Karnataka High Court
Sri Jintu Debanath vs State By S P P on 31 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.489 OF 2020
C/W
CRIMINAL APPEAL NO.1056 OF 2020
IN CRIMINAL APPEAL NO.489 OF 2020
BETWEEN:
SRI JINTU DEBANATH,
S/O SUBHAS DEBANATH,
AGED ABOUT 27 YEARS,
R/AT C/O SRI MUNEENDRA,
KUMAR BHARATHI,
FARN CITY,
DODDANEKKUNDI ROAD,
BANGALORE,
NATIVE ADDRESS,
PALASH JURI VILLAGE,
HABI BARANGA BARI POST,
MARINGAV DISTRICT,
ASSAM.
... APPELLANT
(BY SRI JAVEED S., ADVOCATE)
AND:
STATE BY S.P.P.,
2
BY MAHADEVAPURA POLICE STATION,
BANGALORE,
REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 5600 001.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT DATED 25.09.2019 PASSED BY THE LXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH-
65 BENGALURU CITY IN S.C.NO.498/2014,
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302,380,511
READ WITH 34 OF IPC AND ETC.,
IN CRIMINAL APPEAL NO.1056 OF 2020
BETWEEN:
SRI NABOKOUR,
S/O DUNNOKOUR,
AGED ABOUT 24 YEARS,
R/AT C/O SRI MUNEENDRA,
KUMAR BHARATHI,
FARN CITY,
DODDANEKKUNDI ROAD,
BANGALORE,
NATIVE ADDRESS,
PALASH JURI VILLAGE,
HABI BARANGA BARI POST,
MARINGAV DISTRICT,
ASSAM.
... APPELLANT
(BY SRI JAVEED S., ADVOCATE)
3
AND:
STATE BY S.P.P.,
BY MAHADEVAPURA POLICE STATION,
BANGALORE,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 5600 001.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 25.09.2019 PASSED BY THE LXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, CCH-65 BENGALURU
CITY IN S.C.NO.498/2014, CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302,380,511 READ WITH
34 OF IPC AND ETC.,
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J, DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Appeal No.489/2020 is filed by the appellant/accused No.1 and Criminal Appeal No.1056/2020 is filed by the appellant/accused No.2. 4
2. These two appeals are filed by the accused persons against the impugned judgment of conviction and order of sentence dated 25.09.2019 made in S.C.No.489/2014 on the file of the LXIV Additional City Civil and Sessions Judge, Bengaluru, convicting accused Nos.1 and 2 under the provisions of Sections 302, 380 and 511 read with Section 34 of IPC and sentencing them to undergo imprisonment for life with fine of Rs.10,000/- each with default clause for the offence punishable under Section 302 of IPC and sentencing them to undergo imprisonment for 3½ years with fine of Rs.1,000/- each with default clause.
3. Brief facts of the case are:
It is the case of the prosecution that on 28.10.2013 at 3.10 hours in the early morning near IDBI Bank ATM Center, beside Bagini Hotel, Ring Road, Doddanekkundi, Mahadevapura, Bangalore City and within the limits Mahadevapura police station, CW.1-
Chikkanarasimhaiah and CW.2-Manjunatha Swamy, who 5 were on beat duty. They came to know that, there are two persons inside the ATM room in a suspicious manner. When they tried to hold the door of the ATM room to avoid their escape, the said two persons break open the glass of the said ATM room flood away. They tried to chase them, but remained unsuccessful. When they came back near the ATM Centre again they came to know about murder of security guard inside the ATM Centre. After informing the matter to the police station, the Station Officer came to the spot, registered a case, arrested accused Nos.1 and 2, who were taking treatment in Nirmala Nursing Home for the injuries sustained to their left hands. During the course of investigation, Investigating Officer came to know that, accused Nos.1 and 2 attempted to break open the ATM machine. They murdered the security guard by name Harishankar Sharma, when he resisted for their act. Accordingly, Investigating Officer proceeded to the spot, collected the materials found on the spot, conducted inquest panchanama, interrogated accused Nos.1 and 2 6 and recorded their voluntary statements. On the basis of the information given by accused Nos.1 and 2, they recovered weapons used for commission of the offences and recorded the statements of the witnesses. After the investigation, Investigating Officer filed charge sheet against accused Nos.1 and 2 for the offences punishable under Sections 302, 380 and 511 read with Section 34 of I.P.C.
4. On the matter being committed to the learned Sessions Judge, the learned Sessions Judge secured the presence of the accused and framed charges for the offences punishable under Sections 302, 380 and 511 read with Section 34 of I.P.C. and explained them in the language known to him, who pleaded not guilty and claimed to be tried.
5. In order to prove the case of the accused persons, the prosecution examined PW.1 to PW.12 and got marked material documents as per Ex.P1 to Ex.P25 and material objects at MO.1 and MO.30. After completion of evidence of the prosecution witnesses, 7 the statement of the accused persons was recorded as contemplated under Section 313 of Cr.P.C., who denied the incriminating evidence adduced by the prosecution witnesses and not adduced any evidence. The accused examined one witness as DW.1, the owner of the building where accused Nos.1 and 2 were working as servant under him.
6. Based on the aforesaid pleadings, the learned Sessions Judge framed three points for consideration, which read as under:
1. "Whether the death of Harishankar Sharma is homicidal death?
2. Whether the prosecution proved beyond all reasonable doubt that, on 28.10.2012 at morning 3.10 hours at IDBI Bank ATM., Center, beside Bagini Hotel, Ring Road, Doddanekkundi, Mahadevapura, Bangalore City and within the limits of Mahadevapura Police Station accused No.1 and 2 with their common intention attempted to commit theft of money kept in ATM., machine and in commission of the said offence i.e. theft accused damaged the ATM machine and thereby committed the offences punishable under Section 380 and 511 read with Section 34 of IPC as alleged in the charge sheet?8
3. Whether the prosecution proved beyond reasonable doubt that, on the above said date, time and place, accused No.1 and 2 in furtherance of their common intention committed the murder intentionally causing the death of deceased security guard Harishankar Sharma aged about 20 years by accused No.2 assaulting with old iron rinch on his head, with knife on his right little finger and their after accused No.1 assaulting with knife on his right fore head, right eyebrow, on left side of nose near right ear and thereby committed an offence punishable under Section 302 read with Section 34 of IPC as alleged in the charge sheet?
7. Considering both the oral and documentary evidence on record, learned Sessions Judge answered both the points in the affirmative, holding that the prosecution has proved beyond all the reasonable doubt that the death of Harishankar Sharma is homicidal death. Further held that, on 28.10.2013 at morning 3.10 hours at IDBI Bank ATM Center, beside Bagini Hotel, Ring Road, Doddanekkundi, Mahadevapura, Bangalore City and within the limits of Mahadevapura Police Station, accused Nos.1 and 2 with their common intention attempted to commit theft of money kept in ATM machine and in commission of the said offence i.e. 9 theft accused damaged the ATM machine and thereby committed the offences punishable under Section 380 and 511 read with Section 34 of IPC. Further held that, on the above said date, time and place, accused Nos.1 and 2 in furtherance of their common intention committed the murder intentionally causing the death of deceased, security guard Harishankar Sharma, aged about 20 years by accused No.2 assaulting with old iron rinch on his head, with knife on his right little finger and thereafter accused No.1 assaulting with knife on his right fore head, right eyebrow, on left side of nose near right ear and thereby committed the offence punishable under Section 302 read with Section 34 of IPC. Accordingly, the learned Sessions Judge by the impugned judgment of conviction and order of sentence, convicted accused Nos.1 and 2 and sentenced them to undergo imprisonment for life with fine of Rs.10,000/- each with default clause for the offence punishable under Section 302 of IPC and sentenced them to undergo imprisonment for a period of 3½ years with 10 fine of Rs.1,000/- each with default clause for the offence punishable under Sections 380 and 511 read with Section 34 of IPC. Hence, the present appeals are filed by accused Nos.1 and 2.
8. We have heard learned counsel for the parties to the lis.
9. Sri Javeed S., learned counsel for the appellant in both the appeals, contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is erroneous, contrary to the material on record, and cannot be sustained and is liable to be set aside.
10. He would further contend that the learned Sessions Judge erred in convicting the appellants/accused Nos.1 and 2, even though the prosecution witnesses, i.e. PW.1 to PW.12, have not supported the case of the prosecution at all and all the witnesses examined are here-say witnesses. He would further contend that without considering the facts and 11 circumstances of the case, the learned Sessions Judge convicted the accused persons only on the basis of the evidence of PW.1 to PW.4-Police Officers, PW-5- Assistant Executive Engineer, BESCOM, PW.6-Employee of IDBI Bank, PW.7-lab Technician, PW.8-Doctor, PW.9- Assistant Engineer, PW.10-Manager of IDBI Bank, PW.11-Investigation Officer and PW.12-Assistant Director of FSL, Madiwala.
11. He would further contend that in view of the fact that at the time of the incident, there was no power in the area of ATM center, as admitted by PW.5- Assistant Executive Engineer, BESCOM. He would further contend that the CCTV of the ATM centre was not at all in working condition, as admitted by PW.11- Investigating Officer. The accused persons are basically from Assam and have been falsely implicated in the homicidal death of the deceased in the absence of any material on record. He further contended that the entire case is based on circumstantial evidence, there are no circumstances to link the accused persons from the 12 beginning till the end. Therefore, the impugned judgment passed by the learned Sessions Judge is liable to be set aside and cannot be sustained. Therefore, he sought to allow the present appeals.
12. Per Contra, Sri.Vijayakumar Majage, learned Additional SPP while justifying the impugned judgment of conviction and order of sentence passed by the Trial Court, contended that accused Nos.1 and 2 were apprehended from the Hospital by PW.3-Police Constable, who supported the case of the prosecution. The case sheet as per Ex.P5 and the admission sheets as per Ex.P13 clearly depicts that accused Nos.1 and 2 were taking treatment in Nirmala Nursing Home and the same was not recorded in the Mahazar as per Ex.P2. PW.7-Mahazar witness, supported the case of the prosecution. He would further contend that the case sheet as per Ex.P5 clearly depicts that the accused were injured at left hand below the thumb and they have not explained, how they sustained the injuries on the same day.
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13. He would further contend that PW.11- Investigating Officer, recorded the voluntary statement of accused Nos.1 and 2 as per Ex.P14 and Ex.P15 where the accused admitted their involvement in the homicidal death of the deceased. The blood stains on the cloth of accused No.2 as per MO.19 and 23. He would further contend that PW.12-FSL officer issued an Ex.P24-FSL report mentioning the blood group of accused Nos.1 and 2 as 'AB'. He would further contend that MO.15 was recovered by PW.11-Investigating Officer at the instance of accused No.1 and the clothes of the deceased as per MO.24 to MO.30 under Ex.P19. He would further contend that DW.1-the owner under whom the accused persons were working as servants, stated about the treatment taken by the accused persons in the Hospital. PW.1 identified the accused persons before the police station. He would further contend that PW.5-the Assistant Executive Engineer, issued Ex.P3-the Power Supply Certificate, clearly depicts that there was no power cut on the said date of 14 the incident. He would further contend that the accused persons have explained in their statement under Section 313 of Cr.P.C., why, on the said date of the incident, i.e. 28.10.2013 at 3.10 hours, they were inside the IDBI Bank ATM Centre. MO.1 to MO.3 and MO.13 were recovered at the instance of accused No.1. He would further contend that there is some laps on the part of the investigating officer who has not examined the Doctor. Therefore, he sought to dismiss the appeals.
14. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present appeals, are:
1. "Whether the Trial Court is justified in convicting accused Nos.1 and 2 for the offences punishable under Sections 302, 380, 511 r/w 34 of IPC, in the peculiar facts and circumstances of the present case?
15. We have given our anxious consideration to the arguments advanced by learned counsel for the 15 parties and perused the entire material including the original records carefully.
16. This Court being the Appellate Court in order to re-appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon:-
a) PW.1-Chikkanarasaiah, Police Constable/ Complainant, deposed that on 27.10.2013, he and CW.2 were on night beat duty, electric lights were switched off when they went near the ATM Centre of IDBI Bank. There was disconnection of electricity in the said place. Under suspicion, they observed the said place. At that time, they came to know there are two persons inside the ATM Room. When they tried to open the door of the ATM, it was not opening, as the door was damaged. He and CW.2 tried to hold the said door. The said two persons who were inside the ATM room, break open the glass, came outside 16 and ran away. Those two persons attempted to assault them. They were hold knife and rod.
They chased them, but unable to catch. Those persons succeeded to escape. When they came back near the ATM Centre, they came to know about murder of security guard inside the ATM room. On 28.10.2013 at 6.30 a.m., they found accused Nos.1 and 2 admitted in Nirmala Hospital where the accused persons took treatment. He has identified MO.1 to MO.13 and supported the case of the prosecution.
b) PW.2-L.Narayana Singh, ASI, deposed that he has submitted F.I.R. to X Additional CMM Court, Bengaluru and supported the case of the prosecution.
c) PW.3-Yaseen Pasha, Head Constable, deposed that on 28.10.2013, he has been deputed to trace the accused persons. In cross examination, he admitted that he and other police staffs had not 17 seen the accused persons and supported the case of the prosecution.
d) PW.4-Manjunatha T.A., another Head Constable, deposed that on 31.12.2013, he has been deputed to submit seized articles to FSL Madiwala. Accordingly, he submitted articles and collected P.M.Report. In the cross-examination, he admitted that, he submitted bloodstained knife containing plastic handle, bloodstained screwdriver, another knife containing plastic handle and iron rinch to F.S.L. and supported the case of the prosecution.
e) PW.5-S.Ravindra, Assistant Executive Engineer, BESCOM, Bengaluru, deposed that he issued endorsement as per Ex.P3 stating that on the date of incident, there was electricity supply and supported the case of the prosecution.
f) PW.6-Shashikirana, employee of IDBI Bank, deposed that about 3 years back, at about 2.00 a.m. in the night hours two persons of Assam 18 State attempted to commit robbery in the ATM. Out of them one was serving as security guard of the IDBI Bank and he was murdered. Those persons from Assam murdered the security guard, the murder was taken place inside the ATM room. He is also witness to the panchanama as per Ex.P2 and supported the case of the prosecution.
g) PW.7-Siddarooda, Lab Technician at Nirmala Nursing Hospital, deposed that on 28.10.2013, the police came to the hospital and seized the case sheets as per Ex.P5. In the cross-
examination, he admitted that, he did not know the contents of case sheet. He denied the suggestion that he making false and thereby supported the case of the prosecution.
h) PW.8-Dr.Sathish K.V., Medical Officer, who conducted PM Report and submitted the PM report as per Ex.P6 and deposed that the wounds found on the body of the deceased-Harishankar Sharma. 19 There were lacerated cut, incised wounds on his face i.e., near eyebrow, ear and head. Penetrated stab wounds also found on various parts of the face, abdomen. He further deposed that on 01.01.2014, the Police Inspector of Mahadevapura Police Station sent 4 articles to examine and compare the same with the wounds described. Accordingly, he issued his opinion as per Ex.P7 and he identified MO.1, MO.4, MO.14 and MO.15 and thereby, he supported the case of the prosecution.
i) PW.9-Ramesh Y.R., Assistant Engineer, BBMP, Vartur Ward deposed with respect to preparation of sketch of the spot as per Ex.P8. In the cross examination, he admitted that Ex.P8 does not contain date of its preparation.
j) PW.10-Manjunath, the Manager of the IDBI Bank, deposed that in the year 2013, he served as manager in Marathhalli Branch of IDBI Bank. On 20 28.10.2013, he received a phone call from the Police inspector, they called him to IDBI Bank, Marathahalli Branch, when he went to the Bank, the Police Inspector was present and informed on 28.10.2013, the police constables on night beat duty found 2 persons in ATM at 3 to 4 O Clock in the night. The beat police tried to detain them, but not succeeded. They came to know about murder of security guard in the said ATM Centre, The police conducted spot panchanama as per Ex.P2 and thereby he supported the case of the prosecution.
k) PW.11-Gowtham, the Investigation Officer, deposed that on 28.10.2013 at 3.30 a.m, he received phone call from CW.1-P.C. about murder of IDBI Bank ATM Security Guard by two unknown persons. Immediately, he went to the police station, enquired CW.1, received written report from CW.1 registered a case in Cr.No.747/2013 for the offence punishable under Section 302 of 21 IPC. Sent the FIR as per Ex.P9 to the jurisdictional Court. He proceeded to the spot, examined the place of incident and summoned officers of FSL, Madiwala, Bengaluru for collection of evidence, materials by examining the place of incident. He prepared spot panchanama as per Ex.P2 in the present of CW.6 and CW.7, seized MO.1/screwdriver, MO.2/knife with plastic handle, MO.3/wooden piece, MO.4/small knife, MO.5/comb, Mo.6/bloodstained hair, Mo.7/Shirt button, MO.8/thread with pearls of 'Om' mark, MO.10/sample of blood found n the floor, MO.11/sample mud, MO.12/certificate of accused with photo, MO.13/purse. He sent dead body to the hospital for post mortem. Thereby he supported the case of the prosecution.
l) PW.12-S.N.Gawnkar, the Assistant Director of FSL, Madiwala, he deposed that on 20.12.2013, he received 23 sealed items from Mahadevpura Police State, in Cr.No.747/2013 for examination. 22 On examination he found human 'AB' group bloodstain on articles No.1 to 9, 11, 13 and 23. After examination, he issued Ex.P24/Report. He identified 23 articles before the Court. He issued report as per Ex.P25. In the cross-examination, he admitted that he is not personally received MO.1 to MO.23. He denied the suggestion that, he is not aware whether seal affixed on MO.1 to MO.23 are intact. He admitted that blood contained on MO.10 was not available. Thereby, he supported the case of the prosecution.
m) DW.1-Muneendrakumar Bharathi, who deposed that he knows accused No.1-Jintu Debanath and accused No.2-Nabokur and brought them from his native place Assam. He employed them in his resident to look after the garden and pets. He knows them from 3-4 years prior to this incident. He further deposed that he along with accused Nos.1 and 2 took six pets for morning walk on 28.10.2013 at 6.30 a.m., he saw the bandage on 23 left hand of both accused Nos.1 and 2, on enquiry they told that, they fell down while driving a motor cycle. After returning from the walk, at 7.30 a.m., he took them to the nearest hospital i.e. Nirmala Nursing Home for treatment. Accused Nos.1 and 2 were not admitted as inpatient in the Nursing Home. He received a call from his wife stating that two police official came to house enquiring about accused Nos.1 and 2. Later, the police officials came to Nursing Home went inside and took accused Nos.1 and 2 along with them. They did not inform anything to him. After half an hour i.e. around 8.30 a.m. more police came to the Nurshing Home, took accused Nos.1 and 2 covered with bed sheet to conceal their identification. The Police not taken his statement. There was no other person except accused Nos.1 to 2 to the Nurshing Home. His statement was recorded on 29.10.2013 as per Ex.D1. He further deposed that he always used to go with his pets 24 along with accused Nos.1 and 2. In cross- examination, he admitted that he does not have any documents to show that accused Nos.1 and 2 are residents of Assam and working as gardeners before their appointment with him. He denied the suggestion that he has not taken accused Nos.1 and 2 to Nirmala Nursing home for treatment. As he was waiting in reception room, he was unable to hear the enquiry made by the police with accused persons. The police have not enquired him anything about the incident of injuries sustained to accused persons. He further denied the suggestion that he has knowledge about the involvement of accused Nos.1 and 2 in this crime and intentionally, he had shelter to accused Nos.1 and 2. He further denied the suggestion that accused Nos.1 and 2 were not having good character. He further denied that as accused Nos.1 and 2 are belonging to my native place, to help them he deposing false.
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Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused persons for the offences made out in the charge.
17. The substances of the complaint as per Ex.P1 dated 28.10.2013 that the complainant-CW1- Chikkanarasaiah and CW.2 were on night beat duty on 27.10.2013, when they were beating near Mahadevpura Ring Road, they received information that some unknown persons were trying to break open the ATM machine for money. Accordingly, they went to the ATM centre at about 3.10 a.m. near Bagini Hotel, IDBI Bank ATM center. When they went to check the ATM centre, the lights were off. When they went inside the ATM centre, they found two persons inside the ATM in a suspicious manner. Thereafter, they closed the door and held it tightly. The two suspected persons, who were inside the ATM room, broke open the glass door of the ATM centre, came out and ran away. The beat 26 police also tried to chase them but unsucceeded. Thereafter, they came back to ATM centre and found the dead body of the security guard, Harishankar Sharma. Accordingly, they lodged complaint. Based on the aforesaid complaint, the jurisdictional police registered a case in Crime No.747/2013 for the offence punishable under Section 302 of IPC. After investigation, the Investigating Officer filed a charge sheet against the accused persons under the provisions of Sections 302, 380 and 511 read with Section 34 of IPC.
18. It is the specific case of the prosecution that accused Nos.1 and 2 were apprehended by PW.3-police constable in the hospital. A xerox copy of the case sheet as per Ex.P5 and the original admission sheet of Nirmala Nurshing Home as per Ex.P13 pertains to accused No.1-Jintu Debanath clearly depicts that he was admitted on 28.10.2013 at about 7.30 a.m. The case sheet refers to the patient, who comes to the hospital and the case history of a cut wound on the left hand. 27 On enquiry, two cut wounds and four glass pieces were found during the cleaning of the wounds put in the surgical bowl. The cut wound was about 3 c.m. length and 1 c.m. in depth. Ex.P13 also depicts that the second accused-Nabokour also admitted in the same Nurshing Home on 28.10.2013 at about 7.30 a.m. The case sheet clearly depicts that when accused No.2 came to the hospital and the history of two cut wounds and three glass pieces found in cleaning process of wound put in surgical bowl. Two cut wounds on the right hand, the first wound is about 4 c.m. in length and the second wound is about 3 c.m in length.
19. According to the prosecution, the incident occurred on 28.10.2013 at about 3.10 hours and the accused persons admitted in nursing home on the same day at about 7.30 a.m., thereby, they found injuries sustained on their hands along with the glass pieces inside the cut wound, but they did not explain how it happened. PW.5, Assistant Executive Engineer, BESCOM, Bengaluru, in his evidence specifically stated 28 that on the date of incident, there was electricity supply. The evidence of the prosecution witnesses clearly depicts that PW.1, who is the complainant, deposed that on the date of the incident, he was performing his duty when he was deputed to night duty and nothing has been elicited in the cross examination of PW.1. It is believed the statement about the involvement of the accused persons in the homicidal death of the deceased-Harishankara Sharma. The Court cannot disbelieve PW.1's evidence as he was on official duty and nothing has been elicited in the cross-examination that there is ill-will between PW.1 and accused Nos.1 and 2. Admittedly, accused Nos.1 and 2 have not offered any explanation while recording the statement under the provisions of Section 313 of Cr.P.C. and not tendered any explanation by accused Nos.1 and 2, who were identified by PW.1 that they were inside the ATM room in the night hours.
20. PW.10-Manjunath, the Manager of IDBI Bank, was present in the place of the incident and 29 identified MO.1-screwdriver, MO.2-wooden pieces, MO.4-knife with small handle, MO.5-Comb and MO.13- Purse, which were seized under Ex.P2-Spot Panchanama. The seizure of screwdriver from the ATM centre of IDBI Bank is proved with the help of the evidence of seizure mahazar witness and recovery of Iron rinch as per MO.15 on the basis of information given by the accused in their voluntary statements from the place where it was hidden by the accused person. The fact of recovery is proved with the help of the evidence of the Investigating Officer, who prepared seizure panchanama, entered seized articles in the station property form and intimated the same to the jurisdictional Magistrate within reasonable time.
21. Insofar as murder of the deceased-
Harishankar Sharma-Security Guard of IDBI Bank ATM center is concerned, admittedly, there is no eye- witnesses to the incident. The entire case is squarely based upon the circumstantial evidence. The prime evidence against accused Nos.1 and 2 is the evidence of 30 PW.1/Chikkanarasimhaiah, who is the complainant, in his evidence, he clearly deposed that he saw accused Nos.1 and 2 inside the ATM center of IDBI Bank at about 3.30 a.m. when he along with CW.2 went near the said ATM center to sign the beat book. At that time, two persons who were inside the ATM center. As conduct of those persons was in a suspicious manner. CW.1 and CW.2 tried to hold ATM door of ATM room to prevent their escape. At that time, by breaking the glasses of the ATM center, they succeeded to ran away. When they came back, they came to know about murder of the security guard inside the ATM Center. He identified accused Nos.1 and 2 before the Court. Very next day morning, accused Nos.1 and 2 arrested from Nirmala Nursing home, when they were admitted in hospital by their owner-DW.1 for treatment of injuries sustained on their hands due to the broken glass pieces. Ex.P5-case sheet, Ex.P13-Admission sheet of accused Nos.1 and 2, which clearly depicts that the history of the treatment is mentioned that accused Nos.1 and 2 31 came to the hospital for treatment of cut wounds. On examination, the glass pieces found inside the wounds. The Medical Officer, who treated the accused collected the glass pieces, produced before the Investigating Officer along with the Ex.P13-Admission Sheet. Unfortunately, the Investigating Officer-PW.11 has not examined the Doctor, inspite of clear evidence of PW.1 and PW.11. This aspect corroborates with the facts of presence of accused Nos.1 and 2 inside the ATM center as deposed by PW.1.
22. Inquest panchana as per Ex.P10 and the postmortem report as per Ex.P6 are two important documents to explain the wounds found on the body of the deceased-Harishankar Sharma, who found dead inside the ATM Center of IDBI Bank. MO.1-Screwdriver seized from the spot of incident. MO.15-Iron rinch, MO.4-knife recovered at the instance of accused persons during the course of interrogation. the Investigating Officer sent. MO.1-Screwdriver, MO.4- knife and MO.15-Iron rinch to the Medical Officer to 32 compare the same along with the wounds explained in postmortem report as per Ex.P6. After examination, PW.8-the medical officer issued his opinion as per Ex.P7 stating that, the wounds found on the body of the deceased could be caused when assault caused by using MO.1-Screwdriver, MO.4-knife and MO.15-Iron rinch made from the place which was within the exclusive knowledge of the accused persons. Accused persons took the Investigating Officer produced MO.1, MO.4 and MO.15 from a bush where they concealed. Seizure of screwdriver and knife is proved with the help of the evidence of Bank Manager, who signed as panch witness on Ex.P2/seizure panchanama. The recovery of iron rinch is proved with the help of PW.11/Investigating Officer, even though panch witness signed to the recovery panchanama is not examined. The said seizure reported to the Court by mentioning the same in the property form of police station.
23. The presence of accused Nos.1 and 2 inside the ATM centre in the night hours, the seizure of 33 screwdriver and knife inside the ATM centre where the murder of the deceased-Harishankar Sharma, recovery of an iron rinch, which according to the Medical Officer could cause injuries found on the body of the deceased are circumstances linking the accused with the incident of murder of Harishankar Sharma-Security Guard of IDBI ATM centre. Inspite of aforesaid in corroborative circumstances and evidence appeared against the accused persons, the accused persons have not offered any explanation in their statements recorded under Section 313 of Cr.P.C. and they have not given any satisfactory and acceptable statement or not offered proper explanation, how they sustained injuries on their hands as per Ex.P13 and why they have shown the seizure of MO.1, MO.4, MO.15 in the bush, naturally, it was not known to the PW.11-Investigating Officer. In the absence of any explanation offered in the statements of the accused persons under Section 313 of Cr.P.C., it leads to an adverse interference to be drawn against the accused persons.
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24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2020)1 SCC Crimes 381 at paragraph 11, wherein, it is held as under:
"No explanation is forthcoming from the statement of the accused under section 313 Cr.P.C as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
25. Though the contention was raised by the learned counsel for the appellants that at the time of the incident, there was no power in the area. The fact remains, PW.5-Assistant Executive Engineer, clearly deposed in the cross-examination that there was power on that day and nothing was elicited in the cross examination. All the witnesses are official witnesses as alleged by the learned counsel for the appellant, cannot 35 be accepted in the absence of any ill-wil by the official witnesses against the accused persons elicited in the cross-examination. There was no material produced before the Court to prove that there was any ill-will between the official witnesses and the accused persons and they have been falsely implicated. The other contention of the learned counsel for the appellant is that the CCTV of the ATM Bank was not in working condition. The same cannot be accepted whereas PW.1, who is the complainant, identified accused Nos.1 and 2. PW.11-investigating Officer arrested accused Nos.1 and 2 and recorded the voluntary statement. Based on the said statement, the material objects used in the homicidal death of the deceased, have been recovered at the instance of the accused persons.
26. It is also not in dispute that MO.1 to MO.13 belong to accused persons, which were also recovered. Though there are some laps on the part of the Investigating Officer for non examination of Doctor and other irregularities committed by the investigation 36 officer, those are not grounds to acquit the accused persons when there were abundant materials found in the records, which depict the involvement of the accused persons in the homicidal death of the deceased, who was aged about 24 years at the time of the incident.
27. The prosecution based on the oral and documentary evidence on record, proved the involvement of the accused persons in the homicidal death of the deceased. The trial Court considering the entire material on record in a proper prospective, has rightly come to the conclusion that the prosecution proved beyond all reasonable doubt the involvement of the accused persons in the homicidal death of the deceased and the accused has not made out any ground to interfere with the impugned judgment of conviction passed by the trial Court in exercise of the appellate powers of this Court under the provisions of Section 374(2) of Cr.P.C.
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28. For the reasons stated above, the point raised in the present appeals is answered in the affirmative holding that the trial Court is justified in convicting the accused persons under the provisions of Sections 302, 380 and 511 read with Section 34 of IPC.
29. In view of the above, we pass the following:
ORDER
(i) Crl.A.No.489/2020 filed by the appellant/accused No.1/Jintu Debanath and Crl.A.No.1056/2020 filed by the appellant/accused No.2/Nabokour, are hereby dismissed.
(ii) The impugned judgment of conviction and order of sentence dated 25.09.2019 made in S.C.No.489/2014 on the file of the LXIV Additional City Civil and Sessions Judge, Bengaluru, convicting accused Nos.1 and 2 under the provisions of Sections 302, 380 38 and 511 read with Section 34 of IPC, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE KTY