using a sharp weapon like MO-3 and he has given his opinion as per Ex.P-8. Therefore, the above said circumstance, clearly discloses that without the intervention of others, this injury could not have been caused on the deceased.
Therefore, the prosecution has successfully established the homicidal death of the deceased. On their evidence court has to consider whether the accused are responsible in causing such injury to the deceased.
19. MOTIVE: Now, coming to the second important aspect in this particular case, i.e., the motive factor. The prosecution has relied upon the evidence of the father and also the evidence of PWs.6 to 8 in this regard.
19.1 In the course of cross examination of these witnesses, some of the evidence has been denied. Therefore, the court has to see whether the motive factor has been established by the prosecution or not. 22 Of course, we are conscious that the motive circumstance alone cannot prove the case of the prosecution. The said circumstance can be used as a strong corroborative piece of evidence with the other materials available on record. It is to be borne in mind that if the prosecution proves the case beyond reasonable doubt, and if the motive is not proved, it is not fatal to the prosecution. If the prosecution is able to prove the guilt of the accused otherwise than the motive and also prove the existence of certain motive, however remote it may be, it virtually strengthens the case of the prosecution in order to ascertain the gravity of the offence. Bearing in mind the above said principles, now we will consider whether the motive factor has been established by the prosecution or not.
19.2 In order to prove this aspect, the evidence of PWs.2, 6 to 8 are to be appreciated. PW-2 in fact has deposed before the court that, the deceased about 15 days prior to the incident told him that A-1 Ranjith was always following her and forcing her to marry him. In this context, accused No.1 has also snatched her 23 mobile. PW-2 has also deposed that, PW-8 Pradeep has also told him that, accused No.1 threatened PW-8 Pradeep stating that he has been loving the deceased Divya since four years and that, he has snatched her mobile and also threatened PW-8 not to indulge in the love affair of accused No.1 with Divya.
19.3 In the course of cross examination, it is suggested that, there was no conversation or transaction between accused No.1 and the deceased Divya. Except such suggestion nothing has been elicited in the evidence of PW.2 in this regard. That is to say the information that was given by Divya about the conduct of the accused No.1 and also accused threatening PW-8 in this regard. So far as that aspect is concerned, the cross examination is conspicuously absent.
19.4 PW-6 Karunakara, who is the cousin brother of the deceased, also spoke about the same factual aspect stating that, he came to know that accused No.1 was forcing Divya to marry him stating that he was loving Divya since four years. Hence PW-1 24 every day used to accompany Ms. Divya to her work place and used to bring her back to the house. This portion of the evidence is also not controverted in the course of cross examination. Similarly, PW-7 also stated so in his evidence which is also not controverted so far as this particular allegation is concerned. Even in the course of cross examination of this witness, it is elicited that PW-8 Pradeep told to PW-7 that accused No.1 Ranjith harassing the deceased Divya and snatching of her mobile phone, but this witness has not stated the same before Police. Neverthless, the other important aspects with regard to Divya herself disclosing the said fact before this witness is not disturbed in the course of cross examination.
19.5 In this context, the evidence of PW-8 Pradeep play an important role. PW-8 has deposed that, Divya was his relative and she is the sister of his cousin brother's wife and there was marriage talks and inturn he accepted to marry her and she has also given her consent to marry him. In this background, it is alleged that on 18.5.2012 at about 6.30 p.m., he called 25 the deceased Divya but he could not able to contact her. At about 8.15 p.m., he received a phone call from Divya and she told that a person by name Ranjith has been harassing her and in fact the said person has snatched her mobile phone for which PW-8 told her to inform the same to her father. He has also stated that on the next day i.e., on 19.5.2012 when he was speaking to Divya over phone at that time, he received a call from accused No.1 Ranjith and in fact accused No.1 told that he has been loving Divya since four years, but she was not talking to accused No.1, and further Ranjith warned PW- 8 not to interfere with their love affair. Then PW-8 has told the accused Ranjith that he need not talk to him, but he can talk to the parents of Divya. In turn, the said Ranjith told PW-8, that he had informed the said fact and he would do whatever he wants later and thereafter, he disconnected the phone. These aspects stated by PW-8 has not been controverted even in the course of cross examination in any manner. Therefore, looking to the above said evidence, the prosecution has established the motive factor as projected, and that 26 may be one of the reasons according to the prosecution that, the accused must have committed the murder of the deceased Divya. Therefore, we are of the opinion that the prosecution has placed certain reliable materials to accept the motive factor as projected by it. Again, it all depends upon whether the court can rely upon this motive or to draw any inference on the basis of other connecting circumstances.
19.6 We should not be mis-understood that we are putting a stamp invariably in all the cases, that the said principle is applicable. It is the fundamental duty of the Investigating Officer to record the voluntary statement of the accused and the Investigating Officer while deposing before the court, has to very meticulously and specifically depose to such portion of the voluntary stand and get that particular portion be marked, which has deposed before the court as to what exactly the information given by the accused and thereafter, proceed for discovery of a fact or recovery of any articles at the instance of the accused. 27
20. RECOVERY OF INCRIMINATING ARTICLES AT THE INSTANCE OF THE ACCUSED:
Now, coming to the next important aspect with regard to recovery. It is the case of the prosecution as per the evidence of the Investigating Officer PW-12 B.S. Mohan Kumar that on 28.5.2012 after taking further investigation of this case, he has deputed his staff to apprehend the accused persons and that on 1.6.2013 at about 4.00 p.m., the accused were produced before him and he arrested them and recorded their voluntary statements as per Exs.P-20 and P-21. Thereafter, he collected two panch witnesses and explained to them that, the Police have to draw Mahazars at the place where the accused persons thrown the articles.
Thereafter, the accused persons took the Investigating Officer and the panch witnesses to Kottikere and shown the motor cycle bearing Registration No.KA-51/Y-3188 parked in front of a hardware shop, alleged to have been used for commission of the offence and the same was seized under Mahazar Ex.P5.28
20.1 It is also the case of the prosecution that the accused persons also led the police and the panch witnesses to the Nice road and particularly went to a place and produced the clothes of accused No.1 and the Police have in fact collected those clothes from the accused under a Mahazar Ex.P-6.
20.2 It is also the case of the prosecution that after the Post Mortem examination of the dead body of the deceased Divya, HC Puttamada has produced the clothes of the deceased and the same were seized in the Police Station under Mahazar Ex.P-6. Thereafter, all these items along with the long chopper were seized on the spot and marked as MOs.1 to 3 i.e., blood stained mud, sample mud and long. The clothes of the accused and the deceased were all sent to FSL and they found that, the said items except the un-stained mud contained the blood group of the deceased i.e., 'B' group blood. Therefore, the prosecution wants to connect the accused persons with the crime on the basis of this recovery.29
20.3 Apart from the evidence of the Investigating Officer, the prosecution has relied upon the evidence of PW-5 Ganesh K. Devadiga. In this regard, he has fully supported the case of the prosecution. PW-5 Ganesh K. Devadiga, is totally a stranger to the accused as well as to other prosecution witnesses who are related to the deceased Divya. It is stated by him that on 2.6.2012 he had been to the Police Station and the Police shown the accused Nos.1 & 2 to this witness and at that time CW-9 Chethan was also there. Thereafter the accused persons led the Police and these witnesses to Kottigere near a hardware shop and showed a motorcycle bearing Registration No.KA-
51/Y-3188 which was seized under Mahazar Ex.P-5. Likewise, he also supported the case of the prosecution that the accused took the Police and this witness to the nice road, near a mango and sapota grove, from a bush the accused No.1 took out some clothes i.e., Shirt and Pant and produced them before Police and the same were recovered under Mahazar Ex.P-6 and this witness has identified them as MOs.4 & 5.
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20.4 In the course of cross examination, the learned counsel has elicited that, this witness was having a mobile No.93437 74500 and at the time of the Mahazar this mobile was within the jurisdiction of Hanumanthanagar Reliance company tower, which is not within the jurisdiction where the Mahazars Exs.P5, 6 were drawn. Of course, this has been established from the evidence of DW-3 also as per Exs.D-11 and D-12 call details. This mobile was located at Hanumanthanagar Reliance Tower. But the witness has given a clear explanation that, he lost the said mobile, and on that reason only he had been to the Police Station to lodge a complaint. Therefore, he denied that he was having mobile at that particular time when he attended the Mahazars and when he accompanied the Police and the accused, at the time of drawing up of the Mahazars Ex.P5 and P6. It is also suggested to him that when he had been to the Police Station to lodge a complaint, then the Police have taken advantage of the same and taken his signatures to the Mahazars, but the said suggestion has been denied, however the fact 31 remains that the presence of witness and going to the Police Station for the purpose of lodging complaint with regard to the loss of his mobile is fortified in the course of cross examination. There is nothing further elicited in the course of cross examination as to why this witness has to be disbelieved. There is neither animosity ill-will nor hatred-ness established against the accused in the course of cross examination, to show that he is a stock witness to the Police.
20.5 Coupled with the above said evidence of the Investigating Officer and this witness, we have also examined the cross examination of the Investigating Officer. So far as these aspects are concerned in the course of cross examination of PWs.11 and 12 Nanjegowda.S and B.S. Mohan Kumar, it is suggested that, the Police have actually sprinkled the blood of the deceased on the Shirt and Pant of the accused i.e., MOs.4 & 5 and thereafter sent the said MOs.4 & 5 to FSL for obtaining a report. Though it is denied that Mahazars Exhibits P-5 & P-6 were drawn in the Police Station and no such recovery has been conducted at the 32 instance of the accused, but the above said suggestion goes to show that the Police have recovered MOs.4 & 5 from accused No.1. It is not explained as to how the Shirt and Pant of the accused came to the possession of the Police however the accused has admitted his clothes with the police. It is the defence taken by the accused that the blood of the deceased was sprinkled on the clothes of accused No.1. It is a very strange and destructive suggestion made without foreseeing the consequences of such suggestion. However, the said suggestion has not been established or corroborated by any other materials on record. Therefore, it goes without saying that the recovery part has been established by the prosecution.
20.6 PW-3 Pavan Suvarna and PW-1 Srirama.T. both of them have stated that on 28.5.2012 in the evening at about 7 to 7.15 p.m., the Police had come to the spot, where the incident had happened and they have seized one long chopper, bloodstained and unstained mud under a Mahazar Ex.P-3 and this PW-3 has put his signature on Ex.P-3 as per Ex.P-3(a) and he 33 has stated that Mahazar was drawn upto 8.00 p.m., In the course of cross examination, the mobile movements of this witness has been targeted. He has admitted that his mobile number is 94481 84722 he also admitted that whenever he goes out, he uses the said mobile, it records the tower location. He has also admitted that on 28.5.2012 his mobile was operating near Lakkasandra Mobile Tower. He has also admitted that tower location recorded in the call lists are not false. He has further stated that, when he has visited the said spot 4-5 Police personnel were there and it is suggested that, he was not present there, when the Mahazar was drawn and he has signed the Mahazar in order to oblige the Police in the Police Station. It is further suggested to him that the place where the Mahazar Ex.P-3 was drawn, he was not there on the spot and nothing was seized. These suggestions were completely denied by him. Therefore, it is incumbent on the court to answer whether only on the basis of mobile movements his evidence has to be disregarded even though PW-1 has not signed the Mahazar Ex.P-3. He corroborates the 34 evidence of the Investigating Officer with regard to drawing up of Ex.P-3 and also seizure of MOs.1 to 3. Though the witness has admitted and also it is established from the evidence of DW-1 that on the basis of Exs.D-3 and 4, this mobile number was operating at Lakkasandra, but what is required to be elicited is as to what is the distance between Lakkasandra and the place of incident and how this witness can be present at the scene of offence, but the same is not clarified in the course of cross examination. Therefore, in our opinion, the evidence of the Investigating Officer and the evidence of this witness which is corroborated by the evidence of PW-1 cannot be easily brushed aside.
20.7. Now, we would like to discuss the last segment with regard to the connection of these recovered articles with that of the crime.
20.8. The prosecution in order to link the recovered articles with that of the accused has relied upon the evidence of PW-13 Shanaz Fathima, who has deposed that she was working as a Scientific Officer in Biology Section, FSL, Bengaluru and she received the 35 articles which were sealed along with the sample seal. As many as 11 articles she examined, the articles were specifically mentioned in her evidence particularly at the spot the blood stained mud one chopper was seized that were marked as item Nos.1 & 2 and item Nos.3 & 4 are the T.Shirt and Jeans Pant belonged to accused No.1, item Nos.5 to 9 are the clothes of the deceased, item No.11 is the sample blood of the deceased, and item No.12 is the Hair of the deceased. On examination, she has categorically stated that on item Nos.1 to 6, 8 & 9, she found the presence of blood stains that too of human origin of 'B'-Group blood and the sample blood in item No.10 was disintegrated. Accordingly, she gave a report as per Ex.P-22. Nothing worth has been elicited in the course of cross examination except suggesting that in order to oblige the Investigating Officer, such information has been furnished. The expertise and the clarification of the witnesses has also been elucidated in the course of cross examination. Therefore, there is no strong reason to discard this particular evidence. The document Ex.P-22 coupled 36 with the evidence of this witness clearly discloses that, the blood group of the deceased matches with the blood stains found on the T.Shirt and the Jeans Pant of the accused No.1. Apart from the above, even at the cost of repetition, we may say, so far as these recovery is concerned, it is the defence taken in the course of cross examination of the Investigating Officer that the blood of the deceased was sprinkled on the clothes of the accused No.1 i.e., T.Shirt and Jeans Pant. When such defence has been taken, it becomes the responsibility of the accused to establish as to how and in what manner and at what time, the clothes of the accused were taken by the police and that the blood was sprinkled on the clothes of the accused, otherwise it goes without saying that recovery of the above said articles at the instance of the accused containing the blood group of the deceased is amply established by the prosecution. Therefore, the prosecution has unequivocally proved the recovery of the clothes of the accused which were stained with blood which went unexplained by the accused. This is a very strong circumstance against the 37 accused which clinchingly establishes the connection of the recovered articles with that of the crime. Hence, we have no hesitation to hold that the prosecution has proved the circumstances beyond reasonable doubt.
21. Before parting with this particular circumstance, a legal question has been raised by the learned counsel for the appellants relying upon a decision of this court. It is the contention of the learned counsel for the accused/appellants that the Investigating Officer who has recorded the voluntary statement of the accused and marked them before the court as per Exs.P-20 and P-21, but, he has not re- iterated the exact statement marked before the court in his evidence and there is no deposition to that effect. Therefore, he would submit that the voluntary statements of the accused as per Exs.P-20 and P-21, themselves will not become substantive evidence before the court. He further submit that if that portion is eschewed from consideration, there cannot be any discovery of fact or recovery of any articles at the 38 instance of the accused and therefore, the whole recovery process cannot be believed at all.
21.1 In this regard, learned counsel has relied upon a decision of this court reported in ILR 1994 KAR 491 between Vijaykumar and State, wherein this court has held that -
"Section 27 of the Evidence Act, Information as leads to discovery of fact to be proved like any other fact - Recording in deposition of Investigating Officer, that particular statement recorded as exhibited, does not take place of substantive evidence - Duty of Sessions Judges and correct approach."
(emphasis supplied) 21.2 In another ruling reported in 1996 CRL.LJ 317 KAR between M.Abbas, Dakshina Kannada, and the State of Karnataka, wherein this court has reiterated the above said principle that "Voluntary statement alleged to have been made by the accused before Police, could not amount to substantive evidence 39 even the recovery of the property produced by the accused would not be covered by Section 27 of Indian Evidence Act, at the most recovery of all those properties might lead to the inference that the accused had the knowledge that these properties were stored in a particular place. That might raise a strong suspicion against the accused but no accused can be convicted merely on account of suspicion however grave it may be."
21.3 On meticulous understanding of the aforesaid decisions, it is noticed in Vijayakumar's case, that the court has not discussed as to what would happen if the particular portion of the voluntary statement of the accused is not deposed by the Investigating Officer, if the discovery of fact and recovery of any incriminating articles at the instance of the accused is otherwise proved by the prosecution. In the Abba's decision, though the court has re-iterated the principle that unless the Investigating Officer deposes the contents of the statement of the accused, it will not become substantive evidence but still relied upon discovery of fact and recovery of incriminating 40 articles at the instance of the accused but declined to accept the same on the ground that it only created a serious suspicion.
21.4 In our opinion, it is a right time once again to re-look into Section 27 of the Indian Evidence Act and consider whether the failure of the Investigating Officer to depose the entire contents of the statement made by the accused with reference to the discovery of fact and consequent recovery of any object, is altogether invalidates the total discovery of the facts and the recovery therein at the instance of the accused if it is otherwise established before the court.
21.5 It is worth to refer the provision itself i.e., Section 27 of the Indian Evidence Act which reads as follows:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a 41 confession or not, as relates distinctly to the fact thereby discovered, may be proved."
The above said provision elucidates that the fact deposed as to discovery in consequence of information received from the accused of any offence in the custody of a Police officer so much of such information even though it is confession may be proved. In our opinion the marking of relevant portion of voluntary statement of accused and deposing the contents of the statement made by the accused is a procedural aspect on the part of the Investigating Officer who has to depose with regard to the contents of the information given by the accused. The above said Section can be safely understood that if any fact is deposed to as discovered in consequence of the information received from a person, accused of any offence, discloses that the fact is deposed to as discovery in consequence of information to be read as a whole. Therefore, the discovery of the factual aspects which led to recovery of any incriminating articles at the instance of the accused in consequence of the information forms a conjoint sentence, which cannot be bifurcated and it should be 42 read as a whole. Therefore, if it is read as a whole, the consequence of discovery must be examined by the court with reference to other evidence on record and come to the conclusion whether the discovery of fact by the accused was there and in consequence of such information any recovery has been made.
21.6 It is also worth to mention here that the object of Section 27 of the Indian Evidence Act, has to be borne in mind regarding admissibility of the confession statement of the accused regarding discovery of any fact and consequential recovery if any. The evidence would not be admissible except as provided under section 27 of the Indian Evidence Act. In view of Section 24, 25 and 26 of the Indian Evidence Act which are the barricades to the court to accept any confession statement of the accused made before Police. Therefore, Section 27 of the Act states in order to render evidence leading to discovery of any fact admissible, the information must come from the accused in custody of the Police. Thereafter, on the basis of such information, the Police have discovered 43 any fact or recovered any article at the instance of the accused. Therefore, the magnitude of this particular Section if it is properly understood makes it clear that, mere non deposition of the contents of the statement of the accused by the Investigating Officer will not altogether invalidates the consequential discovery of facts or recovery of any material objects.
21.7 Therefore, in this background, the court has to visualize the truth of the disclosure statement by testing the same from the consequential recovery of any material objects or articles at the instance of the accused. Merely because the Investigating Officer has not deposed word by word, the statement of the accused with regard to the information that by itself in our opinion is not sufficient to throw out the substantive evidence available to the court with regard to the consequential recovery of incriminating articles at the instance of the accused. Even otherwise the court can consider the truth as well as the genuineness of the consequential recovery at the instance of the accused. If the other materials on record, gives an assurance to 44 the court with reference to the recovery of the incriminating articles, even though it is not specifically deposed about the information given by the accused, in our opinion, it only amounts to irregularity which would not in any manner paralyze the remaining portion of the recovery of the incriminating articles at the instance of the accused. Of course, what is statutorily required is that the Investigating Officer has to depose the discovery of facts in consequence of the information. The acceptability of what is deposed by the Investigating Officer with reference to the information given by the accused are all the circumstances to be visualised by the court independently, in the facts and circumstances of a given case. Strictly going by Section 27 of the Act, what is required is only the evidence of the Investigating Officer and the other witnesses if examined before the court to ascertain the whole gamut of the discovery of facts and recovery of any material objects or the articles at the instance of the accused. If the discovery of facts and consequent recovery is on the basis of some information given by the accused though 45 not vividly depicted in the evidence of the Investigating Officer, in our opinion is not totally fatal to the consequential recovery at the instance of the accused.
21.8 We are not unmindful of the object of Section 27 of the Act. The provision may be mis-used by the dishonest Investigating Officers. In such cases, safeguards are insisted by the courts for the purpose of ensuring regularity and correctness of the actions of the Police Officers. But the same principle is not applicable to all the Police Officers who genuinely and promptly investigate the matters though they commit some lapses during the course of investigation un-mindful of consequences of their acts. Therefore, it all depends upon the facts and circumstances of each case. But, the court should be alive and alert to examine whether the Investigating Officer on the basis of the information, has proceeded to discover the facts given by the accused and consequential recovery of the material objects or articles at the instance of the accused, were made.
46
21.9 Further added to the above, if the recovery Mahazar is fully supported by panch witnesses and also the evidence of the Investigating Officer with regard to the accused leading to place where the hidden articles were kept and at the instance of the accused, the said recovery has been made, this portion of the evidence which is substantive in nature, cannot be disregarded. Merely because the Investigating Officer has not deposed to what exactly the information given by the accused. Therefore, such information given by the accused if possible to the court can be inferred on the basis of the subsequent conduct of the accused witnesses and the Investigating Officer in recovery of incriminating articles at the instance of the accused. Therefore, we are of the opinion that, merely because the Investigating Officer has not deposed with regard to the exact information furnished by the accused, it is only an irregularity and lapse on the part of the Investigating Officer, that in any manner will not invalidate, vitiate or fatal to the prosecution case. 47
22. EVIDENCE OF SOLE EYE WITNESS VERSION AND RELIABILITY:
Before adverting to the evidence of PW-1, who is an eye-witness to the incident, we would remind ourselves the queries raised by the learned counsel for the accused with regard to the acceptance of the testimony of PW-1. The evidence of PW-1 is attacked mainly on three grounds. Firstly, PW-1 is a chance witness and his evidence cannot be believed as trustworthy. Secondly, it is contended that the identification of the accused by him at the place of the incident and before the court is meddled with the Police showing the accused persons in the Police Station.
Therefore, the identification itself is bad in law and on that ground alone, the accused are entitled to be acquitted. It is contended that there are other circumstances like non examination of the friend of PW-
1 and PW-1 not taking care to shift the injured to the Hospital and the movements of his mobile, creates a serious doubt with regard to the presence of the accused at the spot and mentioning the name of the 48 injured in the complaint creates a serious doubt. In fact, PW-1 though is not a witness to Ex.P-3, with all interestedness, he has deposed with regard to the conducting of the spot panchanama. There is no material to show that, who shifted the injured to the Sagar Hospital. It is also contended that PW-1 has been influenced by the previous employer of the deceased.
At his instance, a false complaint was lodged and the evidence of PW-1 was adduced. Therefore, for all these reasons, the learned counsel requests the court to discard the evidence of PW-1.
22.1 In the wake up of the above said submission, we would like to consider the grounds one by one, because of the simple reason that the case of the prosecution mainly depends on the evidence of the sole eye-witness to the incident i.e., PW-1.
22.2 We are conscious of the legal position that when a solitary eye-witness is there, how the court has to deal with the solitary sole eye-witness. Normally, the court should meticulously examine the evidence of such sole eye-witness in order to over come all the grounds 49 raised with regard to the acceptability of such witness. It is to be borne in mind that, there is no bar under any law for the time being in force, which say that conviction cannot be recorded on the basis of the statement of a solitory eye-witness. However, the quality of the evidence placed before the court has to be tested by other circumstances in the case. If the evidence of the sole eye-witness and the credibility of the evidence is not shaken by any adverse circumstance appearing in the record against him and if the court at the same time fully convinced that he is a truthful witness, then the court even without insisting for corroboration through any other witness, can record the conviction. Therefore, it is only a quality not the quantity of evidence required in a particular given case. For the purpose of accepting the evidence of a sole eye- witness, the court has to very meticulously and carefully test the veracity of such witness before accepting the same. In the above said backdrop, now we will take up the grounds urged before this court.
50
22.3. It is the contention of the learned counsel that PW-1 is a chance witness. Of course, chance witness is a person happened to be at the place of occurrence by chance at the time of the incident and he would not be there normally, if he goes to the spot, unexpectedly then he will become a chance witness. If such person is shown to be a relative or a friend of the victim or enemically disposed towards the accused, then, he being a chance witness shall be viewed with suspicion. In this particular case, whether PW-1 is a chance witness or not has to be examined from the evidence of PW-1 himself.
22.4. PW-1 T. Sriram has stated in his examination in chief that he has been working as an Engineer in Ericson India Global Service Pvt.Ltd., and he used to go to his house regularly after office hours, which is situated at BTM Layout, II Stage, Bengaluru. On 28.5.2012 in the evening at about 6.15 p.m., he left his office to go to his house along with his friend Noushir Kuman on his motorcycle. The said Noushir Kuman has dropped this witness to 7th Main, BTM 51 Layout II Stage. While he was walking on the foot path to purchase tender coconuts, he has observed a girl (deceased) coming on the said road. He also observed two persons came on a Splendour motorcycle. Out of them, one person took out a long chopper and assaulted on the right side neck of the said girl and she fell down and the said person went ahead for some distance and after throwing the long chopper went near the motorcycle on which another person was waiting for him and after wearing helmet, they went away from the place. This witness in fact ran behind them by screaming, but in spite of that, they did not stop the motor cycle. Immediately, he went to traffic Police Station which was nearby and informed them and thereafter, the injured was shifted to the Hospital in an ambulance and this witness went to Mico Layout Police Station and lodged a complaint as per Ex.P1 which was orally given by him, reduced it into writing by the Police. He has also deposed that he again came back to the said spot along with the Police and the Police have 52 collected the blood stained material object from the spot i.e., long chopper and prepared the spot mahazar.
22.5. PW-1 has further deposed that on l.6.2012, this witness was called to the Police Station and he has seen accused Nos.1 and 2 in the Police Station and gave his statement. He has also told the Police that he could identify the accused persons and he also identified the motor cycle used by the accused on that day bearing Registration No.KA-51/Y-3188. He also identified the MOs.1 to 3 which are the blood stained mud and un- stained mud and a long chopper. He has also identified accused No.1 specifically before the court stating that accused No.1 was the person assaulted the deceased and accused No.2 was the person on the motor cycle waiting for accused No.1. This is exactly the evidence given by the witness before the court; he cannot be a chance witness because he is the regular user of the said road. In the course of cross examination at paragraph 11 in fact, it is elicited from him that he can specifically state the details of the place where the incident had happened and he has also stated that 53 almost every day he goes to that particular spot and then he go to his house by using the said road. This witness is no way related to the deceased or to any of the witnesses or he has got any ill-will or hatredness against the accused persons. Even according to the cross examination of this witness, it is elicited at paragraph 16 that he saw the accused persons on that road for the first time on the date of incident and he has seen them thereafter in the Police Station and in the court. Except suggesting to this witness that he has deposed before the court only at the instance of one Mr.Nagaraj, owner of Sapthagiri Real Estate and also father of the deceased and on their instigation, he has lodged the complaint and given evidence before the court. But there is no suggestion or elucidation of any fact from the mouth of any witness as to how this man was connected with Mr.Nagaraj owner of Sapthagiri Real Estate. There is nothing to show that PW-1 has come in contact with the accused or the deceased Divya or her father and brothers of the deceased Divya at any point of time in order to draw an inference that he has got 54 some interestedness in giving evidence before the court against the accused. Therefore, the contention of the learned counsel that he is a chance witness is not acceptable.
23. Of course, the learned counsel strenuously relied upon the circumstance of Police showing these two accused persons in the Police Station and therefore, the identification by the witnesses before the court becomes valueless. Of course, the witness has categorically admitted as noted above that he has seen the accused persons in the Police Station on 1.6.2012 after the incident.
24. The learned counsel in this context has relied upon two decisions of the Hon'ble Apex Court which are:
I. AIR 1982 SC 839 [Mohanlal Gangaram Gehani Vs. State of Maharashtra] wherein the Hon'ble Apex Court has observed that -
"Head Note B - Identification of accused - victim not knowing accused prior to occurrence - Test Identification Parade not held - accused shown to victim by 55 Police before trial - His identification in court by victim is valueless and cannot be relied upon."
In that particular case, though the Hon'ble Apex Court has observed in such a manner, it was based on the factual aspects of that case. At paragraph 19 of the judgment, the Hon'ble Apex Court has observed that -
"I had seen the accused before coming to the court and after the incident, I had seen the accused 10 days after I was discharged from the Hospital. I was shown these accused by the Police at the Police Station."
Therefore, basing on this factual aspects that the accused was shown to the witness just before the witness going to the court and court held that because of that reason only, the witness was able to identify the accused. Hence such identification becomes value less.
II. In another ruling reported in (1998) 4 SCC 494 [Mohammad Iqbal M. Shaikh and Others Vs. State of Maharashtra] wherein the Hon'ble Apex Court has observed that -
56
"If the witness knew the accused persons either by name or by face, the question of Police showing him the accused persons becomes irrelevant. If the witness did not know the accused persons by name, but could only identify from their appearance, then a Test Identification Parade was necessary, so that, the substantive evidence in court about the identification, which is held after a fairly long period, could get corroboration from the Test Identification Parade."
Where the accused is shown to the witnesses during investigation, then the so called Test Identification Parade looses its value and identification in court also becomes inconsequential. In the above said ruling, the Test Identification Parade was held after showing the accused in the Police Station. Therefore, the court held that the consequential identification before the court is also not acceptable.
25. The above said points in our opinion, requires to be considered by the court in detail with regard to the identification of the accused.
57
26. It is worth to refer a decision of the Hon'ble Apex Court reported in (2003) 5 SCC 746 [Malkhansingh and Others Vs. State of Madhya Pradesh] wherein the Hon'ble Apex Court has observed under what circumstances, even in the absence of Test Identification Parade, the court could rely upon the evidence of identification before the court. Regarding failure to hold Test Identification Parade of the accused persons in the court, the Hon'ble Apex Court has observed at paragraphs 7 and 16 that -
"The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trust worthy-ness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however is subject to exceptions, when, for example, the court is impressed by a particular witness on whose 58 testimony, it can safely rely, without such or other corroboration. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court, where identifying witness is a total stranger, who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
But failure to hold Test Identification Parade would not make inadmissible the evidence of identification in court. The identification parades belong to the stage of investigation and there is no provision in the Cr.P.C. which obliges the Investigating Agency to hold or confers right upon the accused to claim a Test Identification Parade. These parades do not constitute a substantive evidence. The substantive evidence is the evidence of identification in the court and the Test Identification Parade provides corroboration to the identification of the witnesses in the court if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a Test Identification Parade is a matter for the courts of fact to 59 examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration."
(emphasis supplied)
27. The above said decision gives a broad principle as to how the evidence of a witness has to be considered with regard to the identification of the accused before the court, the court can even accept the evidence without there being any identification parade.
28. In another ruling reported in (2001) 1 SCC 358 [Ramanbhai Naranbhai Patel and Others Vs. State of Gujarath] wherein the Hon'ble Apex Court has laid down certain principles with regard to the identification of the accused at paragraphs 20 and 21 which are as follows:
"Identification of accused for the first time in court by eye-witnesses when they did not know him earlier and when no Test Identification Parade had been held - Evidentiary value - such evidence, although may be treated to be of a weak nature, held, is not totally irrelevant or inadmissible - Real credence of such evidence would depend 60 upon the facts and circumstances of each case - In the instant case, since the two eye- witnesses themselves were assaulted and seriously injured in broad daylight, held, they could have easily seen the faces of the assailants and their appearance and identity would well remain imprinted in their minds - more over since the third witness had seen the fatal assault on her husband (who was the third victim in the same incident) causing fatal injuries to him, held, faces of the accused can easily be treated to have been imprinted in her mind - hence, even in the absence of Test Identification Parade none of the three witnesses could be said to be interested in roping in innocent persons by shielding the real assailants. Then, omission to hold Test Identification Parade becomes inconsequential and the court can rely upon such trustworthy evidence before the court."
29. In view of the above said decisions, it is clear that any lapse on the part of the Investigating Officer in not conducting the Test Identification Parade, becomes only an irregularity and not an illegality. In the absence of such identification parade, if the court is of the opinion that it is not an infirmity to believe the evidence 61 of the witnesses who are credible and trustworthy, then there is no bar for the court to rely upon such evidence which is substantive in nature.
30. Now, coming to the important aspect that whether mere showing of the accused in the Police Station as noted in the above said two decisions is an absolute bar to the court to appreciate and accept the substantive evidence regarding identification of the accused made by the witnesses before the court.
31. In this context, it is worth to refer a decision of the Hon'ble Apex Court reported in 1993 Supple (2) SCC 198 between Mullagiri Vajram and Others and State of Andhra Pradesh wherein, the Hon'ble Apex Court has observed that -
"Appreciation of evidence - conviction based on reliable testimony of neighbour who had witnessed the murder of another person - infirmity in identification parade of the witness having earlier seen the accused in Police lock-up, held, therefore, immaterial
- No other infirmity in the reasoning and in such an eventuality, mere seeing of the 62 accused in the Police lock-up will not in any manner deprive the court from appreciating the substantive evidence placed before the court."
32. In the said case, PW-2 in his cross examination admitted that after the incident he had gone to the Police Station 7 or 8 times as asked by the police. He has also admitted at that time, the accused persons were there in the Police lock up. On the basis of the above said statement of PW-2, the accused has contended that when the witness had gone to the Police Station, there is possibility of seeing the accused in the Police Station cannot be ruled out. The court finds no force in his contention and held that even in spite of that there is no infirmity to appreciate the substantive evidence before the court.
33. In a recent ruling of the Hon'ble Apex Court reported in (2010) 6 SCC 1 between Sidhartha Vashisht @ Manu Sharma and State (NCT of Delhi), wherein the Hon'ble Apex Court had an occasion to deal with Section 9 of the Indian Evidence 63 Act. It is observed at Head Note ZD with reference to the Test Identification Parade, which reads thus -
"Sections 9 & 8 - Test identification Parade - Evidentiary value - Held, photo identification/Test Identification Parade are all aids in investigation and do not form substantive evidence - Substantive evidence is evidence of witnesses in court on oath - To say that photo identification is hit by S.162 of Cr.P.C. is wrong - Even Test Identification Parade before Magistrate would otherwise be hit by Section 162 Cr.P.C. - Logic behind TIP/photo identification is that where an accused is not known to witnesses, IO conducts TIP to ensure that he has got the right person as accused - Practice is not borne out of procedure, but out of prudence - At best TIP can be brought u/s.8, as evidence of conduct of witness in identifying accused in presence of IO or Magistrate during investigation."
(emphasis supplied) At Head Note ZE paragraphs 255 and 258, it has further observed by the Hon'ble Apex Court that - 64
"Criminal Trial - identification of
accused - Dock identification in court
without previous Test Identification Parade
- Admissibility/Evidentiary value - Held, even when there is no previous TIP, court may appreciate dock identification as being above board and more than conclusive -
Dock identification is substantive piece of evidence and even in absence of TIP no prejudice is caused to prosecution case - Photo identification was resorted to vis-à-vis PWs.1 to 4 - Hence held, no merit in contention of defence that dock identification was farce."
At Head Note ZB paragraphs 246-249 and 258, it has further observed by the Hon'ble Apex Court that -
"Test Identification Parade - Refusal to submit to - Effect - Adverse inference - Main accused M refusing Test Identification Parade on the ground that his photograph had appeared in the newspapers, his photograph was shown to witnesses, and that he himself was physically shown to witnesses - M surrendering on 6.5.1999 and produced in muffled face before Metropolitan Magistrate held, all three contentions of M. are incorrect and 65 misconceived. Hence, refusal to submit to Test Identification Parade was unjustified and adverse inference needs to be drawn therefor."
(emphasis supplied)
34. In the above said case, it was contended by the learned counsel for the defence that the photographs of accused was shown to the witness and photographs of the accused were also appeared in the newspapers. Therefore, the accused refused to participate in the Test Identification Parade. When the accused refused to participate in the Test Identification Parade, the Investigating Officer secured the presence of the accused to the Police Station and shown the accused to the witness and thereafter the witness have again identified the accused in the court. In that context, the Hon'ble Apex Court has reiterated that "identification parade" belongs to the stage of investigation and showing the photograph and the accused in person prior to or after the Test Identification Parade do not constitute substantive evidence. These parades are essentially governed by Section 162 of 66 Cr.PC., failure to hold Test Identification Parade would not make inadmissible evidence of identification in court. Therefore, what credence to be attached to such identification is a matter for the courts to consider the facts of each case. In appropriate cases, the court may accept the evidence of the identification even without insisting for any corroboration.
35. In view of the above said decisions, in our opinion, the identification before the court play a dominant role irrespective of what had happened prior to the witness identifying the accused before the court, on the basis of his remembrance of seeing the accused persons at the time of the incident. If the accused persons were shown to the witnesses earlier, it may not be a serious error, if the witness had candidly specifically identified the accused before the court of law. There must be some reason in the evidence of such witnesses to discard the evidence placed before the court. There must be some elucidation in the evidence of such witness, it should be conspicuously apparent on the face of the evidence of that witness to discredit him. 67 It is also to be borne in mind that normal and natural conduct of Police is that if any complaint is lodged to the police by a person who was totally unknown, a stranger and the police registers a case against some un known persons at the initial stages, of course there must be some indication about the identifiable features of the accused. On such complaint, whenever the police incur a suspicion and on such suspicion if the accused is arrested in connection with some other case, and he suspects about the involvement of accused in connection with some other case, then the natural and expected approach of the police would be to call the witness to the Police Station and show the accused to him. There is absolutely no procedure so far as this attitude of the police which debars them from calling the witness to the Police Station under any law for the time being in force recognized, much less in the Cr.PC.,. It is seen from many of the cases (as noted supra) all over the world, the police can only work in this fashion, because this is a fundamental approach. Therefore, that itself cannot be in our opinion a ground to discard 68 the evidence of PW-1 in this case, if the evidence of PW- 1 is otherwise acceptable, trustworthy and credible in nature. However, this circumstance also cannot be simply ignored by the court. The courts have to meticulously consider this lapse or intention of Police with reference to evidence of such witness, before accepting the testimony. In this backdrop, now we would like to discuss the cross examination of this witness.
36. In the course of cross examination of PW-1, it is elicited that other two or three persons were also standing at the place of incident, where this witness was standing for the purpose of purchasing tender coconut. When he saw the incident, he did not go near the said girl and observe whether she was crumbling for help, but he has deposed that he has seen the body of the said girl was shaking. Immediately, he had informed the same to the nearby traffic Police Station. Even though some other persons were also present, PW-1 is the only man who is dare enough to go to the Police Station as a dutiful citizen and informed the police. Of 69 course, the Investigating Officer has not examined the friend of PW-1 Kamal and also the tender coconut vendor in this regard. There is no explanation by the Investigating Officer also whether actually anybody was present at the time when the police reached the spot, who have actually seen the incident is also not explained in the course of cross examination, but it was only suggested that other persons were also present at the time of the incident, whether those persons were available to the police or not, is not forthcoming in the evidence of these witness.
37. The doubtful fact which has been argued with regard to the presence of PW-1 is on the basis of his mobile movements. Of course, the witness has admitted that his mobile No. is 98802 51999 and he was having the said mobile with him on 28.5.2015, even at the time of the incident. It is elicited in the course of cross examination at paragraph 7 that at 6.30 p.m., his mobile was at Belandur and later at about 6.49 p.m., the mobile was at BTM layout i.e., the place of incident. According to the learned counsel, PW-1 has 70 stated the incident happened at about 6.30 p.m., but according to his mobile call details, he reached the said spot at about 6.49 p.m., or 6.59 p.m., therefore, his presence at the time cannot be inferred. The witness also stated that, he received the call at 6.13 p.m., while he was in Belandur and at 6.39 when he was in BTM layout at the place of incident. He also stated that Mico layout is also within the jurisdiction of BTM layout. Of course, the movements of the mobile is also been established from the evidence of DW-2 Stanley.
38. Learned Addl. SPP in fact has elicited in the course of cross examination of DW-2 that on 8.5.2012 the location of the mobile of the complainant was at Belandur at 6.13 p.m., and at 6.49 p.m., the said mobile was in Mico layout and at 6.55 p.m., the location was at BTM II stage. Therefore, the time of incident was between 6.30 to 6.59 p.m., and this witness was very much present at the place of incident even according to the defence evidence. As could be seen from the cross examination of this witness already referred to, there may be some discrepancy in the 71 timings, but it cannot be stated on the basis of that, this witness had never been to that particular spot.
39. Regarding identification of the accused in the court, the witness though stated that he has seen the accused persons in the Police Station on 1.6.2012, but there is no suggestion that only because of that reason he can able to identify the accused in the court. On the other hand, the witness has categorically stated that, he has seen the accused persons at that particular place because it is a ghastly incident happened and blood was fallen on the ground. Therefore, it must be imprinted in the mind of this witness about the identity of the accused persons. Therefore, in the absence of any other circumstances, the evidence of such identification cannot be disbelieved.
40. Further it is argued that, PW-1 has not taken any steps for shifting of the injured to the Hospital, but he has stated that, he has informed the traffic police with regard to the incident and the injured was shifted to the Hospital thereafter. Though there are serious lapses on the Investigating Officer in not collecting 72 materials as to who actually shifted the injured to the Hospital and there is no recoding of the statements of the traffic police and also the Hospital authorities to establish this particular aspect, but the fact remains that the other witnesses have also stated that they have seen the injured in the Sagar Hospital and informed the police about the said fact along with the name of the injured. Perhaps PW-2 the father and others immediately rushed to the Hospital and by that time the police had already got the information about the incident that may be the reason that before recording of the statement of PW-1 as per Ex.P-1 the name of the injured was also mentioned in the said Ex.P-1. Therefore, we do not find any strong infirmity so far as this aspect is concerned.
41. Of course, the non examination of the friend of PW-1 shows that, there is a defect in the investigation by the Investigating Agency. Of course merely because some defect in the investigation itself is not sufficient to discard the case of the prosecution. 73
42. It is worth to refer here a decision of the Hon'ble Apex Court reported in (2003) 6 SCC 73 between Visveswaran and State Rep. by SDM, wherein the Hon'ble Apex Court has observed that -
"Investigation - Defective investigation - Effect of - Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved - The only requirement is of extra caution by courts while evaluating evidence in such cases - Acquittal of accused solely on the ground of defective investigation, held, would not be just and proper."
Though this witness was cross examined at length, regarding the fact that he has not given any identification marks on the accused but he reiterated in the course of cross examination that he has seen the registration number of the motorcycle. But he could not see the clothes of the accused worn at that particular point of time, but he has specifically and candidly stated in the course of cross examination that he has seen the face of the accused persons when the accused No.1 was 74 assaulting the deceased and throwing the long chopper on the foot path. At paragraph 16 he in fact reiterated that when the accused was throwing the long chopper, PW-1 has seen accused No.1, and in turn accused No.1 seen this witness. Perhaps that may be the reason, this witness never had any occasion to forget the face of accused Nos.1 and 2.
43. Though this witness PW-1 has not signed the spot Mahazar, but he states that, he went back to that particular place of incident along with police after lodgment of Ex.P1 complaint and the police have conducted the spot Mahazar and collected the blood stained and unstained mud and also long chopper. This particular aspect is also corroborated by the evidence of other witnesses as we have already discussed above.
44. There is no fruitful cross examination as to why this witness has to lie before the court. As we have already observed that he is neither related to the deceased nor had any enmity towards the accused and there is no material to show any interestedness in the evidence of this witness. When such being the case, 75 PW-1 being an educated man who is an engineer and who had no enmity against the accused, why he has to falsely implicate the accused is to be seen. Therefore, in the absence of any other circumstance to discard the evidence of this witness, merely because some discrepancies are there regarding the movement details of his mobile, evidence of PW-1 cannot be disbelieved.
45. Before parting with the evidence of this witness one should bear in mind that over importance should not be attached to the omissions, contradictions and the conduct of the witness which are not so strong enough and which do not go to the root of the matter and shake the basic version of the prosecution. It is quiet possible when a witness though wholly truthful is liable to be over awed by the courts atmosphere and the piercing cross examination made by the counsel, and out of the nervousness mixed up fact may get confused regarding sequence of events or even he may fill up details from imagination. It should be visualized, on the spur of movement if a person witnesses a ghastly incident, we cannot expect a set of reaction 76 from such a person. Each and every person reacts in a different manner, on seeing such violence and the behavior and conduct of accused, the witnesses feel differently, therefore the conduct of a person who witness the murder attack and he has not done something which is expected of a normal person that also would not in any manner discredit the evidence of such witnesses. Therefore, in the above said backdrop the evidence of PW-1 is seen, in our opinion the evidence of PW-1 cannot be discredited without there being any strong reasons to be adverted to. Hence, the evidence of PW-1 in our opinion is trustworthy and credible for acceptance.
46. After analyzing the evidence of PW-1, it is very much clear that accused No.1 and accused No.2 came to the spot armed with a long chopper and accused No.1 actually assaulted the deceased with long chopper on her neck and accused No.2 knowing fully well about the act of the accused No.1, has in fact joined hands to facilitated him in commission of the said act of accused No.1 by bringing him to the spot and 77 waiting for accused No.1, watching the accused No.1 while committing the offence and thereafter taking away the accused No.1 from the spot. This also clearly indicate that both the accused persons have the common intention to commit such an offence.
47. In view of the above said facts and circumstances, it is seen that, the case of prosecution is fully established by the evidence of PW-1, corroborated by recovery of the incriminating articles at the instance of the accused and also established the guilt of the accused beyond reasonable doubt. Therefore, we do not find any strong reasons to interfere with the judgment of conviction and sentence of life imprisonment passed by the Trial Court, though we find the impugned judgment is not properly reasoned out on all the above points raised.
48. Last, but not least, now coming to Criminal Appeal No. 766/2014, which is preferred by the State, wherein it is argued that the Trial Court has not imposed any fine amount while sentencing the accused for the offence punishable under Section 302 read with 78 Section 34 of IPC. The imposition of fine is mandatory, whenever the accused is convicted and sentenced u/s.302 of IPC. Therefore, as rightly contended by the learned Addl. State Public Prosecutor, appropriate fine has to be imposed on the accused in order to complete the sentence under the above said provision. Hence, in the facts and circumstances of the case, we feel it just and necessary to impose an amount of Rs.10,000/- as fine on each of the accused persons. Further, it is ordered that, if any fine amount is deposited, the entire fine amount has to be given as compensation to the father of the victim girl PW-2 on proper identification and acknowledgement.
49. Before parting with this judgment, we have observed that the trial Court has given a direction to the Government while convicting the appellants for the offence punishable under section 302 of IPC and sentencing them to undergo imprisonment for life, not to release the accused persons from the prison for the rest of their life.
79
50. On perusal of the order regarding quantum of sentence, the trial Court has simply noted the grounds urged on behalf of accused No.1 and accused No.2 stating that accused No.1 is aged 23 years and having old aged parents, brother and sister. He was working in call centre and earning Rs.9,000/- per month. His entire family members are depending upon his income. He is the first offender. Accused No.2 was also similarly aged and his father is no more. He has to maintain his mother and un-married sister with a paltry sum of Rs.4,500/- per month as he was working in a Car service station.
51. Apart from the above, the learned counsel for the appellants before this court submitted that the appellants have no bad antecedents and except this case, no cases are pending against them. At no point of time, they behaved in any manner which is derogatory to the society and they are not anti social elements. Only due to frustration in love, the unpleasant incident had occurred. The court has to see not only the crime 80 committed by the accused, but also the Criminal while sentencing them with any harsh punishment.
52. After hearing the learned counsels, the trial Court has mainly concentrated on facts as to how the incident has happened and found it is barbaric in nature. Therefore, came to the conclusion that it is not a rarest of rare case, but imposition of only life sentence is not sufficient. Therefore, it extended the life imprisonment with a direction to the Government as noted above.
53. There is no doubt that life imprisonment means the entirety of the life. Once the accused are sentenced to undergo imprisonment for life, unless it is curtailed by remissions validly granted under the Cr.P.C. by the appropriate Government by exercising the powers u/s.432, 433, 433A, 434 and 435 of Cr.P.C. and also under Articles 72 and 161 of the Constitution of India by the Executive Head i.e., the President of India or the Governor of the State, respectively.
54. The question arises in this case as to whether the learned Sessions Judge has got power to impose 81 punishment in between "life imprisonment' and 'death sentence', which is virtually called as an extended punishment or alternative punishment between life imprisonment and the death sentence. In this context, it is worth to refer a decision of the Hon'ble Apex court reported in (2016) 7 SCC 1 between Union of India and V.Sriharan @ Murugan and Others. At paragraphs 103 to 105, the Hon'ble Apex court has observed in the following manner:
"103. In fact, while saying so we must also point out that such exercise of power in the imposition of death penalty or life imprisonment by the sessions judge will get the scrutiny by the Division Bench of the High court mandatorily when the penalty is death and invariably even in respect of life imprisonment gets scrutinised by the Division Bench by virtue of the appeal remedy provided in the Code of Criminal Procedure. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions court's verdict by the High court and that too 82 by a Division Bench consisting of two Hon'ble Judges.
104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High court, it is only the High court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirely of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed.83
105. We, therefore, reiterate that, the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High court and in the event of further appeal only by the Supreme court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High court and the Supreme court and not by any other inferior court."
(emphasis supplied) Again, the above said aspect has been further affirmed rather not disturbed in another decision of the Hon'ble Apex court reported in (2016) 9 SCC 541 between Vikas Yadav. And State of UP & Others. In the said case also, the Hon'ble Apex court has virtually accepted the observation made in the above said Sriharan's case. Therefore, from the above said decisions, it is clear that the Sessions court would not derive any power from the Constitution for the purpose of imposing 84 such punishment which is an extension of life imprisonment.
55. The trial Court has mainly relied upon Swamy Shraddhananda @ Murali Vs. State of Karnataka (2) reported in (2008) 13 SCC 767, wherein the death sentence was remitted to the life and therefore, it was observed that once the death sentence has been commuted to life imprisonment, the sentence has to be served by the person for the rest of his entire life.
56. Though in Swamy Shraddhananda's case, the Hon'ble Apex court has not in detail considered the above said aspect, but it never said that such powers can be exercised by the Sessions court also, but indirectly in the said case also, it is the constitutional power exercised under Article 142 of the Constitution of India in order to do the complete justice. Therefore, it cannot be understood that some powers are also available to the learned Sessions Judge. 85
57. Therefore, from the above understanding of legal aspects, it is crystal clear that the power which is vested with the President of India, His Excellency Governor of the State and also the appropriate Governments under Article 72, 161 of the Constitution of India and as well as u/s. 432, 433, 433A, 434 and 435 of the Cr.PC., cannot be in any manner restricted or curtailed to by the Sessions Judges, but they are only empowered to inflict the punishment recognized under IPC i.e., u/s.302 of IPC, i.e., the life imprisonment or the death sentence, except those two penalties, learned Sessions Judges have no power to inflict any punishment in between the above said two punishments. It is only the powers vested with the High court and the Supreme court which derive the powers from the Constitution as these courts are the constitutional courts of India. Therefore, the trial court has committed a legal error in imposing punishment with such direction to the Government as noted above.
58. Apart from the above, the trial Court in fact has not bestowed its attention to the criminal, but only 86 bestowed its attention to the nature of the crime. It is the responsibility of the court to advert to the criminal as well as the crime committed by him. Therefore, we are of the opinion that for the purpose of sentencing, the learned Sessions Judge has to take into consideration the probability of reformation, rehabilitation and social re-integration of the appellants into society. The said aspect has not been considered by the trial Court at all. Though the act of accused No.1 is so harsh and barbaric, but the trial Court has come to the conclusion that it is not a rarest of rare case to impose death sentence. Unless the court comes to the conclusion that it is not a rarest of rare case, but it falls beyond the punishment of life imprisonment, for that the court has to vividly consider what are all the mitigating circumstances prevailing in the case apart from the discussion with regard to the crime but without referring to the criminal at all. Therefore, under the above said facts and circumstances of the case, we are of the opinion the extended sentence passed by the trial Court directing the Government that the accused should 87 not be released from the prison for the rest of their life is on facts also erroneous and unwarranted. Therefore, to that extent, the sentence passed by the trial Court requires to be set aside.
59. With the above said observation, we pass the following:
ORDER
(i) The appeals filed by the accused/appellants in Criminal Appeal No.471/2014 and Criminal Appeal No.475/2014 are hereby partly allowed.
(ii) Consequently, the judgment of conviction and order of sentence dated 7/9.5.2014 passed in SC No.1199/2012 by the Presiding Officer, FTC-V, Bangalore City, for the offence punishable under section 302 read with Section 34 of IPC, to the extent of imposing life imprisonment is confirmed.
(iii) However, the further extended sentence giving direction to the concerned authorities not to release the accused persons from the prison for the rest of their life for the offence punishable under section 302 read with Section 34 of IPC is hereby set aside.
(iv) The Criminal Appeal No.766 of 2014 filed by the State is hereby allowed.
88
(v) Consequently, each of the accused/appellants are sentenced to pay a fine of Rs.10,000/-. In default to undergo simple imprisonment for six months for the offence punishable under Section 302 read with Section 34 of IPC, apart from the life sentence imposed on them as noted above.
(vi) Further, it is ordered that, if any fine amount is deposited, the entire fine amount has to be given as compensation to the father of the victim girl PW-2 - P.Shyam on proper identification and acknowledgement.
(vii) The accused are also entitled for the benefit of set off under Section 428 of Cr.P.C.
Sd/-
JUDGE Sd/-
JUDGE PL*