Jayanth vs State Of Karnataka on 4 November, 2010

[Cites 12, Cited by 0]

Karnataka High Court

Jayanth vs State Of Karnataka on 4 November, 2010

Bench: V.G.Sabhahit, K.Govindarajulu

IN THE HIGH COURT OF KARNATAKA. BANGALORE

DATED THIS THE 4111 DAY OF NOVEMBER. 20

PRESENT

THE HONBLE) MR. JUSTICE V.G.SABHAl%1E'Ff''. 1%

AND

THE HONBLE MRJUSTICE K. GE().\__/ﬂ*JI5ARAJ~1'JLU = A 1'

CRIMINAL APPEAL N0s.1 165.?/2005 /W .1 1.j':..2E/::3w(5O7'V

CRL A. N0.1169/2005 

BETWEEN:

1.

JAYANTH, _  :  _  
s/o.P.K.R.AJA:,..'   _ 
AGED AE3.G--I;:f[f 2:3_:?EAI;s,1'  '  .
R/AT NEAR }<'QoKKADA.'jNELYAD1, 
pUTfvARjvTALU}{;.;:V_"V _  .. 
SOUTH CANARA1'-;)IC~TRlCT. _

SHIVA,  - - 
S/O KUNJAP1>A,V'V--_ ._
AQED ABOUT..36 YEARS.
R.'/AT.AD:)AHoLLi-.--~----« "

 .. A  GUNDYA

' .-PUf1f1°AR' TALUK.

A . s.QIJ*rH7£:A:~.1AE=A DISTRICT

M".~.A. I?gA;JA.7@ RIPPAN RAJA.
S/OSAMUVEL.

 AAAGEDVAEBOUT 35 YEARS,

R/AT MITHAMAJAL, ADDAHOLLL

 «..v'Pm-I'AR TALUK.



SOUTH CANARA DISTRICT.  APPELLANTS
[By SR1. P. NEHRU 81 ASS'I'S., ADV.,) E
AND :

STATE OF KARNATAKA,
BY SAKESHPURA POLICE STAT1ON..... .

HASSAN   =    '  _ 

[By SRI C.N. RAJU AMICUS cLIPIAE','VSI§I_S.B. TPAIEIII 'SPPf;, '

CRLA NO. 1112/2007
BETWEEN:

MA. RAJA @ RIPPAN   '

SON OP    I    

NOW AGED A23OI;:T_42jI{.EI'xRS,_.  

RESIDING AT  ._   '

PUTTUR TAI_..IIIiI,  ' '   ..  

DAKSHIIJA  DI.STRIC"I'.~~~ 

[SOUT;ﬁ%I CA1\fAI?{A_DVIISTE?¢IC«']f} _ ;  APPELLANT

(By Sri:'v--\{ISHWANATIIA-POOJARY ADV. ,}

 TIIE  OP KARNATAKA.
 _ I3YOSA.KALESIH,_PLIRA POLICE

"RIEP_R.ESEI§I_'EJ;')"BY SPP.  RESPONDENT

[By S61':-::5'ﬁN. RAJU, ADV.,]

  .. ,_CRI;.A. NO. I169/2005 IS FILED U/S. 374(2) CR.P.C.
- _ ».gI3y THE ADVOCATE FOR THE APPELLANTS AGAINST THE
1'  JUDGEMENT DT. 22.12.04 PASSED BY THE P.O., &



ADDL. S.J., FAST TRACK COURT--I, HASSAN, IN S.C.NO.
72/98--CONVICTING THE APPELLANTS/ACCUSED NOS. 1,
4 AND 5 FOR THE OFFENCES P/U/S8302 R/W SEQ149
OF IPC, 201 AND 396 R/W SEC.149 OF EPC7,_AND
SENTENCING THEM TO UNDERGO RE. FOR LIFE

PAY A FINE OF RS.1,000/«« I.D., S.I. FOR 3 MO:NTHS___FCR 
THE DEFENCE P/U/S302 R/W SEC149  IFC' 
FURTHER SENTENCING THEM TO UNDERQG, R;.I;' FOR" ._ 
LIFE AND TO PAY A FINE OF RS.__lA;OO'O/~_' EACH'E.D.,__S.I';.,F
FOR 3 MONTHS FOR THE OFFENCE P/U/S«._396' R/-W j

149 OF IFC AND FURTHER SENT:ENCING

UNDERGO RIGOROUS IMPRISON'ME*NT LIFEA "FOR '.3

YEARS AND EACH ONE IS DIRECTED-TO PAY. RE-f.""1v,.0OO/~ = D'

I.D. S.I FOR 3 MONTH'S,"'I» THE' .__SUE5STANTITVE
SENTENCED NOW IMFOSED _A_C;A1NST ABOXIEH ACCUSED
ARE ORDER TO RUN CO.NCURRENTLY"AND ETC,

CRL.A.No.I.:'I2_/2Q'o7 IS; FILED_ 'U/'S.' 374(2) CR.P.C.
BY THE ADVCJCAATE FOR  A'FFEI.LA--NTS AGAINST THE
JUDOEMENT"'DT...1.2..,_Q4_ PASSED BY THE P.O., &
ADDL. S.J.',_FA_S§]_' TRACK..,'cO"UIRT--jI, HASSAN, IN S.C.NO.
72/93wVCONVICTINx:}...THIEw.AI>FEELANTS/ACCUSED NOS. 5
FOR THE OF'~FENCES F4/U/SS.302 R/W SEC.149 OF IPC,
201 AND 396 RF/'fWI'S3EC,I1'2I--9 OF IFC AND SENTENCINO
THEM TO UNDERc.O.R'_~I_,_ "FOR LIFE AND TO PAY A FINE
OF RS.1,0--0Io/--_ I.D_., ',S."I@'_FOR 3 MONTHS U/S302 R/W
SEC.V]49 OF"'IP_C AND FURTHER UNDERGO R.I. FOR LIFE
AND._i'I'0 PAY AFINE OF RS. 1,000/~ EACH I.D., S.I. FOR 3

  U/.S.393 'R/W SEC. 149 OF IPC AND FURTHER

.U'?EDER_GO -RDIGOROUS IMPRISONMENT FOR 3 YEARS

V.IAND'=TO,_FAY.,_A FINE OF RS. 1,oo0/- ID. S.I FOR 3
MONTHS.'-«..,,_U'ND'ER SECTION 201 OF IFC. THE

SUBSTANTIT'_JE SENTENCE NOW IMPOSED AGAINST
  ACCUSED ARE ORDERED TO RUN

' . CONCURRENTLY AND ETC,



we

4

THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT OF JUDGEMENT THIS DAY SABHAHIT
J, DELIVERED THE FOLLOWING: 

JUDGMENT

These two appeals arise out of and are directedo I the judgment of conviction and sentence-pas;sed_.ithet F.a.stIIg Track Court--I, I-Iassan in Sessions 2242-2004 wherein accused .&' "been convicted of having co1nmitted--~-- the 'offences~.;pui'iishabie under Section 302 r/w séccigm"i_4i§;:1Vséc£iorig.goi & 396 r/w Section 149 IPC acotised':i§Ios.'«i.t;4V_ sentenced as "{_l_]" AccL1sed''Nos.1, 4} and 5 are convicted ' _fo1<the offence under Section 302 read with Section 149 IPC and each one of A. them' """ "are sentenced to undergo "'~-rigorous imprisonment for life and to D' a fine of Rs.1,000/--, in default, __ jsirnpie imprisonment for three " "months.

{2} Accused Nos.l.4 and 5 are further convicted for the offence under Section 396 read with Section 149 IPC and are hereby sentenced to undergo 5 rigorous imprisonment for life and to pay a fine of Rs.1,000/-- each, in default, simple imprisonment for three months. ' it (3) Accused Nos.l,-cl and 5 are convicted for the offence _u11der"'f"' Section 201 of PC and areV__h'e--1jel::ylf ' sentenced to und»ergo _"rig"oro:j;.»1sl"V_ V imprisonment for life for'thi<ee'7ye_a1=su, ' and each one is "':.dir%{gct~ed "tot" pay Rs.l,000/--, in default, psirrlple imprisonment 'fo\r'*~three r'11ont11_sC; [4] The Siibstantiyell'-..V,sentenced_ now imposed' 'against aboveiwaccused' are order to run co'r1cti:brrer1tly._"'1 Crl.A.No. 1 169 /2005" is fp,reseia1.ed." aeeused Nos. 1,4 8: 5 and Crl'.A..§'N4o.§l:l_l2/ by accused No.5 who is aiso 'appellan't..l\Eo,.:3'.A.No. 1 169 /2005.

2. 'll1ei.essen1£ial'Vinatel:ial facts of t.he case leading up to this with "reference to the rank of the parties before A";_ thiev trial ourtlare as follows:

2 'll-.13.uThe-__a};1pe.llants herein-- accused Nos.1,él & 5 stood . charged the trial Court on the accusation that u,lV\:/1/s.Manj"unatha Commercial Company owned by Jayaraj M P';Wf2fhad booked a lorry/oil tanker bearing No.KA-26-7896 6 belonging to C.W.7 -- Manjunatha. s/o Shilappa Ballary of l\/lasari village, Gadag District for transportation of palnfioil from Mangalore to Shimoga and when the palm loaded in the said lorry /oil tanker at New 1 "

Panambur Warehousing Company 1'/Iangalore;'i--VIt'hel' it lorry which was loaded with palm:"14oil;:'_A_Alelt. Shimoga. On 5-5-1997 at. aoo:t;ti..V_12iO'O:_in_VtheA accused hereinwappellants hereinllV:A'~=:._accused.lpl.os,3ii4 & 5 along with accused :.l_orry in a jeep belonging to P.W;9_.-- Ve'ereItdra; the said oil tanker near hﬁfaitheriiétllalliljrvillage accused No.1 picked up a qtijarrellg driver and other four accused boarded into" the lorry from the left side and accused No.p_ushe'd thevslorry driver from his seat and l V. "accu"se:d NO.5"}Q1.1l theﬂtowel across the neck of the driver and 'p.u';;hédu "accused No.1 started driving the lorry. Accused not. only assaulted the lorry driver but also pressed" neck with the towel, as a result, driver of the died in the cabin itself. Further, when the said lorry \_vig/i 7 was going near Donigal Check post. cleaner of the said oil tanker tried to shout but accused No.5 with the help of accused No.4 put towel across his neck, strangu1at_ed..fiziin and killed him. Further, when the lorry was V' bridge of Sakleshpura town, accusedAANos.2 "[ killed one Rajendra working as an a;gent'_'_of at Shizrnoga by strangulating "neckkwitﬁh is further case of the pro_secut,ioVr_1.t:Vlthatgin screen themselves from the legal" committed the offence and to htish up {hey threw the dead bodies of Rajendra into the and accused No.5 took out the wrist of the lorry driver and aCCL1sedluN0:-V5' thelvdead four or five times with the 'l V' ' jack lever julstmtovmake sure that he is dead. it is the "'m1it.11ereA prosecution that the accused took the said tanker and sold the palm oil Worth.

lRs.2,75;Q(_l0/« in favour of CW. 14 - Ravi (P.W.14} of Gandasi "h"andl"'t:_-ost and thereafter accused took the oil tanker and \s::,%..,% '-- 1 8 parked the same in the coconut garden of C.W'.1'7 ---- Kempegowda (P.W.l1} of Kallenahalli village.----___ in Chennarayapatna Taluk.

4. P.W.2O -- A Shivalingaiah who was V' Assistant Sub Inspector of Sakleshpura»Town received a telephone call on 17--5--l:S'97:'_'_atl:aho:,;t' Splﬂtb while he was in the police statiorl;~V.inforrrlir1gV bodies of some persons were lyin;{n.ear_Vliollahalli Village by the side of B.l\/I.Road in persons have caused their Ifluljdﬁlj. He" in the diary and he_we.r1t_the lspot_V.alo_rigj&'vxrithlthe staff and found that three lyingwby the side of B.iVl.Road near Hosllur EstlateV,V.Hhe' his constables to keep watch over the_Vscenle"offencexand the bodies, he came back to the "p.olice.lsta'twieo1i and lhe"'h'irnself lodged a complaint. registered prepared the FIR as per Exs.P--24 8: 25 . 'Circle Inspector of Police.

respective]y'la--;1d handed over further investigation to the 9

5. P.W.22 - A Nagappa, Circle Inspector of Police, Sakleshpura, on 17-5~1997, on receiving the information about the dead bodies being found, took over investigation from P.W.2O »- Shivalingaiah, ASL frlev ' that three bodies were lying in a drainage it prepared the sketch of scene of offe'nce7.'_as during the course of the said which was found at the spot and «bloodﬁistained mud as per M.O.10 andjthe --_as per M.O.11 under Ex.P---4. Hevgot the'1n.ﬁj1'uest_;'re1oo1ftv«conducted by his staff in respecfof _:bod.iVcsVthat'"nrere found as per E;x:.P--3. seized. the.VVciothsvv_Whiehl'Were found on the dead bodies. The ASI '- .r._::o'nd'ucted the inquest on another dead body and ._l{alVaiah';.. conducted inquest over third f if "deadfvt..1.§od,y.. "l*KalaiahV'"¥'l'Sl seized the cloths found on the "'d_ead. uiper'_:M.Os.5,13 8: 7 and l\/£0.14 which was on the oflclﬁeafner - Gurappa. He sent the dead bodies for post rnozjtei-sn examination. Taking a clue from the label of who stitched the shirt found at the spot, he sent ketie 10 his staff to search for the accused as the said label contained the address Millan Tailors. T.V.Malai. The fact of fiijidiiig three dead bodies were published in the 11ewspape'rs; there was no facility for preservation of the deadbodiets;':i'.he§}"' ' were buried. On 19-5-1997 at ,about Manjunath from Gadag telepho1'1ed"»pto1'_'_Saklesh_pLiraApo'1ie9e~i.:p station that one oil tanker belonging todhirn .1/1.2;./1i»;en from Mangaiore but had not and"three_épersons had gone with the saidﬁittanker the news published in the paper, about the said threepersohs. ui:\/iasnjunath, owner of the lorry i»/E/s..1't/tanjunatha Commercials, Shimogathepame 'to'theVSa1:1eshpura Police Station and Investigation 'Officer ..~*-- recorded their statements and " "they"istate-Ci that thé1'o'rry/oil tanker bearing No. KA--26--7896 t71ei't lo'a;de'd palm oil from Mangalore to Shimoga and eonieitihaek. Manjunath on seeing the photographs V"..,!'i.de1'1tifiedvthe dead body of three persons as of the driver -- "Ch.eniiappa and cleaner -- Gurappa and since statement iv';

'\\§:_;;¥/3 ll given by Manjunath Byaleri revealed that palm oil loaded in the lorry/ oil tanker had been missing, he modified the.__FIR including the offence punishable under Section per EIx.P--28. On t.he same day in the night P.W.22 received message from Chen1f1_arayapa;tna"stating Vthatve-V_ at the distance of 5 kms. from, Chennarayapatna »-- Holenarasipura 'road, loVrry[._'v«beVar-ing No.KA.26--7896 had been aband_on'ed. gllmmhediatelyvvfhe sent P.W.2O to t.he spot and reauisitfioirtfgitoifthe Motor Vehicle Inspector and Finger Printv..e§:pfe--rt::_to the spot and conduct investi--gat:ro'n__. brought the oil tanker r;j¢§' 21-5-1997 Snltffayar came to officeof on seeing the photograph, identified t.heftiead body. of:Rajendra who was her husband baasisw of c1oths"'VVorn by him as seen in the photo. "l?.'W_2'2 r.re'c_or~cl"ed her statement. v_Thei_*e}after, PM/'.22 made efforts t.o trace the "accused and deputed his staff to search for the accused and "et'ppi*ef1_end them. On 22-12-1997 Dafedar -- Ningegowda and 12 Police Constable -- Suresh , produced a jeep bearing No.KA- 21~M-139-4 and also its driver Veerendra ~ P.W.9 and_._ the said jeep has been seized on receiving the c1"edibl'e_ information that the said jeep was used for r. lorry tanker which had been loaded__wi.th' theoil: 27-12-1997 p.w.22 recorded the sltatettteilitof'Ve'erlen.t§.r;i_i1,i_: On 27-12499? early in the rn_o1'-.n.i11g,ll"staff tract arrested accused No.1 '_~ Jayantl:..:_'and on oasis of information given by hiln'i...l:acActl1se2.t;i had been apprehended and they No.2 and Suresh -- accused 1§l'o.,3 Eslince decyeasveldjland they conducted arrest f(:Vilrmalitieis_ in :l.resple'et of those accused. They could not t.raceAa.ccused had gone to Kerala. On 31- 1998 heprodlticed eaccuAs'edl'l\.lo.5 before the police station and was "ar:re?s't.ed*-by Accused Nos.l to 4 were taken to offence and accused No.1 voluntarily showed the'scene_ .().'f:':f.1f;f:Ei1'1C€ as the place where they had caused . ' murder"i.e;1., I1ear Kollahalli bridge on B.M.road. Accordingly, "he.prlepared the mahazar --~ Ex.P--18. On 30~l2~i997 on the \J<;:.x;?r;

13 basis of voluntary statement given by accused No.1 M Jayanth informing that they had sold palm oil to Ravi at Gandasi post - RW14, P.W22 recorded the P.W.14 and he admitted for having purchased 1 V' the accused. Accused No.1 volunteered_to l where palm oil tanker was unloaded«pwh'_ich isin'Arsike_re._lAi'l-. Chennarayapatna Road near»l._l§u..ndur","

temple. Accused No.1 pointed the open by the side of the said temple landllwhere they had unloaded palm oi1*--aVnd as per EX.P~4. On 31-12-199%.. u::l{hjA',¢ic§:§ié;éd Nos.1 to 4 to Addahole in furtherance of the voluntarjfstatement; to his house and stated that they had sold"palm.oil fa "R"s'.1,s5,ooo/-- and Rs.35,000/-- fell hilsll:shAare'vi-and ;§r:5d'u¢ed Rs.35,000/-- and the same was {nahazar «- EX.P--16. Accused No.2 gave Volunltaryv_staterhent before P.W-22 that he had spent some 'amount' and some amount had been concealed in his house and led them to his house and took out one 14 bundle of Rs. 100 notes, five bundles of R560 containing 100 currency notes and the same were seized under nialiaézar Ex.P«19 as per lVI.Os.15, 16, 17, 18 and 19 to released the lorry in favour of its owner and again_'l1else"cured'"

the lorry and on 31-12-1997 accused said lorry and he prepared Inahazﬂar as 2

7. On 3~1--1998 accusedi'e»..:No.5 was and interrogated and he gave that he had kept the amount receilvledlptoxfvarfds in his house and also one the pawn shop and had hid the amount and a person lthelwatch as per Ex.P--31 8.:

32 respelct'i\lIelyl. ' of voluntary statement of accused No.9l;"11_e led panchas and P.W.22 to Acldahole and 'wrentit._.to i_th6"~ zhouselllsituated in Mittamazal Village and of Rs.1OO denomination as per M,O.18 and the sarneli-was seized under Ex.P--20. Thereafter accused led them to the shop of Jagannath in the same village ":aI1dlai:'_.the request of accused, he produced one watch and K§13«~'%' 15 the same was seized under mahazar EIx.P~10. Thereafter, accused No.5 led them to Kollahalli near Hosur estate and took out some articles which had been concealed in the fence of the said estate which contain one towel as per l\/1.0.

the same was seized under mahazar EX.P--21. the seized articles for chemical examination ar1_d'"p.re§5_:ares av sketch of scene of offence as per 'H/e"«rec'eixfed. Vehicles Report as per Ex.P--36 and de'live'ry notes;-, if 38 & 39 and invoice ~ Ex.P~40. l'lT11TEe'reafter"*charC;-'ﬁe was filed against accused Nos;1_,4 8:5' rAaccused"Nos.2 & 3 had died. The case was co.rnmitted to3l'theV3'S_essions Court and was nuiﬁbéred .S'.'€l_;vNo_.7.2}1998. The Addl.Dist & Sessions Judge, l'rafI1ed charge against the accused and accusedllllpieladed notllguilty. Thereafter, the case was .3 3' "made. ovei" :t0"--Fast Court- I, Hassan. trial Court, the prosecution, in order to bringihomeltlieguilt of the accused, examined P.Ws.1 to 22 got Vvlnearlsted Exs.P~1 to P-40 and M.0s.1 to 26 were The statement of the accused under Section 313 1.6 Cr.P.C. were recorded. The defence of accused Nos.1,-4 St 5 is one of denial and it is their case that a false case hasheen foisted against them. The learned Presiding Officer'; Hassan, by judgment dated 2242-2004 after * 2' contentions of learned counsel appea1"i'1'1g,§4for.'_the'p'a:*tielsvand7.. after appreciating the ocular produced before him, held that~...pprosecutionliv-Vhasfproved beyond reasonable doubt that_a.cci..1sed_ Nos."1«.4_8;.:§5 have committed the offence :.urid(}:f'Sepction 302 r/w Section 149, Sections 2o1"&« [396 .r}<'w .s.cc{1:cc 149 we and sentenced therrras aggrieved by the said judglmelnt' sentence dated 22-12-2004, accused Nos'! ,4. igavcpfcrcrrcd Crl.A.No.1169/2005 and accused _VNo.5fha_s preferi'.ed'"Crl.A.No.1112/2007. Ewe have heard the learned counsel appearing for respondent.

0' Tfiel:-.V.learned counsel appearing for the appellants 2"'..,_l'submitted'that the prosecution has failed to prove the guilt ._ thenccused of having committed the offence punishable KL; 2. 'i 3 l7 under Section 302 IPC r/w 149 IPC. The case abated against accused Nos.3 <3: 4 and there is no materialﬂagainpst accused Nos.l,4 & 5 who are appellants for committed the offences punishable under Section r/W 149 IPC. He further submitted there' witnesses to the incident and the prosecutiorrlhpas«'n1erelj,*d'*x relied upon the circumstantial 'Vevid*ence: V"theV"circui,f1stances relied upon by the prosecution 'hagsvlnot been proved conclusively so as to constitutelthe link to prove the guilt of the ac_cused__ doubt and the evidenceuof 14 P.W.9 having seen the accusedind the deceased is not helpful to the prosecution' as is not proved. P.W. 14 denied V:of..v_palm'"oil*----a--nd therefore evidence of P.Ws. 10 & 15 isvnlot '-the prosecution. The recovery made on the basisbof thVc'j'pvo1unta1'y statement has not been proved in 'VV_paccordan'ce vvith law and the trial Court has relied upon the A fgevidlence of the Investigation Officers and the inadmissible portion of the confession made before the Investigating U2)/).

18 Officer under Section 27 of the Indian Evidence Act and the scope of Section 27 of the Indian Evidence Act regarding admissibility of the statement; made before the police to discovery has been misconstrued by the * the trial Court was not justified i_n...».relyingh witnesses holding that they were t.hreatened and even the evidence of theinvestigating truthful; the trial Court has not___alpprec_ivate§* and documentary evidence it in proper perspective and th.erefore;. and sentence is liable setl the appeals may be allowed lmay be acquitted of the charges ailpelgedl agai1iAs~t.'l V'1.1_. On*the vothery hand, learned SPP submitted that ' V' 'though' there. is noevidence of any direct Witness who has incident. The evidence of i3.W.9 would clearly showliilihlat he being the driver of the jeep who had lrcparried~~tvh'e accused and followed the lorry and stopped the has clearly stated that accused accompanied the 19 deceased in the lorry and thereafter accused Nos.1 & 2 did not return and only accused Nos?) :3: 4 returned andthey came back to their village . The learned SPP submitted that the evidence of P.Ws.l0 & 14 V' show that palm oil was sold and the proceeidséx V distributed amongst the accused:"1.«ar}di"cash recovered on the basis of the'dr.rolt:.ntax2*y"- by the accused. The wrist watch "recovered and the towel with which we're:'»l'strangulated has also been recovered bygz;hc- ::I&nVes.tigati'0d;é'~«..'jalficer and the circumstances. h_aveWbeen ccncliusiifely proved by the p1*osecu,tdior1i,V it towthe conclusion that it is the accused who of driver Chermappa, lorry cleaner. _-- GdI"aIVjpac'.anAd. agent of P.W.2 -- Rajendra. The V' '~exfiderice:,.of I~IW.2 wouidvclearly show that he hired a lorry for oil from Mangalore port to Shimoga and the']:o'r1'y was'3.V_parked in the land of P.W.ll which has been "seized byiiihe prosecution and the same has been proved in '':accordance with law on the basis of voluntary statement U4. .25 1 i 20 given by the accused. The accused have also pointed out the place where they had parked the lorry to unload the palm oil and having sold the same to P.W.14. and therefore:_"'--.tlIieA above said circumstances would clearly show' recovery made on the basis of voluntary se;eiem--e_m.l'e£ accused would clearly prove beyond ;'reas'_'o1iabl'e._d'eu'bt:that was accused alone caused triple'--~.IznurderV:as the prosecution and they have .. the vehicle to stay themsevlv-est' commission of offence and they have palm oil and sold the sarr_1Vei: l'I0';:::'v"-P"'|:'V'MVIV:j--'4 their booty was distributed recovered on the basis of voluntary'-statenierii,lllandmtherefore. the trial Court has rightly.apprecia_ted_thekevidence in the proper perspective '-and thelprosecution has proved that the accused offences punishable under Section 302 r/lw silage ir_>(:'é;;_ 501 r/w 34 IPC and therefore the judgment of _ ".cponvict1~on";and sentence passed by the trial Court is just and '*:proper=«_.and does not call for interference. 3".'_)_.K. " E 2 I

12. Having regardmto the above contentions, the points that arise for our consideration are:

(1) Whether the finding of the trial Cotht' the-... .

prosecution has proved beyoidd'=:i*ea.son'ablev doubt that accused' V15 appeilants here1h'a_long'witt1 aetztise' ..?_\_Ios.f3 4 Committed the t4off_eI1r;es under Sections _[}?'(.'3"~tand Section 301 1'/w_ 34 IPC..a_n--d ;~3V.eAniter'1.ee' Viluﬁgposed therein is j_i'Vust1ified.V:o&I'iealls_xfo1*"inte1*ferenCe in these 1 a'§3\lVi='/~"u'.e11.s'?: t (21 '!'\Ihat'VA3oV1'de'19'?.. _' _ We answer the a.bo'Je..points.__as foilows:

" not justified and calls for _ interfeﬁjehee in the"-a_pp_eai as per the final order. per the fina} order for the following reasons: V ' x.,©.3é

22.

13. The learned counsel for the appellants has taken us through the evidence of P.Ws.1 to 22 and the contents of Exs.P~l to P-40. it is clear from the evidence add't1ced prosecution before the trial Court that P.W.l ~ ll", pancha along with }~?.W.8 -- Belliyappafor "' inquest report on the body of Chennappa. «1Raj'en'draV:"'anE:i1j_:

Gurappa. P.W.2 -- Jayara]"lV_'is._. working V as'V:"'H§an1ali_i§ Manjunatha Commercial con1pen§f_ deceased Rajendra and h.e has 'ﬁto of "lorry for transporting palm, oil ::Mang:a'1o\f§:'y to Shirnoga. P.W.3 -- Srnt.Tajfar %ehe"~w1ie_ er the deceased and on seeing" thehbodies, she identifies the body of her of cloths Worn by him at the time' of n§"e:«;1_'emy,;-- M';_o"s'54., 6 & 3. P.W.4 -- Rudrappa is a ifegardingllrecovery. The accused showed the place "wlier_e'epa11jn»voi.E_ was unloaded. However, he has turned hostile prosecution. P.W.5 -- Dr.Sharnala Devi V.,_'Vconductedi. post mortem examination on the body of NlCx't1ra'ppa, lorry cleaner and has issued a post mortem report ' i;,§§5%;

1.

gzﬁ 23 as per Ex.P~5. P.W.6 »-- Dr.G M Vanaadeva conducted post mortem examination on the body of Rajendra and has issued a post mortem report as per Ex.P--6. P.W.7 -- Dr.C.Revet_al.obov conducted post mortem examination on .

Channappa -- driver of the lorry mortem report as per Ex.P--7.

as already referred to above. -- Aavdriveir of V the jeep who took accused and t'oll,ow.ed the which deceased were travelling _he_ h.asll.bee~n"e.xamined to prove that he saw the__ accusedJ_t--raV'lelli.ng.l"vvvithv= the deceased. P.W.1O m P GM Jou.2:fr1e_r~;'clu1nw»'driver of the jeep which datékjr the incident. P.W.11 -

KempegovJda'-- is a_ p'ajr1.ch'a.::1i'or.~"seizure of a lorry. P.W.12 -- Appacchu wll"isV_laﬁelative" to accused No.5. P.W.13 w '~JAaganr1a:ha has been"'eXamined to prove the recovery of the ..4However, he has not supported the case of the proseclutioni-a_nd nothing has been elicited in his cross l'.e'xaminatio;n to support. the case of the prosecution. P.W. 14 A ARav'i~,was doing business in Gandasi village and he has tag;

U 24 personally purchased palm oil from the accused, however. he has not supported the case of the prosecution and iiothing has been elicited in the cross examination to support_"!ihe.i case of the prosecution. P.W.15 -- Ramaiah is ~ the mahazars --- EXs.P--l6 81 17 regardi»ng__1fecoVelrjf' Qngu the basis of Voluntary statements given 'the'.ac'cused:l'la.nEi3i.i is also a witness to the rnahazars &_ Muttanna is an electrician and :Witness.lto:V_n§ahazar Ex.P~22 regarding seizure' of ' He has not supported the case. of nothing has been elicited in hiscross".exani;i.nationti; suppdm the case of the prosecutionli is a witness to the mahazarlEx.Pw18 Vregardi'ng"'~the accused showing the place wheredead bodies .w'ere'v.thi*own and mahazar was drawn as "per 'Pz.W.1t3¥¥'Kenchaiah is a pancha for the seizure "cash th'eu_:basis of voluntary statement given by the accused 53 «St 17 and regarding seizure of the lorry per 'Ei<A.'P--19. P.W.19 ~K K Ningegowda was Working as in Sakleshpura Town Police Station and has 25 deposed about searching for the accused and recording the statement of P.W.9. P.W.2O -- Shivaliogaiah was working as Asst.Sul:)--Inspector of police in Sakleshpura "FoWn_H"po"lic'eVu station and conducted the investigation. Shivarudraiah was working as Station in Crimes Dept. and he has identification of the watch the Chennappa. it b it I V

14. It is clear front pAelusal:Vilo4i"*tltsl'evidence adduced by the prosecution' in is no direct evidence of thel--.,Vuritn"e.sses«\A}ho have witnessed the incident and the prosecgatioil.ii:as*rtircliedluupon the circumstantial evidence lalorie to guilt of the accused. It is well settled when»"'i.he":prosecution is relying upon the 'll"'circuiJnsta-ntiarl evidencellto prove the guilt of the accused. 7eachc_'of »rilr(_:lu;jI1stances relied upon by the prosecution be_.lproved conclusively and the said proved l'r;pircums~tan;.ces should constitute complete link pointing out

-%'aV!'x: ." ital' :26 only to the guiit of the accused and must be inconsistent with the innocence of the deceased.

£5. The prosecution in the present case, _ relied upon the evidence of P.W.9MHas accordingio: rtheyi prosecution, has last seen the accusedaccompanyirige-.i;he;a.A deceased in the lorry and thereafter only accused' returned and therefore, he has -.:_;<a1n'iri--edd to prove the circumstance of accused 1a.st1'seen"'in the company of the deceased and thereafter' as ennanp»a; .\./Gurappa and Rajendra were Nos.3 <3: 4 returned in 2' did not return in the Jew A A has deposed in his eXamin.ation--ir';--chief*on'*25i?$2004 that he was working as a ' "driVe1.*. {and, he is aged"'25 years and since six years he has driver of the jeep and the jeep belongs to his 'fatherv._ running the said jeep for hire from Nelyadi Gunc1ya':.vil1age. He knows accused N0s.1,4 & 5. Accused a driver and accused Nosé} & 5 are the residents of 27 Addahole Village. He knew accused No.1 thorough one Kukkannagowda who was also working as a driver. has further deposed that about 6 years ago, Jayanth'lac'etised No.1 asked the jeep for hire and he agreed to * V' taking the jeep on hire and they reached' at, it 7.00 p.m. and he asked the jeep near his house and thereafter, foinr persons boarde.d"the'jeep " 0 and stated that one of the 1o1Tyj.bel1°ongi.ng to then} @5315 going ahead and he should foliovtrthe iorify...j0.ti'3fter covering the distance of 5 _he A.1:o.rry.Vgeijn»g'ahead of them and he chased». saiddplor-ry aindfg' place they asked him toa_:stop'_thef_je_ep.andidstatedj that they would go into the said lorry and he_.'st:opbped'."the jeep and accused No.1 and three, other per.so11s7'got doyvn from the jeep and one person . is *reniai0ned'Ain"t..he jeepdmand the persons who got down from the jeep. t'ne:i.orry and thereafter' told him to overtake the loriyland. the lorry and the jeep was stopped near a V'-».h0use"iIV1j3the city and he was asked to sleep in the said by Shiva -- accused No.4 and at about 4.30 am. he {if 28 came back to Nelyadi in the jeep. He has further deposed that at the instance of J ayanth -- accused No.1 he had takeri the jeep on hire to Mangalore and all the 3 including Jayanth travelled to Mangalore and at-...j:ha:-.£i'n}e; there were two others and thereaftertihey' s_ai--d "t«11_ey' aren'. going to Surathkal and asked him to:"sta'3:_at Mantgaloren they went. Thereafter the sVaid:.j:Vi.'iVe pversons to Mangalore and asked to jeep' ' t'o~ Addahole. They said that their oil and they have to talk with th6_.DersL_ms and was asked to chase eovering a distance of 56 said jeep and four persons véjottdown and overtook the said lorry and was_ asked to stop the jeep at Ballupet near a house and ' "o.the"r--. four. persons came in a lorry and he was asked to go "'f.urth_e'1'-- afte:r"_:two hours he stopped the jeep in front of the house slept in the jeep and a person got down *from thejeep. At about 1.30 am. two persons came near and told him to go back to Nelyadi village and other E {:5 K 29 persons would come thereafter. He came back to Nelyadi along with the said two persons and went to his house. The persons who came back to Neiyadi were Suresh and Shiva who are accused Nos.3 81 4. He has further deposed' V. the next day accused No.1 gave hire charges to pointed out to accused No.1 who was lpresent.gin_;Cot1r_t person who handed over the hire " »

17. It is elicited in his date of cross examinatiorighe was about. years.

About 6 years ago, he but was going to the school. His .3:¢ep;'§v¢is 'blackl:lvl'board":jeep. Biack board jeep is by paying life time tax to the jeep." pIt ' that black board vehicles cannot carryl passengers and cannot be given on hire . Six ...g10rit.hs iaiteiQVijaylh'ahded over the hire charges, the police re'Corded:"«h:isvllstatement and he did not produce the driving licence at 'time of recording his statement. There are "v1fI10l'€ curves on the road from Mangaiore to Addahole and lot .e:xlpt-rtise is required to drive the jeep on. the said road. It we :5 30 is also elicited that he had driving licence as he was aged 18 years. When the black board vehicle is carrying passengers, mamool has to be given to the police in the check mamool is not given, they will foist false cases and sei2e..:'"tlne.'*--*.. * Vehicle and he knew the police. It__is i~t1rmelreeie;:eel that--_ whenever a person comes to seek th:e:.jee,'pi for l'ri_re*, he Vw.o'ulEi?f:

first settle the hire charges. not relatiVeSl.:ln»r.:{§iddalj3ple village where the accused the house of the accused but"'cloe_S ._names of family members of accused pe:*s-;:r1.s::& before the police that to talk about hiring has«rl.lden_iedlllavlsuggestion that he has not statediéefore' four persons had boarded the jeep, along .Facc.us'e.d No.1. He has also denied a 'l V' "sugge.stion that hellhashot stated before the police that after lllgoiiipgute of 5 kms, he stopped the jeep and four persons and one person remained in the jeep. He stated'Lbefore the police that. he stopped the jeep near a Ballupet and was sleeping in the jeep and not in 3 1 the house. He has denied a suggestion that he has not stated before the police that on the next day, one Vijay carne and handed over the hire charges to him. Furthe'i'l,.t:'i't_1'sV elicited that to a query whether he had told ~ Jayanth had come again on the next_da}/..=?1I1d_* had" asked to go to Mangalore along with him, he tiétatedliithat:whal{evei3.i_i he has said in the examinatior1?in--=.chiel'Apelrtainsivtoﬂthe'same day the jeep was hired: in as to whether there was cabin, he has answered that he did not notice. llovertook the lorry who was goinglaheiad, l--"Shiva and accused No.3 -- 55lll1lI'€lS'l'i"!.5V(.f't":1'.Cﬁ in thejeep and whether he has stated before' the persons present in the jeep, hasllllstateci.v'beAfore'.the police that only one person presentllllilnlllthe jeep. It is also elicited that l"nolri1i1ally"he hliinhslelf used to drive the jeep whenever jeep was taléenlon only if the person who has taken the jeep *on hire"isA'1know*r1 to him and he has the confidence that he the vehicle properly, then only he will allow that

-

":3 32 person to drive the jeep otherwise, he will not permit others to drive his jeep. Accused No.1 is known to him and.--he is not his relative. It is further elicited in his Cross exami1':ap'tio'n' that Sakleshpura town is at a distance of "

Gudya Village and Sakleshpura Towrrpclice the, Main Road and to go to Bal1upet';'«she_'_Ahas to Sakleshpura. On the next dalyt, theX/ijagfbv-hatl"co~nie to " it handover the hire charges, he di.dl:'not"ask any-details about the lorry or the oil tanker belong to whom. He did not -make:.any--?g:L1eries_i$rith .;;1f¢.¢ﬁsed Nos.3 <31 4}:

when they came pllielyadifand:lAddaho1e in a jeep about the oil' furthei:_1p___e1ie_ited in the cross examination "that ._he_jeaiinotﬂemeniber the names of the p€1"S01iJS_ who had taken. the jeep on hire about one month "ago ialso" he c1g§e's;'r1:§t remember about the amount paid l'towa_rds charges. It is further elicited that he does not knowilthat accused No.1 -- Jayanth goes in a lorry for he; would return after a month or two months. He " denied a suggestion that he does not know driving of the Kfcf ,1 33 jeep and accused No.1 had not taken t.he ieep on hire and was not holding a driving licence. He has denied a suggestion that in Mangalore, the said four persons-« take his jeep to Suraihkal and left him at Mangaiore * has also denied a suggestion that he is deposilngl :z§;i;;ei13,. all the four persons got down front the~'jeep_ person. He has stated in Qfiis jeep bears the registration jeep runs between Nelyadi occasionally, it will be taken outside:.o'nv:h:i';feLv" in his cross examination that has board, it was not outside fou'te'V_.betw:een:'Nelyadi Gundya. He has also producedthe' Show that the said jeep belongs to his father:" is..not":trije to suggest that he is deposing it "fa1'S€ui§':.{-rfi':-n-K11 they reached Nelyadi at 7.00 pm and he does not whether he has told the police about the saiclfact. V. .

18, :'1-The above said evidence of P.W.9 has to be l"a_ppre'c_iated in the facts elicited in the cross examination to "x§;.g 34 find out that his evidence is proved conclusively that his jeep was taken on hire by accused Nos} to 5 and accused Nos.1.2.3 & 5 boarded the lorry and went in the thereafter his jeep was stopped and accused No,/it§iva:s:in:ti:e""--a "

jeep and he stepped into the lorry and in in the wee hours, accused Nos.3 returned to Nelyadi.

19. The next circupistantiaiuie'ii:ide.1jCeQregigedp by the prosecution to prove oil which had been loaded in a temple at Gandasi his business at T' said palm oil for Rs.1.65,(5OQ:/-- received by way of purchase of palm oil distri.buAtebd«ainongst the accused. :10 the"driver of the jeep bearing registration Evie has deposed in his eXamination--in--chief on2,5'¥d5--200?i':--.j_that he knows accused Nos.1.4 & 5. On 6-6- at about 10.00 am. accused No.1 came and said that have to go to Gandasi hand post and wanted t.he jeep on \ m r"

\u; 5% '> :_,S 35 hire and accused Nos. 4 81 5 also accompanied accused No.1 in his jeep to Gandasi which is in the Hassan district. They left Gundya at 10.00 am. and reached Gandasi noon. The jeep was stopped near the ca11teen.--jj'ati ' and when he was drinking tea, the said._persons"wentV"away"._V and returned after 10 to 15 minutes returned from Gandasi and or1Vt.h:e~.way,"At.hey and he was asked to take they returned to Gandasi and" -- as t.he hire charges by accused before the police.

Ettis" crosswexarnination that he has not statedbefore he was the owner of the jeep since the police edidnotddthim. The police did not ask him t'oC'xv'r,1et1'1ter th'ey""s't§arted at 10.00 am. and reached 'Cyaiidasi He 'did not mforrli the police that he knowsd acvcu'sde--.d':Nos. 1., 4 8: 5. He has derried a suggestion . ,_"t.hat he 'was; not the owner of any jeep and he was not driving and the witness has Voluntarily stated that. he was _ B J 36 having a driving licence. He has denied a suggestion that he is deposing falsely that he was provided Meals at Hassan while returriing to Gundya from Gandasi. His vehicle"ha--s white board and usually carry 10 to 12 whenever there is overload, the police will foist a'¢'as'¢ againVst'e-V_ it him and as he regularly runs the ve'hicl1e'1riVthesanae tr-oiutejxf he knows the police. About 6 after he jeep at the instance of accused ;_th_e policel.recoi3'ded his statement and he does of the police officer and the 'date on recorded his statement. Heﬂ1{iasi'deni.e'ci that he is deposing falsely gavew Rs.800/w towards hire charges. T Acclording..'--toi'the""prosecution, P.W.14 -- Ravi, s/o has purchased the palm oil which had been l'l'ltoadpedeAAio.lo_11jry for Rs.1,85,000/-- and has paid the accused Sr Rs.50,000/--, 85,000/-- and 30,000/-- at l"~.,_l*three st"a,ge.s. Further, the witness P.W.1.4 has not supported 'f.'l1e case of the prosecution.

/,.--»

61.! ~../' X; 1'! .- .

23. P.W.l4 has deposed in his exaInination--in--Chief that he has a shop at Gandasi Hand post selling fodderand he is running the said shop for the past accused persons did not come and tell l'1l'I'~l°1">lC}l:E:'t~tvJ['11'V'~V1::€y.A1'1?l_:C"l 2. brought the palm oil loaded in 10:1-grand. "asked-V. purchase the same and that,"ne had'.no't 85,000/~ and 30.000/»~ in In \n'ew of the fact that nottsupport the case of the prosecutionghe hostile and nothing has in 'crﬁoss'cxa.inination to support the case of * V i_'fv.y\zvas suggested in his cross exarninatioon PP that he has got financial Capajcityu tolpuroliaise oil by paying Rs.1,65,000/- and ._adVanceHd amount which has been denied " 7a._d_He has also denied a suggestion that months back [examined on 30-72004), early " the morning, accused No.1 came along V."Vt_Awit:h'f;others and threatened him that the lorry had been stopped near Ma1a1iyamma's temple which was loaded with palm oil and the same should be purchased 2,.) 38 3 .

by him and he should handover the value 01" the palm oil. and had paid Rs.50,000/~ and the1*eaft.e1- they came to twice and threatened him and he had paid _ 30,000/-- on two occasions. The said portion~()i"the.eifidenCe_dd was marked as Ex.P~15. ThereforeV,=__it iseeieeni that 'fi()Vﬂ1'i1'i{:f~' has been elicited in his cross' e:;anaidI"1{1_tio1'1 case of the prosecution. Z 2

25. The p1'osecut:d;d':«--has{VAh.re.£te'd..V_uh'0A11_thedeytdence of P.W.11 to the effeet that the Iorry was parked in the and the lorry was seized -- Kempegowda s/0 his eXaminati0n--in--chief on 16-6-V:i0x£')4 the mahazar as per EX.P-- 9(3) aha 1/1obab"dyV else hasddédigned aiong with him. The lony "h.ad"xbee::1----tpa}'ked ihAVh'1's'V1and. He cannot read or write. He "'A::10'es'_f1otV'}£,_h.(,yV xyhf) has signed the mahazar oi' the said lorry. he hhtes ho£71;;_hEnv who had left the lorry in his land. After seeing the';.1orry, mahazar had been drawn. In the cross "«ex;;nii'hat.ion, it is eiieitied that he has signed the mahazcar /1% 3;

if 'd1eV'prostécution.

39 and he does not know the contents of the mahazar.It is also elicited that while he was going near his land, police_l"cal1led him and took his signature. When the question3l_:was'Vl.';j*t1_t . him by the Court as to the presenceof the"lo'1i'r§;'v l5iev:state.d that lorry was in his land. Mellamn-iafs item-Ilale distance of 8 kms from his viliage Klalvleinahaiislit' had come to the temple for performing also elicited in his cross examination Vlaia_swere_d to the question as to whether he has come the first time, that he has be;i7ore_ "Court one month ago. in answer to 'whether his memory has become w'_nethe'r he knows reading and writing, he knows only to sign and he does and his signature was taken by itl&:?.t§V;:--«.%i'i%reV".-prosecution has relied upon the recovery of wrist Aland cash made on the basis of the 3"~'««___V'~»volunta:3r* statement given by accused Nos.1, 2 81 Exs.P~29, so, 31, 32 81 33. it has to be stated at the outset that since accused No.2 is 'W 40 dead and case has abated against him during the pendency of the trial. The recovery made on the basis of statement is not helpful to the prosecution to at same cannot be relied upon againsigaccrusecl N_os_f It may be noted at the outset that nollreoovelry is made.' instance of accused No.4. Therei'o.re, recovery and watch made at the instance of actrusedlliﬁos. 1' '5--.is..a\rai1ab1e only against accused 5]}respectively. The prosecution is relyiiig lithe Investigation Officer -

-------- his evidence that he interrogateci and accused Nos.1 to 4 were taken to scene _oi'.offen;ce. Accused No.1 came forward and» that piace where they committed murder and it was» _Vat.cVAI:1.Ivl,:Road near Kollahalli bridge and accordingly In-alriaizar was prepared as per EX.P--18 and his signature was

--g as per l8(c). On 30-12499? accused No.1 on the basis it voluntary statement given by him stating that they had .l the palm oil to one Ravi (P.W.14] at Gandasi Hand Post "} '?

a' =>' 41 and they went to Gandasi Handpos': where he showed the person ~ Ravi [P.W.l4] and he also showed the place tvzVh--ere palm oil tanker had been parked for u11Ioadi}1g at ArsikerewChanna1'a'yapatna road near' - Kuhdudi -- Melleyammzfs temple and he preparedA»Vrr1'aha§:a1' 4 and his signature was at Ex.Pg4[b].A:".Hbe_stated'V_{:hat had paid Rs.85,000/- towardsyEh,p%§'~.«.ra}ueV.of.t;}1e:paiVrauo1I and he recorded the statemeot of rie"v}ae1&:§fu1'ther deposed that on 3142 took him to his house Pudiyapﬂladaiidlhlge AVd.daho»§..eVV"and stated that out of ree.eiy'e...._by:."sa1ep_ot;Wpa1m 01], he had received;_;vRs.v35;€jQ0_/ §i.ar1djv'p.:}od.ueed' the cash of Rs.35,000/m and the sa_um'ep was'sAeisde'd.,:ti'nder mahazar Ex.P«16 and his signattute was He has further deposed that 'd V. "a.ecu'se:d No.2 also gaﬁevvoluntary statement as per EX.Pw80 received the distributed amount by seltilggh oils and he let. them to his house amount took cut one bundle of Rs.10O denomination and five '*bu1V1d'I.e_s of R550/-- and the same were seized under mahazar 2;:

as per under mahazar as per M.Os.1.5, 16, 17, 18, 19 to 26 respectively. He has i.'u.rther deposed that on accused No.5 was produced before him and on . he gave voluntary statement statingdhat b19"ecei\/fedc_ dd portion of the amount received by Sale ot'7pj7a1&In. 'oiIV'an'dV:'11.av<,?r' also removed the watch from the-decea'se_dV'a.hd to one Jagannath. through of the amount remairlirlg was 's'taterhev:ots were recorded as per to show the place where he '11:§;_c:;?"&c1;o_:'1.'£ qjse§i":~"tbtaétrangulation and jackrod used ywas recorded as per EX.P*33i.yH deoosed that accused No.5 took thehi' region and led them to his house too1~;.7out'-btjhdle of Rs.lO0/-- containing 96 at"e-urreoeyffmotes amotirittng to Rs.9600/-- which had been "'1:_epta_ir:«th'e_Suitea§.e. The same was seized under mahazar as thereafter accused No.5 led them to some 'd,istanee_fr"om Kollahakli village near Hosur estate and from fence of the said Estate he showed the towel used for \5;_.a;. ' 43 strangulation and took out the same as per M.O.12 and the same was seized under Mahazar Ex.P--21 and Kencviiaia,h~~_-- P.W.18 and Raniaiah »-- P.W.15 were mahazar.

28. It is clear from the evidence of that he has not supported the case-of the';"provs§:¢u_tion regarding mahazar EX.P--1O. K in his examination--in»chief heart disease and all the accased in. his viiiage Addhahoie, accused W Raja had not he has identified his signatuijledas that he does not know the contentsof Why he has signed the same.

He has. also stated Vthatithespolice have not shown any wrist ' «matCh.Aan.dV. the.'u/itnesdsﬁévas permitted to be treated as hostile. Another panch witnesses for the seizure are P.W's__.i5 and: P.W.15 has deposed in his exarnination--in- dd'~.«.4_"<:hief thatiiie is the resident of Kushalnagar in Sakleshpur. had called him to Addahole village and he has K :aZ..i§ 44 signed the mahazar and at that time, Kenchaiah W P.W.l8 and Basavaraju W P.W.17 were present. He deposed that accused NOS.4~ 8: 5 were forgotten their names. Rs.35,000/-- each \vas'recoV<ered fromu their houses. He has forgotten:=__the...hou'seH:at Rs.35,000/« were recovered i.r1.4_the f'ir_st" instancgegthle 9 amount was paid by a lady wh§""w§s in thle'said'l'holufse when the police asked her to further deposed that thereafter house and one of the Eacoused toldg the amount in the house and in the house and the said lacljrll same was recovered under has signed as per Ex.P--16(a] and he has identified thellclurrency notes before the Court.

" V' ~HAoweVer,:,_'he has stated"no amount was recovered from any "place; ..4"t'H:e"_.has also spoken to about. the accused shottdrig the where they sold the palm oil and the place 'where thellorry had parked for unloading the palm oil . He iurther deposed that about two days thereafter, he was

12.} xi 45 again called by the police and they have taken him to a place in Addahole and Rs.9,600/-- was recovered and it was not in his presence and the police told him that they recovered the same in one of the house of the accus:ed.r:'angd------.y * he was asked to sign the mahazar per signature was at Ex.P--20(a). He has fuitherii».depo:?ed:'"that]i accused were present there and stated :..ti1eyH had --. L' murdered three persons by strangtulatmg theiriiiecktwith the cloth and they have shown" the cloth -- M.O.12 and the same was seizec1...un--de1;--_ pn§_ar:é;::;1r:'V--'i;3;§.p~21 and his signature was {at HoweVer,*"i'1e was treated as hostile amount of Rs.9,600/--

said to have Vbeen'VA:_reco%.{er~ed' on the basis of voluntary statement gi\}"e:1_Vby acctivseti "No. 5. " V' \30i,'.,,Nothing has"beep elicited in his cross examination V Public Prosecutor regarding recovery of Rs'.9?'€iO0/_--.."iieiihas stated that it is true that accused No.5 givenj_vo1untary statement stating that he had kept A -- in his house and he himself had taken out the tgcib ' v\ 46 said amount from the suitcase. He has not identiﬁed accused No.5 among the accused present in the court arid_he had not counted the said amount.

31. In his cross examination by the learned counsel or the accused. it is elicited that he was iiVo1'king as worker'''. in Sakleshpur and he was often goin2lg';tol*t;he police the people were taking him police he knows the Inspector Circle and Whenever there is galata, police cc-Inpromised the cases and in some .__case:'s" against the culprits. n_o_t:'1~ssu-edtfnotice to him to serve as pancha! 5 were present in the police station nobodyllelljselbWas"p1*esent. He did not remember the date on he wa-shcalled for the police for the search 'lhand the first occasion. they left at 10.00 am. and they °r_eached at 12.00 noon and on the second occasion,v_t,he§;'}:left for Ugane village at 6.00 p.m. and 'mahaza'rW1as written for two hours and neighbourers were "n"ot;Vcalied as panchas. It is also elicited that he does not 3;

47 remember as to whether the ntahazai' was w'ritte11 in either in the house of accused No.4 or accused No.5 and rnah.a:'..ar was not read to know as to whether women in th'e"h--o'u.s:e5t)f accused handed over the amount to the p0_]..iee_._j'*He"--c'a11not"

definitely say that the amount showr1 hint 'the. was the amount seized as per the ntaltazar. fHe has jalstvo denied a suggestion that 11e"V'isTV:..V'deposiri~gVf the instance of the pokice. 0 it it 0

32. P.W. 16 -- the mahazar EX.P--22 regardj.:1§..seizuf1e of j«eep--._"-Howevei', he does not support the? and was treated as hostile it elicited in his cross examination. to of the prosecution.

;33._ P.W.}.7"'V'~"1H'V'S :Basavaraju has deposed in his 0ttezzantitiatiton§mAgel'1iet'%t'ha't on 30-7-2004 that he was called u'i3y"(_3.F>VIi' -in jeep and Informed about 6 years ago that of 3 kms from Sakleshpura near Hosur ~'«.__t'£'..state he signed the mahazar. Joseph and Ramaiah W "'t5_.AV'.f_._} were present. Accused No.1 was in the jeep and he W4;

48 was handcuffed. He informed about. causing niurder of three persons and throwing the dead body in the ttltaiiricirand showed the said channel where dead bodies \ve«re.'_«i,h__roi;v1fi' which is by the side of the Bangalore Mangoiodfe. He has identified the mahazar as and 1dis.:_signs:1tihjev':i as per Ex.P--18[b]. He has also identi.fi.ed._ the in the Court as the person who prese'nt_ thietﬂooiice. It is elicited in his cross "e.xsn1ii'1éit'ion&he issued any notice asking him to from accused No.1 -- Jayanth, with him and since he V:"2x;IiE.E. he often gong to the police He went to the office of the CPI shout. they went to the spot at about As? 2.00 \}ver;e:the'1*e for half an hour. After he wenf:e._the3re. Ran1ai0s0h"é¥'0P.W.15 and Joseph were called by '"'C_.PI_20_11u1'd 01.0.30 a.m. t.o 1.2.00 noon they were sitting in t.11ewoffivCe'oif the CPI. He has denied a suggestion that he has noi"atZa11 gone to the spot as pancha, he has not seen 49 accused No.1 showing t.he spot and accused No.1 have never shown the spot: described by him.

34. I'.W.18 is a witness for the inahazai' regarding recovery of money on the basis ' statement. given by the accused and._he .hasV'4"d.é:posede_in it eXamination--in--Chief on 3O--6~20Oé;i"1«Ath:a_td "he mahazar about 6 years ago, hi,1_n'selI" and VRa.n1daia1'2._®--vPuW. 15 * V had been to the polieefstation___af:d_ In/spAeei"b1' along with Raja went inside Raja produced two bundles of oe1hreney"'dﬁdenorninations and five d /-- denominations and He has signed the :3-1ahaza£;--ga;t ixddaneidejk. 1 7(1)) and he has identified his signaturel' is iurthef': deposed that two days thereafter ha-,':i..~..3{'ze:i,1"n. to Agaklesvhpnvra and as the lorry had been parked _ne2:t1f'dihe"'poiiVee_station, the Eoriy was seized and mahazar \Uas.__rdrav.II'1'i"--.a's per Ex.Pm£9 and he has identified his *..signatu1je°as per Ex.P--}9{b). It is further deposed that cloths to have been belonging to the deceased had been 50 seized and t:he said cioths were shown at Addahoie. Further, he stated that he cannot identify t.he said cloths asshe is deposing six years and when the cloths were shown he has deposed that they were the cioths which-'.4'wei'ed'e 0' as per M.O.12. He has identified M.~O.-12'. it were brought: from the place wi1e1'e__i'thei*niL1.rder ('was-_ committed. He had gone neaii_v:KQilahailiV:_'at vahen the said cloths were l:€COV€I"(3_(Z_1_0:u:aﬁ(iv._ he .1/1"cle:V'jAt'9jgr:_§1ed the mahazar as per Ex.P--20 and .iAd'0e1.1tiii:-eciii"*hvi:s:'§0sigu,{natL1i'e at EXP- 20[b]. He has further another inahazar off currency notes of Rs.100/Eiioi' hciitreiicy notes of Rs.50/~ deilominatioii that amount had been bl'OL1g'1o.t.VfTOHihth:v6 iviilage he has forgotten. the name of V' the village' and signed the mahazar at Ex.P--i6[b]. is eeV1'ici:t"e.dh in cross examination that Rarnaiah is from his n_ative_ place. He was not issued any notice to act. as 000"'..,_"pancha." _ A'1.His village is at a distance of 5 kms from "§§a}§.i:e'si_1pt1i'. He had gone to police station at about 10.00 Kai:-at ii :3 51 am. and by the time he went to t.he police station. iwo police constables. CPI and Rainaiah M P.W.l5 were p1"eser1t.g.-vlt. is further elicited in the cross examination that regarding seizure of currency notes was \v1*ittei'1 bet"v.?een''''i "

10.00 a.m t.o 12.00 noon . He does .not».kn0w.las'''whether, 00 th.e said currency notes were 1'eeoVered"'lfi'on1 "inside house and it is elicited that were not signature was not taken ;_on but)' shown bundle of currency noiesef Rs.100/- and they returned to .Sakleslipu.ra'g p.rn. and he signed the fin. am. He has denied the has signed the mahazar in the police station. it in his cross examination that he eaniiott telllt_he..eolgo'u1' of the lorry which was seized as he does not remember the same. He is an illiterate. He ldlias '-!"11<1"tl,.A1'€:r ~deposed'""that he has signed one mahazar in '--.Addahole.._l":*.iii--._tohe police station. another mahazar at Kel_la';f-1§il1i"aii1'§l._Oilélvnialiazar near the oil tanker. it is further elicited i1jv'l'.lS:'5C}'OSS exainination i,hai. he cannot. tell as to 52 whose house is situated by the side of the house of Raju. He does not know the name and address of the residence of Raju and he was informed by CPI that he was the o{'Addaho1e. He has denied a suggestion that hr;"--i V' the said mahazar in the police station and it and is deposing falsely. It is further examination that the fact ofho-f A"«:h'as...been written in the mahazar and it [IV\AV/,vl}.O.12 is a cloth of Black coIourv}."'uzV:HeA -suggestiorl that 1\/1.0.12 is a blaekeolotuj that it is a khaki by the police.

He 12 was not shown by the poiicekahd he before the Court for the first time 115.55 'de;5c~.sb'ii:g:falsely. The above said evidence adduced by the have to be appreciated to find out as to

-f51*.o:s'ecutaion has been able to bring home the gui1tt.he.'ac.cttsed. Admittedly. in the present case, there . 'J' 4-:

is no evidence of any eye witnesses and the p1'ose(?'ution is relying upon the circurnstaiitial evidence.

36. The material on record would c:lea.rlyyl'p--ifoVe-.

beyond reasonable doubt. that driver of M Chennappa. cleaner of the lorry 7-C}ui'appa p.w_2 W Rajendra suffered homicidall'.de:l_tlil. -r,a«.t:t"

the said three persons snot disputed by the accused... eonltlentioni of the accused that it is not the death of three persons a:&1ld__ aceorditiélyfi' been falsely implicated.

3?'. Thelltiiediealy offieers who conducted Post Mortem examinations' oveiithe'<dead'"bodies of driver ~w Chennappa, cleanei'wC}ura]l;:u)"pa:va11id' agenltllof P.W.2 ~w Rajendra have been " l'"e.xan*1i--1i:ed«."as ?..W.5 t¢"'ii;'W.7. W Dr.Shyamala Devi, Srspecialist, S.Cl.H_olsp.1.t.a.l,l"ljassan has deposed in her evidence that she 'e.onduct'edl'1post morteni examination over the dead body of .tink_r1oxvr1 person in the early niorning of 17-5-1997 and 54 has deposed about the external injuries found on the body of the said person and has deposed that death was due to strangulation and injury t.o the brain and death occurred about 24 hours prior to COI'lC1UC14,il'i"'€:." the V' mortem examination and acoording'iy-,..psh_'e Viyssuedt vpostnz. mortem report. as per Ex.P~5. She has if a person's neck is tied e1o'ih__ is possibility of strangulation 'd.eeeased~:is assaulted by iron rod, the said in the brain.

Nothing has b€€t11v'€1iCit'€'Ci".~i:f:1 V1*'ie_if.._oro§%~pfjtvéjtaniination to disbeiieve of EXP-5 are not V {MN Vamadeva , S1'.SPeeialist, Government. 'Hospital, Ho1enai"asipt1ra has deposed in his evidetnee iihat"-on 17H5S'é"1'Q97 between 3.45 to 4.45 pm. at the :o'iT_L.Sai;1es.hpt1ra Rurai police. he conducted post morieni exarrtinatioii of a person aged about 30 to 40 years and he was informed that the said person was murdered by . 's'on1e"t:nknow11 persons by strangulation. He has narrated 1/ 55 the externai and internal injuries found on the dead body and has further stated that death was due to st.ra11gulai_1'_on and shock and hemorrhage and injury to the br:ii£i*~..a<n.d.4A' death must have occurred more than 12 ' Conducting the post mortem exaniination. He deposed that if a person is confined "eabin _of_the and assaulted with the rod and .a"'e.loth is tied to.Vth:e_"ne.Cl{ of the such person, it is possible thVa.tt']:1e said p.e1'*sc1nA xyduld die because of stranguEatio1i"---"itld hef,dth,e post mortem report as per Ex.P-45. Nothing:"ha's._b,eenV '_e1ieited in his cross examination tot'-dis§oe1_ieve'«his_V evidegncde orﬂtto show that the contents: of is °m5tr¢'m=t}v¢ct. --

40:Kp.'W.7 .~'n.i{;o'"a¢e--rg'1;abo, Joint Director in P.H.B., Bangalore hashtdvenosed. i':'1&aher evidence that on 17~--5wi997 she cécjnduetaed the "post niortern examination over the dead one male pe1%'s'¢ie1 aged between 35 to 40 years and V'h.as._3.1ar:iat--e¢d" the dexternat and internat injuries found on the deadbody' a'u_dA.r1'aeCo1'di11g to her, death was Caused due to jstrangt1}attVon and injuly to brain and ﬁver and death must 56 have been occurred 24 hours before conducting t.he post mortem examination and accordingly, issued post morterI'1 report: as per ELK}?-'7 which bears her signature at Ex.P--'7(a]. She has further deposed that if a person while goingyinrthe lorry is assaulted with the iron rod, injuries found"

dead body can be caused and if a cloth tor her in the Court is used for straiiguilatioii,' death occurred. Nothing has been elicited inlithe-._crossbe_;ranii'nat=;ioii V to disbelieve her evidence in conducting'the'-postlfmortem examination and contents of poslt"ni'o.rtern'.report.H"

41.. In view of the driver ~ Chennabpa, 1l&:1:~£;.n¢;i¥'l?V.V-- --.Cru'rappa. and agent of P.W.2 -- Ra}'endra,ll'it is on record would clearly show that durappa and Rajendra suffered litlioniileidai'tdeath same has been proved beyond However, in order to bring home the guilt:

of t.l;.eacc.L1sel;ji,'ll'the prosecution must further prove that it was the"aeé:used who caused the murder or homicidal death "oli_'tl1els;aid three persons.

\§;r:;, '> 5'7

42. The other circumstance in which the prosecution is relying upon to bring home the guilt of the accused is that P.W.9 has last seen the accused in the cornpany._jo-fj_lt~he deceased and that he had seen them boarding a1'i'd_T' .

thereafter accused Nos.2 & 3 came back and'retuhrjned:tc.jtl1eu house and that his jeep was hired for c-liars-ing..the°1orry'...__ ('in appreciation of his evidence wbu_l_d clearly he has never deposed in his aboutf 'presence of Chennappa, Gurappa RajVenid.ra"~.[De'ceased] in the lorry and his evidencejis r1ot_tru_thful_V a.nd'."'reli'a't>ie and does not rove the circumi:tanceV:--.coirxclusivel" as-----it is clear from the facts eiiicitedxiil;i..'vt;heA3'cro«S:$"'~€iXan1ination of this witness that though he._sta_tes No.1 had hired his jeep. The facts ..c.icited.'inAhi's" cross examination would clearly show . it thathe not the licence for driving the jeep and

-his, Vevid-entée"e~.V that from Mangalore. accused No.1 drove and other accused went In the " jeep andvwwas asked to stay back in Mangalore and thereafter V":t:hey"a"A_chased the lorry as accused stated that lorry V' belongs to them and that accused No.3 persons who had come with accused No.1 had boarded the 58 lorry and one person remained with him would clearly show that his evidence does not prove that he has seenﬁthe accused in the company of the deceased as identiﬁed the photos of the deceased and were the persons who were the driver. cletajner an'd._a'person f in the lorry and his evidencejowould sho\§.r~t'n.at thetﬂhas chased the lorry and thereaftertvtfour personslugot from the jeep and boarded the vhirnvself and another person were left the lorry and stopped in a wﬁla'gje:j1'whereirl a_s}{ed to sleep there and in & 4 came back and he returned to Nos?» 8: 4 and therefore.

the circumstances relied upon by the prosecution that P.W.9 «..hadv-t:r$'$:een.rj:ﬂ1eA accusediin the company of the deceased has not Tbeen.»_cor1clu*sively proved as his evidence would only taken the accused in the jeep and four laypersons with accused No.1 have boarded the lorry and A fthere'after accused Nos.3 & 4 came to the village Where jeep ' had been stopped and he came back to village and on the W next day, the amount. of hire was paid to him and therefore the said CiI'CtlI1'1S'L'E1i'1C€ relied on by the Pmsecution ha':i"D0t been proved in accordance with law.

43. The next circumstance relied on" .b3§"0'!0he.0_"t prosecution to prove that accused soldpalnjl oi_.1. been loaded in the lony by taking0':'}.Q'r:1'y0 'ten1p'1e"aVtV" Gandasi Hand post and was at Gandasi Hand Post had. p'urch-aseﬁtuthe oil for Rs.1,65,000/-- and the way of sale of palm oil was distrf;j:f;:_rted

44. It ntaiy the evidence of PW. 10 not h.e1o3:gf_13fA3.t/o érosecution to show that he had taken P.W.14 and P.W.14 handed over the amotint toaccused Nos.1,4 8: 5 as his evidence would-'only show had taken accused Nos. 1, 4 «S: 5 in hhjsxjaehep left Gundya at about 10.00 a.1n. and 1'eacl<1_ed Hand Post at about 12.00 noon and stopped" jeep near Gandasi canteen and when he was "drinking tea, the said persons accused Nos},-4 & 5 went and "\}T.4 ':2;

60 returned after 10 to 15 minutes. Therefore, he hasno't__sie.en as to where accused Nos.l,4 8: 5 have gone and'_mw}ia,t-weite' _ their conversations with the person whom~vrn.et«ua1!d4 therefore, the evidence of P.W.1Q_ prosecution to prove the said ci:icpumst'a_rice. V H

45. Similarly, the evidence'i'o:fP.W. 'show that P.W. 14 who according tfilthe "purchased palm oil and made payment of Rsrl Rs.50,000/-, Rs.85,000/-- to the accused.

has not p':ro'secution and therefore was treated has been elicited in his cross case of the prosecution .

However, the,tria1_Cou--rtl'iiad proceeded on the basis that Ravi htlhougll not supported the case of the V.'-_1prosecut1_o'n was treated as hostile and nothing has been elicited in his cross examination to prove the case of the j prose4cuti"on,.lthe material on record would clearly show that has vlpurposely turned hostile not to support the

-- jprosfecution and to help the accused and therefore, to that W 61 extent. his evidence could be believed. This reasoning of the trial Court is clearly erroneous as it is well settled that evidence of hostile witness can be considered on1y--'sotarVas it adduces any incriminating circumstance against' th.eua:'icu:sed and giving a finding that the Witnesshas ' hostile and therefore. what is stated should be believed cannot Vb.e4"'st1stai'r;ed sand, the' said circumstance that the acctised"iso1d hpaimyyoyivliito P.W.14 and received Rs. I ,65,00Ci/.: in has also not been proved by the prosecutio'n.-- V

46. 'othei=_Vcir_eLiiI1stan'ce is about recovery madcajﬁ on bfVtjitilritarytstatement of the accused and the fact that the.'V'accusedyy:h31ve pointed out the place where the deadsbodies' yvere" th_roWn, the place where the driver -- Chenriappa. 'c1_eaner' ~ G'L11'ap_pa and agent of P.W.2 ~ " vve1"e murdered and the recovery oi' cash has been "rnadievv basis of voluntary statement of accused Nos.l, 5 the watch has been recovered on the basis of xroiaintaryvstatement of accused No.5. L kti» 'xi: .

47. It may be noted at the outset that in theppreserit case. adniittediy. even as per t.he evidence" 'V-the, Investigation Officer. the dead bodies of t.hr'e'e= identified as that or /\ierinappa,_v Gj.,1i'ajppa..'ar1Vd 'Rajsq;jra] have been recovered by the I»IV1'J.1I.3'Stig¢':.li'ivO'f1 OiTiee'iﬁo.r_1_thelbasisuw of the information received & 22 M Assistant Sub 1i1spec'tor':«aI1c7_VAtgirtctte.__insp.ector VofHvIv'o1ice went to the spot and found 6- 1997 and the same have been andscerie of the offence have been. anti -~ M.O.l0, sample mud ljeetnﬂvseized and therefore, the question of accused have led to the spot wherf: dead ''bodies* were Tound cannot; be the fact leading to dieicovery of p the that the dead bodies were found in t1fie"!ii;y*§he side of the road as the said dead bodies been aheady recovered by the police prior to the date of arrest poi"; the accused and therefore, the eircunistance that 'dd' "a_.ccu.sed have pointed out to the place where dead bodies 63 were thrown would not amount to discovery of the fact on the basis of voluntary statement of the accused. So al's_o';'athe fact that the accused pointed out the place where:V'the' was committed and for the same reasoning,__,lthVeV lIact4_tl1latl accused have pointed out to the plaice been committed and the lorry has beenparkedlﬁirturiloadingl would also not prove any incﬁ1ii'irla't§ng cir'c_t_1rnstancellagainst the accused as the l0fI'}"':h~as b_e'eHn_ 'pI.'ior ltovlthearrest of the accused and pointingl the lorry had been parked and pointing out the spotlmhere{5i,ncid.fei;t'locc'urred,l"vvhere scene of offence has already 2'-beenldravhfi;Vvvoul'd.'r-lot. amount to discovery of the fact on the ll3asis.oif-.volvun'tary statement of the accused and the said"--~c'ircumstances are not helpful to the tvionlvlinﬂbringing home the guilt of the accused. only other circumstance on which the loprosecution is relying upon is recovery of cash and watch on A hasis of voluntary statement given by the accused Wag 65 from the evidence of P.W.l5 that according to him, some lady in the house brought" and produced cLirreii(:;v"i:otes amounting to Rs.35,000/-- and the same was does not say specifically that it was accuse.d_l:\io, if inside the house and brought the ainouni:_ and.__.:stai..elci the said amount was concealed by h.inli--.._ Siniilarly", it is elearg from the evidence of I3.W.l8'l"tﬁat his leXtl_Ci'e:i.ee Ali? also not helpful to prove the reco_very.i'madej'on°'the basis of voluntary statement of accused l\lo..l'1 .his__...evidf3nce would clearly show that 'stated in _:his'«.e§§ajn1ination--in--chief th.at he has signed' laiilo-the'7mal1.a:5a'i'- wl1_.erein-- one bundle of currency 1'10t€S{:Ol' Rs';fQO_[£3i.Va1id."'five_bundles of currency notes of Rs.50/fvvere seiézeidi.anrl:l"police informed him that amount contai,11ingll"c_ur1*ei1cv'-notes of Rs.100/-- denomination aIiioiL1ri,ti.nggto Rsl.lOl,l(l300/~ and five bundles of currency hotels of denomination have been seized and he has for_glotten.ltllie'll'same and he has signed the said mahazar. However,i~ it is Ciear from his evidence that he does not say was the accused ndo.l who led to his house and '\ v 66 produced the amount as per panehanama -W Ex.PAl8 and he states that he does not remember about the said seizure and was told by the police and therefore, his evidence --'ijs'al's.o"not helpful to t.he prosecution.

50. It is well settled that the_:Jol:,1_ntar'vsltlateinei';i'.l_l_o&[ the it ' accused must bear the signatti1'e:;'_loE recovery should be made on'._basis*of volulnta1?y'<s.ta.1:eme11 ' and admissible relevant portiorrvby pi*ovii1g'«the said fact by the evidence of panchas _ar;_d éifnvel"investigating Officer. In JACKARAN SINGH vs,i'wSi'ATE'-OE "r5t_iiv;j;4xB" [AIR 1995 so 2345] the l_9u1:lir.erl1el.CourtVlhas"clearly laid down that whengthere absence*o_i" signature or thumb impression of the accused on Vb.a_s'i':=. of voluntary statement. such stateme1_1t is ifendered. unreliable, more so, when the panch wi'tness'es were not' examined at trial to testify its _ authen'iti_cit;}L .,_m-.. the present case, evidence of the panchas 15 i:lv_8la1'e not helpful in proving recovery of currency no'tes*an:;ount.ing to Rs.35,000/- on the basis of voluntary stai."(~:n"ient of accused No.1 on the basis of Ex.PAl6 and {,2 67 therefore, recovery of amount of currency notes of Rs.35,000/w on the basis of voluntary statelnent of accused No.1 has not been proved beyond reasonable

51. The recovery alleged to have beenifnacded basis of vohintary statement of accused pé::.";:§.x:'::,n V 30, as per the evidence of are also not helpfu} to the pro_s'e~cutiioAI'1': as ace died' V during trial and the caseV__.ahated._V aga1'"ns.t_ The admissible portion n1a't'kec1,a.s in the voluntary statement of accused:.P€o;»2:'carinot use of against other accused. . 1 cireitntstanee of which prosecution is relyingxtipon is statement of accused No.5 that he had redce-ive.d his Ashsare' of the amount by sale of palm oil andfhe wouldxitake them to his house and produce the same He gave voluntary statement as per Ex.P~32 hejhad taken watch of which the driver of the lorgg/-- Ciieiinaappa was wearing in his wrist and he soid the tohJa'ga'm1at.h [P.W.1.3) through Appachhu (P.W.12) and is} 68 accused No.5 further gave voluntary statement. as per EXP- 33 saying that cloths used for strangulating and catising the murder of Chennappa, G-urappa and Rajendra iron rod which was used for assaulting theiin been conceaied by him and he would pifociuce the San:-e; Fui"ther, V ' according to the evidence of oiy jhthe voluntary statement of accus»ed'No.5 as per went V L' to his house and produced -- and thereafter accused No."5zV:ied M Shop of P.W.12 to Whom wrist watch had:.bee1i:'soid¢&.i3y and the same was seized', on the basis of vo1L.1n'::ﬁ:ai'vv that accused No.5 led them ' produced one towel as per .12 butdizev did"no'i' tifodticed any jack rod and the same ' was 'Vse.i§:.ed"i-- under jianchanama Ex.P--21. So far as recovery basis of voluntary statement given by acctised_."i\i3(_s.5 as per E3x.P--32 is concerned. neither Jagaiinath -- P.W.13 to whom the watch was sold by A1o15"a.c11h1,1 --P.W.l2 110? P.W.12 have supported the case of i\,.. Q %;.'.__ .

\..'§/ 69 the prosecution and they have been treated as hostile and nothing has been elicited in their cross examiriatiori to support the case of the prosecution. The material shows that the said Wrist watch ha.s been got the Court and therefore the said cirt:'u;11«sta'r1ce' isfnott provevd against accused No. 5.

53. So far as the factun_1ro.f_ i'eco've_iy oi'-- on* V the basis of voluntary staten1.erit.'oi'.._Vaccdsed._Nof5 as per Ex.P~31, the said mahazzﬁ EX. P-120 to be proved by examining P.W. 1'5vandg1"'7'»an'dVi'i.iS__cle;1r their evidence that P.W.15..h.Vas =able_.- the accused who pi'odL1ced :n3and.th~erefore he was treated as hostile by the pi'osecty1tion: avn_id._»tP..C';'N'o:1724 has not been examined and the s'ai_dt also not proved. Merely on the basisoft.eViderioeVVVo'f PM/.22, it cannot be said that the said '--v.Arec9\?e1'y»Aha.s been f)"i"oved in accordance with law as held by the :.'Sup1'en1e Court. Further, the voluntary HstatemeiitA.'V.'i"ec'oi*ded as per Exs.P--31, 32 8: 33 also suffers iron} soiniedefect which is fatal i.e.. absence of signature of I ..i 70 he accused and not proving the seizure conclusively by examining the panchas as referred to while coI1si.de:?irrg the recovery made on the basis of voluntary s;:a:'em'_e:5;:;"'o.f accused no.1.

54. So far as recovery of 4:

which according to t.he prosecutt_o"n_twas.'V;producved'"~.hy'u.L accused No.5 on the basis of volu.nt'ary is clear V that again the evidence-* 15 have not been consistent and stated that he would produc.e§¢.the_ jacltl has not been produced Vabuout the colour of the cloth and circumstance has also not been conclusively' proved 31 tion.

X .55. lt:4'i"s fromthe material on record that there is V"-.no "iri'crti'rni1'tat'ing niaterial on any recovery made on the statement. made by accused No.4. The t'ria,_lVhCou_1:t' proceeded to hold that the recovery rnade or1 'gthe bas_is'1.of"volunt'ary statement. of accused Nos.1 <31 5 is in view of the evidence of P.W.22 though panchas 'aatgaf

-1';

71 have not supported the prosecution regarding the said recovery. However, it is clear i'rom the above said reasoning that the trial Court has overlooked the voluntary statement of accused Nos.1 8: 5 a§'l'p.er'l§Xs\7Pw2Gl,_ 29 8: 31 to 33 which accordirigmllto"th'e_ pros.e'c_u.tio1iV_iVs admissible portion in voluntary Vstat'emen.t bgiyeizl' byA'"the'r, accused, is not signed by the"~accused Nestle does they bear left thumb impression. "elftierefore, recovery alleged to have been made on the said-sta'ternei1t.clar111ot be believed' as laid down by.ltii.g "Court in the decision referred to abo'VeV.::i.~- l l+'u1'ther::'t.hou§1't._:the' evidence of P.W.22 cannot be rejected on».the_ gro.unf_1" he is the Police Officer, having regard to the l"'ac.ts__o_i"_.the present case, panchas have not .sup,1:_Jo:'ted. tiltie-._sei2:ure made on the basis of Voluntary by the accused and that the voluntary statemei.1t1'e'corded by P.W.22 itself is defective and cannot _be,1_~e1ieti upon to prove the incriminating circumstance llagainst accused Nosl & 5. The trial Court has also 72 committed an error in relying upon the fact that on the basis of voluntaiy statement. given by accused Nos.1 have shown the spot where dead body was thrcvvn, where they committed murder and..s.ei_2:u1'e'oi; it the place where they parked the 'izorrycisiv the circumstance against the ac*cu--s_ed ov'e1'io'oiiiAng--vthe; facial' that the spot mahzar has been to the arrest of the accused, recovered from the channel much priorA1.o.:t_he éﬁcused and the lorry has uairest of the accused.

Therefore, \vhich is known to the lnvestigvdatitngl' b_e_'said to be discovery of the fact under Evidence Act and therefore, would not be accordingly, it is clear from the reco1'd«Hthat apart from proving the homicidal driver -« Chennappa, cleaner - Gurappa and ,__age11ft.loci;-.V.I5iW.2 --~ Rajendra , the prosecution has not been a'ble'1.t.o conclusively prove the circunistantial evidence ":i"elied"';«1pon to bring home the guilt of the accused. in View Q, 'X r.

iﬁyz -' 74 Nos.l..4 81 5 in S.C.No.72/1998 on the file of Fast-.__"l'1*aek Courtwl, Hassan shall be set at liberty forthwith L:'_r1"ie:s';~:._titn_ey are required to be detained in any other case.

58. In View of the fact that aeeL_1_sed been acquitted in Crl.A.No.l 169/f2.00£5_';iit pass any separate order in"Cri--J}1inal"Abpeall'b.l§lo§._1"1»l2/3200?'at which is filed by accused is..ap«}l)e._llar)it No.3 in Crl.A.No.1169/2005. it L. The operative shall be communicated Jaii wherein the appellants imposed upon them.

Sdfﬁ Ends'?

s is 31:" ea

Legal Document View

Unlock Advanced Research with PRISMAI

Karnataka High Court

Jayanth vs State Of Karnataka on 4 November, 2010

Bench: V.G.Sabhahit, K.Govindarajulu