Karnataka High Court
Raju Mandal S/O. Harilal Mandal vs The State Of Karnataka on 1 October, 2020
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MRS. JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100080/2018 C/W
CRIMINAL APPEAL.NO.100330/2017
IN CRIMINAL APPEAL NO.100080/2018
BETWEEN
1. RAJU MANDAL S/O. HARILAL MANDAL
AGED ABOUT 25 YEARS,
SECURITY GUARD,
R/O. P B S MINES PLOT,
SHANKARA NAGARA CAMP,
HOSAPETE,
BALLARI DISTRICT,
PERMANENT R/O. BIRGRAM VILLAGE,
HIRANPUR POST,
PAKKUR DISTRICT,
PALAMAU JHARKHAND.
2. RAM NARESH MURMU
S/O. BADAKU MURUM,
AGED ABOUT 40 YEARS,
SECURITY GUARD,
R/O. P B S MINES PLOT,
SHANKARA NAGARA CAMP,
HOSAPETE,
BALLARI DISTRICT,
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PERMANENT R/O. GUDIYARA DMUR,
THATHA THASIL,
JAMUI, BIHAR.
... APPELLANTS
(BY SMT. ARUNA DESHPANDE, ADV)
AND
THE STATE OF KARNATAKA
THROUGH RURAL POLICE STATION,
HOSAPETE,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C., SEEKING TO CALL FOR
RECORDS ON THE FILE OF III ADDL. DISTRICT AND
SESSIONS JUDGE, BALLARI SITTING AT HOSAPETE IN
S.C.NO.5002/2016 AND SET ASIDE THE ORDER OF
CONVICTION DTD.14.08.2017 AND SENTENCE DATED
17.08.2017 BY ACQUITTING THE APPELLANTS FOR
THE OFFENCES PUNISHABLE UNDER SECTION 302,
201 READ WITH 34 OF IPC.
IN CRIMINAL APPEAL.NO.100330/2017:
BETWEEN
RAJKUMAR YADAV S/O PRADEEP YADAV
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AGE: 20 YEARS, OCC: SECURITY GUARD
R/O: PBS MINES PLOT SHANKARANAGAR CAMP
HOSAPETE BALLARI DIST PERMANENT
R/O BIRGRAM VILLAGE HIRANPUR POST,
PAKKUR DIST PALAMAU JHARKHAND.
... APPELLANT
(BY SRI. B. ANWAR BASHA, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH RURAL POLICE STATION HOSAPETE,
REP BY ITS STATE PUBLIC PROSECUTOR HIGH
COURT OF KARNATAKA DHARWAD.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP.)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS ON
THE FILE OF III ADDL. DISTRICT & SESSIONS JUDGE,
BALLARI SITTING AT HOSAPETE IN S.C.
NO.5002/2016 AND SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 17.08.2017 BY
ACQUITTING THE APPELLANT FOR THE OFFENCES
PUNISHABLE U/SEC.302, 201 R/W SEC.34 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON
14.09.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, M.G.UMA, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The appellant-accused No.2 has preferred Crl.A.100330/2017 and accused Nos.1 and 3 have preferred Crl.A.No.100080/2018 aggrieved by the impugned judgment of conviction and order of sentence dated 14.08.2017 passed in S.C.No.5002/2016 on the file of the learned III Additional District and Sessions Judge, Ballari, (for short referred to as 'the trial Court') convicting the accused for the offences punishable under Sections 302, 201 r/w 34 of Indian Penal Code (for short referred to as 'the IPC) and sentencing them to undergo imprisonment and to pay fine with default sentence.
2. Heard the learned counsel Smt. Aruna Deshpande for accused Nos.1 and 3 and Sri. B.Anwar Basha for accused No.2 and the learned Additional SPP- Sri.V.M.Banakar for respondent-State.
3. Brief facts of the case as made out by the prosecution are that accused Nos.1 to 3 who were staying with the deceased Anil Prasad Yadav, picked up -5- quarrel with him, on 22/9/2015 at 8.30pm, in Shankar Nagar Camp by the side an old garage in Survey No.208C of Ingalagi in P.B.S. Mines plot. The accused No.1 with the common intention to eliminate the deceased assaulted him with stone on his head while accused Nos.2 and 3 were holding him and accused Nos.2 and 3 assaulted the deceased with knife on his neck. The accused thus caused his death. Further, accused Nos.1 to 3 in order to destroy the evidence of committing the crime, shifted the dead body from the scene of occurrence and thereby committed the offences punishable under Sections 302 and 201 r/w 34 of IPC.
4. It is contended that, the informant-PW1 lodged the first information as per Ex.P1 setting the criminal law into motion against unknown persons who might have caused the death of the deceased. On the basis of this information, the FIR as per Ex.P18 was registered. Accused Nos.1 to 3 were subsequently apprehended. Their voluntary statements were recorded which subsequently led to the recovery of the -6- incriminating material, viz., the knife used in commission of the offence by the accused. The railway tickets booked by accused Nos.1 and 2 with an intention to flee from Hospet, along with their mobile phones were also recovered from the accused. The investigating officer after completing the investigation, filed charge sheet against accused for the above said offences. The jurisdictional Magistrate took cognizance of the offences and committed the matter to the learned Principal District and Session Judge, Ballari, who inturn made over the matter to the trial Court for trial. The trial Court secured the presence of accused Nos.1 to 3. Accused have pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its contention, got examined PWs.1 to 18, got marked Exs.P1 to P29 and identified MOs.1 to 18. Accused Nos.1 to 3 have denied all the incriminating materials available on record in the statement recorded under Section 313 of Cr.P.C., but have not chosen to lead any -7- evidence in support of their defence. The trial Court after taking into consideration all the materials on record has came to the conclusion that the prosecution is successful in proving the guilt of the accused for the offences punishable under Sections 302 and 201 r/w 34 of IPC and has passed the impugned judgment of conviction and order of sentence against the accused. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused Nos.1 and 3 have preferred Crl.A.100080/2018 and accused No.2 has preferred Crl.A.100330/2017 on various grounds.
6. Learned counsel for the appellants submitted that the impugned judgment of conviction and order of sentence passed by the trial Court is illegal, perverse and same is liable to be set aside. The trial Court has not taken into consideration the oral and documentary evidence placed before it in proper perspective. The trial Court has ignored the fact that the first information as per Ex.P.1 was lodged against -8- unknown persons. There are no eye-witnesses to the incident and prosecution relies on the circumstantial evidence to prove its contention. But the prosecution has failed to place all the links in the chain circumstances against the accused but inspite of that, the trial Court proceeded to convict the accused without any basis. The so-called voluntary statement by accused Nos.1 to 3 and the recovery of the material objects at the instance of the accused are not proved. Ex.P12-the seizure Mahazar is not proved by the prosecution, but in spite of that the trial Court placed reliance on the voluntary statement and the seizure Mahazar without any basis. The impugned judgment of conviction and order of sentence passed by the trial Court has caused miscarriage of justice as the same is not supported by sound reasoning. The prosecution has failed to establish the link between the crime and accused Nos.1 to 3. Under such circumstances, the trial Court should have extended benefit of doubt to the accused and they should have been acquitted. -9- Therefore, the learned counsel for the appellants prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court and to acquit them for the charges leveled against them.
7. Per contra, the learned Addl. SPP supporting the impugned judgment of conviction and order of sentence submitted that the impugned judgment of conviction and order sentence is well reasoned order and there are no reason to interfere with the same. Even though the first information was lodged by PW1 as per Ex.P1, at the initial stage against unknown persons, during investigation, suspicious conduct of the accused resulted in their apprehension and thereafter, the investigating officer recorded their voluntary statements which ultimately led to recovery of the incriminating materials. The prosecution has led both the oral and documentary evidence to prove the conduct and apprehension of the accused, recording the voluntary statement, recovery of the incriminating materials at the
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instance of the accused. The postmortem report which is as per Ex.P28 discloses that the death of the deceased was due to traumatic asphyxia/ hypovolemia shock due to neck laceration anteriorly. Weapons i.e. stone-MO5 and knife-MO14 used in commission of the offences were examined by PW16 who conducted the postmortem examination and he has given his opinion as per Ex.P29. The RFSL report as per Ex.P27 discloses that the weapons and clothes which were recovered at the instance of the accused were stained with 'O' group human blood, which was also found on the clothes that which were on the body of the deceased. Even though all the prosecution witnesses were cross examined at length, nothing has been elicited from them to disbelieve their version. The accused have not adduced any evidence nor taken any defence to probabalise any other possibility. The prosecution is successful in establishing all the links in the chain of circumstances and is successful in proving the guilt of accused Nos.1 to 3 for the offences punishable under Sections 302 and
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201 r/w Section 34 of IPC beyond reasonable doubt. The trial Court has appreciated the oral and documentary evidence placed before it in proper perspective and proceeded to convict the accused. There are no grounds to interfere with the same. Hence, he prays for dismissal of both the appeals as devoid of merits.
8. The prosecution in order to prove its contention that it was accused Nos.1 to 3, who were residing with the deceased and who were cooking and dining together, are responsible for causing the homicidal death of the deceased, is relaying on the evidence of the first informant-PW1, the panchs for the recovery Mahazar Ex.P12-PW3, the scribe of the first information and the other employees in the security agency viz., PWs.5 and 6, the police officials PWs.9 and 12 who assisted the investigating officer, PW16 the doctors who conducted the postmortem examination and gave the opinion about the weapons, PW18-
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scientific officer who issued RFSL report as per Ex.P27 and the investigating officers-PWs.15 and 17.
9. The death of the deceased is due to traumatic asphyxia/ hypovolemia shock due to neck laceration anteriorly, and therefore, a homicidal death is not in serious dispute. Postmortem report Ex.P28 clearly shows that the death of the deceased was due to traumatic asphyxia/ hypovolemia shock due to neck laceration anteriorly. PW16 has deposed before the Court, stating that the weapons viz., MO5-stone and MO14-knife could cause the injuries found on the dead body and he has also given his opinion as per Ex.P29. Even though this witness was cross examined by the learned counsel for the accused, nothing has been elicited from him to disbelieve his version. PW18- chemical examiner has also spoken about examining the material objects seized by the investigating officer and finding 'O' group human blood on all the articles except the sample mud collected from the scene of occurrence. From these materials, it is not only clear
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that the death of the deceased was homicidal but was also caused by the stone-MO5 and knife-MO14.
10. Admittedly, there are no eye eye-witnesses to the incident. The prosecution is relying on the circumstantial evidence to prove the guilt of the accused. The circumstances relied on by the prosecution are (i) motive for the accused to commit the offence, (ii) the conduct of the accused immediately after the occurrence, (iii) recovery of the incriminating materials from the person of the accused and (iv) also at their instance to complete the chain. We have to consider these circumstances relied on by the prosecution one by one to find out as to whether the prosecution is successful in proving its contention and proving the guilt of the accused beyond reasonable doubt.
11. The first circumstance relied on by the prosecution is motive for accused Nos.1 to 3 to commit the offence in question. The prosecution witnesses deposed that PW1 was running the security agency.
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The deceased and all the three accused were working as security guards under PW1 and the deceased and the accused were staying and were having their food together. It is the further contention of the prosecution that on the date of incident, there was a quarrel between the deceased and the accused in the matter of preparing and having the food. PW1 in his evidence, while speaking about these facts also states that the deceased and the accused along with others were working as security guards and PW5-Krishna Reddy was the Mines Manager, where the deceased and the accused were deployed as security guards.
12. PW5 in his evidence reiterated these facts and further stated that the deceased and the accused were staying in a single room and they used to have the food together. Witness also states that in the matter of having the food, there was some quarrel between the accused and the deceased which has resulted in causing the death of the deceased. Even though PWs1 and 5 were cross examined by the learned counsel for
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the accused, the fact that the accused and deceased were staying and dining together in a room is not disputed. Even the fact that there was a quarrel between the deceased and the accused on the date of incident in the matter of having the food as deposed by PW.5 is also not disputed. It is suggested to these witnesses that some miscreants have came to commit theft and they caused the death of the deceased. The suggestion is denied by these witnesses.
13. PW6 being the store keeper, also stated that the deceased and accused were working in the plant together and they were preparing their food and they used to quarrel in the matter of preparation and having the food. Except suggesting that the witness is deposing falsely, nothing has been elicited from this witness as well. Therefore, from these evidence placed before the Court, the prosecution is successful in proving that the deceased and the accused were staying and dining together and they used to quarrel and on the date of incident also, there was a quarrel between them.
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14. It is the contention of the prosecution that accused Nos.1 and 2 were with PW1, when the police have came to the spot after registration of the first information and subsequently, both these accused have fled from the spot and their mobile phones found switched off and thereafter, they were found near Ballari railway station with railway tickets booked to go to Howrah in West Bengal. PW1 in his evidence stated regarding registration of the FIR and also stated that the police have come to the spot at 12.00 noon on 23/9/2015. At that time, accused Nos.1 and 2 were with him and subsequently, both the accused have fled. When he tried to contract them, their mobile phones were found switched off. This witness also stated that on 24/9/2015, he came to know that accused Nos.1 and 2 were found in the Ballari railway station as they attempted to flee to their village. Except denying the say of this witness that the accused have fled on seeing the police, and their cell phones being switched off,
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nothing has been elicited form this witness during cross examination.
15. PW6 in his evidence stated that on the date of incident, all other workers were in the mines, except these accused Nos.1 to 3 and subsequently they were apprehended by the police, when they were in Ballari. PW9 is the police constable, and he has deposed that he was instructed by the investigating officer to trace accused Nos.1 to 3 who were missing from the scene of offence and accordingly, he could trace accused Nos.1 and 2 in Ballari railway station with railway tickets to go to their village.
16. PW15 is the police inspector who registered the FIR deposed before the Court that immediately after registration of FIR, these accused were found absconding and the informant had given his further statement suspecting about their conduct.
17. PW17-the PSI also stated that on 24/9/2015, he along with his staff could apprehend accused Nos.1 and 2 in Ballari railway station at
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6.00am., and they were having the railway tickets to go to Howrah. Those railway tickets along with the cell phones were subsequently seized by the investigating officer.
18. As per Section 8 of the Evidence Act, the motive and the subsequent conduct on the part of the accused are the relevant facts to be proved by the prosecution. When there are no eye witnesses to the incident, the motive on the part of the accused plays an important role in proving the guilt of the accused. Similarly, the subsequent contact of the accused give rise to a reasonable doubt and will also supply a link in the chain of circumstances.
19. PW3 is the panch witness to the seizure mahazar Ex.P12. Witness has stated that when he along with the co-pancha-Narasimha were summoned to the police station, accused Nos.1 and 2 were there in the station. Accused No.1 produced a cell phone and two railway tickets. Accused No.2 produced a cell phone and one railway ticket. They have given their
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voluntary statements. Thereafter, they took the panchas and the investigating officer to the place where the dead body was found. From there, the accused have taken the panchas and the investigating officer to a place and accused No.1 showed clothes including the towel and a knife. Witness identified those material objects as per MOs.13 to 16 and stated that Ex.P12- mahazar was drawn recovering those material objects which were seized from the custody and at the instance of accused Nos.1 and 2. During cross examination, witness stated that he had not seen writing of Ex.P12 and he had put his signature on several documents. He denied the suggestion that accused did not show or produce any materials and that he is deposing falsely at the instance of PW1. Witness denied the suggestion that accused Nos.1 to 3 have not given any statement in his presence nor they have produced the cell phones or the railway tickets as stated by him. He also denied the suggestion that no material objects were recovered at the instance of the accused as stated by him.
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20. PW5 apart from stating that the accused and the deceased was staying and dining together and also about the quarrel between them, stated that at the scene of occurrence where the dead body was found, the things were scattered here and there and he adds that the accused have tried to create an impression that some unknown persons have came to commit theft and during the course of committing the theft, they committed the murder. During cross examination, witness stated that the knife which was recovered at the instance of the accused, was laying nearby the scene of occurrence, but it was not found when initially he had gone to the spot. This witness also denied the suggestion that he is deposing falsely against the accused.
21. PW9 is a police constable who apprehend accused Nos.1 and 2 in the railway station at Ballari. Witness stated that he traced accused Nos.1 and 2 at Ballari and brought them to the police station. Accused Nos.1 and 2 trying to flee to their village. Railway
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tickets were with them. Witness identified MOs.10 to 18 and stated that these material objects were seized from the accused. Even though this witness was cross examined, nothing has been elicited from him to disbelieve his version.
22. PW15 is the investigating officer who deposed regarding the investigation conducted by him. Witness stated that on 24/9/2015, accused Nos.1 and 2 were traced at 8.30 a.m, in Ballari railway station, they were produced before him in the police station. He enquired accused Nos.1 and 2 and recorded their voluntary statement. The accused have revealed the participation of accused No.3 in commission of the offence. Thereafter, accused No.3 was also apprehended. Witness stated that accused Nos.1 and 2 have produced two cell phones and three railway tickets. A mahazar as per Ex.P12 was drawn by seizing those articles. Since the accused have stated in their voluntary statement that they will show the scene of occurrence and also the weapon i.e the knife used in
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commission of the offence, they went along with the accused. Accused Nos.1 and 2 have taken him to the scene of occurrence and thereafter, produced the knife, uniform shirt, pant and a towel at a place which was about 200mtrs. away from the scene of occurrence. All those materials which were recovered at the instance of accused Nos.1 and 2 were identified as MOs.10 to 18 and witness stated that he had noted all the recovery in Ex.P12. During cross examination, witness denied the suggestion that the knife in question was laying at the scene of occurrence. He also denied the suggestion that a false statement was prepared by him as voluntary statement of the accused.
23. PW17 is the PSI who assisted the investigating officer in investigation. Witness stated that he along with his colleagues went in search of the accused and on 24/9/2015, at 6.00am, they could trace accused Nos.1 and 2 in Ballari railway station. He identified accused Nos.1 and 2 and stated that they had purchased the railway ticket to go to Howrah. Cell
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phones and railway tickets were seized from their custody. Subsequently, the accused took the investigating officer and panchas to the scene of occurrence and also to an adjoining place and produced the knife and clothes. Witness identified those materials as MOs.11 to 18.
24. If these facts and circumstances are taken into consideration, the prosecution is successful in placing the materials before the Court that accused Nos.1 to 3 and the deceased were staying and dining together while they were working as security guards and on the date of incident, there was a quarrel between them. On the next day morning, the dead body of the deceased was found in the open place near the compound wall, with external injuries shown in the inquest mahazar and also in the postmortem report. The Doctor who conducted postmortem examination specifically stated that the injures found on the dead body could be caused by using MOs.5 and 14. He has also given his opinion in this regard as per Ex.P29.
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25. The conduct of the accused immediately after the incident assumes importance. As per the evidence led by the prosecution, all the three accused were found absconding and even their cell phones were found switched off. Accused Nos.1 and 2 were found in Ballari railway station with railway tickets which are identified as MOs.11 to 13, to go to Howrah from Ballari. There is absolutely no explanation by any of the accused about the conduct which is incriminating.
26. The prosecution also relies on Ex.P12-the seizure mahazar whereunder, the cell phones and the railway tickets which were in the custody of accused Nos.1 and 2 were seized. The voluntary statements of the accused are as per Exs.P24 to 26. In these statements, it could be found that the accused have stated before the investigating officer that they can lead to the scene of occurrence and also can show the place where the weapon and other clothes were concealed. Ex.P12 also states regarding recovery of the knife- MO14, MOs.16-18 i.e. blood stained towel, blood
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stained pant and shirt, at the instance of accused Nos.1 and 2.
27. PW18 is the scientific officer in RFSL Belgaum, deposed that she had examined MOS.1 to 7, 14, 16 to 18 and she found 'O' group human blood on MOs.1 to 6, 14 , 16 to 18. It is pertinent to note that MOs.14, 16 to 18 were recovered at the instance of the accused Nos.1 and 2, were also stained with 'O' group human blood while MOs.1 to 6 i.e. the clothes, stone and blood stained mud from the scene of occurrence were also stained with similar blood. There is absolutely no explanation by the accused about these incriminating materials.
28. When the prosecution is successful in proving that it were accused Nos.1 and 2 who were staying with the deceased in a room and that there was a quarrel between them on the date of incident, the accused are required to explain about the homicidal death of the deceased. Further, when the prosecution proves that accused Nos.1 and 2 have given voluntary
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statement and led the police to recover the knife which was used in commission of the offence and their blood stained cloths, the onus shifts on the accused to explain such recovery of incriminating materials and the blood stains found on their cloths which was also found on the cloths on the dead body of the deceased. But accused Nos.1 and 2 are not having any explanation to any of these incriminating facts. When these facts are proved to be especially within their knowledge, burden will be on these accused to explain the same under Section 106 of the Excise Act. When the accused do not have any explanation about these incriminating circumstances, which are especially within their knowledge, that will provide an additional link to the chain of circumstances for the prosecution to prove the guilt of the accused.
29. The prosecution contended that the accused have committed the offence punishable under Section 201 of IPC i.e., the accused have caused disappearance of the evidence for the purpose of screening the
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commission of the offence. The allegation in this regard against the accused is that after causing the death of the deceased, the dead body was thrown by the side of the compound wall and the shirt of the deceased was thrown on the dead body to conceal its face and thereby they tried to cause disappearance of the evidence or to screen the commission of the offence. As per Ex.P19 the spot sketch the dead body was found just about 23 feet away from the spot where the deceased was done to death. The accused have not done any other act except throwing the dead body by the side of the compound wall and also thrown the shirt on the face of the deceased.
30. As per Section 201 of IPC, to constitute an offence four ingredients have to be satisfied, (i)that an offence was committed, (ii) that the accused knew or had reason to believe that such an offence had been committed; (iii) that the accused caused evidence thereof to disappear; and (iv) that the accused caused disappearance of the evidence with intention of
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screening the offender from legal punishment. The basic requirement is disappearance of evidence about commission of the offence. In that light, on perusal of evidence, there is no evidence to show that the accused caused disappearance of the evidence of commission of the offence or screened the offence or the offender. Therefore, the accused are not liable for conviction under Section 201 of IPC.
31. It is the contention of the prosecution that accused Nos.1 and 2 along with accused No.3 committed the offence punishable under Section 302 of IPC and accused No.3 with common intention to cause the death of the deceased joined hands with accused Nos.1 and 2. The discussions held above disclose that PW1 has stated regarding the presence of accused Nos.1 and 2 with him when the police arrived at the scene of occurrence and subsequently alleged that accused Nos.1 and 2 fled from the spot and further their mobile phones were switched off. It is further the contention of the prosecution that it was accused Nos.1 and 2 who
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were apprehended near Ballari railway station and railway tickets were seized from their custody. It was accused Nos.1 and 2 who have given their voluntary statement and led the police to place and produce the knife and the blood stained clothes which were recovered under Ex.P12. Accused No.3 was not alleged to have absconded immediately after the incident nor any material object was recovered at his instance on the basis of the so called voluntary statement. Under such circumstances, the prosecution has not proved the commission of the offence by accused No.3 by placing any positive evidence before the Court. Whereas the evidence against accused Nos.1 and 2 is sufficient to form a complete chain regarding their role in commission of the offence. Therefore, we are of the opinion that the prosecution is successful in proving the guilt of accused Nos.1 and 2 but failed to prove the guilt of accused No.3 by placing clinching materials. Hence, the benefit of doubt is to be extended to accused No.3
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regarding his role in commission of the offence and he is liable to be acquitted.
32. It is well established principle that the accused are having the right to silence and it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. But when the prosecution placed clinching and incriminating materials against them to prove their guilt, the accused are required to explain such incriminating materials. In the absence of such explanation, that will definitely supply an additional link to the chain of circumstances which will enable the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, we are of the opinion that even when prosecution is successful in placing several incriminating materials with chain of circumstances to prove the guilt of accused Nos.1 and 2, have nothing to say about any of such circumstances or incriminating materials in their defence. The prosecution which is relying on several circumstances to connect these accused to the offences in question, is successful in
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connecting all those links in the chain of circumstances to make it complete. No reasonable doubt will remain in the mind of the Court to extend the benefit of doubt to these accused. Hence, accused Nos.1 and 2 are liable to be convicted.
33. We have gone through the judgment of conviction and order of sentence passed by the trial Court. It has reached the right conclusion in convicting the accused Nos.1 and 2 for the offences punishable under Sections 302 r/w 34 of IPC. The trial Court proceeded to convict accused Nos.1 to 3 for the offences punishable under Section 201 of IPC and also convicted accused No.3 for the offence punishable under Section 302 of IPC, even though there are no incriminating material against them for these offences. Therefore, the impugned judgment of conviction and order of sentence passed against accused Nos.1 and 3 for the offence punishable under Section 201 of IPC and the said impugned judgment against accused No.3 for the offence punishable under Section 302 read with Section
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34 of IPC is liable to be set aside by modifying the impugned judgment of conviction and order of sentence.
34. Before parting with the matter, it is to be highlighted that the trial Court could have been more alert during the trial. While marking the voluntary statements of accused Nos.1 to 3, it has marked the entire statement of these accused instead of marking the portion which is the relevant fact to be proved under Section 27 of the Indian Evidence Act. Similarly, we find the statements of accused Nos.1 to 3 under Section 313 of Cr.P.C. was not recorded separately. But there is a common statement for all the three accused. Of course, the accused have not raised any objections nor it was contended before us that any prejudice was caused to the accused. However, the trial Court could have avoided these procedural lapses during trial. Even though we observe these irregularities during the course of trial, we do not opine that prejudice is caused to the accused and in the light of the circumstances
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discussed, accused Nos.1 and 2 cannot seek their acquittal on such grounds.
35. For the reasons discussed above, we proceed to pass the following:
ORDER Criminal Appeal No.100330/2017 filed by the appellant/accused No.2 and Criminal Appeal No.100080/2018 filed by accused Nos.1 and 3 are allowed in part.
The impugned judgment of conviction and order of sentence dated 14.08.2017 passed in S.C.No.5002/2016 on the file of the learned III Additional District and Sessions Judge, Ballari is modified as under:
Accused Nos.1 and 2 are found guilty for the offence punishable under Section 302 read with Section 34 of IPC and the sentence recorded by the trial Court for the above said offence is confirmed.
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Accused Nos.1 and 2 are acquitted for the offence punishable under Section 201 read with Section 34 of IPC.
Accused No.3 is acquitted for the offences punishable under Section 302 and 201 read with Section 34 of IPC.
Bail bonds executed by accused No.3 and that of his sureties stand canceled.
Fine amount deposited by accused Nos.1 and 2 for the offence punishable under Section 201 r/w 34 of IPC and the fine amount deposited by accused No.3 for all the offences, are ordered to be refunded on due identification.
Send back the trial Court records along with the copy of the judgment.
Sd/-
JUDGE Sd/-
JUDGE Vmb