Karnataka High Court
Sri. Kantharaju @ Kantha vs State Of Karnataka on 30 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.560/2016
C/W
CRIMINAL APPEAL NO.166/2016,
CRIMINAL APPEAL NO.278/2016 AND
CRIMINAL APPEAL NO.368/2016
IN CRIMINAL APPEAL NO.560/2016:
BETWEEN:
Sri.Kantharaju @ Kantha
S/o Kalegowda
Aged about 28 years
TATA Indica Car Driver
R/at Karehally Koppalu village
Arakalagud Taluk
Hassan District - 34 ... Appellant
(By Sri Pratheep K.C, Advocate)
AND
State of Karnataka
by Konanur Police Station
2
Arakalagud Taluk
Hassan District
Rep. by its
State Public Prosecutor
High Court of Karnataka
Bengaluru - 01 ... Respondent
(By Sri I.S.Pramod Chandra, SPP-2)
This Criminal Appeal is filed under Section
374(2) of CR.P.C., praying to set aside the judgment
dated 17.12.2015 & 21.12.2015 passed by the II
Additional District and Sessions Judge, Hassan in
S.C.No.36/2010 convicting the appellant/accused
No.3 for the offence P/U/S 143, 144, 148, 364, 302
and 201 read with Section 149 of IPC.
IN CRIMINAL APPEAL NO.166/2016:
BETWEEN:
Sri Shivakumar @ Kumar
S/o Nanjappa
Aged about 27 years
R/o Laggere
Chamundeshwarinagar
Bengaluru - 560 058 ... Appellant
(By Sri Pratheep K C, Advocate)
AND
State by Konanur PS
Hassan District
The State of Karnataka
Represented by its
State Public Prosecutor
3
High Court of Karnataka
Bengaluru - 560 001 ... Respondent
(By Sri I.S.Pramod Chandra, SPP-2)
This Criminal Appeal is filed under Section
374(2) of CR.P.C., praying to set aside the judgment
and sentence dated 17.12.2015 passed by the II
Additional District and Sessions Judge, Hassan in
S.C.No.36/2010, convicting the appellant/accused
No.4 for the offence P/U/S 143, 144, 148, 364, 302
and 201 read with Section 149 of IPC.
IN CRIMINAL APPEAL NO.278/2016:
BETWEEN:
Harisha @ Hari
Aged about 35 years
S/o Thimmaiah
R/o Jalamangala
Kootagal Hobli
Ramanagara Taluk
And District - 571 511 ... Appellant
(By Sri H.C.Hanumaiah, Advocate)
AND
State of Karnataka
by Konanur Police
Represented by SPP
High Court Building
Bengaluru - 560 001 ... Respondent
(By Sri I.S.Pramod Chandra, SPP-2)
4
This Criminal Appeal is filed under Section
374(2) of CR.P.C., praying to set aside the judgment
dated 17.12.2015 & 21.12.2015 passed by the II
Additional District and Sessions Judge, Hassan in
S.C.No.36/2010 convicting the appellant/accused
No.1 for the offence P/U/S 143, 144, 148, 364, 302
and 201 read with Section 149 of IPC.
IN CRIMINAL APPEAL NO.368/2016:
BETWEEN:
1. Yogesha @ Pani
S/o Late Ramaiah
Aged about 29 years
R/o Somanahalli village
Koppa Hobli, Maddur Taluk
Mandya District-571 445
2. Manjunatha @ Manju
S/o Bhanuprakash
Aged about 28 years
R/o No.4, 3rd Main
Rajagopalanagara Main Road
Ganapathi Nagara
Peenya 2nd Stage
Bengaluru - 560 091 ... Appellants
(By Sri G.Nataraj & Srinivasa, Advocate)
AND
State by Konanur PS
The State of Karnataka
Represented by its
State Public Prosecutor
5
High Court of Karnataka
Bengaluru - 560 001 ... Respondent
(By Sri. I.S.Pramod Chandra, SPP-2)
This Criminal Appeal is filed under Section
374(2) of CR.P.C., praying to set aside the judgment
dated 17.12.2015 & 21.12.2015 passed by the II
Additional District and Sessions Judge, Hassan in
S.C.No.36/2010 convicting the appellant/accused for
the offence P/U/S 143, 149, 144, 148, 364, 302, 201
of IPC and Section 4 of POCSO Act.
These Criminal Appeals coming on for hearing this
day, BUDIHAL R.B. J, delivered the following:
JUDGMENT
All these appeals are in respect of judgment and order of conviction passed in S.C. No.36/2010 on the file of the II Additional District and Sessions Judge, Hassan. Since, the common persons are involved in all these four appeals they were taken up together and passed a common judgment in order to avoid the repetition of the discussion about the facts and law.
2. The above appellant-accused were convicted by the judgment of conviction and order of sentence for the 6 offences punishable under Sections 143, 144, 148, 364, 302 read with 149 of IPC. The appellants are before this Court in these appeals.
3. Brief facts of the case of the prosecution are:
Firstly a missing complaint of a person came to be filed as per Ex.P40 on 26.05.2009 before Kamakshipalya Police by one Mudduraj G., wherein it is stated that his junior uncle's son Naveen Kumar is missing. It is mentioned in the said complaint that his junior uncle's son Naveen Kumar; aged about 22 years; serving as a driver in the call centre and was staying along with the complainant since two years; on 24.05.2009 during night at 9.00 p.m., he went along with the Toyota Qualis vehicle bearing No.KA-03/B-5598, but he has not come back after completing the work. In the morning on 25.05.2009 when they called to his mobile phone it was switched of and the said Naveen Kumar was not traced. Therefore, he lodged a complaint requesting the police to trace Naveen Kumar. In the complaint he has also furnished the facial features, 7 age, height of Naveen Kumar and also mentioned other details like the colour of the dress he wore and his phone number as 9008797654. On the basis of the said complaint a case came to be registered in Crime No.375/2009 for missing of a man as per F.I.R. Ex.P41. Subsequently, another complaint under Ex.P37 dated 30.05.2009 has been lodged by one Balaraju, stating that he was staying in the address mentioned in the complaint and doing the business for his livelihood; his father is having four children and his younger brother Tilakesh working in Singapore had executed a GPA in favour of the complainant in respect of the Toyota Qualis vehicle bearing No.KA-03/B-5598 owned by him. Using the said vehicle, the complainant was getting hire. When things stood thus on 10.05.2009 the said Naveen Kumar came to work under him and after examining the Driving Licence and other things he handed over the said vehicle bearing No.KA-03/B-5598, Engine 2L5467363 Chesses No.LT 50-
1122354. It was a white colour vehicle. He told Naveen 8 Kumar to give the amount collected by way of hirer to him. On 10.05.2009 Naveen Kumar took the said vehicle and till 24.05.2009 he was contacting the complainant over phone. Thereafter, on 24.05.2009 the said Naveen Kumar talked with his mother and he has not at all in contact with them. Complainant went nearby the house of Naveen Kumar and when he enquired in the said address he was informed that he went out of the house on 24.05.2009 and has not at all come back and it was informed to him that a complaint has been lodged before the Kamakshipalya Police Station on 26.05.2009 for missing of Naveen Kumar. Therefore, he has mentioned in the complaint that said Naveen Kumar took his vehicle and using the said vehicle without any contact he is missing and he requested the police to trace him and to hand over his vehicle to him. On the basis of the said complaint a case came to be registered in Crime No.150/2009 by the Fraser Town Police for the offence punishable under Section 408 of IPC.
9
4. Perusing the materials, another complaint came to be filed which is registered in Crime No.117/2009 of Mandya Police for the offence punishable under Section 392 of IPC. When the police were investigating the said matter, accused No.1 was apprehended by PW5 on 09.06.2009 and produced before the Investigation Officer - PW24 on 10.06.2009 at about 9.00 A.M., and recorded voluntary statement as per Ex.P30. It is the further case that in his voluntary statement accused No.1 has also stated the names of accused Nos.2 and 5. Hence, accused No.2 was also arrested on the basis of voluntary statement of accused No.1 at about 2.30 p.m on 10.06.2009 and his voluntary statement came to be recorded as per Ex.P31. Then on the next day i.e., on 11.06.2009 accused No.5 was apprehended and voluntary statement came to be recorded as per Ex.P32. It is also the case of the prosecution that on 12.06.2009 accused Nos.1, 2 and 5 lead the police and panch witnesses to the place where dead body was buried and showed the said place in the 10 presence of panch witnesses. On the next day i.e. on 12.06.2009 the dead body was exhumed in the presence of the Assistant Commissioner and panch.
5. The Investigation Officer after completing the investigation filed charge sheet as against accused Nos.1 to 7 for the said offences.
6. After hearing both the sides and after considering the material, the learned Sessions Judge framed charges against accused Nos.1 to 7 and its content was read over and explained to accused Nos.1 to 7. The accused Nos.1 to 7 pleaded not guilty and claimed to be tried in the case. Accordingly, the matter was set down for trial.
7. On the side of the prosecution, 28 witnesses were examined as PW.1 to PW.28 and 41 documents were marked as Exs.P1 to P41, so also got marked MO.1 to MO.10 material objects and closed its side. Then accused were examined under Section 313 of Cr.P.C. by putting 11 the incriminating material as against each of the accused persons by framing questionnaire and whatever the answers given by each of the accused were recorded in their respective statement. On the side of the defence, neither any witnesses were examined nor any documents were got marked. After hearing the arguments on both the sides and also after considering the oral and documentary evidence, the learned Sessions Judge convicted appellants/accused Nos.1 to 5 for the offences punishable under Sections 143, 144, 148, 364, 302, 201 read with 149 of IPC. The accused Nos.6 and 7 were convicted only for the offence punishable under Section 201 of the IPC.
8. Being aggrieved by the judgment and order of conviction passed by the Court below for the offences punishable under Sections 143, 144, 148, 364, 302, 201 read with 149 of IPC and also challenging legality and correctness of judgment and order of conviction on the grounds as laid in the respective memorandum of appeals, 12 the appellants/accused Nos.1 to 5 are before this Court. The accused Nos.6 and 7 have not preferred any appeal.
9. We have heard the arguments of learned counsel for accused No.1 Sri.H.C.Hanumaiah, wherein he made a submission that there is no material produced by the prosecution as against accused No.1 which is worth believable. He submitted that the only material relied upon by the prosecution is panchanama, which is conducted on the basis of alleged voluntary statement said to have been given by accused No.1. In this connection, the learned counsel drew our attention to the panchanamas at Ex.P1 and P10 which is said to have been conducted on 12.06.2009 and 13.06.2009. In this connection, he made the submission that none of the panch witnesses to the said mahazars have supported the prosecution case. It is only on the basis of the evidence of the police and other official witnesses, the learned Sessions Judge convicted the appellant/accused No.1. The learned counsel made the submission that even with 13 regard to the alleged voluntary statement there is no worth believable material by way of evidence of the prosecution witness, to believe that really accused No.1 gave such a voluntary statement. There is no material to show that at the instance of accused No.1, the place was identified and dead body was exhumed in the presence of panch witnesses. He further submitted that there are no eye witnesses and case of the prosecution rests on circumstantial evidence. Unless and until all the circumstances relied upon by the prosecution are satisfactorily established before the Court, the conviction order cannot be passed by the Court below. The order passed by the Court below is illegal and it is not sustainable in law. Hence, he made the submission that so far as offence punishable under Section 364 of IPC is concerned, absolutely there is no material and none of the witnesses have stated about any such kidnap for the ransom and submitted to allow the appeal and set aside the judgment and order of conviction passed against 14 accused No.1 and acquit accused No.1 from all the charges.
10. Sri.Pratheep K.C., learned counsel appearing for accused Nos.3 and 4 submitted that so far as accused Nos.3 and 4 are concerned, it is not the case of the prosecution that they have shown the place where the dead body was buried and it is also not the case that it was at their instance, the dead body was exhumed. He submitted that it is the prosecution case that at the instance of accused No.3, the vehicle said to have been used for committing the offence, is seized in the presence of panch witnesses. He drew our attention to the prosecution material and the evidence of prosecution witnesses and made submission that in reality the seizure of the vehcile is not at the instance of accused No.3. But, it is at the instance of accused Nos.6 and 7. Hence, he submits that the learned Sessions Judge wrongly read the evidence and observed in the judgement that the vechicle is seized at the instance of accused No.3. Hence, he 15 submits except this evidence so far as accused Nos.3 and 4, there is no material produced by the prosecution, to establish that the vehicle was seized at their intstance. He also made the submission that though the alleged offences is said to have been committed within the jurisdiction of Konanur Police Station, it is the investigation officer of Mandya Police Station who conducted investigation throughout, without handing over the investigation to the concerned police station. Hence, on this ground, learned counsel made submission that the investigating officer was not at all having jurisdiction to conduct the investigation in the matter. Therefore, he submitted to allow the appeal and set aside the judgment and order of conviction as against accused Nos.3 and 4 and acquit them from all the charges.
11. Sri.G.Nataraj, learned counsel appearing for accused Nos.2 and 5 submits that mandatory requirement of Section 154(1) of Cr.P.C was not at all followed by the police in this case. He submitted that when it is the case 16 that accused No.1 was apprehended on 09.06.2009 itself, immediately the police ought to have registered the case. When there is information regarding commission of cognizable offence furnished by accused No.1 in his volunary statement to the police, inspite of such information for committing cognizable offence, the police has not registered FIR immediately either on 09.06.2009 or 10.06.2009. He submitted that the investigation was conducted even without registration of the FIR, which is bad in law and which is not permissible also. Hence, he submitted that on this ground also, the entire proceedings are vitiated and submitted to allow the appeal and set aside the judgment and order passed by the Court below. It is also his submission that on the jurisdiction point also when it was within the knowledge of the Mandya police that the dead body was found in the place which comes within the jurisdiction of Konanur Police Station and it is only the Konanur Police who has jurisdiction to conduct the investigation, inspite of that, the Mandya Police 17 proceeded in the matter to conduct investigation. Till completion of investigation, it is the Mandya police, who has conducted the investigation. Hence, on this ground also he submitted that the entire prosecution materials collected by the Mandya Police is against the provisions of law and they cannot be looked into. This material aspect is completely ignored by the learned Sessions Judge and wrongly convicted accused Nos.2 and 5. Hence, he submitted to allow the appeal and to set aside the judgment of conviction and order of sentence passed by the Court below and acquit the appellants / accused Nos.2 and 5. In support of his contention the mandatory requirement of Section 154(1) of Cr.P.C are not at all followed and infact the investigation has been conducted even without registration of FIR. He relied upon the decisions of the Hon'ble Apex Court reported in 2007 (13) SCC 501, (2014) 2 SCC 1 and another decision 2018 SCC Online SC 378.
18
12. Per contra, learned SPP-2 submitted that so far as the alleged offence under Section 364 of IPC is concerned, he fairly submits that looking to the prosecution material there is no evidence on record. He also made the submission that so far as accused Nos.3 and 4 are concerned their voluntary statement cannot be relied upon because before that accused Nos.1, 2 and 5 have already made their voluntary statement. On the next day, they have led the police and panch witnesses to the place where the dead body was buried in their presence, so also in the presence of Assistant Commissioner, the dead body was exhumed. Hence, he submits that so far as the exhumation of the dead body is concerned, it is as per the voluntary statements and at the instance of accused Nos.1, 2 and 5. Therefore, he made the submission that there is material produced by the prosecution as against accused Nos.1, 2 and 5.
13. So far as investigation aspect is concerned, learned SPP-2 made submission that the investigation 19 ought to have been handed over to Konanur Police, where the dead body was traced at the instance of the accused persons. But looking to the prosecution materials, their case goes to show that it is Mandya police who completed the investigation and filed charge sheet in the matter. Hence, perusing these materials, he made submission that the conviction order passed by the Court below so far as accused Nos.1, 2 and 5 is concerned is in accordance with law and in accordance with the materials placed on record. No illegality has been committed by the Court below. Hence, he submitted to dismiss the appeal preferred by accused Nos.1, 2 and 5. So far as accused Nos. 3 and 4 are concerned, learned SPP-2 made submission that he will leave the matter to the Court to pass appropriate orders.
14. We have perused the grounds urged in the appeal memorandum in respect of all the four appeals, judgment of conviction and order of sentence passed by the Court below and also considered the oral and 20 documentary evidence adduced by the prosecution before the trial Court and the decision relied upon by the learned counsel appearing for the appellants. We have also considered the oral submission made by the learned counsel at the bar.
15. Admittedly, even according to the prosecution, there are no direct witnesses to the incident and case of the prosecution rests on circumstantial evidences. Each of the circumstances has to be established so as to complete the chain of the circumstances as laid down by the Hon'ble Apex Court in the decision reported in AIR 1978 SC 494 in the case of Umedbhai Javadbhai V/s State of Gujarat, wherein their Lordship have held that if the case rests on the circumstantial evidence, each of the circumstance has to be proved by the prosecution with cogent material and that there is no circumstance which is considered consistent with the innocence of the accused persons. In the said decision, it is also observed by their Lordship that even in the case of circumstantial evidence, 21 the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. If there is missing of the any of the circumstances in the chain it is fatal to the prosecution case.
16. Keeping this principle in mind, let us examine the prosecution material so as to ascertain whether the conclusion arrived by the learned Sessions Judge in convicting the accused for the said offences is supported by worth believable materials and with cogent evidence.
17. So far as this case is concerned, though there are two complaints filed for missing of man but accused No.1 said to have been apprehended on 09.06.2009 at 9.00 a.m, when the police were investigating the matter in Crime No.117/2009 registered for the offence punishable under Section 392 of IPC. It is the prosecution case that accused No.1 gave voluntary statement as per Ex.P30 and he made such voluntary statement before PW24, the same has been recorded. We perused the said Ex.P30 22 dated 10.06.2009. The voluntary statement said to have been given by the accused No.1 is to the effect that, if he is taken he will show the place where the dead body was burried and they will also exhume the dead body and produce. It is also further stated in the voluntary statement of accused No.1 that he will also take the police to the garage where accused No.3-Kantharaj left the Qualis vehicle and produced the said vehicle.
18. Perusing the voluntary statement under Ex.P30 it goes to show that the information has been furnished by accused No.1 that they have commited the alleged offence, the name of the other accused persons and the place where dead body was burried and the vehicle which is used in committing the offence was left at the garage. When such a detailed information of the commission of cognizable offence has been furnished by accused No.1 on 10.06.2009 itself, which was a complete information to the police about offences said to have been committed, as rightly submitted by Sri.G.Nataraj, learned 23 counsel for accused Nos.2 and 5 that it was the obligatorty duty on the part of the police to register the FIR immediately. But looking to the material, it is seen that the FIR was not registered on 10.06.2009. The FIR came to be registered on 14.06.2009 i.e. after the lapse of three days that too after the completion of accused persons showing the place where the dead body was buried and also dead body was exhumed in the presence of Assistant Commissioner. Therefore, the mandatory requirement of the decision rendered by the Hon'ble Apex Court in the case of Lalitha Kumari is not at all followed by the police in this case. Not only that investigation is proceeded even without registration of FIR and in this connection we perused the principles enunciated in the case of Ramesh Baburao Devaskar and others V/s State of Maharastra reported in 2007 (13) SCC 501. The object of registration of FIR at the earliest point of time is to remove the suspicious circumstances for conducting the case and fabrication of the prosecution evidence. When 24 such is the requirement of law same has not been followed. It has been observed that their Lordship at Para No.93 of the decision in the case of Lalitha Kumari V/s Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 that the object sought to be achieved by registering the earliest information as FIR is inter-alia two fold: one, that the criminal process is set into motion and is well documented from the very start: and second, that the earliest information received in relation to the commission of cognizable offence is recorded so that there cannot be any embellishment, etc., later. It is the object and principles for registration of FIR at the earliest point of time. In para 120.1 their Lordship held that registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of cognizable offence and no preliminary enquiry is permissible in such situation. Considering the proposition of law laid down, we are of the clear opinion that the police have not followed the provision of Section 154 of Cr.P.C. 25
19. Now coming to the factual aspect of the matter, it is the case of the prosecution that on 11.06.2009 accused Nos.1, 2 and 5 lead the police to the place and they have pointed out the place where the dead body was buried and in this connection a mahazar was drawn under Ex.P1. We perused the mahazar under Ex.P1 which is said to have been conducted on 12.06.2009 between 8.30 to 9.30 a.m, in the presence of panch witnesses.
20. We perused the oral evidence of PW1 and PW2 in this regard. PW1-Manjunath who is one of the panch witness to the said mahazar-Ex.P1 deposed in his evidence that there is one halla while going through his land and there is one hongemara and in the year 2009, in the month of June, one day morning at about 10.00 or 11.00 a.m., Mandya Police came to the said place in the jeep along with accused Nos.1 and 4 and others, and when he enquired he came to know that after committing the murder, the dead body was buried at the said place and also came to know that the persons were waiting for 26 Assistant Commissioner. After sometime, the dead body was exhumed and salt was put at the said place. Assistant Commissioner was also present. After drawing the mahazar by the Assistant Commissioner, the dead body was given to the relatives who came from Madhugiri and photographs of the dead body was taken and the said photographs are before the Court and that he can identify. He and CW9 have put their signature to the panchanama drawn by the Assistant Commissioner. In the cross-examination, he deposed that the mahazar was drawn by Mandya Police. He does not know the name of the police and he knows what is written in the mahazar. Police have not issued any notice to him asking him to come to the said place and when he went to the said place about 4 to 5 police officers and about 20-30 village people were already present there. Konanur police have called him to come to the said place. He is not having acquaintance with the Konanur police, as the said police told that they are police of Konanur Police Station, he 27 came to know about them. But, at that time PSI of Konanur police was not present but Mandya Police Officer Jayamaruthi was present. He denied the suggestion that he has not at all put his signature to the mahazar at the said place and that since the police officers asked him to put his signature, he has signed. When he saw the dead body, there was a shirt having white and red colour and was wearing jeans pant and even the face was identifiable. Photograph of the said boy was shown to the father of the said boy who was also present. He denied the suggestion that at the instance of police he has given false evidence.
21. We have perused the evidence of PW2- Bisthappa who deposed that on 13.06.2009 when he was going towards Bettadahally morning at about 8.00 or 9.00 a.m, Mandya Police called him and at that time accused Nos.1, 3 and 4 were present at the place. When he asked the accused persons they stated that on 25.06.2009 they committed the murder of the driver of Qualis vehicle 28 and have buried the dead body in a nearby halla and when he observed at the place where the dead body was buried he saw that the same was covered with leaves and he came to know that the person murdered was one Naveen. The police told him to come on the next day. On the next day, he came morning at about 10.00 a.m., or 10.30 a.m., the Assistant Commissioner also came there and in their presence the dead body was exhumed and kept out and salt was put at the same place. There were injuries on the neck, private part, lower limbs and stomach portion of the decased. The lower limbs were tied with the belt and that he has put his signature on Ex.P1. His statement was recorded and the photographs were taken which are produced before the Court. Those two photographs were taken from the digital camera and together were marked as Ex.P2. In the cross-examination he deposed that Mandya police have shown the place to them. At that time three accused persons were present. He denied the suggestion that he has put his signature 29 under Ex.P1 in Mandya Police Station. He saw the dead body after it was exhumed and kept at the said place. The police exhumed the dead body with the help of the accused persons. There were clothes on the dead body, pant was ash colour and since the clothes were muddy, he cannot say about the colour of the said dress. He also cannot say at which direction the head of the dead body was kept at the said place. There was a nala nearby the said place and that he went to the said place on 12.06.2009 and 13.06.2009. He remembered that one day he put his signature on the mahazar. He might have put his signature on the inquest mahazar, which was drawn between 10.30 or 11.30 a.m. He knows to which mahazar he has put his signature and it was on 13.06.2009 he has put his signature on the inquest mahazar. He denied the suggestion that he has put his signature along with CW16 in the police station. He denied the further suggestion that in his presence no such 30 proceedings were taken place. He denied the suggestion that none of the accused person were present at that time.
22. Looking to the panchanama of PW1 and PW2 there is no consistency in their evidence. PW1 deposed that accused Nos.1, 4 and others were present. PW2 deposed that accused Nos.1, 3 and 4 were present. Whereas, it is the case of the prosecution that accused Nos.1, 2 and 5 went to the said place to point out the place, at the time of the exhumation of the dead body was done. Therefore, the panch witnesses were not able to depose that who are the accused persons actually present on 12.6.2009 and even their evidence is self contradictory to each other. With regard to the colour of the dress also there is no consistency in their evidence. It is the evidence of PW2 that the police have shown the place to them. Therefore, it is very difficult for us to accept the case of the prosecution that the accused lead the police and panch witnesses and pointed out the place where the dead body has been buried. It is also difficult for us to 31 accept that these proceedings were carried on at the instance of accused persons. There is no acceptable and worth believable material on the side of the prosecution to observe who are the accused persons who went to the said place. The material goes to show that the panch witnesses-PW1 and PW2 are the panchas only to Ex.P1 said to have been conducted on 12.06.2009 and it is not the case of the prosecution that the same panchas again were called on the next day i.e. on 13.06.2009 the date of exhumation of the dead body. Looking to the evidence of PW1 and PW2 it creates confusion actually on which date they went to the said place i.e. on 12.06.2009 or 13.06.2009. There is no consistency even in the time of conducting the panchanama. It is mentioned that the mahazar under Ex.P1 were conducted between 8.30 or 9.30 A.M., but both PW1 and PW2 deposes that it was in between 10.00 a.m., to 10.30 a.m. There is no consistency in these witnesses. Hence, we are of the opinion that the prosecution was not able to prove the 32 mahazar under Ex.P1, as worth believable material. It is no doubt that the investigating officer deposed about this in his evidence but looking to the evidence of witnesses i.e. PW1 and PW2, it is difficult to accept the evidence of Investigating officer that same was conducted in the manner as contended by the prosecution.
23. Going through another mahazar i.e, Ex.P10 said to have been conducted on 13.06.2009 in the presence of Assistant Commissioner and two panch witnesses for the mahazar under Ex.P10 are PW7 Ramachandra and CW14 Puttaswamy.
24. Looking to the evidence, one witness Ramachandra to Ex.P10, has deposed in his evidence that Ex.P10 bears his signature as per Ex.P10(a) and that about three years back in the month of June people were talking that near Doddamagge Village, murder was committed and dead body was buried. He and CW14 had been to Doddamagge village for some other work and after coming to know regarding the incident they went to the 33 said place. The saw many number of people, police, Assistant Commissioner present there. But, he has not observed whether accused persons were present there or not. The Assistant Commissioner by stating that he has conducted the mahazar, obtained the signature of himself and CW14. It was whose dead body and what is the matter was not known to them. In the cross-examination, he denied the suggestion that he put his signature in the police station. As we have observed that another panch witness-CW14 has not been examined by the prosecution. Therefore even with regard to the exhumation of dead body as per mahazar at Ex.P10, it is not supported by PW7-the panch witness.
25. Let us see the oral evidence of the Assistant Commissioner, in whose presence, the dead body is said to have been exhumed. We perused the evidence of PW20- Nagendra Prasad. He has deposed in examination-in-chief that from 11.06.2009 to 05.09.2011 he was working as Assistant Commissioner at Sakaleshpura. On 12.06.2009, 34 the Circle Inspector of Police, Mandya, made a requisition stating that the dead body of one Naveen Kumar at Arkalgudu Taluk, Doddamagge Village has to be exhumed and same is to be submitted for conducting postmortem examination. Accordingly, he addressed a letter to HIMS, Hassan on 13.06.2009. Time was fixed for exhuming the dead body and on the same day morning at 10.00 a.m., he commenced the proceedings at about 1.00 p.m., or 1.30 p.m., completed the same. At the instance of the accused persons, the dead body which was burried by the side of one nala at Sy.no.104/3 was taken out. At that time, three accused persons i.e. accused Nos.1, 2 and 5 were present. He noted the external condition of the dead body and sent the same to postmortem examination and the related report to the Court. When the dead body was taken out, the villagers were also present. The father and brother of the deceased who were present there had identified the dead body. There was black colour pant, blue colour full sleeves shirt both hands were tied from 35 behind and the lower limbs were also tied with the seat belt of the car. There was mark on the neck and the testical portion was swollen. There was injury on the stomach portion, which was red in colour. The inquest mahazar that he has prepared as per Ex.P29 was signed by CW10 and CW12 who were present there. He has recorded the statement of father and brother of the deceased and panchanama was also drawn as per Ex.P10. In the cross-examination, he has deposed that there was no difficulty for him to secure the panch witnesses from Doddamagge Village. The contents of Ex.P10 were written by his staff, as narrated by him, but he does not remember the name of the scribe. The dead body was taken out in his presence. He denied the suggestion that the dead body was in an unidentifiable position. It was identified by the father and brother on the basis of his face and the clothes on the dead body. As the father himself identified that the dead body is that of his son, he has not taken steps to do any other things. He 36 denied the suggestion that he has not at all exhumed the dead body and not conducted any mahazar and deposed falsely. Therefore, even looking to the evidence of this witness, again it is contrary to the evidence of two panch witnesses and looking to the mahazar under Ex.P10. In the mahazar under Ex.P10, there is no specific mention that the dead body was taken out from the said place. Even with regard to the evidence of PW1 and PW2, it goes to show that the dead body was exhumed on 12.06.2009 itself. Therefore, again there is no consistency in the evidene of prosecution witnesses with regard to the mahazar Ex.P10 exhumation of the dead body from the said place. Therefore, it cannot be said that prosecution proved the mahazar and Exs.P1 and P10 for pointing out the place and also taken out the dead body from the said place. The panchnama were also not supported by the panch witnesses. Therefore, only on the basis of the evidence of the Investigation Officer, it cannot be concluded that the prosecution proved mahazar Exs.P1 37 and P10. Even the material goes to show that when the requisition was made to the police for exhumation of the dead body by sending it for postmortem examination, the Assistant Commissioner ought to have entrusted this work to the Tahsildar concerned to conduct the inquest mahazar proceedings over the dead body. But inspite of that he himself proceeded in the matter to conduct the mahazar and submitted the report as per Ex.P29.
26. Looking to these materials, we are of the opinion that the mahazar under Exs.P1 and P10 were not satisfactorily proved by the prosecution even if the evidence of the Investigation Officer is considered to be correct.
27. So far as accused Nos.3 and 4 are concerned, the voluntary statement said to have been given by these accused persons cannot be relied upon because it is the prosecution case, since all the information was already furnished by accused Nos.1, 2 and 5. The information regarding parking of the said vehicle nearby the garage of 38 one Anil, is said to have been given by accused No.3- Kantaraj but, the said information was already given to the police. Therefore, it cannot be said that this information is discovered only at the instance of accused No.3-Kantaraj. Even the material goes to show that when the police went to the nearby garage of one Anil, the vehicle was not at all there and it also goes to show that the said vehicle was not seized at the instance of accused No.3 but it was seized at the instance of accused Nos.6 and 7 under Ex.P20. The said Anil is also not cited as charge sheet witness. Therefore, the observation made by the Court below with regard to seizure of the vehicle is at the instance of accused No.3 is not a correct observation and it is not in accordance with the material placed by the prosecution on record.
28. Looking to the evidence of the PW22- Sri.Preetham Shreyonkar, has deposed in his examination-in-chief that on 19.06.2009, he took accused No.3-Kantaraj to the police custody under the orders of 39 the Court and he recorded his voluntary statement as per Ex.P20 and he has stated in his statement that he left the Toyota Qualis car nearby the garage of one Anil at T.Dasarahalli on 27.06.2009. The statement itself came to be recorded on 24.06.2009 and the witness deposed that he has left the vehicle nearby the garage of Anil on 27.06.2009, which is a future date. Therefore this statement of PW22 itself clearly goes to falsify the case of the prosecution that the seizure of the vehicle is at the instance of accused No.3-Kantaraj, as per his voluntary statement. Even the deposition goes to show that on 20.06.2009 itself he went in search of Shivkumar and in search of Toyota vehicle. As per the information produced by accused No.3-Kantaraj when he went to the garage of Anil, car was not there and garage owner also was not there. When he was taken to police custody on 24.06.2009 on which day his statement is said to have been recorded, how this police officer can go to the place nearby garage on 20.06.2009 four days earlier to 40 voluntary statement of accused No.3. Therefore, this evidence of PW22 also goes to show that prosecution is not able to prove that the seizure of the vehicle at the instance of accused No.3-Kantaraj. Even he has deposed that he has not recorded the statement of owner of the garage about the fact that the vehicle was not in the said place nor he has drawn any panchanama to that effect. His further evidence goes to show that accused Nos.6 and 7 were taken to custody on 24.06.2009 and when they were interrogated he came to know that the Toyota car is taken away by accused No.3 from Diamond Car garage of Dasarahally by the boys on 17.06.2009 to Purna pragna layout at House No.20. Accordingly, he recorded the statement and the statement of accused Nos.6 and 7 to that effect are Exs.P21 and P22. On 25.06.2009, when he went to the house of accused Nos.6 and 7 at Purna pragna layout at House No.20 there was a vehicle bearing No.KA- 03-B-5598 Toyota vehicle and he seized the said vehicle in the presence of panch witness Vasanthkumar and Ramu 41 in the morning at 10.00 A.M. The said panch witnesses Vasanthkumar and Ramu were not examined before the court to prove the same. Therefore, this aspect is also not considered by the learned Sessions Judge, inspite of it, it was held that seizure of the vehicle is at the instance of accused No.3-Kantaraj. Therefore, even the seizure of the vehicle is not satisfactorily established with cogent and worth believable material.
29. It is stated that he does not know whose house was locked. Even he has not enquired the neighbours about the said house who are the owners, not made enquiry as to how long the said vehicle was in front of the said house. He does not remember whether the door of the said Qualis Car was open or locked. Its key was not there and with the help of his staff they drew the car. The witness has proved that at two placed in the said mahazar there are corrections effected. Hence, the evidence of this PW22 the Police Officer of Mandya Police Station also will not inspire the confidence in the mind of the Court from 42 the proceedings said to have been conducted from the seizure of the said Car. The Investigating Officer PW22 has also not conducted any investigation so far as the Engine, Chasis number, whether it is the very same Car which is alleged to have been used in committing the alleged offence or not. Even the number was also changed and with regard to the change of the number as KA.03 B.6598, whereas it is the prosecution case that the said vehicle was bearing Registration No.KA.03 B.5598. Looking to the evidence of this PW22 even he has not conducted any investigation so far as the change of the number of the said vehicle. Therefore, this material also goes to show that prosecution was not able to establish even the identity of the vehicle that it was the very vehicle which is said to have been used in committing the alleged offences.
30. It is the case of the prosecution that when the dead body was exhumed at the said place it was noticed that around that place there was a salt put and it is the prosecution case that accused persons purchased the salt 43 from one petty shop and put in the pit at burial place. In this regard the oral evidence adduced by the prosecution for the mahazar under Ex.P12 is also clear. One Mohan PW10 has been examined to substantiate the said fact. Who deposed in his evidence that in Ex.P12 his signature is appeared at Ex.P12(a). On 26.6.2009, Mandya police came near by his shop and they wrote the panchanama and obtained his signature. It was at about 7.15 a.m. Along with the police two accused persons were present. The name of one person is Kantharaju- Accused No.3 and he has forgotten the name of another person. The police told that they have shown his shop, quite number of people are coming to his shop every day. He cannot remember and recollect who are the persons coming and which article they are going to purchase. The accused are present before the Court, but he cannot identify. The police asked him whether he purchased the salt from his shop. He told to the police that many number of persons are coming to his shop. Therefore, he cannot say who has 44 purchased the salt. This witness has been treated as hostile and when cross-examined by the Public Prosecutor then also nothing has been elicited through his mouth, though it is accused Nos.3 and 4 went to his shop, purchased the salt. When it was specifically suggested by the Public Prosecutor that on that day accused Nos.3 and 4 are present before the Court, though they went to his shop, he has seen them, but he is deposing falsely. Therefore, evidence of this witness PW10 - the owner of the shop is also not worth believable so as to the prosecution in establishing the fact that accused Nos.3 and 4 went to the shop and purchased the salt for the purpose of putting the same into the place in which the dead body was buried.
31. So far as the mud said to have been seized from the said place MOs.1 to 3, admittedly even according to the prosecution the FSL report is not produced to show that it is the mud collected from the said place. With regard to the allegation that Naveen Kumar the deceased 45 was taken away from the Hebbal fly over place by kidnapping, to establish the said fact also no witnesses were examined by the prosecution. Therefore, even with regard to the said allegation that he was kidnapped from the said fly over there is no material placed by the prosecution to believe the same. Therefore, even after perusing and re-appreciating the entire materials produced by the prosecution we are of the clear opinion that prosecution has failed to prove the case as against appellants/accused beyond all reasonable doubt.
32. Looking to the prosecution material, reasonable doubt arises in the mind of the Court, the benefit of doubt will have to be given to the accused persons. The learned Sessions Judge by looking to his judgment he has not at all properly considered and appreciated these aspects of the matter and even with regard to the legal infirmity about commencement of the investigation. Even earlier to registration of the FIR, investigation was commenced, this aspect also not been taken into consideration. Hence, the 46 judgment and order of conviction passed by the Court below as against the appellants/accused Nos.1 to 5 above is not sustainable in law and same is liable to be set aside. The appellants/accused Nos.1 to 5 have made out a case to allow the appeals.
33. Accordingly, all the four appeals are allowed. The judgment of conviction and order of sentence in S.C.No.36/2010 dated 17.12.2015 and 21.12.2015 passed by the II Additional District and Sessions Judge, Hassan is set aside. The appellants/accused Nos.1 to 5 are acquitted from all the charges.
The concerned prison authorities are hereby directed to release the appellants/accused Nos.1 to 5 forthwith, if they are not required in any other case.
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The Registry is directed to communicate the operative portion of this judgment to the concerned prison authorities.
Sd/-
JUDGE Sd/-
JUDGE SBS/UN/AP/-