Karnataka High Court
Mithuna @ Mana vs The State Of Karnataka By on 17 April, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.744/2013
C/W.
CRIMINAL APPEAL NO.982/2012
CRIMINAL APPEAL NO.643/2013
CRIMINAL APPEAL NO.785/2013
IN CRIMINAL APPEAL NO.744/2013:
BETWEEN:
YATHEESHA
S/O KRISHNAPPA
AGED ABOUT 25 YEAS
DASARAHALLI MAIN ROAD
HEBBALA PSOT
BENGALURU. ... APPELLANT
(BY SRI SIJI MALAYIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CUBBON PARK POLICE STATION
REPRESENTED BY ITS
GOVERNMENT PLEADER
HIGH COURT COMPLEX
BENGALURU. ... RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C OF PRAYING TO SET ASIDE THE ORDER DATED
27.01.2012/04.02.2012 PASSED BY THE PRESIDING OFFICER,
FAST TRACK COURT-XV, BENGALURU IN S.C.NO.969/2009 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 396 OF IPC AND ETC.
IN CRIMINAL APPEAL NO.982/2012:
BETWEEN:
MITHUNA @ MANA
SON OF RAMESH
AGED ABOUT 24 YEARS
RESIDING AT ANANDAPURA
RAMAMURTHYNAGAR MAIN RAOD
BENGALURU. ... APPELLANT
(BY SRI SIJI MALAYIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CUBBON PARK POLICE STATION
BENGALURU CITY
REPRESENTED BY ITS
GOVERNMENT PLEADER
HIGH COURT COMPLEX
BENGALURU. ... RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND
SENTENCE PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-XV, BENGALURU IN S.C. No.970/2009 DATED 27/1/2012
& 4/2/2012 - CONVICTING THE APPELLANT/ ACCUSED-2 FOR
OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC AND ETC.
3
IN CRIMINAL APPEAL NO.643/2013:
BETWEEN:
SRI. RAGHAVENDRA
S/O SUNDER RAJ,
AGED ABOUT 24 YEARS,
RESIDING AT NO.99/10,
DASARAHALLI MAIN ROAD,
HEBBALA,
BENGALURU.
... APPELLANT
(BY SRI LAKSHMI KANTHA RAO V, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CUBBON PARK P.S.
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU.
... RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 27.01.2012 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT-XV, BENGALURU IN S.C.
NO.969/2009 - CONVICTING THE APPELLANT/ACCUSED FOR
OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC AND ETC.
4
IN CRIMINAL APPEAL NO.785/2013:
BETWEEN:
SURESH BABU
S/O YOGE GOWDA
AGED ABOUT 28 YEARS
RESIDING AT NO.25
MARUKANAHALLI VILLAGE
K.R. PETE TALUK
MANDYA DISTRICT
MANDYA-577 401. ... APPELLANT
(BY SRI NITIN GOWDA K.C., ADVOCATE FOR
SRI PRASANNA KUMAR P., ADVOCATE)
AND:
STATE OF KARNATAKA
BY CUBBON PARK POLICE STATION,
BENGALURU CITY, BENGALURU
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001. ... RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C OF PRAYING TO SET ASIDE THE ORDER DATED
27.01.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-XV, BENGALURU IN S.C.NO.969/2009 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 396 OF IPC AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.03.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
5
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
These appeals are filed by accused Nos.2 to 5 challenging the judgment of conviction and sentence dated 27.01.2012 / 04.02.2012 passed in S.C.Nos.969/2009 and 970/2009 (accused No.2) by the Trial Court for the offence punishable under Section 396 of IPC.
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the prosecution that on 16.10.2008, the appellants/accused persons came in a auto rickshaw bearing No.KA05-B-2552 at Kumble Circle within the limits of Cubbon Park police station at about 12.30 a.m. At that time, the accused persons followed the Toyota Qualis vehicle bearing No.KA05-AC-6627 and blocked the said vehicle. All of a sudden, the accused persons entered into the deceased vehicle and tied the mouth of the deceased with cloth and tied the legs with the rope and using the rope thread, strangulated the 6 deceased when he tried to escape. The case of the prosecution is that accused persons took the gold ring, credit and debit cards, one mobile phone, Rs.380/- cash and the Toyota Qualis car. It is also the case of the prosecution that body was thrown near Veeradimmanakanive which comes between Chikkaballapura to Gowridibanur road and fled away from there along with the Toyota Qualis vehicle. It is also the case of the prosecution that on 18.10.2008 at about 11.00 p.m., when accused Nos.3 to 6 came near the Pizza Hut, 80 Feet Road, Koramangala in order to sell the Qualis Car, the Koramangala police, based on the credible information, arrested the accused persons and registered a case and on enquiry, accused persons revealed with regard to committing of murder and throwing the body in a forest area. Hence, invoked the offence punishable under Section 396 of IPC against the accused persons and after receipt of the complaint, investigated the matter and filed the charge-sheet against accused Nos.3 to 6 and case was registered against these accused in C.C.No.769 and the case was split up for accused Nos.1 and 2 in C.C.No.16682/2009 and thereafter, accused No.2 was arrested. Accused Nos.3 to 6 faced the trial in 7 S.C.No.969/2009 and so also accused No.2 faced the trial in S.C.No.970/2009. The accused persons have denied the charges leveled against them and claim for trial. Hence, the prosecution examined the witnesses as PW1 to PW20 and got marked the documents at Ex.P1 to P27(a) and also relied upon the material objects at MO1 to MO10.
4. The Trial Court having considered both oral and documentary evidence placed on record and also considering the material objects comes to the conclusion that these accused persons have committed the offence punishable under Section 396 of IPC and hence, convicted and sentenced them. Being aggrieved by the said judgment of conviction and sentence, the present appeal is filed before this Court.
5. The learned counsel appearing for accused No.4 in Crl.A.No.744/2013 would vehemently contend that the case of prosecution that on 16/17.10.2008, the deceased was missing and missing complaint was also lodged by the father of the deceased. The counsel would vehemently contend that some of the accused persons were apprehended on 18.10.2008 at 11.00 8 p.m. and case was registered on 19.10.2008 at 7.30 a.m. in terms of Ex.P14-FIR. The counsel would vehemently contend that though prosecution relies upon the evidence that body was discovered on 19.10.2008 at the instance of accused persons, the same has not been proved. The counsel would vehemently contend that Ex.P6 is the complaint and Ex.P26 is the request to transfer the case from Koramangala police station to Cubbon Park police station on 30.10.2008. The counsel also brought to notice of this Court with regard to the discrepancy of timings at Ex.P3 wherein it is mentioned as 4.30 to 5.00 p.m. but recovery mahazar discloses that gold ornament i.e., gold ring was recovered immediately from accused No.3 hence, the very seizure itself is doubtful since the same was seized at the instance of accused No.3 in between 5.00 to 5.45 p.m. The counsel would vehemently contend that fresh FIR was registered and PM report is placed before the Court to show the cause of death. The counsel also brought to notice of this Court with regard to the discrepancy of evidence wherein PW2 submits that he was called to the police station on the previous day itself and he found the vehicle on that day itself and hence, there is 9 discrepancy with regard to the recovery of dead body as well as seizure. The counsel would vehemently contend that there was no FIR as well as seizure of vehicle but it is the case of the prosecution that body was found at 7.00 a.m., but no case was registered. It is also the evidence of PW2 that in the very same Qualis car, they went to the spot. The counsel also would vehemently contend that though alleged ring was recovered but, the same was pledged in the name of Sneha and not in the name of the accused person.
6. The counsel also would vehemently contend that evidence of PW3 is that the accused persons were brought to his shop and his evidence is not credible. The counsel also would vehemently contend that IO who has been examined as PW4 says that information was received but his evidence is very crucial and there is no any voluntary statement and when there is no voluntary statement, recovery under Section 27 of Evidence Act cannot be believed. The counsel also would vehemently contend that PW5 who has been examined is the inquest witness and he is the friend of the deceased. The 10 counsel would vehemently contend that though prosecution examined the doctor as PW6, his evidence is clear that rope was not sent for his opinion which is used for strangulation. The counsel contend that PW7 deposed only about preparation of sketch and PW8 is the owner of the vehicle and PW9 evidence cannot be believed because his evidence is hearsay evidence. The counsel would vehemently contend that who registered the FIR has been examined as PW10 and PW11 is also an inquest witness. PW12 and PW13 are the Head Constables who accompanied the IO and PW14 to PW16 are the formal witnesses and PW17 deposes about recovery of ATM card and PW18 speaks about arrest of accused persons and PW19 is the IO who speaks about the recovery of ATM cards belatedly and the counsel contends that those ATM cards were not used for drawing of money.
7. The counsel referring the evidences of prosecution witnesses would vehemently contend that accused persons were illegally detained without registering the FIR and entire investigation is against Section 154 and 156 of Cr.P.C and the 11 same is hit by the said provisions. The counsel would vehemently contend that before registration of the case, investigated the matter and hence, the very recovery is doubtful since firstly visited the spot and thereafter, took the accused and the same is hit by Section 25 and 27 of the Evidence Act. The counsel would vehemently contend that there is no any voluntary statement and only relying upon the oral statement of accused persons, went to the spot and recovered the body and hence, there is no any discovery and no independent witnesses for recovery of body. The counsel also would vehemently contend that even for seizure of vehicle also, no mahazar was conducted and there is no complaint but only made as two complaints and two FIRs.
8. The counsel also would vehemently contend that even the Koramangala police have no jurisdiction to investigate the matter and the matter was handed over to Cubbon Park police station after 1½ months. The counsel also would vehemently contend that credit card, woolen rug and bed sheets were not at the spot and the statement of witnesses also very 12 clear that except dead body, nothing was found at the spot. But later on, introduced the woolen rug and bed sheets and the same is doubtful. The counsel would vehemently contend that there are contradictions in the evidence of PW2, PW3, PW5 and all of them speak that on 18.10.2008 itself, they found the vehicle in the police station but according to the prosecution, they arrested the accused persons on 19.10.2008 at 11.00 p.m. The counsel would vehemently contend that there is no any scientific evidence. When such material is available on record, the benefit of doubt goes to the accused. The counsel also would vehemently contend that when the jeweler categorically deposed that the gold ring was pledged by one Sneha, her statement is not recorded and accused not pledged the same with the jeweler. It is also emerged in the evidence that only accused No.3 led the police and not the other accused persons.
9. The counsel in support of his arguments, relied upon the judgment of the Apex Court reported in (2024) 8 SCC 149 in the case of BABU SAHEBAGOUDA RUDRAGOUDAR AND OTHERS vs STATE OF KARNATAKA wherein the Apex Court 13 held that whether a post-investigation, document of FIR inspires the confidence of the Court. The counsel brought to notice of this Court that the recovery at the instance of accused and absence of compliance of necessary requirements on part of IO and what is the effect of the statement under Section 27 must be recorded in the presence of two independent witnesses and the same is not found in the case on hand and contend that the said judgment is aptly applicable to the case on hand. The counsel brought to notice of this Court paragraph 66 of the judgment wherein the case of SUBRAMANYA vs STATE OF KARNATAKA (2023) 11 SCC 225 was discussed.
10. The counsel also relied upon the judgment reported in 2013 SCC ONLINE KAR 6 in the case of H C KARIGOWDA @ SRINIVASA AND OTHERS vs STATE OF KARNAAKA wherein also it is held that if the Investigating Officer deliberately does not record the FIR after receipt of information of cognizable offence, registering the complaint as FIR after reaching the spot and after due deliberation, consultation and discussion, such complaint cannot be treated as FIR, it would be 14 only a statement made during investigation and the same is hit by Section 162 of Cr.P.C.
11. The learned counsel who appears for accused No.3 in Crl.A.No.643/2013 would vehemently contend that this appellant is in custody from more than five years. The counsel would vehemently contend that there are no antecedents against this appellant and according to the police, three vehicles were taken to the custody and taking custody of the vehicle is illegal when there was no any seizure. On 18.10.2008, when the vehicle was taken to the custody at 11.45 p.m., seizure mahazar was not drawn. It is the case of the prosecution that four persons were arrested but accused Nos.1 and 2 were not arrested on that day. The counsel would vehemently contend that accused No.2 was arrested subsequently i.e., on 29.04.2009. It is the case of the prosecution that on 19.10.2008, took the accused persons to the forest area where the dead body was recovered and Investigating Officer conducted the inquest and nothing seized at the spot but later on introduced the rug and bed sheet. The records also disclose that thereafter only case was registered 15 and accused were arrested. It is the case of the prosecution that there was a voluntary statement and hence, ring was recovered at the instance of this accused. The counsel would vehemently contend that pan broker who has been examined before the Court is a regular witness and the same is elicited in his cross- examination. Though, at the first instance he denied the same, in the cross-examination he admitted the said fact. The counsel also would vehemently contend that the very registration of case is hit by Section 154 of Cr.P.C. The pan broker who has been examined had categorically admitted that in three cases, recovery was made from him and he gave the evidence. The counsel also would vehemently contend that no recovery under Section 27 of the Evidence Act and also there is no legal evidence and even, time of death also not spoken by the doctor.
12. The counsel contend that PW2 is the brother of the deceased. PW5 categorically says that he had already seen the body. PW11 called and informed PW5 that body was found and the evidence of PW10 is very clear that they are having the knowledge about the body. The counsel also reiterates that ring 16 was pledged in the name of Sneha but she has not examined and her statement also not recorded and recovery of ring also not proved and recovery of body also not proved and there are no changed circumstances since case is rest upon the circumstantial evidence and the bed sheet and woolen rug were not shown in the manhzar and the same were seized in the police station and mahazar was not done at the spot and there are no material to connect the accused and also no linking evidence and missing complaint also not marked and hence, there is absolutely no material. Hence, the counsel contend that the Trial Court committed an error in convicting and sentencing the accused persons.
13. The counsel in support of his arguments relied upon the judgment reported in (2014) 2 SCC 1 in the case of LALITA KUMARI vs GOVERNMENT OF UTTAR PRADESH AND OTHERS and brought to notice of this Court the discussion made in respect of Section 154 of Cr.P.C and so also 155, 156 and 157 with regard to registration of FIR in cognizable case whether it is mandatory or police officer has option, discretion or 17 latitude of conducting preliminary inquiry before registering FIR and held that mandatory registration of FIR on receipt of information disclosing a cognizable offence as the general rule, situations/cases in which preliminary inquiry is permissible, scope of, and safeguards to be followed in cases where such preliminary inquiry is permissible and it is mandatory and no preliminary inquiry is permissible in such a situation and same is a general rule and must be strictly complied with.
14. The counsel also relied upon the judgment of the Apex Court passed in CRIMINAL APPEAL No.3869/2023 in the case of RAVISHANKAR TANDON vs STATE OF CHHATTISHGARH decided on 10.04.2024 and the counsel also brought to notice of this Court with regard to Section 27 of the Evidence Act and subsequent recovery of dead body and particularly brought to notice of this Court paragraph 13 wherein discussion was made that it is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It has been held that the rationale behind this provision is that, if a fact is actually discovered in consequence 18 of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. The counsel referring this judgment would vehemently contend that this judgment is aptly applicable to the case on hand with regard to the discovery of body is concerned.
15. The learned counsel appearing for accused Nos.2 and 4 in his argument would vehemently contend that he adopts the arguments of the learned counsel for accused No.4 in Crl.A.No.744/2013. Apart from that he would vehemently contend that the very voluntary statement of accused No.2 is doubtful. It is also contend that accused No.2 was arrested on 29.04.2009 that too from his house and also seized the credit and debit cards and contend that though the said cards taken from the deceased, the same were not used for withdrawal of the money and hence, the same cannot be relied upon. The counsel also would vehemently contend that the material collected by the Investigating Officer is not supports the case of the prosecution and hence, the very registration of the case and 19 subjected the accused for trial is erroneous and the case of the prosecution is doubtful and in the absence of any material, there cannot be any conviction and sentence.
16. The counsel also in support of his arguments relied upon the judgment of the Apex Court passed in CRL.A.NO.250/2016 in the case of THAKORE UMEDSIGN NATHUSING vs STATE OF GUJARAT decided on 22.02.2024 and the counsel brought to notice of this Court the discussion made in the judgment in paragraph 26 regarding relying upon the circumstantial evidence comprising of disclosures recoveries and discoveries for bringing home the guilt of the accused and most important recovery is alleged to be of the jeep. The counsel also brought to notice of this Court paragraph 30 of the judgment wherein discussion was made with regard to relying upon incriminating circumstance against the accused persons is totally inadmissible and unworthy of reliance. The counsel also brought to notice of this Court the observation made in paragraph 32 that the prosecution did not even make an attempt to prove the confessional part of the communication and also 20 brought to notice of this Court paragraph 33 of the judgment wherein discussed that even if it is assumed for the sake of arguments that A1 was present in the jeep owned by Bharatbhai (deceased), this fact in isolation cannot lead to an inference about culpability of the said accused for the offences of murder and dacoity. The counsel also brought to notice of this Court the discussion made in paragraph 34 with regard to conviction on the basis of the recovery of the knives and clothes and also brought to notice of this Court paragraph 35 wherein also discussion was made that even if it is assumed for a moment that such recoveries were effected, the same did not lead to any conclusive circumstance in form of serological report establishing the presence of the same blood group as that of the deceased and hence, they do not further the cause of prosecution. The counsel also brought to notice of this Court the discussion made referring the judgment of HARICHARAN KURMI vs STATE OF BIHAR (AIR 1964 SC 1184) wherein also it is held that such statement is not a substantive piece of evidence that is evidentiary value of the confession of one of co-accused and observation made in paragraph 38 that High Court did not record 21 any such finding that the view taken by the Trial Court while reversing the acquittal of the accused recorded by the Trial Court and the counsel referring the judgment would vehemently contend that the said judgment is aptly applicable to the case on hand.
17. Per contra, the learned counsel appearing for the State would vehemently contend that the evidence of PW9 i.e., the wife of the deceased is very clear with regard to missing of the deceased and immediately, lodging of a complaint. Apart from that PW8 who is the owner of the vehicle categorically deposed that vehicle was leased to the deceased for an amount of Rs.13,500/- per month. The counsel would vehemently contend that evidence of PW4 is consistent regarding recovery of body and disclosure of the same and recovery witnesses also categorically deposed with regard to the recovery of body at the instance of the accused and PW3 evidence is also very clear that he identified the accused persons when they were brought to his shop since the ring of the deceased was pledged with him. Though, it is contend that the same was in the name of Sneha, 22 that cannot be a ground to disbelieve the case when PW3 categorically deposed that accused persons only pledged the same for Rs.4,000/- and material collected by the prosecution is crucial and it is a case of murder and dacoity for wrongful gain and the Court has to consider the same in a proper perspective.
18. In reply to the arguments of the learned counsel for the State, the learned counsel for accused No.5 would vehemently contend that when the very investigation is hit by Section 154 of Cr.P.C, since even not called the Magistrate at the time of recovery of dead body as contemplated under Section 174 of Cr.P.C. The counsel once again reiterated paragraph 66 of the judgment which he referred supra and would vehemently contend that Investigating Officer cannot act as a complainant as well as Investigating Officer and in the case of hand, he not only acted as complainant but also acted as Investigating Officer and the same is not permissible under law.
19. Having heard the learned counsel appearing for the respective parties and also considering the principles laid down 23 in the judgments referred supra by the respective counsel, the point that would arise for consideration of this Court is:
1. Whether the Trial Court committed an error in convicting and sentencing the accused persons for the offence punishable under Section 396 of IPC and whether it requires exercising of appellate jurisdiction?
2. What order?
Point No.1:
20. Having heard the learned counsel appearing for the respective parties and also considering the grounds urged in the appeal memo as well as considering the oral submissions of the respective counsel, this Court has to analyse the material available on record. Now, this Court would like to refer some of the evidence of the prosecution witnesses in order to comes to a conclusion that whether the Trial Court rightly appreciated the material available on record or not. Before considering the evidence, this Court would like to refer the very case of the prosecution and charges leveled against the accused persons. 24 That on 16.10.2008, the accused persons with the common intention to commit dacoity, came by an auto rickshaw bearing No.KA05-B-2552 and stopped the Qualis car bearing No.KA05- AC-6627 which was driven by the deceased and accused persons boarded in the said car and immediately closed the mouth of the deceased using the cloth and tied his neck with a rope and also tied his legs and committed murder of the deceased strangulating him using the rope particularly by accused Nos.1 and 2 and all of them robbed an amount of Rs.380/- from the deceased and also robbed gold ring, mobile phone, debit and credit cards and thereafter, thrown the dead body of the deceased near Veeradimmanakanive which runs towards Chikkaballapura to Gowridibanuru road forest area and thereafter, they ran away from the place along with the Qualis car of the deceased. The prosecution in order to substantiate the accusation made against accused persons, relied upon the evidence of PW1 who is a mahazar witness but he turned hostile to the case of the prosecution and he deposed with regard to the seizure of cloth of the deceased in the police station. 25
21. The other witness is PW2 who is the brother of the deceased and he says that a complaint was lodged on 17.10.2008 stating that his brother and Quails car were missing and thereafter Koramangala police called and informed that they found the car and requested him to come to the police station and he went to the police station and he found the car and the police have showed the accused persons saying that they only committed the murder of his brother and asked PW2 to identify the accused but he said that he was unable to identify them since he has not seen them earlier, but, he identifies the accused persons before the Court and he particularly pointed out accused No.3 and says that he only led him and police to the place where they have thrown the dead body that is near Veeradimmanakanive towards Chikkaballapura to Gowribidanur road and body of his brother was found and he came to know that accused committed the murder by using the rope and even tied the legs and found kerchief on his mouth and body was getting the smell and eyes were came out and thereafter body was shifted to the Chikkaballapura Government hospital and conducted the inquest and identifies the signature found in 26 Ex.P3(a) and the same was signed at the spot where the body was found knowingfully well the contents of the document and he also identifies the cloth that is pant, shirt, woolen rug, cotton bed sheet as per MO1 to MO7 and he says that woolen rug and bed sheet were thrown next to the dead body. This witness was subjected to cross-examination.
22. In the cross-examination, he deposed that he spoke to him on 16.10.2008 at 9.30 p.m. and his father went and gave the complaint on 17.10.2008 at 8.00 p.m. with the J.P.Nagar police and J.P. Nagar police have not informed anything but Koramangala police informed the same and the same was on Saturday at 6.00 p.m. on 18.10.2008 and he could not come to the police station on that day and on the next day, went to the police station and took him to the spot and also found the vehicle on Saturday itself at 6.00 p.m. in the police station. On the very next day at 5.30, he went to the police station and they went to the spot at 7.00 a.m. where the body was found and he found the rug and bed sheet near the dead body. It is suggested that he did not accompany the accused and police and accused 27 not shown any dead body and the same was denied. It is also suggested that no mahazar was drawn at the spot and the same was also denied. He also admits that his senior uncle's son Ganesh also signed the same and other persons were also signed the same and he admits that in respect of MO1 to MO7, his signature was not taken separately but he categorically says that he signed Ex.P3 at the spot itself.
23. PW3 in his evidence says that he is having Navadurga bankers jewelry shop and he used to pledge the articles. On 20.10.2008, the police brought four accused persons to his shop stating that they committed the murder and pledged the finger ring of the deceased and immediately he verified and found that it was pledged for Rs.4,000/- and also removed the bill and ring and the same was seized and identifies his signature at seizure mahazar in terms of Ex.P4(a) and the same was seen in his shop and also identifies the ring as per MO8. This witness subjected to the cross-examination wherein he deposed that he has got licence but he has not given the copy of the same and he used to pledge the gold articles if they are acquainted with 28 him and used to give receipt and the ring weighed about 7 grms was pledged in the name of Sneha and she is the resident of Amruthahalli. It is suggested that he is having habit of giving false evidence and the same was denied. He says that not given any evidence in any other case. But he says that in Dwarakanagara case, he was called to police station and given the evidence in 14th Court and he does not remember the case number and he says that he gave evidence in one case. It is suggested that police have not brought four accused persons and the same was denied. He says that mahazar was written in Kannada language and the same was explained to him and he did not show the Sneha to the police. The counsel for accused No.5 also cross-examined this witness and he cannot tell the colour of four accused persons who brought to his shop and again suggestion was made that police have not brought accused persons and the same was denied. The counsel for accused No.2 elicited that Sneha came to his shop about 2 to 3 times and she had purchased some articles and hence, she is having acquaintance with him. On 17.10.2008, she pledged the ring but he does not know the name of the accused and they were known 29 to him prior to 15 to 20 days of this incident. It is suggested that Sneha did not accompany and she did not come to the shop and pledged the ring and the said suggestion was denied.
24. PW4 is the Investigating Officer and in his evidence, he says that on 18.10.2008, he has received the information at 11.00 p.m. that some four persons are waiting near Koramangala 80 feet road, Pizza Hutt, 70 F Main along with the Qualis and making an attempt to sell the same. Immediately, he called his staff and went to the spot and found 3 to 4 persons and caught them. On enquiry, they disclose their names as Raghavendra, Suresha, Yatheesha and Muniraju. It is also evidence of PW4 that they were having Tayota quails bearing No.KA05-AC-6626, Auto bearing No.KA05-D-2252 and Pulsar motorcycle bearing No.KA43-H-9767 and they did not give any details about the vehicle and they were brought to the police station. On enquiry, they reveal that along with their friends Vinod and Mithun, all of them came in the auto and stopped the vehicle near Anil Kumble Circle and when Qualis car came, all of them boarded into the said car and when the deceased started 30 shouting, accused caused threat to him and snatched the key from him and Ragavendra put cloth on his mouth and Suresh and Yatheesh hold his hands and Mithun tied his legs and Vinod who was having rope put the same on his neck and all the accused committed the murder of the deceased by strangulating him and snatched Rs.380/- and also snatched mobile and gold finger ring and in the very same car, took the body of the deceased and went towards the Yelahanka and they tried to find out the place to throw the dead body and ultimately, they went inside 700 to 800 feet of forest area and at around 11.00 and they disposed of the body throwing the same near Veeradimmanakanive at Chickmangalore-Gowribidanuru road and thereafter, they came and pledged the ring for Rs.4,000/- and spent the amount of Rs.380/- which was robbed from the deceased for their food. On the same night, at around 10.30, they came along with the Auto, Pulsar motorcycle as well as Qualis to sell the same and at that time, they were apprehended and they led the team to the spot and showed the dead body. Having considered their statement, FIR was registered for the offence punishable under Section 396 of IPC and identified the 31 signature as per Ex.P5(a) and also he has seen the report given to the Court in terms of Ex.P6 and all these formalities was completed from 18th to 19th morning and case was registered in the morning of 19th and also conducted the inquest and took the signature of inquest mahazar witness in terms of Ex.P8(a) and body was sent to the Government hospital and obtained the report in terms of Ex.P10 and he identifies his signature at Ex.P10(a) and thereafter, body was handed over to the brother of the deceased - PW2 and also seized the vehicles drawing the mahazar in terms of Ex.P11 and photographs were also taken and also seized tape measuring 8 feet x 4 inches and working progress caution rope and Gray colour pant, White shirt, woolen bed sheet and cotton bed sheet and 100 x 5 inches cloth and also recorded the statement of panch witnesses.
25. P.W.4 also identifies M.Os.1 to 7 and identifies his signature in mahazar Ex.P1(b) and body was sent for post mortem examination and thereafter, body was given to relatives and having mentioned PF in respect of M.Os.1 to 7, report was given by Head Constable and the same is marked as marked as 32 Ex.P12 and his signature is identified as Ex.P2(a). He also recorded the statement of Sub-inspector, Sub-inspector of Police and other staff. He also recorded the voluntary statement of accused, since they told that they are going to show the dead body and the accused persons are also produced before the Court and they were taken to police custody. In his further examination also, he says that, he conducted spot mahazar in the presence of panch Nagesh and Ganesh in terms of Ex.P3 and he identifies his signature as Ex.P3(c) and he also seized the ring which was pledged with Navadurga Bankers which was kept in the name of Sneha and he identifies his signature as Ex.P4(b) and also ring is marked as M.O.8. On 22.10.2008, the accused persons were produced before the Court and sought for judicial custody. That on 07.11.2008, when the application was filed for release of the vehicle, in view of the Court order, he released the vehicle in favour of the owner and his statement was also recorded, wherein he has stated that he has given the vehicle for Rs.13,500/- on 01.05.2008. It is also his evidence that deceased father produced the order copy for release of gold ring and he handed over the same. That on 29.11.2008, auto rickshaw was 33 released in favour of the owner on 07.11.2008, produced the sketch which is marked as Ex.P11. The report given by one Ganganna is marked as Ex.P17. He also obtained the post mortem report from the concerned Doctor and the same is marked as Ex.P9 and signature is marked as Ex.P9(b). On 25.11.2008, records are sent to concerned Cubbon Park Police Station, since they were not having jurisdiction. On 19.08.2010, one Venkatesh gave statement in terms of Ex.P2. The photograph of the car and also auto rickshaw is produced as Ex.P23 and Ex.P24 and CD as Ex.P25. This witness was subjected to cross-examination.
26. In the cross-examination, he says that he received the information at 11.00 p.m. on 18.10.2008 and he entered the same in Station House Dairy, but not produced the same before the Court. Thereafter, they left the station at around 11.30 p.m. and they noticed accused persons talking with the customers to sell the car and customers ran away from the spot and they apprehended the accused persons at the spot, but could not able to apprehend the customers and he did not enquire with regard 34 to the persons, who left the spot and the accused Nos.1 and 2 were not there at the spot, but the arrested persons told that customers were known to both of them. It is elicited that they did not conduct arrest procedure immediately and they were subjected to enquiry in the station and arrest procedure was conducted on 19th after registration of FIR and only on confirmation, arrest procedure was followed. It is mentioned in the dairy for having brought the accused persons to the station and the same is not produced before the Court. It is not correct to suggest that he has signed Ex.P1 after the complaint was given to the Court and the same was denied. He admits that in the complaint given to Cubbon Park Police, he has not signed. He got it typed the report with the help of Chikkaballapura Town Police computer operator. He registered the case on 19.10.2008 and papers were sent to Cubbon Park Police Station on 25.11.2008. He did not transfer the case immediately to Cubbon Park Police, since he wanted to enquire in detail and get permission from the Court and only after getting the permission, he has to transfer the same. He also says that on 30.10.2008 35 itself, sought permission from the Court and noticed that Court has given permission.
27. In the further cross-examination, he admits that he did not enquire to whom the Qualis vehicle belongs and the deceased elder brother identifies the body and accused persons, who were along with them showed the spot. He admits that he called the deceased brother and took the accused persons and while registering the case in J.P. Nagar, they did not mention the same in the dairy. It is his evidence that six persons went in police jeep, remaining three persons went in private vehicle. He admits that case was not registered when they went to spot and inquest mahazar was conducted from 9.30 to 11.30 and thereafter, body was sent to post mortem examination and seizure mahazar was not done at the spot. The Head Constable produced the articles in terms of P.F. No.134/2008 and he conducted the mahazar and did not mention to whom rug and bed sheet belongs to and he did not enquire Head Constable Shivalingaiah from where he brought the same. He says that he took three accused persons to Navadurga Bankers and in the 36 Panchaname, now shown seizure of arrest and he admits that, it is mentioned that only one accused was taken near the shop. He admits that panchayathdars were not given any notice and he did not make enquiry as to whether receipt stands in the name of Sneha, since it was there in her name. It is suggested that accused has not given any voluntary statement and did not go to the spot and not seized anything and not recorded any statement and the same was denied. In the further cross- examination, he says that he himself received the information directly on 11th night. He admits that no details are in writing as to who are all went to the spot. It is suggested that accused persons were not apprehended and the same was denied. He also admits that he did not receive any missing complaint. It is elicited that he took accused persons in the night at 12.00 o'clock to police station and they were subjected to enquiry till morning 4.00 a.m. The deceased brother came to spot on information and no documents for having secured brother of the deceased. He admits that for having typed the complaint in Chikkaballapura Police Station, there is no reference. 37
28. P.W.5 is the recovery witness to Ex.P7 and also inquest Ex.P8. He was taken to spot at 5.30 on 19th and accused one Raghavendra came along with the police and he pointed out the spot and dead body was shifted to Government Hospital and he identifies accused-Raghavendra and got confirmed the same through Court. The hands and legs of the dead body were tied, eye balls had come out and there was foul smell emanating from the dead body and tongue was protruded. It is elicited that deceased was wearing white shirt, blue pant and he identifies rope, pant and shirt as M.Os.1 to 4. This witness was subjected to cross-examination. In the cross- examination, he says that he signed the panchaname after having gone through the contents of the same. He says that he was asked to come to spot by one Chandregowda and he went to police station and then went to spot and he came to know about the incident through one Chandregowda and hence, he went to spot. He was called in the previous night at around 9.30 to 10.00 p.m. and he went near the body at around 5.30 to 6.00 a.m. in private vehicle i.e., Tata Sumo and along with Chandregowda, 4 to 5 persons came to police station, police 38 asked them to come to spot and they went along with police. He says that they left the station at round 1.00 o' clock in the night and police searched the body and they did not found the body and body was found when the accused took them to spot i.e., Raghavendra. The police conducted inquest at the spot and accused-Raghavendra was wearing shirt and pant. It is suggested that he did not go to Chikkaballapura and accused- Raghavendra did not show the dead body and the same was denied. He says that he was in the police station from 6.00 to 8.00 p.m., since missing complaint was lodged.
29. P.W.6 is the Doctor, who examined the dead body at District Hospital and he came to know about the incident through the police. He conducted post mortem examination and says that death has occurred due to cardiac arrest on account of strangulation. He gave the report in terms of Ex.P9 and his signature is marked as Ex.P9(a). He also says that deceased might have been strangulated using M.O.1. It is elicited that body was brought at around 11.15 p.m. and he did not mention the time of death in the repot.
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30. P.W.7 is the Engineer, who prepared the sketch based on the place shown by the Head Constable on the request in terms of Ex.P10 and sketch is marked as Ex.P11 and his signature is marked as Ex.P11(a). He was cross-examined making suggestion that no request was made to prepare the sketch and the same was denied.
31. P.W.8 is the owner of the vehicle and he says that owner gave the vehicle for lease amount of Rs.13,500/- and he identifies the agreement and also his signature and the signature of the deceased and the same was not marked, since the same is a photocopy. In the cross-examination, he says that he was called in November for enquiry.
32. P.W.9 is the wife of the deceased and she says that her marriage was solemnized in 2002 and having two children and car was taken on lease and the deceased left the house on 16.10.2008 at 5.00 p.m. She also says that deceased used to return by 12.30 in the night and on that day, he did not turn up and mobile was also switched off and then her husband's, father- 40 in-law and brother-in-law started searching the deceased and on the next day, she came to know that he was murdered and while going, he had taken some money, mobile, ATM card and was also wearing a ring and she identifies M.O.8 and also ATM card. This witness was not subjected to cross-examination.
33. P.W.10 is the official who went along with Police Inspector and apprehended the accused persons on 18.10.2008 in late hours when they were trying to sell the car. When they were brought to station, on enquiry, they revealed about the incident and accused took them to spot and showed the dead body. He registered the case on the instruction of the Police Inspector and he also identifies the vehicle Bajaj Pulsar, Auto, Toyato Qualis and he issued the FIR in terms of Ex.P14 and also identifies the report of Police Inspector in terms of Ex.P14(a). He identifies the photographs of the vehicle and also identifies M.Os.1, 3 and 4. This witness was subjected to cross- examination and he says that information was written in the Station House Dairy, but not mentioned in the Station House Dairy that they are visiting the spot and he did not verify with 41 regard to the information what they have received and he is not aware of details of the customers and he cannot tell about the persons, who came near the vehicle and whether they purchased the vehicle or not and at the time of taking the vehicle to their custody, they have not drawn the mahazar and immediately, they have not registered the FIR, but they enquired the apprehended persons and they did not register the FIR. Immediately, they went to spot for confirmation and they left the police station at 4.00 a.m. along with the staff and found the body at 5.30 a.m. and superior officer sent him to police station to register the case and when the same was sent to Cubbon Park Police, they made an endorsement. Ex.P15 is marked, so also Ex.P6 and he did not sign the inquest mahazar, since he was not there at that time and he did not enquire with regard to the timings of inquest. In the cross-examination, he says that Police Inspector called him to Chamber at 11.00 p.m. and distance between Pizza Hut and police station is around 1½ k.m. and immediately secured other staff and they left the police station at around 11.10 p.m. to go to Pizza Hut. It is suggested that 42 accused persons were there at the spot, whey they went to the spot and the same was denied.
34. P.W.11 is the inquest witness and he identifies his signature in the notice in Ex.P7 and Ex.P7(c) and also signature in Ex.P8 and he says he signed the same at 9.00 a.m. and he says that found the dead body of Ravi Kumar and police took them to the spot and on that day, police took the accused persons to the spot, among which, three of them were in jeep and the accused-Raghavendra alone was taken to the spot and found legs and hands of the dead body tied and rope was found on neck and cloth was put on his mouth and foul smell was emanating from the dead body. At that time, Thippegowda, Shivanna and Nagesh were also there. This witness was subjected to cross-examination and in the cross-examination, he says that he gave the notice to come to police station at 7.00 a.m. and he cannot tell the name of the police, who gave the notice. He says that when he went to spot, it was around 9.00 a.m. and they left Koramangala Station at 7.15 a.m. and reached at around 9.30 a.m. It is suggested that accused 43 persons were not there and he is deposing falsely and the same was denied.
35. P.W.12 in his evidence says that inquest was conducted and thereafter body was sent to Government Hospital, Chikkaballapura and he is the Head Constable, who took the dead body to the Hospital, wherein post mortem was conducted and he produced the rope and other articles and he also identifies his signature as Ex.P12(b) and he says that he produced rope, pant, shirt, woolen rope, bed sheet, cloth piece which is marked as M.Os.1 to 7. In the cross-examination, a suggestion was made that a staff and inspector went earlier and hence, he went at around 10.30 to 11.00 and Inspector went at around 5.00 a.m. and when he went to spot, his staff were there and he did not enquire, who had seen the dead body at the first instance and Doctor has not given the articles with seal, but had put the same in a plastic cover and he took the same.
36. P.W.13 says that he was instructed to get inquest report and spot sketch and he gave the report to Police 44 Inspector and also met Doctor Diwakar and he brought post mortem report and the same is marked as Ex.P16 and Ex.P17.
37. P.W.14 is the spot mahazar witness, who signed the same and identifies his signature as Ex.P3(b) and he says that he was called to Koramangala Police Station for spot panchanama and accused persons were there. He says mahazar was drawn at the spot and he signed the same. He was subjected to cross-examination. In the cross-examination, he says that he went to police station at around 1.00 p.m. on 19th and suggestion was made that he has not signed spot mahazar and accused persons were not there and did not go to spot and only to help the police, he has given the evidence and the same was denied. In the cross-examination, he says that notice was sent to his residence and he went to police station after taking permission to go to police station and asked him to come after 2.00 o'clock.
38. P.W.15 is the Bank Manager of Corporation Bank, who speaks with regard to issuance of ATM card and the same is identified as M.O.9 which was given to deceased Ravi Kumar on 45 21.08.2006 and he had opened the account on 08.08.2006 and he identifies his signature in Ex.P18 and gave the Certificate. This witness was subjected to cross-examination. In the cross- examination, he admits that after filling the application for issuance of ATM card, they used to issue the same and he cannot tell which police have taken Ex.P18. It is suggested that no card was issued to Ravi Kumar and the same was denied.
39. P.W.16 is Bank Manager of Canara Bank. In his evidence, he says that M.O.10 was given to Ravi Kumar and the same was issued in 2005 and he identifies his signature as Ex.P19(a) and the same was issued on 24.07.2009. This witness was subjected to cross-examination and he cannot tell how many cards are issued to respective branches and only on the request, they issue the same and branch people in turn issue the same to account holders.
40. P.W.17 is the recovery mahazar witness of ATM and credit card and he drawn the mahazar in terms of Ex.P20 and identifies his signature as Ex.P20(a) and he says mahazar was drawn in the house of one Mithun and police took him and 46 accused was there in the house and he gave the credit card and police seized the same, wherein name of Ravi Kumar was found which belongs to Corporation Bank and Canara Bank and police seized the same. Along with him, accused, Mithun and one Prasad came and mahazar was drawn between 3.30 to 4.30 and he identifies his signature as Ex.P20(b). He was subjected to cross-examination. He admits in the cross-examination that job of Security is to watch the place and he cannot go out during working hours. It is elicited that, he went to police station at 2.30 p.m., at that time, police and accused were there and they visited the house of accused at 3.30 p.m. and there were neighboring houses and 3 to 4 persons gathered and they did not ask anything to him and police also did not take signature of persons, who had gathered there and he cannot tell the boundary of the said house. Once again he reiterates that signature found on M.Os.9 and 10 is different, but he says that while signing, he mentions his name in short as Rama, but his name is Rama Chikkaiah and while signing the mahazar, he had signed as D.R. Chikkaiah and clarified the same. 47
41. P.W.1 in his evidence says that on 29.04.2009, as per the order of superior, he went and brought the accused from his house and he says that originally he is a native of Madikeri and he was apprehended at 5.30 a.m. and brought to police station at 6.45. In the cross-examination, he admits that photo of Mithun was not given and they left the police station at around 3.30 in auto rickshaw. It is suggested that he was brought from Baga Mandala and the said suggestion was denied.
42. P.W.19 is the Police Inspector. In his evidence, he says that on 12.12.2008, he has received the memo from Deputy Commissioner of Police, Central Division and he has received the papers and issued fresh FIR and sent the same to Court and accused Nos.1 and 2 were absconding and accused Nos.3, 4 and 5 were in jail and accused No.6 was enlarged on bail by Bala Nyaya Mandali and he verified PF and he conducted further investigation in the matter and deputed his personal staff to apprehend accused Nos.1 and 2 and hence, he took custody of accused Nos.3, 4 and 5 from the Court based on the body warrant and also they have given voluntary statement as given 48 before the Koramangala police and they revealed involvement of accused Nos.1 and 2. He also recorded the statement of some of the witnesses and deputed his staff for apprehending accused No.2 and accused No.2 was arrested and produced before him on 30.04.2009 and he also recorded his voluntary statement. It is also his evidence that he has seized ATM card and he revealed that he had kept the same without bringing it to the notice of other accused and the same was seized in the presence of panch witnesses and drawn mahazar in terms of Ex.P20 and also identifies M.Os.9 and 10 and voluntary statement is marked as Ex.P21 and portion is marked as Ex.P21(a) and deputed official has given the report and the same is marked as Ex.P22. He also speaks about document of Exs.P18 and P19. This witness was subjected to cross-examination. He admits that copy which was given to accused No.3 is endorsed and admits that he has not signed Ex.P6 and marked the same as Ex.D1 when the same was confronted. He admits that after having taken further investigation, he did not go to spot as well as to the place where the body was found and he did not record the statement of accused Nos.3, 4 and 5 after taking them to his custody. He says 49 that accused was brought to station at around 6.30 and he admits that he did not take signature of neighbourers of accused while seizing ATM card. He admits that seizure mahazar is not in his handwriting, but volunteers to state that it was in his staff handwriting and he did not endorse the same. It is suggested that accused was falsely implicated and the said suggestion was denied.
43. The other witness is P.W.20, who took FIR to the Court on 19.10.2008 which is marked as Ex.P14. In his evidence, he says FIR was given to him on 9.45 a.m. and Sub- inspector of Police i.e., Syed Thapreez had signed the same and he says that on that day, it was a holiday, since it was Sunday. Hence, he went and gave the FIR to the residence of the Judge.
44. Having considered both oral and documentary evidence placed on record as well as the contentions raised by the learned counsel for the appellant and the learned High Court Government Pleader and keeping in view the grounds which have been urged in the respective appeals, this Court has to analyze both the question of fact and question of law. 50
45. The main contention of the learned counsel for the appellant/accused No.3 Sri Lakshmikantha Rao V, is that accused Nos.1 and 2 are not arrested at the spot and other accused persons were arrested at the spot when they were making an attempt to dispose of the vehicle, according to the case of the prosecution. The learned counsel contend that when they come to know about the cognizable offence is committed by the accused persons, the Investigating Officer is bound to register the FIR. The learned counsel relied upon the Apex Court's judgment in the case of Lalita Kumari (supra), wherein it is held that the registration of FIR is mandatory under Section 154 of Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. This is the general rule and must be strictly complied with. However, where information received does not disclose a cognizable offence, a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not. There must be information and it must disclose a cognizable offence. It is also discussed with regard to promptness in filing FIR and also compulsory registration of 51 earliest information as FIR. It is also discussed about the very object is two folded. Criminal process is set in motion and is well documented from very start preventing embellishments later. Ensures transparency in the criminal justice delivery system and functioning of police, providing for an efficient means to check powers of police as also for judicial oversight of the same. It is also discussed with regard to two kinds of FIRs: duly signed FIR under Section 154(1) of Cr.P.C. is by the informant to police officer and second kind of FIR is one registered by police itself on any information received other than by way of an informant. In the case on hand, it has to be noted that it is the case of the prosecution that the accused persons have revealed committing of cognizable offence and the Investigating Officer ought to have registered the case on the information received by the accused himself. Non-registration of FIR and consequences are also discussed in the judgment. It is held that the police officer cannot avoid his duty of registering a FIR ,if cognizable offence is disclosed. Action to be taken against erring officers who do not register FIR on receipt of such information and also discussed 52 with regard to the public accountability, vigilance and prevention of corruption.
46. This Court would like to rely upon the judgment of the Apex Court in the case of Babu Sahebagouda Rudragoudar (supra), wherein discussion is made with regard to consequence of post-investigation document. It is held that, in natural course, these relatives must have divulged the incident to the police and their statements being in regard to murder, would have mandatorily been entered in the daily dairy of the police station if not treated to be the FIR. However, the daily diary or the roznamcha entry of the police station corresponding to the so-called visit by the relatives of the deceased to the police station not brought on record. Hence, the Court held that this infirmity held to be have created a grave doubt on the genuineness of the FIR. The non-production of the daily dairy maintained at the police station, held, assumed great significance in the backdrop of said facts. Therefore, the FIR in question, held, to be a post-investigation document and not inspired the confidence. In this judgment also the Apex Court 53 having considered the judgment of Lalita Kumari (supra), comes to the conclusion that law laid down by the Constitution Bench is very clear that if any cognizable offence is committed, Investigating Officer must register the FIR.
47. The learned counsel appearing for accused No.5 relied upon the judgment of the Apex Court in the case of PRADEEP NIRANKARNATH SHARMA v. STATE OF GUJARAT AND OTHERS reported in 2025 LiveLaw (SC) 315. In this judgment also the Apex Court referring the earlier land mark judgment in the case of Lalita Kumari (supra) held that, it does not create an absolute rule that a preliminary inquiry must be conducted in every case before the registration of an FIR. It is held that the Lalita Kumari case re-affirmed the settled principle that the police authorities are obligated to register a FIR when the information received prima facie discloses a cognizable offence and also taken note of the Courts cannot rewrite statutory provisions or introduce additional procedural safeguards that are not contemplated by law.
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48. The learned counsel for accused No.5 also relied upon the judgment of this Court in the case of H.C. Karigowda @ Srinivasa (supra), wherein the Division Bench of this Court held that Section 154 of Cr.P.C. contemplates registration of FIR if the Investigating Officer deliberately does not record the FIR after receipt of information of cognizable offence, registering the complaint as FIR after reaching the spot and after due deliberation, consultation and discussion, such complaint cannot be treated as FIR, it would be only a statement made during investigation and hit by Section 162 of Cr.P.C.
49. The learned counsel for accused Nos.2 and 4 relied upon the judgment of the Apex Court passed in Crl.A.No.250/2016 dated 22.02.2024 with regard to the evidentiary value of the confession of one co-accused against the other was considered by this Court in the case of Haricharan Kurmi v. State of Bihar reported in AIR 1964 SC 1184 and it was held that such statement is not a substantive piece of evidence with regard to the recovery is concerned. 55
50. Keeping in view the principles laid down in the judgments referred supra, this Court has to analyze with regard to the non-registration of FIR immediately when the accused themselves have revealed that they have committed the cognizable offence of committing the murder with an intention to knock-off the vehicle from the custody of the accused for wrongful gain. In the case on hand, it is very clear that though P.W.4 says that on credible information he has entered the same in the station house diary, but not produced the same before the Court and hence it is clear that even on revealing the committing of the cognizable offence, the same was not noted in the station house diary. Nothing is found and placed before the Court having registered the same. It is important to note that in the cross-examination, he categorically admits that they did not conduct the arrest procedure immediately and only they were subjected to enquiry in the station and arrest procedure was conducted on 19.10.2008 after registration of FIR and only on confirmation, arrest procedure was followed. Even for having brought the accused persons to the station also, the same is not mentioned in the diary and the same is also not produced before 56 the Court and hence it is clear that even after coming to know about the cognizable offence was committed, did not make any entries in the station house diary, but proceeded to the spot and after confirmation of body is found in the spot where the accused persons have thrown out, FIR was registered at 9.00 a.m. on 19.10.2008. Hence, it is clear that discovery was also made without registration of the case and also without entering the same in the station house diary. The material is very clear that FIR was registered at 9.00 a.m. and the same was given to P.W.20 at 9.45 a.m. to take the same to the Court and FIR was also marked as Ex.P.14 and the same was done only after confirmation of the murder and found the dead body at the spot. In view of the judgments of the Apex Court in the cases of Lalita Kumari (supra), Pradeep Nirankarnath Sharma (supra) and Babu Sahebagouda Rudragowdar (supra), it is clear that when the cognizable offence came to the knowledge of the Investigating Officer, he did not register the case and proceeded to the spot and got confirmed the same and then only registered the FIR.
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51. It is important to note that even for arrest also, no procedure was conducted and they were brought to the Police Station and made an enquiry and on enquiry, they revealed about committing of the murder to make wrongful gain to snatch the vehicle, which was in the custody of the victim and the procedure adopted by the Investigating Officer is erroneous. The Apex Court in the case of Lalita Kumari (supra) has held that against the erring Investigating Officer, action has to be taken. But in the case on hand, the Investigating Officer even at the time of giving evidence before the Court was retired from service long back more than 1½ decade ago and hence the question of now initiating any action against the Investigating Officer, who did not register the FIR on receipt of such cognizable offence information, does not arise. The judgments which have been relied upon by the learned counsel as well as the judgment referred by this Court are aptly applicable to the case on hand. It is a clear case of lapse on the part of the Investigating Officer, who without registration of FIR proceeded to investigate the matter and the same is not a legal evidence and the same cannot be considered as legal evidence. 58
52. The other contention of the prosecution is that the body was recovered at the instance of the accused persons. It is discovery under Section 27 of the Evidence Act and whether it is a discovery at the instance of the accused persons also to be taken note of by this Court while evaluating the evidence on record. It has to be noted that P.W.2 says that missing complaint was lodged on 17.10.2008 itself by his father that his brother and car are missing. He also says that he came to know that the offence was committed and the accused persons were apprehended. He says that the police showed the accused persons saying that they only committed the murder of his brother and asked him to identify the accused, but he was unable to identify the accused since he had not seen them earlier. But he identified the accused persons before the Court and particularly pointed out accused No.3 and says that he only led him and the police to the place where they had thrown the dead body i.e., near Veeradibbammana Kanive towards Chikkaballapura to Gowribidanur road and the body of his brother was found and he came to know that the accused have committed the murder using the rope and even tied the legs and 59 found kerchief on his mouth and the body was smelling. But in the cross-examination, he says that Koramangala Police have informed the incident and the same was on Saturday at 6.00 p.m. on 18.10.2018. On the next day he went to the police station and they took him to the spot. He also says that he found the vehicle on Saturday at 6.00 p.m. in the police station. It is his evidence that on the very next day at 5.30 a.m. he went to the police station and they went to the spot at 7.00 a.m. where the body was found. It is important to note that he says that he came to know about the same on Saturday, previous day itself, but according to the prosecution, the accused persons were apprehended in the late night at 11.30 p.m. on 18.10.2018 and the same creates doubt in the mind of the Court regarding discovery is concerned.
53. It is important to note that the other witness P.W.5, who is also a witness to the finding of the body, in the cross- examination, he says that he went to the spot at 5.30 a.m. on 19.10.2018 and the accused one Raghavendra came along with the police and he pointed out the spot and the dead body. 60 Thereafter, the dead body was shifted to the Government Hospital for post mortem and he says that he was asked to come to the spot by one Chandregowda and he went to the police station and then went to the spot and he came to know about the incident through Chandregowda. He says that he was called in the previous night at 9.30 to 10.00 p.m. and he went near the body at 5.30 to 6.00 a.m. in the next day in the private vehicle. But according to the prosecution, the accused persons were apprehended on credible information at around 11.30 p.m., but the witness P.W.5 was asked to come in the previous day at 9.30 to 10.00 p.m. itself by one Chandregowda and it creates doubt about the very apprehending of the accused persons at 11.00 p.m. Having taken note of the evidence of P.W.2 and P.W.5, it is clear that in the previous day even before 11.30 p.m. i.e. arrest of the accused, they were aware of the fact that a murder was committed and they were asked to come to the police station. It is important to note that P.W.5 in the cross- examination says that they left the station at around 1.00 a.m. and the police searched the body and they did not find the body and the body was found when the accused took them to the spot 61 i.e., Raghavendra, who showed the body. But his evidence is clear that he went along with the police in the previous night itself at 1.00 a.m. But the theory of the police is that the accused led and body was recovered on the next day. Hence, it is clear that an attempt was made to search the body before the accused led the police and the witness to the spot. An effort was made at 1.00 a.m. on the previous night and body was not found and it was found on the next day. Even they were aware of the place where the body was thrown. Hence, it does not comes within the purview of Section 27 of the Evidence Act. Section 27 of the Evidence Act also cannot be invoked in the case on hand that a discovery at the instance of the accused.
54. In the judgment relied upon by the learned counsel for accused Nos.2 and 4 in Crl.A.250/2016 in paragraph No.26, the Apex Court has taken note of the circumstantial evidence comprising of disclosures, recoveries and discoveries for bring home the guilt of the accused. In paragraph No.30, it is held that treating it to be an incriminating circumstance against the accused persons is totally inadmissible and unworthy of reliance. 62 As a consequence, the so called disclosure statement made by accused No.1 on which the prosecution banked upon does not come within the purview of disclosure statement. In paragraph No.31, it is held that one of the panch witnesses Pratap Tolaram Makhija was examined as P.W.21 and in his deposition, he did not utter a single word regarding the accused having made any confessional/disclosure statement and the prosecution did not make any attempt to prove the confessional part of the communication. In the case on hand, it has to be noted that even at the time of discovery also there must be a material on record and there is no any voluntary statement of the accused to show the body except the oral statement of the accused narrated by the Investigating Officer. The records reveals that the voluntary statement was recorded subsequent to the body was recovered and even the other procedure for seizure of the vehicle was also done subsequently. It is important to note that the arrest memo is also subsequent to the body was recovered and these are the materials not inspires the confidence of the Court.
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55. The Court also has to take note of that the case is rest upon the circumstantial evidence and discovery as well as recovery of the ring at the instance of the accused persons is also doubtful. The Court has to take note of the evidence of P.W.3, who is a jeweler and in his evidence he says that four accused persons were brought to his shop stating that they have committed the murder and pledged the finger ring and accordingly the jeweler confirmed the pledging of the same and mahazar was drawn in terms of Ex.P.4 and ring was identified as M.O.8. In the cross-examination, he admits that he used to pledge the gold articles, if they are acquainted with him and he used to give receipt. He says that the ring was pledged in the name of Sneha, who is the resident of Amrutahalli. It is important to note that in the cross-examination, a suggestion was made that he is having the habit of giving false evidence and also a stock witness and the same is denied. He admits that in Dwarakanagara case he was called to police station and given evidence in 14th Court, but does not remember the case number and hence it is clear that he also gave evidence in other cases. It is important to note that mahazar was written in Kannada and 64 the same was explained to him, but he did not show Sneha to the police, who pledged the ring with him. He says that the said Sneha came to his shop about 2 to 3 times and she has purchased some articles and he is having acquaintance with her. When the receipt was found in the name of Sneha, the Investigating Officer did not enquire about Sneha and even not recorded the statement of Sneha and the same is admitted by P.W.1 in his cross-examination. P.W.3 admits that he came to know about the accused persons just prior to 15 to 20 days of the incident and hence it is clear that they were known to P.W.3 earlier and hence the recovery of ring is also doubtful.
56. When the case is rest upon the circumstantial evidence, there must be a chain link and no doubt, it is the case of P.W.4 that he had recovered the credit card/ATM card and the same was seized from one of the accused. It is evident from the records that even the accused persons have not made use of the same either for drawing of money or any other purpose and nothing is placed on record regarding incriminating evidence for using the same though it is stated that the same were 65 recovered. There is no any chain link to connect the accused persons in the case on hand. No doubt, the witnesses speaks about conducting of inquest, drawing of the mahazar and seizure at the spot and there is a discrepancy with regard to the seizure of the articles also. The witness says that except white shirt and pant found on the body, nothing was found at the time of seizure, but later on, introduced rug, bed sheet and rope and there are contradictions in the evidence of the prosecution witnesses. P.W.4 speaks about drawing of Ex.P.3 at the spot and he signed the same and the very seizure also not inspires the confidence of the Court and there are material contradictions. No doubt, P.W.15 and P.W.16 spoken about the issuance of M.O.9 and M.O.10 i.e., Manager of Corporation Bank and Manager of Canara Bank and they identified their signatures at Exs.P.18 and 19 regarding issuance of ATM card and no doubt the same was issued in favour of the deceased. But the evidence of P.W.15 and P.W.16 also not connects the accused persons and regarding seizure is concerned, Ex.P.20 is marked, but the case of the prosecution is that in the house of one Mithun, the same was seized and I have already pointed out that 66 with regard to usage of M.O.9 and M.O.10, there is no incriminating evidence. While connecting the accused persons, there must be a chain link when the case is rest upon the circumstantial evidence and no such circumstantial evidence is found in the case on hand, including the recovery though it is alleged that the ring was recovered. This Court has already pointed out that the statement of Sneha was not recorded and even she was not enquired why she had pledged the ring and the receipt in the name of Sneha is not in dispute and the same was spoken by P.W.3. The Investigating Officer ought to have recorded the statement of Sneha since P.W.3 says that Sneha purchased gold articles from his shop earlier. P.W.3 deposed that the accused persons have pledged it and he identifies the accused and I have already pointed out that he came to know about the accused persons only 15 to 20 days prior to the said incident and the same not inspires the confidence of the Court.
57. Having considered the material on record, first of all, there is a clear violation of Section 154 of Cr.P.C. and the case was not registered at the first instance when they came to know 67 about the cognizable offence was taken place and apart from that, the same was not mentioned in the station house diary even though he says that it was entered in the station house diary and the same was not produced before the Court. It is a clear case of starting investigation without registering the case and everything was done subsequently and the same is in violation of Section 154 of Cr.P.C. as well as the principles laid down in the judgment of Lalitha Kumari (supra) and the other judgments, which are relied upon by the learned counsel for the appellants and even for discovery and recovery also, there is no sufficient material before the Court and the same also not inspires the confidence of the Court. The Trial Court fails to take note of all these materials on record, particularly discrepancy both on question of fact and question of law. It is evident from the prosecution witnesses that on the next date of his kidnap on 18.10.2008 itself, the witnesses who have been relied upon on behalf of the prosecution came to know about the same. But the case of the prosecution is that they came to know about an attempt was made to send the vehicle which was robbed from the deceased in the late night at 11.30 p.m. and the accused 68 persons were brought to the station at 12.00 midnight, but the prosecution witnesses speaks about they found the vehicle in the previous day itself and they were asked to come to the police station in the previous day itself prior to bringing the accused persons to the police station. Apart from that, the witnesses also speaks about they left the police station at 1.00 a.m. and went and searched the body and they did not find the body and thereafter only in the early morning the accused led the team and even the panch witnesses also not spoken anything about the voluntary statement and the material available on record goes against the very root of the case of the prosecution since Ex.P.14 is clear that the same was registered at 9.00 a.m. and they were having information prior to that.
58. Though contention was taken that belatedly the case was transferred to the jurisdictional police, the same will not go to the very root of the case of the prosecution since cognizable offence was taken place. Ex.P.6 is very clear that they have given the statement orally at the first instance and the case was registered on 19.10.2008 and the complaint was given at 7.30 69 a.m., but FIR was registered at 9.00 a.m. and fresh FIR was registered on account of transfer of case to the jurisdictional police and the same will not take away the case of the prosecution. But there are material contradictions having considered the evidence on record, particularly in Ex.P.8 inquest, wherein it is mentioned with regard to they found the rope at the spot. It is mentioned that they found that the rope was used for tying the legs and found white shirt and ash colour pant, but in the inquest, it is categorically mentioned that except this, no other valuable materials were found at the spot at the time of conducting the inquest. But subsequent evidence is clear that even they found the rug and bed sheet at the spot and the seizure of articles is at 4.00 p.m. to 4.45 p.m. in terms of Ex.P.1 and detained total 7 items, but the same was not found at the time of inquest. Ex.P.3 spot panchanama is also from 4.00 p.m. to 5.00 p.m. and seizure of the ring at 5.00 p.m. to 5.45 p.m. in terms of Ex.P.4. The material contradictions were found even in the documentary evidence in Ex.P.20, seizure of the ATM card/credit card at the instance of one Mithun. The material available on record, both oral and documentary evidence does 70 not inspire the confidence of the Court. No doubt, the death is due to cardio respiratory arrest secondary to homicidal strangulation around the neck obstructing air passage and causing death. No doubt, the prosecution case is homicidal and post mortem report Ex.P.9 discloses the cause of death is on account of homicide. But in order to connect the accused persons, there is no credible evidence before the Court and in the absence of cogent evidence, the accused cannot be convicted and the Trial Court committed an error in convicting the accused persons in the absence of credible evidence on record. Hence, it requires interference of this Court to acquit the accused persons by answering the point in the affirmative by exercising the appellate jurisdiction.
59. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals are allowed.
(ii) The judgment of conviction and sentence passed by the Trial Court against the accused 71 persons are hereby set aside. Consequently, the accused are acquitted for the offence punishable under Section 396 of IPC.
(iii) The fine amount, if any, deposited by the accused persons before the Trial Court is ordered to be released in favour of the accused, on proper identification.
(iv) The bail bonds executed by the appellants are hereby cancelled.
Sd/-
(H.P. SANDESH) JUDGE SN/ST/MD